Kevin W. Black v. State of Indiana ( 2012 )

Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before 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:
DAVID M. ZENT GREGORY F. ZOELLER
Leonard Hammond Thomas & Terrill Attorney General of Indiana
Fort Wayne, Indiana
IAN McLEAN
Deputy Attorney General
Indianapolis, Indiana
FILED
Dec 20 2012, 9:14 am
IN THE
CLERK
COURT OF APPEALS OF INDIANA of the supreme court,
court of appeals and
tax court
KEVIN W. BLACK, )
)
Appellant-Defendant, )
)
vs. ) No. 02A03-1205-CR-209
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE ALLEN SUPERIOR COURT
The Honorable Wendy W. Davis, Judge
Cause No. 02D05-1202-FD-205
December 20, 2012
MEMORANDUM DECISION – NOT FOR PUBLICATION
RILEY, Judge
STATEMENT OF THE CASE
Appellant-Defendant, Kevin W. Black (Black), appeals his sentence for battery, a
Class D felony, Ind. Code § 35-42-2-1; and resisting law enforcement, a Class A
misdemeanor, I.C. § 35-44.1-3-1.
We affirm.
ISSUE
Black raises one issue on appeal, which we restate as: Whether Black’s sentence
is appropriate in light of his character and the nature of his crime.
FACTS AND PROCEDURAL HISTORY
At approximately 11:45 p.m. on February 3, 2012, forty-eight year old Black
assaulted his sixty-seven year old mother, Shirley Harper (Mother), in her residence.
Black kneed his Mother in her left rib cage, punched her in the right eye, and twisted her
right wrist to the point she was afraid it was broken. During the assault, Mother managed
to call the police. When Officer Souther of the Fort Wayne Police Department arrived at
Mother’s home, he noticed swelling to Mother’s right eye and right wrist. Mother’s
glasses were bent and she had a red mark on the left bridge of her nose. Mother told the
officer that Black had “threatened to kill her and blamed her for sending him to prison”
because she had reported a previous battery. (Appellant’s App. p. 11).
Officers Crowder and Buffenbarger located Black one block east of Mother’s
residence and arrested him. Because Black smelled of alcoholic beverages and was
unsteady on his feet, the Officers transported him to St. Joseph’s Hospital for medical
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clearance. During the transport, Black threatened to kill Officer Crowder, stating “I’ll
kill you when I get the hell out of this lying mess.” (Appellant’s App. p. 11). He also
mentioned his “connections with the Outlaw motorcycle gang.” (Appellant’s App. p 11).
After the hospital gave Black a medical clearance, Black forcefully pulled away from
Officer Crowder when the Officer attempted to handcuff him again.
On February 8, 2012, the State filed an Information, charging Black with Count I,
battery, a Class D felony,1 I.C. § 35-42-2-1; and Count II, resisting law enforcement, a
Class A misdemeanor, I.C. § 35-44.1-3-1. On March 28, 2012, Black pled guilty as
charged without the benefit of a plea agreement. On April 30, 2012, during the
sentencing hearing, the trial court considered:
the following circumstances are aggravating: [c]riminal history includes 20
misdemeanors; 6 felonies, probation revoked 3 times; 4 sentences modified;
revoked from work release; revoked from parole twice; 4 battery
convictions; facts and circumstances of this case; prior attempts at
rehabilitation have failed.
Mitigator: [p]lea of guilty; taken responsibility.
(Appellant’s App. p. 36). At the close of the hearing, the trial court sentenced Black to
three years executed for his battery conviction and 1 year executed on his resisting arrest
conviction, with sentences to run concurrently.
Black now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
Black contends that his sentence is inappropriate in light of his character and
nature of the offenses. A person who commits a Class D felony shall be imprisoned for a
1
Although the State originally filed the battery as a Class A misdemeanor, Black’s prior battery
conviction against the same victim made the offense a Class D felony.
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fixed term of between six months and three years, with the advisory sentence being one
and one half years. I.C. § 35-50-2-7. A person who commits a Class A misdemeanor
shall be imprisoned for a fixed term of not more than one year. Here, the trial court
imposed the maximum sentence under the statute.
As long as the sentence is within the statutory range, it is subject to review only
for an abuse of discretion. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), aff’d on
reh’g, 875 N.E.2d 218 (Ind. 2007). Although a trial court may have acted within its
lawful discretion in determining a sentence, Appellate Rule 7(B) provides that the
appellate court may revise a sentence authorized by statute if the appellate court finds that
the sentence is inappropriate in light of the nature of the offense and the character of the
offender. Id.With respect to the nature of Black’s crime, we note that Black assaulted his sixty-
seven year old Mother who provided him with a place to live while he was out of prison.
He kneed her in the ribs and struck her in the eye. Despite the seriousness of this offense,
this was not the first time Black had assaulted his Mother; rather, this was the fourth
assault and this time, he blamed her for sending him to prison for the previous assault. In
addition, Black threatened to kill the police officers who came to his Mother’s aid.
Turning to his character, Black reveals to have an extensive criminal history. His
life of crime spans nearly three decades ranging from public intoxication to battery.
Specifically, Black has multiple convictions for public intoxication, driving while
intoxicated, possession of marijuana, resisting law enforcement, and four battery
convictions. Despite restrictions imposed during Black’s numerous periods of probation,
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he continued to abuse alcohol and illegal drugs. Although he received substance abuse
treatment on four different occasions, none of these treatments were successful.
Claiming that he does not fit in the category of “worst of the worst” offenders,
Black now asserts that a reviewing court “should concentrate less on comparing the facts
of this case to others, whether real or hypothetical, and more on focusing on the nature,
extent, and depravity of the offense for which the defendant is being sentenced and what
it reveals about the defendant’s character.” (Appellant’s Br. p. 11, quoting Brown v.
State, 760 N.E.2d 243, 247 (Ind. Ct. App. 2002), trans. denied). Accepting Black’s
invitation, we fail to see how a son beating his sixty-seven year old mother for the fourth
time is anything but immoral and depraved. As the trial court stated at the sentencing
hearing: “I saw the photographs of what you did to your mother and with your history of
battery, I don’t know, I kind of look at that and I think at some point, when are you going
to really hurt someone and kill them ‘cause I’m sure you’re stronger than she is with her
age.” (Transcript p. 14).
We affirm the trial court’s imposition of Black’s sentence.
CONCLUSION
Based on the foregoing, we conclude that Black’s sentence is appropriate in light of
his character and the nature of the crime.
Affirmed.
BAKER, J. and BARNES, J. concur
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