Roy Truman Nelson v. State of Indiana (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before any Jan 17 2020, 10:10 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Ronald J. Moore Curtis T. Hill, Jr.
The Moore Law Firm, LLC Attorney General of Indiana
Richmond, Indiana
Angela N. Sanchez
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Roy Truman Nelson, January 17, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-1562
v. Appeal from the Wayne Superior
Court
State of Indiana, The Honorable Charles K. Todd,
Appellee-Plaintiff Jr. Judge
Trial Court Cause No.
89D01-1903-F6-175
May, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1562 | January 17, 2020 Page 1 of 6
[1] Roy Truman Nelson appeals his sentence for Level 6 felony resisting law
enforcement. 1 He argues his sentence is inappropriate in light of the nature of
his offense and his character. We affirm.
Facts and Procedural History
[2] On March 9, 2019, Officer Tyler Smith and Officer Tyler Shoemaker of the
Richmond Police Department received a dispatch regarding a possible domestic
disturbance at Nelson’s residence. The dispatch relayed that Nelson had left his
house in a burgundy Kia Optima, that Nelson was intoxicated, and that Nelson
did not have a valid driver’s license. The officers located Nelson’s vehicle and
began to follow him in their police car. When the officers got behind Nelson’s
vehicle, Nelson immediately performed a u-turn. The officers also made a u-
turn and activated their emergency lights and siren. However, Nelson did not
pull over. He continued to drive for approximately one mile, and then he
parked in the driveway of his house. The officers exited their car and
repeatedly ordered Nelson to exit his vehicle. Nelson exited his vehicle, but he
disobeyed the officers’ commands to face away from them, to put his hands in
the air, and to walk backward toward them. At one point, Officer Smith
deployed his taser, but it was not effective. Eventually, the officers handcuffed
Nelson.
1
Ind. Code § 35-44.1-3-1 (2016).
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[3] The State charged Nelson with Level 6 felony resisting law enforcement based
on Nelson’s act of fleeing from police officers in a vehicle after the officers
activated their patrol vehicle’s lights and siren. On May 16, 2019, Nelson pled
guilty without a plea agreement. The trial court accepted his plea and entered
the conviction. On June 11, 2019, the trial court held a sentencing hearing. On
June 26, 2019, the trial court sentenced Nelson to an executed term of one and
one-half years in the Wayne County Jail. The trial court found two aggravating
circumstances: (1) Nelson’s significant criminal history, and (2) Nelson’s
commission of the instant offense while on probation for a crime he committed
in Virginia. Additionally, the trial court found Nelson’s acceptance of
responsibility and expression of remorse to be a mitigating circumstance.
Discussion and Decision
[4] We “may revise a sentence authorized by statute if, after due consideration of
the trial court’s decision, [we determine] the sentence is inappropriate in light of
the nature of the offense and the character of the offender.” Ind. Appellate
Rule 7(B). Our role in reviewing a sentence pursuant to Appellate Rule 7(B)
“should be to attempt to leaven the outliers, and identify some guiding
principles for trial courts and those charged with improvement of the sentencing
statutes, but not to achieve a perceived ‘correct’ result in each case.” Cardwell v.
State, 895 N.E.2d 1219, 1225 (Ind. 2008). “The defendant bears the burden of
persuading this court that his or her sentence is inappropriate.” Kunberger v.
State, 46 N.E.3d 966, 972 (Ind. Ct. App. 2015). “Whether a sentence is
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1562 | January 17, 2020 Page 3 of 6
inappropriate ultimately turns 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.” Thompson v. State, 5 N.E.3d 383, 391 (Ind. Ct.
App. 2014).
[5] In assessing the nature of an offense, “the advisory sentence is the starting point
for determining the appropriateness of a sentence.” Pelissier v. State, 122 N.E.3d
983, 990 (Ind. Ct. App. 2019), trans. denied. We assess whether a particular
offense is different from the “typical” offense accounted for by the legislature in
setting the advisory sentence. See Rich v. State, 890 N.E.2d 44, 54 (Ind. Ct. App.
2008), trans. denied. A Level 6 felony is punishable by a term of imprisonment
between six months and two and one-half years, with the advisory sentence
being one year. Ind. Code § 35-50-2-7. Therefore, Nelson’s sentence is above
the advisory sentence but below the maximum sentence. Nelson acknowledges
“his offense was serious in nature and put himself and police in danger.”
(Appellant’s Br. at 15.) We agree and cannot say there is anything about his
offense that makes it more or less egregious than the typical act of using a
vehicle to resist law enforcement. See Rich, 890 N.E.2d at 54 (holding
defendant’s offense was not more or less egregious than a typical burglary).
[6] Nelson argues his sentence is inappropriate in light of his character because he
is remorseful and is capable of being reformed. Nelson notes he was employed
prior to his arrest and he hopes to return to work when released. In assessing a
defendant’s character, one relevant factor is the defendant’s criminal history.
Garcia v. State, 47 N.E.3d 1249, 1251 (Ind. Ct. App. 2015), trans. denied.
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Nelson’s criminal history is significant. Nelson has seven prior felony
convictions, including convictions of robbery with a dangerous weapon and
assault by strangulation in North Carolina, and eleven misdemeanor
convictions, including a previous resisting law enforcement conviction. His
record includes five probation violations. That Nelson committed the current
offense while on probation also reflects poorly on his character. See Eisert v.
State, 102 N.E.3d 330, 335 (Ind. Ct. App. 2018) (stating defendant’s repeated
violations of the terms of pre-trial release and court orders “does not suggest
[he] is a person who respects the law or the court’s authority”), trans. denied.
[7] The trial court considered Nelson’s expression of remorse at sentencing.
Nelson’s employment prior to incarceration and his desire to work when
released from incarceration do not render his sentence inappropriate. See
Holmes v. State, 86 N.E.3d 394, 399 (Ind. Ct. App. 2017) (stating “many people
are gainfully employed; therefore, a defendant’s employment is not necessarily
a mitigating factor”), trans. denied. Therefore, in light of his offense and
character, Nelson’s sentence is not inappropriate. See Garcia, 47 N.E.3d at 1252
(holding sentence above the advisory sentence was not inappropriate given
defendant’s significant criminal history).
Conclusion
[8] Nelson’s sentence is not inappropriate given the nature of his offense and his
character, particularly his significant criminal history and his status as a
probationer at the time of the instant offense. Accordingly, we affirm.
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[9] Affirmed.
Crone, J., and Pyle, J., concur.
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