Jeffrey Lee Murray 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 Jul 17 2020, 10:33 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
R. Brian Woodward Curtis T. Hill, Jr.
Crown Point, Indiana Attorney General of Indiana
Evan M. Comer
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jeffrey Lee Murray, July 17, 2020
Appellant-Defendant, Court of Appeals Case No.
20A-CR-543
v. Appeal from the Lake Superior
Court
State of Indiana, The Honorable Samuel L. Cappas,
Appellee-Plaintiff Judge
Trial Court Cause No.
45G04-1808-F5-152
May, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-543 | July 17, 2020 Page 1 of 10
[1] Jeffrey Lee Murray challenges his two-year-and-three-month sentence following
his conviction of Level 6 felony domestic battery. 1 Murray argues his
placement is inappropriate based on his character. We affirm.
Facts and Procedural History
[2] Murray and C.M. were in a romantic relationship for the past fifteen years and
have two children together, aged nine and three. On July 13, 2018, at
approximately 6:30 p.m., Murray and C.M. were visiting friends in Gary,
Indiana. Murray and C.M. began arguing, and Murray punched C.M. in the
head, knocking her unconscious. Gary Police Officers responded to a report of
an unconscious female and, upon arrival, found C.M. lying unresponsive on the
living room sofa with visible swelling on one side of her face. Paramedics
transported C.M. to Methodist Northlake Hospital for treatment. The police
officers questioned three women at the scene regarding the events leading up to
C.M.’s injuries. The women reported that C.M. had gotten into a verbal and
physical altercation with Murray outside of the apartment and that Murray
responded by punching C.M. in the head in the presence of their two children,
who were playing in the nearby playground at the time. 2
1
Ind. Code § 35-42-2-1.3(b)(3).
2
Based on the probable cause affidavit, it would seem Murray fled the scene after the first attack.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-543 | July 17, 2020 Page 2 of 10
[3] C.M. was discharged from the hospital and returned to the apartment complex
that same day. She was talking to Kassandra Blodgett in the parking lot of the
apartment complex at approximately 11:20 p.m. when Murray approached
them. Murray began arguing with C.M. and punched C.M., who fell to the
ground unresponsive. Blodgett had Murray assist her with carrying C.M. into
Blodgett’s apartment, and Blodgett attempted to call 911. The dispatcher noted
that, during the call, Murray was in the apartment with C.M. and Blodgett, and
he kept arguing with Blodgett and grabbing for her phone. Murray finally
managed to disconnect the emergency call and fled the scene. Gary Police
Officers responded to the new report of a battered woman at the same
apartment complex, and paramedics again transported C.M. to the hospital for
treatment of swelling and scrapes to her forehead, swelling and scrapes to her
left eye, and swelling to her lips. Blodgett also noted that C.M. was
complaining of chest and face pain. At the time of the attack, C.M. was nine
weeks pregnant. A CT scan during the second hospital visit revealed an
“apparent acute traumatic subarachnoid hemorrhage.” (App. Vol. II at 16.)
[4] On August 24, 2018, the State charged Murray with two counts of Level 5
felony domestic battery resulting in serious bodily injury, 3 one count of Level 6
felony domestic battery resulting in moderate bodily injury, one count of Level
6 felony domestic battery in the presence of a child less than sixteen years of
3
Ind. Code § 35-42-2-1.3(c)(1).
Court of Appeals of Indiana | Memorandum Decision 20A-CR-543 | July 17, 2020 Page 3 of 10
age, 4 and one count of Class A misdemeanor interference with and prevention
of using 911 emergency services. 5 On December 5, 2019, Murray entered into a
stipulated plea agreement whereby Murray agreed to plead guilty to one count
of Level 6 felony domestic battery causing moderate bodily injury and the State
agreed to dismiss all other charges. Following a sentencing hearing on
February 7, 2020, the trial court imposed a twenty-seven-month sentence and
ordered Murray to serve two years executed in Lake County Jail and three
months in Marion County Community Corrections. 6
Discussion and Decision
[5] We will reverse a sentence as inappropriate only if we determine Murray’s
sentence is inappropriate in light of both the nature of his offense and his
character. See Ind. Appellate Rule 7(B) (“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.”). The nature of offense analysis compares
the defendant’s actions with the required showing to sustain a conviction under
the charged offense, Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008), while
4
Ind. Code § 35-42-2-1.3(b)(2).
5
Ind. Code § 35-45-2-5(1).
6
Murray lives in Indianapolis, so the trial court allowed him to serve his time on Community Corrections
where he lives instead of in Lake County, where the crime occurred.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-543 | July 17, 2020 Page 4 of 10
the character of the offender analysis permits for a broader consideration of a
defendant’s character. Douglas v. State, 878 N.E.2d 873, 881 (Ind. Ct. App.
2007).
[6] Ultimately, our determination about appropriateness “turns on our sense of 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,
895 N.E.2d at 1224. We do not look to see if another sentence is more
appropriate, but rather we determine if the sentence imposed is inappropriate.
Barker v. State, 994 N.E.2d 306, 315 (Ind. Ct. App. 2013), trans. denied. The
defendant ultimately bears the burden of demonstrating the inappropriateness
of the sentence. Patterson v. State, 909 N.E.2d 1058, 1063 (Ind. Ct. App. 2009).
[7] Murray does not object to the length of his sentence, but challenges the trial
court’s decision to order a portion of his sentence executed in Lake County Jail
rather than in a community corrections program. 7 Although “the place that a
7
As part of his defense, Murray primarily argues that he is entitled to revision of his sentence due to an
inappropriate evaluation of his now improved character and urges us to base our review of his sentence solely
on his character. This court has previously determined that, under the guidelines of Appellate Rule 7(B), a
defendant must demonstrate inappropriateness of a sentence with respect to both character and the nature of
the offense, or the issue was waived. Williams v. State, 891 N.E.2d 621, 633 (Ind. Ct. App. 2008). In our
discretion, we may choose to review the sentence waiver notwithstanding. Id. However, in Connor v. State,
58 N.E.3d 215, 219 (Ind. Ct. App. 2016), another panel of our court determined that an appellant is not
required to establish both prongs of the inappropriateness analysis. Instead, that panel said, “although the
rule does state that we may revise a sentence we find to be inappropriate “in light of the nature of the offense
and the character of the offender . . . we view that as a statement that we as the reviewing court must consider
both of those prongs in our assessment, and not as a requirement that the defendant must necessarily prove
each of those prongs render his sentence inappropriate.” Id. Judge Najam’s concurring opinion, however,
recognized that in permitting an appellant to choose either prong, the court unwillingly becomes an advocate
for the appellant, which is incongruent with our designated role and dilutes our standard of review. Id. at
Court of Appeals of Indiana | Memorandum Decision 20A-CR-543 | July 17, 2020 Page 5 of 10
sentence is to be served is an appropriate focus for application of our review and
revise authority,” Biddinger v. State, 868 N.E.2d 407, 414 (Ind. 2007), it is
nonetheless “quite difficult for a defendant to prevail on a claim that the
placement of his or her sentence is inappropriate.” Fonner v. State, 876 N.E.2d
340, 343 (Ind. Ct. App. 2007). As we explained in Fonner: “As a practical
matter, trial courts know the feasibility of alternative placements in particular
counties or communities. For example, a trial court is aware of the availability,
costs, and entrance requirements of community corrections placements in a
specific locale.” Id. at 343-4.
[8] In sentencing Murray, the trial court found ten aggravating factors, which
significantly outweighed the five mitigating circumstances found. One of the
factors considered by the trial court, which points to the severity of Murray’s
offense, was that the harm suffered by C.M. was far greater than that necessary
to prove Murray guilty of a single count of Level 6 felony domestic battery
resulting in moderate bodily injury. During the first instance of battery, Murray
struck C.M. so hard she was rendered unconscious, which necessitated
transportation to the nearby hospital. Then, upon seeing C.M. after she
returned from the hospital that same evening, Murray punched her again,
222-223. Despite our court’s varied decisions, we recognize that each panel of this court is not bound by
coequal decisions of other panels, as Indiana law does not recognize horizontal stare decisis. Smith v. State, 21
N.E.3d 121, 126 (Ind. Ct. App. 2014). We agree with the concurrence in Connor and require that the
appellant demonstrate both prongs of the inappropriateness analysis.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-543 | July 17, 2020 Page 6 of 10
which induced visible facial swelling and chest pain in C.M. C.M. was
transported to the hospital a second time for her injuries, and during this
hospitalization a CT scan revealed that C.M. suffered a substantial head injury.
We recognize that Murray did not display any “restraint, regard, and lack of
brutality” that would portray “in a positive light the nature of the offense,”
Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015), thus Murray has failed to
demonstrate that the nature of his offense requires placement solely in
community corrections.
[9] The bulk of Murray’s argument rests in his attempt to persuade us that his
changed character and efforts at rehabilitation merit re-evaluation of where he
serves his sentence. When considering the character of the offender, one
relevant fact is the defendant’s criminal history. Rutherford v. State, 866 N.E.2d
867, 874 (Ind. Ct. App. 2007). Although the extent to which a defendant’s
criminal history may be used to guide an appropriate sentence “varies based on
the gravity, nature, and number of prior offenses in relation to the current
offense,” repeated contacts with the criminal justice system reflect poorly on the
defendant’s character, because such contacts suggest the defendant “has not
been deterred [from further criminal behavior] even after having been subjected
to the police authority of the State.” Cotto v. State, 829 N.E.2d 520, 526 (Ind.
2005).
[10] The pre-sentence investigation report (PSI) detailed Murray’s criminal history,
which began in 2003 with juvenile adjudications of misdemeanor battery and
Court of Appeals of Indiana | Memorandum Decision 20A-CR-543 | July 17, 2020 Page 7 of 10
misdemeanor resisting law enforcement; Murray was given alternative sentence
placements of house-arrest and probation, but yet failed both. Murray has since
acquired two misdemeanors, one in 2017 for invasion of privacy and the other
in 2018 for operating a vehicle while intoxicated; for his OWI conviction
Murray was granted 364 days of probation with conditions, but a petition to
revoke his probation is pending. Murray also has a total of three felony
convictions on his criminal record. In 2008 Murray pled guilty to robbery and
was sentenced to five years in the Department of Correction; although four of
those years were suspended to probation, a petition to revoke probation was
granted in 2011 and Murray was subsequently discharged unsatisfactorily. In
2011 Murray pled guilty to burglary and was sentenced to ten years in the
Department of Correction, with four years to be served as an alternative
sentence. Finally, in 2014, Murray pled guilty for failure to return to lawful
detention and was sentenced to two years in the Department of Correction.
[11] Notwithstanding his criminal history, Murray has failed to demonstrate that his
attempts at rehabilitation and counseling left a significant and lasting
impression that would deter him from future offenses. Although Murray argues
his placement is improper because he and C.M. underwent individual and
family counseling and separate anger management services prior to his
sentencing hearing, we cannot overlook Murray’s history of recidivism and his
failure to alter his behavior after receiving alternative placements in the past.
Additionally, those services were by the court as part of its dispositional order
Court of Appeals of Indiana | Memorandum Decision 20A-CR-543 | July 17, 2020 Page 8 of 10
in the Child in Need of Services case, which was a result of the domestic battery
incidents. Despite the fact that, on multiple occasions, Murray was granted
placement in community corrections or probation, all such placements have
ended with revocation or unsatisfactory completion meriting a return to the
Department of Correction, and Murray was not deterred from committing
additional offenses.
[12] Nor are we convinced that Murray’s placement in Lake County Jail rather than
community corrections would result in hardship for him or his family. See
Dowdell v. State, 720 N.E.2d 1146, 1154 (Ind. 1999) (“incarcerated people have
children, so just having children does not amount to an undue hardship
meriting a lesser sentence,” particularly when defendant was not ordered to pay
child support). During the trial court’s sentencing hearing, C.M. testified that
neither she nor Murray have guardianship of their two children because they
are going through a Department of Child Services case, the children are
currently staying with relatives, and Murray has not been ordered to pay any
child support.
[13] Despite Murray’s initiative to seek rehabilitation and his contention that
incarceration would result in hardship, his criminal history demonstrates that
probation and alternative sentencing programs do not work well to deter him
from crime. See Fonner, 876 N.E.2d at 344 (placement in the Department of
Correction is not inappropriate when prior, less restrictive efforts at
rehabilitation have been unsuccessful). Murray has been placed on probation
Court of Appeals of Indiana | Memorandum Decision 20A-CR-543 | July 17, 2020 Page 9 of 10
multiple times and has had probation revoked several times. Most telling is that
Murray was on probation when he committed the present batteries against
C.M. on the same day. See Childress v. State, 848 N.E.2d 1073, 1081 (Ind. 2006)
(defendant’s sentence did not merit alteration after defendant pled guilty to
committing additional offenses while he was on bond for resisting law
enforcement), and see Zavala v. State, 138 N.E.3d 291, 301 (Ind. Ct. App. 2019)
(defendant’s sentence was deemed appropriate due to his continued antisocial
behavior demonstrated by three misdemeanor convictions for battery and
domestic battery and a felony conviction for failure to return to lawful
detention; additionally, the defendant was on probation at the time he
committed the offense at issue). Murray’s lengthy criminal record and inability
to follow rules of probation reflect poorly on his character and demonstrate a
pattern of violent and destructive behavior that has occurred consistently over
the course of Murray’s adult life.
Conclusion
[14] We conclude the trial court’s decision to order Murray to serve two years in
Lake County Jail and three months in Marion County Community Corrections
was not inappropriate. Accordingly, we affirm.
Affirmed.
Robb, J., concurs.
Vaidik, J., concurs in result without opinion.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-543 | July 17, 2020 Page 10 of 10