Braunel Mackey v. State of Indiana ( 2014 )

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before Jun 25 2014, 10:00 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
VALERIE K. BOOTS GREGORY F. ZOELLER
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana
LARRY D. ALLEN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
BRAUNEL MACKEY, )
)
Appellant-Defendant, )
)
vs. ) No. 49A02-1310-CR-873
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Steven Eichholtz, Judge
Cause No. 49G20-1303-FB-14423
June 25, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
MAY, Judge
Braunel Mackey appeals his fifteen-year sentence for class B felony unlawful
possession of a firearm by a serious violent felon (“SVF”).1 He asserts that sentence is
inappropriate in light of his character and offense. We affirm.
FACTS AND PROCEDURAL HISTORY
On March 2, 2013, at 1:30 a.m., as Mackey entered Babe’s West, a strip club in
Indianapolis, he attempted to bypass the security pat-down. Melvin Hall, one of the club’s
security guards, stopped him. Hall conducted a routine pat-down on Mackey and felt the
slide of a pistol in Mackey’s crotch area. Hall alerted other security guards while keeping his
hand on the handgun in Mackey’s pants. Mackey struggled with Hall and continuously tried
to reach the handgun. Brandon Levett, another security guard, and Tony Martin, the club
manager, helped Hall handcuff Mackey. While Mackey was handcuffed, Martin retrieved
the handgun from Mackey’s boxers, where Mackey had the grip wedged in between his
buttocks with the barrel pointed toward his penis. Martin handed the handgun to Levett, who
unloaded it and gave it to the police officer who arrived at the scene.
A jury found Mackey guilty of Class B felony unlawful possession of a firearm by an
SVF. The judge requested a presentence report (PSI). Following the sentencing hearing, the
court found three aggravating factors: Mackey’s criminal and arrest history, Mackey’s failure
to complete past Community Corrections placements, and his pending charges for acts
committed while released on bond in this case. The court found no mitigating factors and
ordered a fifteen-year sentence executed at the Department of Correction.
1
Ind. Code § 35-47-4-5.
2
DISCUSSION AND DECISION
Mackey asserts his fifteen-year sentence, which is five years more than the advisory
sentence for a Class B felony, see Ind. Code § 35-50-2-5 (stating advisory sentence for a
Class B felony is ten years), is inappropriate in light of his character and the nature of his
offense. We have the constitutional authority to revise a sentence if, after considering the
trial court’s decision, we conclude the sentence is inappropriate in light of the nature of the
offense and character of the offender. Ind. Appellate Rule 7(B). “We recognize, however,
the special expertise of the trial courts in making sentencing decisions; thus, we exercise with
great restraint our responsibility to review and revise sentences.” Scott v. State, 840 N.E.2d
376, 381 (Ind. Ct. App. 2006), trans. denied. Mackey has the burden on appeal of persuading
us his sentence is inappropriate. See Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).
Regarding the nature of the offense, one factor we may consider in determining the
appropriateness of the deviation from the advisory sentence is “whether there is anything
more or less egregious about the offense committed by the defendant that makes it different
from the typical offense.” Wells v. State, 2 N.E.3d 123, 131 (Ind. Ct. App. 2014), trans.
denied. To commit unlawful possession of a firearm by an SVF, Mackey needed only to
possess a firearm. See Ind. Code § 35-47-4-5 (defining the crime as an SVF who knowingly
and intentionally possesses a firearm). The record reveals Mackey concealed a loaded
handgun in his boxers and tried to enter the club without being searched. Once the security
guard felt the handgun, Mackey struggled with the guards and continuously reached for the
gun. The incident escalated to the point that the guards handcuffed Mackey and called the
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police. Martin testified the club’s normal procedure when a gun is found involves asking the
patron to return it to his or her car and then searching the patron again on reentry. Mackey’s
offense is more egregious because he tried to avoid being searched and because he reached
for the gun as he struggled with security guards. See Morgan v. State, 934 N.E.2d 1246,
1252 (Ind. Ct. App. 2010) (holding escalating danger to people in the area was an
aggravator).
As for Mackey’s character, the record reveals that, as a twenty-three-year old man, he
has a history of both juvenile and adult arrests, convictions of misdemeanors and felonies,
and misconduct reports while in the Department of Correction. Mackey completed one
community corrections placement, but did not complete his most recent placement. While
out on bond awaiting trial on this cause, Mackey engaged in acts for which the State charged
him with unlawful possession of a firearm by an SVF, intimidation, residential entry,
pointing a firearm, and unlawful use of body armor. In Mackey’s PSI, the investigator noted
Mackey lied about his drug use and gambling habits. (PSI at 9-11.) At trial, Mackey claimed
to be “one of the main providers” for his children, (Tr. at 142), but the PSI indicates their
mother provides for them financially. (PSI at 9.) Mackey’s history reveals a disregard for
the law and his character does not suggest this sentence is inappropriate. See Morgan, 934
N.E.2d at 1252 (finding an extensive criminal history and arrest record made a fifteen-year
sentence appropriate for a Class B felony).
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CONCLUSION
In view of Mackey’s character and the nature of his offense, we cannot hold the
sentence imposed by the trial court was inappropriate. Accordingly, we affirm.
Affirmed.
KIRSCH, J., and BAILEY, J., concur.
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