Dominique M. Peoples v. State of Indiana (mem dec.)

MEMORANDUM DECISION FILED
Pursuant to Ind. Appellate Rule 65(D), this Dec 06 2017, 10:19 am
Memorandum Decision shall not be regarded as CLERK
precedent or cited before any court except for the Indiana Supreme Court
Court of Appeals
purpose of establishing the defense of res judicata, and Tax Court
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Mary P. Lake Curtis T. Hill, Jr.
La Porte, Indiana Attorney General of Indiana
Indianapolis, Indiana
Angela N. Sanchez
Supervising Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Dominique M. Peoples, December 6, 2017
Appellant-Defendant, Court of Appeals Case No.
46A03-1705-CR-1096
v. Appeal from the La Porte Circuit
Court.
The Honorable Thomas J. Alevizos,
State of Indiana, Judge.
Appellee-Plaintiff. Trial Court Cause Nos.
46C01-1604-F5-377
46C01-0705-FB-236
Barteau, Senior Judge
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Statement of the Case
1
[1] Dominique Peoples appeals his sentences for Level 5 felony aiding battery in
one cause and for violating the terms of his probation in a separate cause. We
affirm.
Issue
[2] The sole issue Peoples raises on appeal is whether his sentences are
inappropriate in light of the nature of the offense and the character of the
offender.
Facts and Procedural History
[3] We begin with the relevant but somewhat complex procedural history that
precedes the incident that gave rise to the appeal before us. In October 2007,
under Cause No. 46C01-0705-FB-236, a separate cause that is unrelated to the
facts of the instant case, Peoples pleaded guilty to dealing in cocaine as a Class
B felony. He was sentenced to twelve years in the Indiana Department of
Correction (DOC), with six years suspended, and was placed on probation for
six years.
[4] On October 26, 2015, the La Porte County probation department filed the first
petition for revocation of suspended sentence against Peoples, alleging that
1
Ind. Code § 35-41-2-4 (1977) (aiding); Ind. Code § 35-42-2-1(f)(2) (2014) (battery by means of deadly
weapon).
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Peoples failed to report to probation as directed. On December 17, 2015, the
probation department filed a second petition for revocation of suspended
sentence, alleging that Peoples failed to obtain permission to change his address
and that he tested positive for controlled substances.
[5] The incident that gave rise to the appeal before us occurred on February 28,
2016. P.M., the victim, Lisa Santana, and Cheryl Santana were at a bar in La
Porte, Indiana. A group of men, who also were in the bar, began staring at
P.M. and then insulting P.M. Included in the group were Peoples and his
brother, Troy. P.M. approached the group to determine if any of the men “had
a problem with him.” Appellant’s App. Vol. 2, p. 141. Troy used derogatory
language to refer to P.M. and stated that he was going to “beat this f**’s a**.”
Id. at 140. After a small altercation, the bouncers removed P.M. from the bar.
[6] Lisa and Cheryl walked P.M. to his vehicle because they heard the group of
men inside the bar “talking about how they were going to beat [P.M.] up
because he was gay.” Id. As P.M., Lisa, and Cheryl walked to P.M.’s vehicle,
a group of six men, including Peoples and Troy, followed them. Troy
approached P.M. and said, “I’m going to crack this f***** motherf***** in the
head.” Id. The group of men, including Peoples, attacked P.M. and began
punching and kicking him. Lisa and Cheryl saw Troy hit P.M. over the head
with a bottle. Lisa and Cheryl also watched Troy reach into P.M.’s pockets as
the other men were beating him and take his belongings, as well as rip a
necklace from P.M.’s neck. During the attack, P.M. lost consciousness and
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suffered a deep laceration above his left eye. He was transported to the hospital
where he received stitches for the laceration.
[7] In March 2016, before Peoples was charged with any crimes for participating in
the attack upon P.M., Peoples was charged with committing Level 4 felony
possession of cocaine and Level 3 felony dealing in a narcotic drug under Cause
No. 46D01-1603-F2-231. Based upon these two new criminal charges, on April
4, 2016, the probation department filed a third petition for revocation of
suspended sentence. Peoples later pleaded guilty under Cause No. F2-231 to
possession of cocaine as a Level 4 felony and was sentenced to five years
executed in the DOC with a recommendation that he be placed in a therapeutic
community while serving the five-year sentence in the DOC.
[8] On April 29, 2016, based upon his participation in the beating of P.M., Peoples
was charged with aiding battery as a Level 5 felony. On February 24, 2017,
Peoples entered into a plea agreement and pleaded guilty to aiding battery as a
Level 5 felony, under Cause No. 46C01-1604-F5-377. He also admitted to a
probation violation under Cause No. FB-236 (the case where Peoples pleaded
guilty to dealing in cocaine as a Class B felony, was sentenced to twelve years
in the DOC with six years suspended, and was placed on probation for six
years).
[9] On March 10, 2017, the trial court held a sentencing hearing on Peoples’s most
recent guilty plea and probation violation admission. The trial court found as
aggravating factors Peoples’s significant criminal history and that Peoples
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recently violated the terms of his probation by committing the current offense
while on probation. The trial court found as a mitigating factor Peoples’s
admission of culpability. After finding that the aggravating factors outweighed
the mitigating factors, the trial court sentenced Peoples to five years in the
DOC, with no time suspended, and ordered Peoples to pay $2,592.00 in
restitution to the victim. Additionally, for violating the terms of his probation
under Cause No. FB-236, the trial court ordered Peoples to serve in the DOC
the remaining six years of his suspended sentence, with the possibility that two
years of the sentence would be stayed if Peoples successfully completed the
sentence he received in Cause No. F2-231 (conviction for Level 4 felony
possession of cocaine). The trial court ordered the five-year sentence under
Cause No. F5-377 (Level 5 felony aiding battery) and the six-year sentence
under Cause No. FB-236 to be served consecutively. Peoples appeals.
Discussion and Decision
[10] Peoples’s argument is that both his five-year sentence for Level 5 felony aiding
battery and his six-year sentence for the probation violation are inappropriate
under Indiana Appellate Rule 7(B) in light of the nature of the offense and his
character. As the State points out, however, Peoples’s six-year sentence was the
result of his pleading guilty to violating the terms of his probation in a separate
cause. The standard of review set forth in Rule 7(B) “is not the correct standard
to apply when reviewing a sentence imposed for a probation violation.” Prewitt
v. State, 878 N.E.2d 184, 188 (Ind. 2007). A trial court’s sentencing decision for
a probation violation is reviewable using the abuse of discretion standard. Id.Court of Appeals of Indiana | Memorandum Decision 46A03-1705-CR-1096 | December 6, 2017 Page 5 of 9
An abuse of discretion occurs where the decision is clearly against the logic and
effect of the facts and circumstances. Id.[11] However, Peoples fails to make a cogent argument that his six-year sentence
imposed for violating the terms of his probation was an abuse of discretion; as
such, any claim of error with respect to that sentence is waived. See Foutch v.
State, 53 N.E.3d 577, 580 n.1 (Ind. Ct. App. 2016) (noting that party must make
cogent argument regarding abuse of discretion in sentencing separate from
inappropriateness analysis in order to preserve claim for appellate review).
Additionally, under Indiana Code section 35-50-1-2(e) (2015), Peoples was
required to serve the remainder of his sentence imposed under Cause No. FB-
236 (Class B felony dealing in cocaine) consecutive to his sentence for the Level
5 felony aiding battery conviction under Cause No. F5-377 because he was
arrested for aiding battery before he was discharged from probation under
Cause No. FB-236. The trial court had no choice in the matter. As such, the
only issue properly before us in this appeal is whether Peoples’s five-year
sentence for Level 5 felony aiding battery is inappropriate.
[12] Indiana Appellate Rule 7(B) provides that we may revise a sentence authorized
by statute if, after due consideration of the trial court’s decision, we find that
the sentence is inappropriate in light of the nature of the offense and the
character of the offender. The defendant bears the burden of persuading this
Court that his sentence is inappropriate. Childress v. State, 848 N.E.2d 1073,
1080 (Ind. 2006). Whether we regard a sentence as inappropriate turns on the
“culpability of the defendant, the severity of the crime, the damage done to
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others, and myriad other factors that come to light in a given case.” Cardwell v.
State, 895 N.E.2d 1219, 1224 (Ind. 2008).
[13] Our Supreme Court has further explained that “[s]entencing is principally a
discretionary function in which the trial court’s judgment should receive
considerable deference.” Id. at 1222. “Such deference should prevail unless
overcome by compelling evidence portraying in a positive light the nature of the
offense (such as accompanied by restraint, regard, and lack of brutality) and the
defendant’s character (such as substantial virtuous traits or persistent examples
of good character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015).
[14] When determining whether a sentence is inappropriate, we acknowledge that
the advisory sentence is the starting point the General Assembly has selected as
an appropriate sentence for the crime committed. Childress, 848 N.E.2d at
1081. Here, Peoples was convicted of a Level 5 felony, for which the
sentencing range is between one and six years, with an advisory sentence of
three years. See Ind. Code § 35-50-2-6 (2014). The trial court sentenced Peoples
to five years, which is above the advisory sentence but below the maximum
sentence allowed under the statute.
[15] As to the nature of the offense, Peoples attempts to downplay its nature by
asserting that he was not the aggressor in the attack and did not strike the victim
with the bottle. We are not persuaded by his assertions. Peoples, along with
five other men, first harassed P.M. and then referred to him using derogatory
language, apparently because they believed that P.M. was gay. The men,
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including Peoples, then followed P.M. out of the bar and brutally attacked him.
P.M. was kicked and punched repeatedly by Peoples and the rest of the men.
P.M. was hit on the head with a bottle, which caused a deep laceration above
his eye that required stitches. Witnesses recalled that derogatory terms were
hurled at P.M. both inside the bar and as the attack occurred. P.M. lost
consciousness due to the attack, and he was robbed of his wallet, his cell phone,
and his necklace. The offense arose from a senseless, brutal attack. We decline
to find that Peoples’s sentence was inappropriate in light of the nature of the
offense.
[16] Regarding Peoples’s character, Peoples concedes that he has a significant
criminal record but argues that he suffers from a “severe drug problem with
marijuana, cocaine, and heroin” and that he does not have a violent criminal
history. Appellant’s Brief p. 10. However, the trial court did not recognize this
evidence as mitigating factors but, instead, focused on Peoples’s criminal
history that includes a Class B misdemeanor conviction for disorderly conduct,
two felony convictions for Class B felony dealing in cocaine, a conviction for
Level 4 felony possession of cocaine, and (now) a conviction for Level 5 felony
aiding battery. Also, five petitions for revocation of suspended sentence have
2
been filed against Peoples. He violated the conditions of probation on more
2
On May 17, 2016, the probation department filed a fourth petition for revocation of suspended sentence
based upon the aiding battery charge filed against Peoples for his participation in the attack on P.M. Prior to
the filings of the four most recent petitions for revocation of suspended sentence, in 2005, the probation
department filed a petition for revocation of suspended sentence against Peoples in a case that resulted in a
conviction for Class B misdemeanor disorderly conduct.
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than one occasion, twice failed to appear to court, and committed the instant
offense while on probation. Finally, Peoples willingly participated in a mob-
like group beating of P.M., apparently because he and the other members of the
group took issue with P.M.’s perceived sexual orientation. We cannot say that
Peoples’s sentence was inappropriate in light of his character.
Conclusion
[17] Peoples has failed to persuade this Court that the five-year sentence imposed for
his conviction for Level 5 felony aiding battery is inappropriate in light of the
nature of his offense and his character. We affirm the trial court’s sentence.
[18] Affirmed.
Bailey, J., and May, J., concur.
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