Maurice v. Brown v. State of Indiana ( 2014 )

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before Jul 07 2014, 9:29 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:
MARCE GONZALEZ, JR. GREGORY F. ZOELLER
Dyer, Indiana Attorney General of Indiana
KARL M. SCHARNBERG
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
MAURICE V. BROWN, )
)
Appellant-Defendant, )
)
vs. ) No. 45A04-1311-CR-554
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE LAKE SUPERIOR COURT
The Honorable Clarence D. Murray, Judge
Cause No. 45G02-1302-FC-17
July 7, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
PYLE, Judge
STATEMENT OF THE CASE
Following a guilty plea, Maurice Vance Brown (“Brown”) appeals his sentence for
his conviction of Class D felony stalking.1
We affirm.
ISSUE
Whether Brown’s sentence is inappropriate pursuant to Indiana Appellate
Rule 7(B).
FACTS
In January of 2013, Leslie Northern (“Northern”) ended a romantic relationship
with Brown. Between January 15th and 30th of 2013, Brown badgered Northern by
making threatening phone calls, leaving threatening voice messages, leaving threatening
text messages, and sending various photographs of his penis. Similarly, via text message,
Brown sent Northern a photograph of her deceased grandmother with a caption that stated,
“Ain’t this your bitch dead ass grandmother[?]” (App. 38). Additionally, Brown sent
naked photographs and videos of Northern to some of Northern’s Facebook friends and to
her landlord. Moreover, Brown told Northern that he had HIV and that he had infected
her. Brown also posted several pictures of Northern on Facebook and claimed on Facebook
that Northern had HIV. Following that, Brown repeatedly called Northern, her friends, and
her family. Brown left several voicemails threatening to harm Northern for putting his
belongings outside.
1
IND. CODE § 35-45-10-5.
2
On January 16, 2013, a trial court issued a protective order for Northern against
Brown. Northern informed Brown of the protective order; however, Brown continued to
call and text Northern. As a result of Brown’s telephone calls and text messages, Northern
changed her telephone number. Brown obtained Northern’s new telephone number and
continued to call and text Northern; Brown also left Northern voicemail messages in which
he called her “derogatory names and threatened to do harm to her[.]” (App. 39).
On January 25, 2013, while Northern was making a report to the police, Brown sent
Northern ten text messages, he called Northern ten times, and he left Northern two
voicemail messages. (App.39). Particularly, Brown left a voicemail message on Nothern’s
phone in which Brown maintained that he “didn’t give a fuck about going to jail.” (App.
39).
On February 4, 2013, the trial court charged Brown with Class C felony stalking
and Class D felony intimidation. (App. vol. 1, 19). On August 19, 2013, pursuant to a
written plea agreement, Brown pled guilty to a reduced charge of Class D felony stalking
in exchange for the State’s dismissal of the Class C felony stalking and Class D felony
intimidation charges. During the guilty plea hearing, Brown entered into a stipulated
factual basis in which he admitted to the facts set forth above. (App. 35-39).
On October 7, 2013, the trial court held a sentencing hearing. During the sentencing
hearing, Brown’s attorney asserted that Brown had “no excuses, whatsoever,” for his
actions other than that this was a “break-up situation” and that Brown had acted “more out
of anger.” (Tr. 25). When Brown addressed the trial court during sentencing, he agreed
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that his actions were merely done “out of anger.” (Tr. 28, 29). When sentencing Brown,
the trial court found Brown’s guilty plea to be a mitigating circumstance. The trial court
also found the following aggravating circumstances: (1) Brown’s thirteen “contacts with
law enforcement[,]” including four misdemeanor convictions; (2) Brown’s recent
probation violation; (3) the nature and circumstances of his crime, particularly Brown’s
posting of nude photographs of Northern on the internet and his threats against Northern’s
life and the lives of her children; (4) Brown’s past gang affiliation with the Latin Kings;
and (5) Brown’s fabrication about exposing Northern to HIV. (App. 41). The trial court
sentenced Brown to the maximum of three (3) years in the Department of Corrections.
Brown now appeals.
DECISION
Brown contends that his three (3) year sentence for his Class D felony stalking
conviction is inappropriate because the trial court did not consider his mental health
disorders.
Under Appellate Rule 7(B), we may revise a sentence if it is inappropriate in light
of the nature of the offense and the character of the offender. Whether a sentence is
inappropriate ultimately depends on “the culpability of the defendant, the severity of the
crime, the damage done to others, and a myriad of other factors that come to light in a given
case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). Our previous jurisprudence
has established that the principle role of a Rule 7(B) standard or review “should be to
attempt to leaven the outliers, and identify some guiding principles for trial courts and those
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charged with improvement of the sentencing statutes, but not to achieve a perceived
‘correct’ result in each case.” Id. at 1225. Moreover, the defendant has the burden of
persuading us that his sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080
(Ind. 2006).
When determining whether a sentence is inappropriate, we acknowledge that the
advisory sentence “is the starting point the Legislature has selected as an appropriate
sentence for the crime committed.” Id. at 1081. The sentencing range for a Class D felony
is between six (6) months and three (3) years, with the advisory sentence being one and
one half (1 ½) years. IND. CODE § 35-50-2-7.
1. The Nature of the Offense
For approximately two weeks, Brown egregiously stalked Northern by sending her
a barrage of disconcerting texts messages and by inundating her phone with phone calls
and voicemail messages. Similarly, Brown sent naked photographs and indecent videos of
Northern to her friends, family, and landlord. Comparatively, in a text message, Brown
sent Northern a photograph of her deceased grandmother with an unsettling message asking
Northern, “Ain’t this your bitch dead ass grandmother[?]” (App. 38). Moreover, Brown
informed Northern that he exposed her to HIV. He also used Facebook to correspond with
Northern’s peers to claim that Northern had HIV. Furthermore, Brown called Northern ten
times and left Northern two voicemail messages while Northern was making a report to the
police. The record highlights the callous nature of Brown’s offense. Brown has not
convinced us that his sentence is inappropriate given the nature of this offense.
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2. The Character of The Offender
As to Brown’s character, the presentence investigation report reveals that Brown
has had thirteen contacts with law enforcement and that he has four misdemeanor
convictions in Cook County Illinois for domestic battery, aggravated assault, obstructing
an officer, and cannabis possession. Moreover, Brown has violated his probation in Cook
County, Illinois. While the presentence investigation report indicates that Brown reported
that a doctor previously diagnosed him with paranoid schizophrenia and manic depression,
it also indicates that Brown’s diagnosis did not require prescription medication. At
sentencing, Brown attributed his behavior towards Northern to his anger with her for
ending their relationship. Conversely, on appeal, Brown blames his actions on mental
illness. Despite his failure to raise his mental illness argument at sentencing, his mental
illness does not mitigate the other facts in the record regarding his character. Anglemyer
v. State, 868 N.E.2d 482, 492 (Ind. 2007) (citing Creekmore v. State, 853 N.E.2d 523, 530
(Ind. Ct. App. 2006) (“[I]f the defendant fails to advance a mitigating circumstance at the
sentencing, this court will presume that the factor is not significant, and the defendant is
precluded from advancing it as a mitigating circumstance for the first time on appeal.”),
clarified on reh’g, 858 N.E.2d 230 (Ind. 2006)), clarified on reh’g, 875 N.E.2d 218 (Ind.
2006). Additionally, Brown called Northern and told her that he “didn’t give a fuck about
going to jail” after Northern informed Brown of her protective order against him and after
Northern changed her phone number. (App. 39). Brown’s history of criminal activity, his
blatant defiance of the protective order, and his recent probation violation reflect poorly on
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his character and indicate that Brown has a disregard for the law. Brown has not persuaded
us that his sentence is inappropriate. Therefore, we affirm the trial court’s sentence.
Affirmed.
FRIEDLANDER, J., and MATHIAS, J., concur.
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