Zachery Lewis v. State of Indiana ( 2012 )

FILED
Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before Feb 24 2012, 8:47 am
any court except for the purpose of
establishing the defense of res judicata, CLERK
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ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JEREMY K. NIX GREGORY F. ZOELLER
Huntington, Indiana Attorney General of Indiana
JAMES B. MARTIN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
ZACHERY LEWIS, )
)
Appellant-Defendant, )
)
vs. ) No. 35A02-1108-CR-796
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE HUNTINGTON SUPERIOR COURT
The Honorable Jennifer E. Newton, Judge Pro Tempore
Cause No. 35D01-1106-CM-355
February 24. 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
MAY, Judge
Zachery Lewis appeals his sentence of one year in jail for two counts of Class A
misdemeanor battery resulting in bodily injury.1 We affirm.
FACTS AND PROCEDURAL HISTORY
On June 7, 2011, Lewis and his cellmate at the Huntington County jail had a
disagreement over how loud the cellblock television should be. Lewis punched his cellmate
in the head with his fist. The next day, as the cellmate was packing up to move to another
cell, Lewis jumped over a table and tackled him. The cellmate fell and sustained a laceration
to his head.
At the time, Lewis was being held on charges of Class C felony intimidation and Class
D felony residential entry. After the incidents of battery on his cellmate, he was charged with
two counts of Class A misdemeanor battery resulting in bodily injury, which carries a
sentence of up to one year. Ind. Code § 35-50-3-2. Lewis agreed to plead guilty, and the
sentencing court imposed the maximum sentence on both counts and ordered them served
concurrently with each other but consecutively to any sentence on his pending intimidation
and residential entry charges.
DISCUSSION AND DECISION
The Indiana Constitution authorizes independent appellate review and revision of a
sentence. Carroll v. State, 922 N.E.2d 755, 757 (Ind. Ct. App. 2010), trans. denied. That
authority is implemented through Appellate Rule 7(B), which provides a court may revise a
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Ind. Code § 35-42-2-1(a)(1)(A).
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sentence authorized by statute if, after due consideration of the trial court’s decision, the
court finds the sentence inappropriate in light of the nature of the offense and the character of
the offender. The burden is on the defendant to persuade the reviewing court that his
sentence is inappropriate. Carroll, 922 N.E.2d at 757.
As for the nature of the offense, the sentencing court noted Lewis battered the same
cellmate twice in two days. The record includes evidence the first battery was over a trivial
matter – the volume of the cellblock television – and Lewis was the instigator. The victim
was taken to a hospital after the second attack. Lewis attacked him after the victim made a
provocative gesture. We cannot find a one-year sentence inappropriate based on the nature
of Lewis’ offense.
As for Lewis’ character, he has a substantial criminal history including convictions of
battery, battery with bodily injury, operating while intoxicated, resisting law enforcement,
and disorderly conduct. These were apparently all misdemeanor convictions, but at the time
of his offenses, Lewis was in jail on pending felony charges of intimidation and residential
entry. We acknowledge Lewis entered a guilty plea, and that generally a defendant who
pleads guilty deserves some mitigating weight be given to the plea in return. McElroy v.
State, 865 N.E.2d 584, 591 (Ind. 2007). But a guilty plea is not necessarily a mitigating
factor where evidence against the defendant is so strong that the decision to plead guilty is
merely pragmatic. Amalfitano v. State, 956 N.E.2d 208, 212 (Ind. Ct. App. 2011). Lewis’
attacks took place in a jail cellblock and were recorded by video cameras. There were
numerous witnesses. Therefore, his decision to plead guilty was likely pragmatic. We
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cannot say Lewis’ sentence was inappropriate based on his character.
We accordingly affirm the sentencing court.
Affirmed.
CRONE, J., and BROWN, J., concur.
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