Anthony D. Dunn v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this Aug 07 2015, 9:54 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Derick W. Steele Gregory F. Zoeller
Deputy Public Defender Attorney General of Indiana
Kokomo, Indiana
Jesse R. Drum
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Anthony D. Dunn, August 7, 2015
Appellant-Defendant, Court of Appeals Case No.
34A04-1503-CR-88
v. Appeal from the Howard Circuit
Court
State of Indiana, The Honorable Lynn Murray, Judge
Cause No. 34C01-1308-MR-156
Appellee-Plaintiff
Baker, Judge.
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[1] Anthony Dunn appeals the sentence imposed by the trial court after Dunn
pleaded guilty to class A felony Attempted Robbery. 1 Dunn argues that the
sentence is inappropriate in light of the nature of the offense and his character.
Finding that the sentence is not inappropriate, we affirm.
Facts
[2] On August 29, 2013, Dunn and Robert Patmon waited outside Jordan
Ferguson’s apartment in Kokomo, intending to rob him. Patmon provided a
firearm to Dunn for the robbery. As Ferguson approached his apartment,
Patmon and Dunn followed him. Dunn accidentally shot Patmon in the back
because he was nervous. Dunn and Patmon fled the scene, and Dunn made no
attempt to call for help. Patmon was found dead the next morning as a result of
the gunshot wound.
[3] On August 30, 2013, the State charged Dunn with murder. On September 10,
2013, the State added charges of class B felony attempted robbery, class D
felony residential entry, and class D felony criminal mischief. On November
26, 2014, Dunn pleaded guilty to class A felony attempted robbery in exchange
for dismissal of the remaining charges. Sentencing was left to the trial court’s
discretion, with a cap on the executed portion of thirty-five years. Following a
sentencing hearing, on February 24, 2015, the trial court sentenced Dunn to
1
Ind. Code § 35-42-5-1(2). We apply the version of the statute in effect at the time Dunn committed the
offense.
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fifty years, with thirty-five years executed and fifteen years to be served on
probation. Dunn now appeals.
Discussion and Decision
[4] Dunn’s sole argument on appeal is that the sentence imposed by the trial court
is inappropriate in light of the nature of the offense and his character. Indiana
Appellate Rule 7(B) provides that this Court may revise a sentence if it is
inappropriate in light of the nature of the offense and the character of the
offender. We must “conduct [this] review with substantial deference and give
‘due consideration’ to the trial court’s decision—since the ‘principal role of
[our] review is to attempt to leaven the outliers,’ and not to achieve a perceived
‘correct’ sentence . . . .” Knapp v. State, 9 N.E.3d 1274, 1292 (Ind. 2014)
(quoting Chambers v. State, 989 N.E.2d 1257, 1259 (Ind. 2013)) (internal
citations omitted).
[5] At the time Dunn committed the offense, a person who was convicted of a class
A felony faced a sentence of twenty to fifty years, with an advisory term of
thirty years. Ind. Code § 35-50-2-4.2 Dunn received a maximum term of fifty
years, but fifteen of those years will be served on probation.
[6] As to the nature of the offense, Dunn went to an apartment and lay in wait for
the person who lived there, intending to rob him. Dunn was armed with a gun.
2
Indiana’s criminal code has since been amended, but the amendments have an effective date of July 1,
2014. We apply the version of the statutes in effect at the time Dunn committed the offense.
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The result of this incident was the death of another person, which goes far
beyond what the State was required to prove to convict Dunn of attempted
robbery resulting in serious bodily injury. After he shot Patmon, he fled and
did not attempt to call for help. Dunn also received a considerable benefit from
his guilty plea, in that multiple charges—including murder—were dismissed
and the executed portion of the sentence was capped at thirty-five years. We do
not find that the nature of the offense renders the sentence inappropriate.
[7] As for Dunn’s character, we note that he has been involved with the criminal
justice system for more than half of his life. He has juvenile adjudications for,
among other things, offenses that would have been conversion, resisting law
enforcement, auto theft, possession of cocaine or narcotic drug, residential
entry, illegal consumption of an alcoholic beverage, and intimidation had they
been committed by an adult. As an adult, he has amassed two felony
convictions. He has also violated probation multiple times. When he
committed the instant offense, he was on probation for a 2009 class B felony
dealing in cocaine conviction, and he had just been arrested on August 26,
2013—three days before attempting to rob Ferguson—for resisting law
enforcement. Dunn has had multiple opportunities to reform his behavior but
has declined to do so. He shows continuing disrespect for the rule of law and
his fellow citizens. In sum, we do not find that Dunn’s character renders the
sentence inappropriate.
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[8] The judgment of the trial court is affirmed.
Bailey, J., and Mathias, J., concur.
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