Vaylan Keishaughn Glazebrook v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any Apr 04 2019, 7:15 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
Mark Small Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Chandra K. Hein
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Vaylan Keishaughn Glazebrook, April 4, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-1269
v. Appeal from the Monroe Circuit
Court
State of Indiana, The Honorable Marc R. Kellams,
Appellee-Plaintiff Judge
Trial Court Cause No.
53C02-1411-F1-1066
Baker, Judge.
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[1] Vaylan Glazebrook appeals his convictions for Level 1 Felony Attempted
Murder;1 seven counts of Level 1 Felony Rape;2 Level 2 Felony Burglary;3 two
counts of Level 3 Felony Armed Robbery;4 two counts of Level 3 Felony
Criminal Confinement;5 and Level 6 Felony Resisting Law Enforcement.6 He
raises the following arguments: (1) his right to a speedy trial under Criminal
Rule 4 was violated; (2) the trial court overstepped its authority during plea
negotiations; (3) the evidence is insufficient to support the attempted murder
conviction; and (4) the sentence is inappropriate in light of the nature of the
offenses and his character. Finding no error and sufficient evidence and that
the sentence is not inappropriate, we affirm.
Facts
[2] In November 2014, S.E., A.R., and K.H. were roommates and students at
Indiana University in Bloomington. They shared an apartment and each
woman had her own bedroom.
[3] In the early morning hours of November 9, 2014, a noise woke up S.E. and
A.R. S.E. turned over in bed “and saw a man standing in [her] door with a gun
1
Ind. Code §§ 35-42-1-1, 35-41-5-1.
2
I.C. § 35-42-4-1.
3
Ind. Code § 35-43-2-1.
4
I.C. § 35-42-5-1.
5
I.C. § 35-42-3-3.
6
Ind. Code § 35-44.1-3-1.
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pointed at [her].” Tr. Vol. III p. 80. There was a different man in A.R.’s room.
The man in S.E.’s room was later identified as Glazebrook; the man in A.R.’s
room was later identified as Michael Deweese.
[4] Glazebrook rummaged through S.E.’s things, taking her cell phone and money
from her nightstand. In A.R.’s room, Deweese made A.R. get on the floor and
forced her to perform fellatio on him. Deweese then brought A.R. into S.E.’s
bedroom. Deweese grabbed S.E. by the ankles, pulled her to the edge of the
bed, pulled down her pants, and raped her. Deweese then forced S.E. to
perform fellatio on him twice. Next, he inserted his penis in her anus and then
forced her to perform fellatio again. Deweese pointed a gun at S.E. throughout
the encounter.
[5] Glazebrook taunted A.R., telling her that he was going to do the same thing to
her. He dragged her off the bed, ripped her pants off, inserted his fingers into
A.R.’s vagina in a rough manner, inserted his penis in her vagina, and forced
her to perform fellatio on him. Glazebrook tried, but was unable, to insert his
penis into A.R.’s anus; he made her spit on his penis until he was able to insert
it. Glazebrook pointed a gun at A.R. throughout the encounter.
[6] Sometime during these events, and unknown to S.E. and A.R., their third
roommate, K.H., had called the police. Bloomington City Police Officer Bill
Abram responded. After arriving, Officer Abram observed that the door to the
apartment was damaged and open. When Officer Abram looked inside, he saw
Deweese in the hallway, pulling up his pants. Officer Abram moved to a corner
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of the building, called for backup, and saw Glazebrook and Deweese flee out of
a side window.
[7] As Glazebrook and Deweese fled, Glazebrook turned around, aimed, and fired
at Officer Abram. One bullet hit Officer Abram between his left arm and vest. 7
Officer Abram fired twice, striking Glazebrook and Deweese. Although the
two men continued to flee, they were eventually apprehended and transported
to the hospital for treatment.
[8] On November 12, 2014, the State charged Glazebrook with Level 1 felony
attempted murder, seven counts of Level 1 felony rape, Level 2 felony burglary,
two counts of Level 3 felony armed robbery, three counts of Level 3 felony
criminal confinement,8 and Level 6 felony resisting law enforcement. At
Glazebrook’s November 12, 2014, initial hearing, the trial court appointed a
public defender to represent him. Over the next several years, multiple
continuances were sought and granted; all were either filed by Glazebrook’s
attorney or joint requests with the State. Specifically, continuances were asked
for and granted on March 31, July 23, October 5, November 3, and November
30, 2015; and March 31, April 28, June 23, and October 18, 2016.
7
Officer Abram was not injured, and it is not clear whether the bullet grazed his vest or missed him
altogether. He described feeling “a pressure or a tightness that moved” underneath his armpit and believing
that he had been hit, but apparently after other officers checked, it was determined that he had not sustained
any injuries. Tr. Vol. III p. 151.
8
The State later dismissed one of the criminal confinement charges.
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[9] At a September 12, 2017, pretrial hearing, Glazebrook’s attorney again
requested a continuance. Glazebrook agreed to the continuance and accepted a
beginning trial date of February 12, 2018. On November 6, 2017, Glazebrook
wrote a pro se letter to the trial court requesting relief under Indiana Criminal
Rule 4; the trial court later struck the motion because Glazebrook was
represented by counsel. At some point before the jury trial, plea negotiations
took place, but were ultimately not fruitful.
[10] Glazebrook’s jury trial took place from February 12 through February 16, 2018.
The jury found Glazebrook guilty as charged.9 The jury then deliberated on the
enhancement of criminal confinement based on Glazebrook’s use of a firearm;
it found that the State had established the facts necessary for enhancement.
[11] On April 16, 2018, the trial court sentenced Glazebrook as follows:
• 30 years for attempted murder.
• 30 years for each of the seven rape convictions, to be served concurrently
to one another but consecutively to the attempted murder sentence.
• 22.5 years for burglary, to be served consecutively.
• 16 years on each of the two armed robbery convictions, to be served
concurrently to each other but consecutively to the other sentences.
• 12 years for the two criminal confinement convictions; one of those
convictions was further enhanced for the firearm use. The 12-year
9
Initially, the jury found Glazebrook guilty of both attempted murder and the lesser-included offense of
criminal recklessness. The trial court explained to the jury that it could either find Glazebrook not guilty,
guilty of attempted murder, or guilty of criminal recklessness. Without objection, the trial court advised the
jury to retire again and return with a verdict on either attempted murder or criminal recklessness, but not
both. The jury did not have any questions. After re-deliberating, the jury found Glazebrook guilty of
attempted murder.
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portions of the sentences are to be served concurrently with the robbery
conviction but consecutively to the attempted murder, rape, and burglary
sentences; the 15-year enhancement is to be served consecutively.
• 2 years for resisting law enforcement, to be served concurrently with the
attempted murder conviction.
The aggregate sentence imposed by the trial court, therefore, is over 100 years10
executed in the Department of Correction. Glazebrook now appeals.
Discussion and Decision
I. Speedy Trial
[12] Glazebrook first argues that we should reverse because his right to a speedy trial
was violated. Indiana Criminal Rule 4(C) provides that a defendant may not be
held to answer a criminal charge for more than one year unless the delay is
caused by the defendant, an emergency, or court congestion. Curtis v. State, 948
N.E.2d 1143, 1148 (Ind. 2011). We will reverse a trial court’s ruling on a
Criminal Rule 4(C) motion to dismiss only if the trial court’s decision is clearly
10
There is disagreement between the parties as to the aggregate length of the sentence. Glazebrook states
that it is 139.5 years and the State maintains that it is 125.5 years. Our math yields yet a third total aggregate
amount of 113.5 years (30 years for attempted murder + 30 years for rape + 22.5 years for burglary + 16
years for armed robbery + 15 years for the criminal confinement enhancement). The State includes in its
total the 12-year criminal confinement sentence. The trial court’s order is somewhat unclear, as this sentence
is ordered to be served concurrently with the armed robbery sentence, in which case it would be subsumed
into the 16-year term, but also to be served consecutively to the other sentences, in which case it would be
added on. We need not resolve this issue today, however, as it will be sufficient for the purpose of
determining the appropriateness of the sentence to know that the aggregate term is well over 100 years
imprisonment.
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against the logic and effect of the facts and circumstances before it. Bowman v.
State, 884 N.E.2d 917, 919 (Ind. Ct. App. 2008).
[13] Here, Glazebrook agreed to the trial date of February 12, 2018. Therefore, he
has waived this argument. E.g., Vermillion v. State, 719 N.E.2d 1201, 1204 (Ind.
1999) (if a trial date is set outside the one-year period and defendant does not
object, he waives his right to invoke Criminal Rule 4(C)).11
[14] Waiver notwithstanding, Glazebrook asked for all continuances before the trial,
either asking for them personally or in joint agreement with the State. See State
v. Larkin, 100 N.E.3d 700, 704 (Ind. 2018) (holding that a defendant extends the
one-year period by seeking or acquiescing in delay resulting in a later trial date).
Here, there was a total of 1,188 days between the date on which Glazebrook
was charged and the date on which his trial began. Glazebrook requested 14
continuances that totaled 992 days, meaning that only 196 days of the one-year
period have expired.12 Therefore, no speedy trial violation occurred and
Glazebrook is not entitled to relief on this issue.
II. Plea Negotiations
[15] Next, Glazebrook argues that the trial court impermissibly stepped into plea
negotiations and effectively prevented a plea agreement from being reached.
11
At some point after agreeing to the trial date, Glazebrook filed a pro se motion for discharge under
Criminal Rule 4(C). This filing had no effect because “[a] defendant speaks through his attorney . . . .” Epps
v. State, 244 Ind. 515, 524, 192 N.E.2d 459, 464 (1963).
12
There is no indication in the record that the requested continuances were unnecessary or excessive.
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Because Glazebrook did not object below, he must establish fundamental error
to succeed on this issue. Fundamental error is an extremely narrow exception
that applies only when the error amounts to a blatant violation of basic
principles, the harm or potential for harm is substantial, and the resulting error
denies the defendant fundamental due process. Mathews v. State, 849 N.E.2d
578, 587 (Ind. 2006).
[16] Here, during the final pretrial hearing before trial, the following discussion took
place:
Court: My, my final question then is is there still an offer
on the table?
State: And I know, this is something that [another
attorney for the State] and I haven’t talked about. I,
I guess -
Court: —okay—
State: —we just assumed that, um, at this point Mister
Glazebrook wasn’t willing to take—
Court: —I want a deadline. I don’t want to be talking
about it Monday morning.
State: I didn’t even, maybe you can tell us right now if
there’s any.
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Co-counsel for Glazebrook: I think it’s highly unlikely, um,
but get us, I guess, your, your
offer by Thursday?
State: I mean, it wouldn’t differ, but, I mean, from what
it’s already been, but it’s just a matter of whether
you—
Co-Counsel for Glazebrook: —to where sixty—
State: Five, I think.
Court: Seventy.
Co-Counsel for Glazebrook: Seventy.
State: I, I think sixty-five was—
***
Court: Is that where we were to begin with and you
withdrew it?
***
State: —I think we were at seventy—
Counsel for Glazebrook: —it’s kind of gone both ways, yeah.
State: Yeah. I think we were last at sixty-five, but if the
Court’s saying that it wouldn’t take less than
seventy—
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Court: —well, of course I’d have to consider it on its merits
entirely.
Tr. Vol. I p. 83-84. Glazebrook argues that in this discussion, the trial court
communicated to the parties that it would not accept anything less than a
seventy-year sentence and that this allegedly improper statement effectively
prevented a plea agreement from being reached.
[17] Initially, we note that it is not at all clear that the trial court was, in fact, stating
that it would not accept anything less than seventy years. It appears that the
attorneys and the trial court were instead trying, collectively, to remember the
point at which the plea negotiations had previously broken down, with some
confusion and disagreement as to whether the State had offered sixty-five or
seventy years in its prior offer.
[18] But even if we accept for argument’s sake that Glazebrook’s interpretation of
the transcript is correct, a trial court “may offer guidance as to what sentence it
might find marginally acceptable.” Ellis v. State, 744 N.E.2d 425, 430 (Ind.
2001). As the trial court was permitted to offer guidance and also plainly and
clearly stated that it would consider any plea agreement reached by the parties,
it is apparent that the process was fair and reasonable. In sum, we find no
error, fundamental or otherwise.
III. Sufficiency
[19] Next, Glazebrook argues that the evidence is insufficient to support his
attempted murder conviction. When reviewing the sufficiency of the evidence
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to support a conviction, we must consider only the probative evidence and
reasonable inferences supporting the conviction and will neither assess witness
credibility nor reweigh the evidence. Drane v. State, 867 N.E.2d 144, 146 (Ind.
2007). We will affirm unless no reasonable factfinder could find the elements of
the crime proved beyond a reasonable doubt. Id.
[20] To convict Glazebrook of Level 1 felony attempted murder, the State was
required to prove beyond a reasonable doubt that he engaged in conduct that
constituted a substantial step toward intentionally killing Officer Abram. I.C.
§§ 35-42-1-1, 35-41-5-1.
[21] Glazebrook’s arguments on sufficiency are not entirely clear, but we infer that
he maintains that he acted recklessly, rather than intentionally, and that the
evidence does not prove beyond a reasonable doubt that he was the person who
shot the officer.
[22] The record reveals that Glazebrook was fleeing from Officer Abram.
Glazebrook reached over his shoulder, aimed, and fired his handgun directly at
the officer, hitting Officer Abram between the left side of his chest and his vest.
Intent to kill may be inferred “from the deliberate use of a deadly weapon in a
manner likely to cause death or serious injury.” Henley v. State, 881 N.E.2d 639,
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652 (Ind. 2008). A reasonable factfinder could conclude from this series of
events that Glazebrook intended to kill Officer Abram.13
[23] As to Glazebrook’s identity, Officer Abram unequivocally identified
Glazebrook as the shooter. He described what Glazebrook was wearing and
Glazebrook’s physical features. Tr. Vol. III p. 151-52. The jury also viewed
Officer Abram’s body camera video. Id. at 158-59. This evidence is sufficient
to establish that Glazebrook was the person who shot at Officer Abram. In
sum, the evidence is sufficient to support Glazebrook’s conviction for attempted
murder.
IV. Sentence
[24] Finally, Glazebrook argues that the sentence is inappropriate in light of the
nature of the offenses 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.
13
To the extent that Glazebrook argues that the initial jury verdict, which found him guilty of both attempted
murder and the lesser-included offense of criminal recklessness, muddies the waters regarding intent, we
cannot agree. The trial court explained the rules to the jury and sent it back to re-deliberate. The jury then
returned its verdict of guilty of attempted murder. The jurors did not have any questions; therefore, we infer
that they were simply mistaken in the first verdict and corrected the error in the second. This does not affect
our analysis of the evidence regarding Glazebrook’s intent.
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State, 9 N.E.3d 1274, 1292 (Ind. 2014) (quoting Chambers v. State, 989 N.E.2d
1257, 1259 (Ind. 2013)) (internal citations omitted).
[25] Glazebrook faced the following possible sentences for his convictions:
• For the Level 1 felony attempted murder conviction and the seven Level
1 felony rape convictions, Glazebrook faced a sentence of twenty to fifty
years, with an advisory term of thirty years. Ind. Code § 35-50-2-4. The
trial court imposed thirty-year terms on each of the eight Level 1 felony
convictions, with two to run consecutively and the remainder to run
concurrently.
• For the Level 2 felony burglary conviction, Glazebrook faced a sentence
of ten to thirty years, with an advisory term of seventeen and one-half
years. I.C. § 35-50-2-4.5. He received a 22.5-year sentence for this
conviction.
• For the two Level 3 felony armed robbery convictions, Glazebrook faced
a term of six to twenty years, with an advisory term of ten years. I.C. §
35-50-2-5. The trial court imposed a sixteen-year term.
• For the two Level 3 felony criminal confinement convictions,
Glazebrook faced the same possible sentence as that for armed robbery.
The trial court imposed two twelve-year terms, with one of those terms
being enhanced by fifteen years based on his use of a firearm.
• For the Level 6 felony resisting arrest conviction, Glazebrook faced a
term of six months to three years, with an advisory term of one and one-
half years. I.C. § 35-50-2-7. The trial court imposed a two-year term.
The aggregate sentence imposed by the trial court totals well over 100 years
imprisonment. As noted by Glazebrook, even for this relatively young
nineteen-year-old man, this may very well amount to a sentence of life in
prison.
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[26] The nature of these offenses is truly heinous. Glazebrook and Deweese broke
into an apartment in the middle of the night, awakening the residents from
sleep and sending them into a nightmare. It may be that the initial purpose of
the break-in was theft, but the encounter quickly turned far darker. The two
men brutally raped and violated the two young women at gunpoint. Then,
when police arrived at the scene, Glazebrook shot Officer Abram, and only by
virtue of luck and a bullet proof vest did the officer survive unscathed. It is not
difficult to assume that these two young women are traumatized by these events
and will continue to feel the ramifications for years to come, if not for the rest of
their lives.
[27] Glazebrook notes that he is a young man with an unremarkable juvenile
history, which is true. We note, however, that he was on probation for
possession of marijuana at the time he committed these crimes. And while
incarcerated, Glazebrook has consistently broken the rules, rarely going more
than six months without being written up. He is considered to be a very high
risk to reoffend.
[28] Furthermore, these crimes are not merely the result of questionable youthful
decisionmaking. Even at the young age of nineteen, Glazebrook had the desire
and wherewithal to burglarize a home in the middle of the night—when it had
to have been assumed that the residents would be at home—and then
repeatedly and brutally rape and violate the young women inside, for no reason
whatsoever.
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[29] The trial court carefully considered each offense separately and arrived at totals
that are fair and reasonable. We do not find the sentence imposed by the trial
court to be inappropriate in light of the nature of the offenses or Glazebrook’s
character.
[30] The judgment of the trial court is affirmed.
Robb, J., and Tavitas, J., concur.
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