Joseph D. Reed 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 Apr 21 2020, 6:01 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
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
Samantha M. Sumcad
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Joseph D. Reed, April 21, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-2187
v. Appeal from the Wayne Superior
Court
State of Indiana, The Honorable Charles K. Todd,
Appellee-Plaintiff. Jr., Judge
Trial Court Cause No.
89D01-1808-F5-62
Kirsch, Judge.
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[1] Following his conviction for battery resulting in bodily injury to a public safety
official1 as a Level 5 felony with a habitual offender enhancement2, Joseph D.
Reed (“Reed”) was sentenced by the trial court to eight and one-half years
executed. Contending that his sentence is inappropriate in light of the nature of
his offense and his character, Reed now appeals.
[2] We affirm.
Facts and Procedural History
[3] On August 1, 2018, Wayne County Sheriff’s Department Deputies Sonia
Mitchell (“Deputy Mitchell”) and Jeff Lamberson (“Deputy Lamberson”)
brought Reed to the Wayne County jail for processing on another charge. Tr.
Vol. II. at 110, 118. During the book-in procedure, Reed informed officers at
the Wayne County jail that he needed to use the restroom but was told he
would first have to complete the book-in procedure before he could do so. Id. at
110; Appellant’s. App. Vol. 2 at 11. Reed instead “bolted” towards the restroom
and Sergeant Christopher Toby (“Sergeant Toby”) followed him into the
restroom. Tr. Vol. II at 128, 138. Sergeant Toby grabbed Reed by the back of
his jumpsuit in an attempt to bring him back to the book-in counter when Reed
turned around and struck Sergeant Toby in the face and head with closed fists
about “eight or ten” times. Id. at 138. Deputy Lamberson and Deputy Mitchell
1
See Ind. Code § 35-42-2-1.
2
See Ind. Code § 35-50-2-8.
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assisted Sergeant Toby and were able to subdue Reed by tasing him, and Reed
was eventually placed in handcuffs and taken into custody. Id. at 123, 139. As
a result of the altercation, “the top of [Sergeant Toby’s] left ear was cut open[,]”
and Sergeant Toby “had some scrapes on [his] arms” and the “sides of [his]
head were throbbing.” Id. at 139.
[4] On August 2, 2018, the State charged Reed with battery resulting in bodily
injury to a public safety official as a Level 5 felony and also alleged that he was
a habitual offender. Appellant’s App. Vol. 2 at 13, 14. On August 6, 2019, the
trial court commenced a jury trial. Id. at 7.
[5] At the conclusion of the trial, the jury found Reed guilty of battery resulting in
bodily injury to a public safety official as a level 5 felony, and Reed admitted to
being a habitual offender. Id. at 203, 207-219. On September 6, 2019, a
sentencing hearing was held at which the trial court considered the presentence
investigation report, which showed that Reed’s criminal history included
sixteen cases as an adult and two juvenile delinquency petitions. Appellant’s
Conf. App. Vol. 2. at 7, 98-102. The trial court also heard testimony from Reed’s
mother, Kelly Gentry (“Gentry”), regarding his history of mental illness. Tr.
Vol. III at 8-20. Gentry testified that Reed had suffered from rapid cycling
bipolar one disorder since he was eight years of age, which caused cycles that
“just keep coming and they’re hard for [Reed] to handle” and that she believed
he had not taken his medication since “[m]aybe 2016.” Id. at 10-11. Gentry
also stated that if Reed was receiving the appropriate medication for his
conditions that he would be “less likely to be put in this situation again or prior
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situations,” and she expressed her belief that if Reed was taking his medication
he would not have attacked Sergeant Toby. Id. at 13. However, she also
acknowledged that throughout his life Reed was hostile towards his teachers
and other individuals in authority, threatened law enforcement, teachers,
administrators, and other adults, and had exhibited violent tendencies since he
was young. Id. at 17. With respect to counseling for his mental health and
substance abuse issues, Gentry indicated that Reed had not followed the advice
of counseling providers. Id. at 19.
[6] At sentencing, the trial court stated “what clearly is significant, and you could
even underline the word significant, is the person has a history of criminal or
delinquent behavior,” noting that when Reed was “given opportunities at
suspended sentences, he’s been revoked on four different occasions,” and found
Reed’s criminal history and previous record of probation violations as
aggravators. Id. at 36, 38. The court also found as an aggravator that Reed
committed the offense while he had pending criminal charges for battery by
bodily waste on a public safety official and a habitual offender allegation at the
time of the instant offense. Id. at 39; Appellant’s Conf. App. Vol. 2 at 101. The
trial court found as a mitigator Reed’s admission to being a habitual offender,
and gave “slight mitigation” to Reed’s history of mental illness. Tr. Vol. III. at
40-41. The trial court sentenced Reed to five years for his Level 5 felony
conviction for battery resulting in bodily injury to a public safety official with an
additional three and one-half years for Reed’s adjudication as a habitual
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offender for an aggregate sentence of eight and one-half years executed.
Appellant’s App. Vol. 2 at 120. Reed now appeals.
Discussion and Decision
[7] Reed argues that his sentence is inappropriate. Pursuant to Indiana Appellate
Rule 7(B), this court “may revise a sentence authorized by statute if, after due
consideration of the trial court’s decision, the [c]ourt finds that the sentence is
inappropriate in light of the nature of the offense and the character of the
offender.” Our Supreme Court has explained that the principal role of appellate
review should be to attempt to leaven the outliers, “not to achieve a perceived
‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.
2008). We independently examine the nature of Reed’s offense and his
character under Appellate Rule 7(B) with substantial deference to the trial
court’s sentence. Satterfield v. State, 33 N.E.3d 344, 355 (Ind. 2015). “In
conducting our review, we do not look to see whether the defendant’s sentence
is appropriate or if another sentence might be more appropriate; rather, the test
is whether the sentence is ‘inappropriate.’” Barker v. State, 994 N.E.2d 306, 315
(Ind. Ct. App. 2013), trans. denied. Whether a sentence is inappropriate
ultimately depends upon “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, 895 N.E.2d at 1224. Reed bears the burden of
persuading us that his sentence is inappropriate. Id.
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[8] Reed argues that his mental health issues make his sentence inappropriate and
that those issues warrant a reduction of his sentence to a five-year aggregate
sentence comprised of three years for his Level 5 felony conviction with all
three years suspended and two years on the habitual offender adjudication.
Appellant’s Br. at 16-17.3
[9] “As to the nature of the offense, the advisory sentence is the starting point the
Legislature has selected as an appropriate sentence for the crime committed.”
Abbott v. State, 961 N.E.2d 1016, 1019 (Ind. 2012). Here, Reed was convicted of
Level 5 felony battery resulting in bodily injury to a public safety official with
an enhancement for his adjudication as a habitual offender. The advisory
sentence for a Level 5 felony is three years with a range of one to six years. Ind.
Code § 35-50-2-6. For the adjudication as a habitual offender, the court may
enhance the sentence on the underlying offense by an additional
nonsuspendible term of between two years and six years. Ind. Code § 35-50-2-
8(i). Therefore, the maximum sentence Reed could have received from the trial
court is twelve years. The trial court imposed a sentence of five years for Reed’s
Level 5 felony and a sentence of three and one-half years for the habitual
offender adjudication for an aggregate sentence of eight and one-half years
3
Some of Reed’s arguments seem to contend that the trial court did not assign sufficient weight to his history
of mental illness as a mitigating factor or somehow abused its discretion in sentencing him. We note that
Reed did not frame his argument in this way or provide any cogent argument regarding the trial court
abusing its discretion and has not cited to any authority for such an argument. Therefore, to the extent that
he is arguing that the trial court abused its discretion in sentencing him, we conclude that he has waived any
such argument. Lee v. State, 91 N.E.3d 978, 990-91 (Ind. Ct. App. 2017) (citing Ind. Appellate Rule
46(A)(8)(a)).
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executed. Reed’s aggregate, executed sentence was three and one-half years
less than the trial court was authorized to impose.
[10] As this court has recognized, the nature of the offense is found in the details
and circumstances of the commission of the offense and the defendant’s
participation. Perry v. State, 78 N.E.3d 1, 13 (Ind. Ct. App. 2017). The nature
of the offense refers to a defendant’s actions in comparison with the elements of
the offense. Cardwell, 895 N.E.2d at 1224. “When determining the
appropriateness of a sentence that deviates from an advisory sentence, we
consider whether there is anything more or less egregious about the offense as
committed by the defendant that ‘makes it different from the typical offense
accounted for by the legislature when it set the advisory sentence.’” Moyer v.
State, 83 N.E.3d 136, 142 (Ind. Ct. App. 2017) (quoting Holloway v. State, 950
N.E.2d 803, 807 (Ind. Ct. App. 2011)), trans. denied.
[11] With respect to the nature of the offense, Reed struck Sergeant Toby with
closed fists “eight or ten times” in the face and head, causing a cut to the top of
Sergeant Toby’s left ear, some scrapes on his arms, and a throbbing pain on the
sides of his head. Tr. Vol. II at 138-39. The efforts of multiple officers and the
use of a taser were required to restrain and subdue Reed and complete the book-
in procedure. Id. at 123, 139. In addition, at the time Reed committed the
instant offense he had also been charged with battery by bodily waste on a
public safety official and his actions were a violation of his probation in another
case from Franklin County that involved theft. Appellant’s. Conf. App. Vol. 2. at
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101. We do not find his sentence to be inappropriate in light of the nature of
the offense.
[12] The character of the offender is found in what we learn of the offender’s life and
conduct. Perry, 78 N.E.3d at 13. When considering the character of the
offender, one relevant fact is the defendant’s criminal history. Johnson v. State,
986 N.E.2d 852, 857 (Ind. Ct. App. 2013). Reed, who at the time of sentencing
was twenty-nine years of age, had compiled an extensive criminal history,
which beginning in 2007 included a total of sixteen cases with each resulting in
a conviction. Appellant’s Conf. App. at 98-101. Of his sixteen criminal cases,
Reed had his probation revoked on four separate occasions, and violated his
probation in his Franklin County theft case by committing the offense in this
case. Id. His felony history includes convictions for burglary, escape, theft,
attempted theft, criminal trespass, possession of cocaine, maintaining a
common nuisance, and battery by bodily waste on a public safety official. Id.
His misdemeanor history includes convictions for leaving the scene of an
accident, criminal trespass, theft, false informing, conversion, and operating a
motor vehicle without a license. Id. Reed’s two most recent convictions both
involved battery on a public safety official. Id. at 101. Moreover, the trial court
heard testimony that Reed’s criminal history was sufficiently extensive that in
his adulthood he had not been out of the criminal justice system long enough to
maintain consistent employment. Tr. Vol. III at 18. Regarding Reed’s assertion
that his history of mental illness informs our assessment of his character and
warrants a downward reduction of his sentence, we note that the trial court
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heard testimony from Reed’s mother regarding his diagnosis of rapid cycling
bipolar one disorder, the impact of medication to control the symptoms of the
disorder and the effect of medication on Reed’s behavior, and the difficulties the
diagnosis has caused for Reed. Id. at 10-17. However, the record shows that
Reed consistently engaged in criminal activity, including four violations of
probation, and that previous attempts at counseling or a suspended sentence
had been unsuccessful. Appellant’s Conf. App. Vol. 2 at 98-102; Tr. Vol. III at 18-
19. Moreover, the trial court expressly acknowledged Reed’s history of mental
illness and its impact on his behavior in imposing his sentence. Id. at 41. We
cannot say that Reed’s history of mental illness merits a downward reduction of
his sentence and conclude that Reed’s sentence is not inappropriate in light of
his character.
[13] Reed has not shown that his sentence is inappropriate in light of the nature of
his offense and character. We, therefore, affirm the sentence imposed by the
trial court.
Najam, J., and Brown, J., concur.
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