David A. Brewster v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Feb 20 2015, 9:56 am
Pursuant to Ind. Appellate Rule 65(D), this
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
Kimberly A. Jackson Gregory F. Zoeller
Indianapolis, Indiana Attorney General of Indiana
Graham T. Youngs
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
David A. Brewster, February 20, 2015
Appellant-Defendant, Court of Appeals Cause No.
01A02-1408-CR-559
v. Appeal from the Adams Superior
Court.
The Honorable Patrick R. Miller,
State of Indiana, Judge.
Appellee-Plaintiff. Cause Nos. 01D01-1309-FD-138
and 01D01-1312-FD-184
Sharpnack, Senior Judge
Statement of the Case
[1] David A. Brewster appeals the four and one-half year executed sentence
Court of Appeals of Indiana | Memorandum Decision 01A02-1408-CR-559 | February 20, 2015 Page 1 of 9
imposed after he pleaded guilty to domestic battery as a Class D felony1 and
disorderly conduct as a Class B misdemeanor2 under Cause Number 138 and
domestic battery as a Class D felony3 and invasion of privacy as a Class A
misdemeanor4 under Cause Number 184. We affirm.
Issues
I. Whether the trial court erred in sentencing Brewster; and
II. Whether his sentence is inappropriate.
Facts and Procedural History
[2] In September 2013, Brewster and J.W., who have been involved in a
relationship for nine years and have three children together, had a
disagreement, and Brewster hit J.W. in the face. When police officers arrived at
the scene, Brewster refused to stop yelling when asked to do so. The State
charged Brewster with domestic battery as a Class D felony and disorderly
conduct as a Class B misdemeanor under Cause Number 138, and the trial
court issued an order prohibiting Brewster from having contact with J.W.
1
Ind. Code § 35-42-2-1.3 (2012).
2
Ind. Code § 35-45-1-3 (2006).
3
Ind. Code § 35-42-2-1.3
4
Ind. Code § 35-46-1-15.1 ( 2010).
Court of Appeals of Indiana | Memorandum Decision 01A02-1408-CR-559 | February 20, 2015 Page 2 of 9
[3] Two months later, while violating the no-contact order, Brewster and J.W.
argued, and Brewster smacked J.W. on the leg and face in the presence of one
of their children. The State charged Brewster with domestic battery as a Class
D felony and invasion of privacy as a Class A misdemeanor for knowingly
violating the protective order.
[4] In June 2014, Brewster pleaded guilty to all charges in a consolidated guilty
plea hearing. In July 2014, the trial court held a consolidated sentencing
hearing. Evidence admitted at the hearing revealed that twenty-eight-year-old
Brewster has a fourteen-year criminal history that includes five juvenile
delinquency adjudications for incorrigibility, battery resulting in bodily injury,
failure to stop at the scene of an accident resulting in damage, operating a
vehicle without ever receiving a license, and illegal consumption of an alcoholic
beverage. In addition, Brewster violated the terms of probation imposed
following each of these adjudications.
[5] Brewster’s adult criminal history includes misdemeanor convictions for illegal
consumption of an alcoholic beverage, operating a vehicle while intoxicated
endangering a person, resisting law enforcement, interfering with a drug or
alcohol screening test, and public intoxication endangering a person’s life as
well as felony convictions for operating while intoxicated, theft, and domestic
battery. Brewster has been placed on probation five times, and violated the
terms of his probation each time.
Court of Appeals of Indiana | Memorandum Decision 01A02-1408-CR-559 | February 20, 2015 Page 3 of 9
[6] After the presentation of evidence at the sentencing hearing, the trial court
found the following aggravating circumstances: 1) Brewster’s criminal history,
which shows a pattern of being unable to obey the law and of being violent and
abusive; 2) Brewster was out on bond for the first domestic battery charge when
he committed the second one; 3) Brewster violated the terms of his bond release
by violating the no-contact order; 4) the victim was the same in both domestic
battery cases and she was also the victim in Brewster’s prior domestic battery
conviction; and 5) Brewster has a habit of violating probation fairly quickly
after being placed on probation. The trial court did not find Brewster’s guilty
plea to be a mitigating factor.
[7] At the close of the sentencing hearing, the trial court remarked that in the six
years he has been a judge, Brewster might “be the one of the worst or the worst
I’ve seen in this category for what you do.” Tr. p. 78. Immediately thereafter,
the trial court sentenced Brewster to 730 days for the domestic battery
conviction in Cause Number 138 but imposed no sentence for the disorderly
conduct conviction. The trial court further sentenced Brewster to 915 days for
the domestic battery conviction in Cause Number 184 and 365 days for the
invasion of privacy conviction with the sentences to run concurrently with each
other and consecutively to the 730-day sentence in Cause Number 184, for a
total executed sentence of 1645 days or four and one-half years. Brewster
appeals his sentence.
Court of Appeals of Indiana | Memorandum Decision 01A02-1408-CR-559 | February 20, 2015 Page 4 of 9
Discussion and Decision
I. Aggravating and Mitigating Factors
[8] A trial court’s sentencing order is reviewed on appeal for an abuse of discretion.
Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g 875 N.E.2d
218 (Ind. 2007). An abuse of discretion occurs when a decision is clearly
against the logic and effect of the facts and circumstances before the court, or
the reasonable, probable, and actual deductions to be drawn therefrom. Id. A
trial court may abuse its sentencing discretion in a number of ways, including:
1) failing to enter a sentencing statement; 2) entering a sentencing statement
that includes aggravating and mitigating factors that are not supported by the
record; 3) entering a sentencing statement that omits reasons that are clearly
supported by the record; or 4) entering a sentencing statement that includes
reasons that are improper as a matter of law. Id.A. Mitigating Factors
[9] Brewster argues that the trial court erred in failing to find that his guilty plea
was a mitigating circumstance. An allegation that a trial court failed to identify
or find a mitigating circumstance requires the defendant to establish that the
mitigating evidence is both significant and clearly supported by the record.
Powell v. State, 769 N.E.2d 1128, 1135 (Ind. 2002). The trial court is not
obligated to accept the defendant’s contention as to what constitutes a
mitigating circumstance. Id.Court of Appeals of Indiana | Memorandum Decision 01A02-1408-CR-559 | February 20, 2015 Page 5 of 9
[10] We acknowledge that a defendant who pleads guilty deserves to have at least
some mitigation extended to the guilty plea. Lavoie v. State, 903 N.E.2d 135,
143 (Ind. Ct. App. 2009). However, a guilty plea does not rise to the level of
significant mitigation where the defendant has received a substantial benefit
from the plea or where the evidence is such that the decision to plead guilty is
merely a pragmatic one. Id.[11] Here, the evidence of Brewster’s guilt was overwhelming. A review of the
probable cause affidavit reveals the State had substantial evidence of his guilt,
including eye witnesses to the domestic batteries. His decision to plead guilty
was therefore likely a pragmatic one and not an expression of remorse. See
Wells v. State, 836 N.E.2d 475, 479-80 (Ind. Ct. App. 2005), trans. denied. Under
these circumstances, Brewster’s guilty plea does not merit significant mitigating
weight, and the trial court did not abuse its discretion.
B. Aggravating Factors
[12] Brewster next argues that the trial court erred in finding his violation of the no-
contact order in Cause Number 138 to be an aggravating circumstance.
Specifically, he contends that his “violation of the ‘no contact’ order entered in
[Cause Number 138] was the act which was the basis for the Invasion of
Privacy count in [Cause Number 184]. . . . Thus, the trial court found as an
aggravating circumstance the material elements of the Invasion of Privacy
count.” Appellant’s Br. p. 8. However, our review of the sentencing hearing
transcript reveals that the trial court did not find Brewster’s violation of the no-
contact order to be an aggravating circumstance. Rather, the trial court found
Court of Appeals of Indiana | Memorandum Decision 01A02-1408-CR-559 | February 20, 2015 Page 6 of 9
that the violation of the bond release was the aggravating circumstance. We
find no error in this aggravator.
[13] Brewster also argues that the trial court erred in finding that he was “one of the
worst or the worst I’ve seen in this category for what you do.” Tr. p. 78.
According to Brewster, the facts of this case “are less egregious than numerous
Domestic Battery offenses.” Appellant’s Br. p. 9. The trial court made this
statement at the conclusion of the sentencing hearing after it set forth the
aggravating factors. We agree with the State that this statement simply
“appears to be an explanation for why an executed sentence is appropriate here
given the fact that Brewster has historically violated probation quickly, has
exhibited a pattern of drug and alcohol use, and battered [J.W.] in front of their
children.” Appellee’s Br. p. 10.
[14] Lastly, we note that even if the trial court overlooked a significant mitigating
factor or found an inappropriate aggravating factor, a single aggravating
circumstance is adequate to justify a sentence enhancement. See Powell, 769
N.E.2d at 1135. Here, Brewster’s extensive fourteen-year criminal history,
which includes five misdemeanors, three felonies, and several probation
violations, supports his enhanced sentence.
II. Inappropriate Sentence
[15] Brewster next argues that his sentence is inappropriate. Article VII, section 4 of
the Indiana Constitution authorizes independent appellate review of sentences.
Rice v. State, 6 N.E.3d 940, 946 (Ind. 2014). This review is implemented
Court of Appeals of Indiana | Memorandum Decision 01A02-1408-CR-559 | February 20, 2015 Page 7 of 9
through Indiana Appellate Rule 7(B), which states that we may revise a
sentence, even if authorized by statute, if after due consideration of the trial
court’s decision, the sentence is inappropriate in light of the nature of the
offense and the character of the offender. In determining whether a sentence is
inappropriate, this Court looks at 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 v. State, 895 N.E.2d 1219, 1224 (Ind. 2008).
Brewster bears the burden on appeal of persuading us that his sentence is
inappropriate. See Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).
[16] In determining whether a sentence is inappropriate, the advisory sentence is the
starting point the legislature has selected as an appropriate sentence for the
crime committed. Id. at 1081. The sentencing range for a Class D felony is
between six months and three years, with the advisory sentence being one and
one-half years. Ind. Code § 35-50-2-7 ( 2013). Here the trial court imposed two
years for one Class D felony and two and one-half years for the other. The trial
court ordered the sentences to run consecutively for a four and one-half-year
executed sentence.
[17] We now turn to the nature of the offenses. In Cause Number 138, Brewster hit
J.W., the mother of his three children, in the face. When police officers arrived
at the scene, Brewster refused to stop yelling when they asked him to do so. In
Cause Number 184, while violating a no-contact order, Brewster smacked J.W.
on the leg and face in the presence of their child.
Court of Appeals of Indiana | Memorandum Decision 01A02-1408-CR-559 | February 20, 2015 Page 8 of 9
[18] As to the character of the offender, we note that the significance of a criminal
history in assessing a defendant’s character is based on the gravity, nature, and
number of prior offenses in relation to the current offense. Moss v. State, 13
N.E.3d 440, 447 (Ind. Ct. App. 2014), trans. denied. Here, twenty-eight-year-old
Brewster had a fourteen-year criminal history that includes three felony and five
misdemeanor convictions as well as numerous probation violations. These are
his second and third domestic battery convictions. He was out on bond for the
second conviction when he committed the third conviction in violation of a no-
contact order. All three convictions involve the same victim, who is the mother
of his three children. Clearly, Brewster has not reformed his criminal behavior
despite his numerous contacts with the criminal justice system. Considering the
nature of the offense and Brewster’s character, Brewster has not met his burden
of persuading us that his sentence is inappropriate.
[19] Affirmed.
Bailey, J., and Brown, J., concur.
Court of Appeals of Indiana | Memorandum Decision 01A02-1408-CR-559 | February 20, 2015 Page 9 of 9