Deandrew Russell v. State of Indiana ( 2014 )

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
May 28 2014, 9:45 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:
DANIEL J. MOORE GREGORY F. ZOELLER
Laszynski & Moore Attorney General of Indiana
Lafayette, Indiana
RICHARD C. WEBSTER
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
DEANDREW RUSSELL, )
)
Appellant-Defendant, )
)
vs. ) No. 79A04-1308-CR-389
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE TIPPECANOE SUPERIOR COURT
The Honorable Thomas H. Busch, Judge
Cause No. 79D02-1108-FC-41
May 28, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
BAILEY, Judge
Case Summary
Deandrew Russell (“Russell”) was tried in absentia and convicted of Criminal
Confinement, as a Class C felony,1 and Residential Entry, as a Class D felony.2 He appeals,
challenging his eight-year sentence for Criminal Confinement.3 He presents the sole issue of
whether that sentence is inappropriate. We affirm.
Facts and Procedural History
On July 29, 2011, Russell kicked in the door of the Lafayette, Indiana apartment
shared by Jessica Dayhuff (“Dayhuff”) and Bianca Sharp (“Sharp”). Russell, his sister, and a
male companion burst in uninvited. Russell began to yell at Dayhuff and Sharp, accusing
them of involvement in his cousin’s murder earlier that evening and demanding answers to
his questions. Dayhuff, too frightened to speak, remained silent. Sharp responded that she
and Dayhuff were not involved, and she tried to explain to Russell that the perpetrators had
already been arrested.
Unappeased, Russell kicked Dayhuff in the face. He ordered his sister to strike
Dayhuff and she began to do so. Russell and the other male joined in beating Dayhuff, who
curled into a ball on the sofa in an attempt to avoid some of the blows. The beating
continued for “probably five to seven minutes.” (Tr. 31.) Dayhuff sustained multiple facial
fractures, affecting the nasal bone and the left maxillary bone. She also sustained multiple
contusions.
1
Ind. Code § 35-42-3-3.
2
I.C. § 35-43-2-1.5.
3
Russell does not challenge his concurrent three-year sentence for Residential Entry.
2
The trio left the apartment, after Russell admonished Dayhuff and Sharp to “watch
their backs” because they would be killed. (Tr. 71.) The women obtained a cell phone from
a neighbor and summoned police and ambulance assistance.
Dayhuff was able to identify Russell as one of her attackers. He was charged with
Criminal Confinement, as a Class B felony, Residential Entry, as a Class D felony, and
Battery, as a Class A misdemeanor. Russell did not appear for trial and was tried in absentia.
The jury found him guilty of Criminal Confinement, as a Class C felony, and guilty of the
other counts as charged. However, the trial court did not enter a judgment of conviction
upon the battery count.
Russell was sentenced to eight years for the Class C felony conviction and three years
for the Class D felony conviction, to be served concurrently. Six years were to be served in
the Indiana Department of Correction and two years in community corrections. This appeal
ensued.
Discussion and Decision
A person who commits a Class C felony has a sentencing range of between two and
eight years, with the advisory term being four years. I.C. § 35-50-2-6. As such, Russell
received a maximum sentence. When imposing this sentence, the trial court considered
Russell’s lengthy history of misdemeanor convictions, his violation of probation, his flight
while on pre-trial release, the brutality of the crime, and his history of employment and
commitment to his family.
3
The authority granted to this Court by Article 7, § 6 of the Indiana Constitution
permitting appellate review and revision of criminal sentences is implemented through
Appellate Rule 7(B), which provides: “The Court may revise a sentence authorized by
statute if, after due consideration of the trial court’s decision, the Court finds that the
sentence is inappropriate in light of the nature of the offense and the character of the
offender.” In performing our review, we assess “the culpability of the defendant, the severity
of the crime, the damage done to others, and myriad other factors that come to light in a
given case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). The principal role of
such review is to attempt to leaven the outliers. Id. at 1225. A defendant ‘“must persuade
the appellate court that his or her sentence has met th[e] inappropriateness standard of
review.”’ Anglemyer v. State, 868 N.E.2d 482, 494 (Ind. 2007) (quoting Childress v. State,
848 N.E.2d 1073, 1080 (Ind. 2006)).
The nature of Russell’s offense is that he confined Dayhuff on the sofa of her
apartment while physically attacking her. Russell kicked Dayhuff in the face and repeatedly
struck her. He instigated others to join in the attack. Ultimately, Dayhuff sustained multiple
facial fractures and contusions.
Russell has a juvenile adjudication for an act that would be battery if committed by an
adult. He also has a lengthy history of misdemeanors. On numerous occasions, he has failed
to appear for court proceedings. He has had six petitions to revoke probation filed, with one
revocation. When he was released to await trial in this case, he fled to Arkansas. He was
arrested in that state, after having been tried in absentia in Indiana.
4
Having reviewed the matter, we conclude that the trial court did not impose an
inappropriate sentence under Appellate Rule 7(B), and the sentence does not warrant
appellate revision. Accordingly, we decline to disturb the sentence imposed by the trial
court.
Conclusion
Russell’s eight-year sentence, with two years to be served in community corrections, is
not inappropriate.
Affirmed.
KIRSCH, J., and MAY, J., concur.
5