Brandon M. Newell v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before any Mar 28 2018, 6:30 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
William T. Myers Curtis T. Hill, Jr.
Grant County Public Defender Attorney General of Indiana
Marion, Indiana
Matthew B. MacKenzie
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Brandon M. Newell, March 28, 2018
Appellant-Defendant, Court of Appeals Case No.
27A04-1708-CR-1850
v. Appeal from the Grant Superior
Court
State of Indiana, The Honorable Jeffrey Todd,
Appellee-Plaintiff. Judge
Trial Court Cause No.
27D01-1609-F2-15
Robb, Judge.
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Case Summary and Issue
[1] Following a jury trial, Brandon Newell was convicted of burglary, a Level 2
felony; armed robbery and criminal confinement, both Level 3 felonies;
unlawful possession of a firearm by a serious violent felon, a Level 4 felony;
and intimidation and battery by means of a deadly weapon, both Level 5
felonies. The jury also found Newell to be an habitual offender. The trial court
sentenced Newell to a total of fifty years, thirty years for the Level 2 burglary
conviction, enhanced by twenty years for the habitual offender adjudication.
The sentences for the remaining crimes were ordered to be served concurrently
with the Level 2 felony sentence. Newell appeals, raising the sole issue of
whether his sentence is inappropriate in light of the nature of his offense and his
character. Concluding Newell’s sentence is not inappropriate, we affirm.
Facts and Procedural History
[2] On September 24, 2016, Jesus Martinez was on his front porch with his two-
year-old son when a person, later identified as Newell, approached him and
asked him for a cigarette. After he provided Newell with a cigarette, Martinez
turned around and saw that Newell “ha[d] my son and a pistol.” Transcript,
Volume 2 at 54. Newell told Martinez to go in the house and said “he was
gonna kill me and my son” if Martinez did not comply. Id. at 58. After they
entered the house, Newell struck Martinez in the head with the pistol and took
his cell phone and wallet. Newell again threatened to kill Martinez and his son
if Martinez did not give him more money. Eventually, Newell threw
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Martinez’s son back to him, threatened to kill him if he called the police, took
Martinez’s bike off the front porch, and rode off. Martinez chased Newell in
his car and Newell subsequently abandoned the bicycle and ran off on foot.
Martinez saw a Chrysler 300 speed down the street, stop, and pick up Newell.
Martinez chased this vehicle until Newell got out and ran behind a house.
Martinez then returned home and eventually contacted police. Martinez later
identified Newell from a photo array assembled by police.
[3] The State charged Newell with burglary, armed robbery, criminal confinement,
unlawful possession of a firearm by a serious violent felon, intimidation, and
battery by means of a deadly weapon. The State also alleged Newell was an
habitual offender. A jury found him guilty of all charges and also found him to
be an habitual offender. At sentencing, Newell asked to be placed in a
Purposeful Incarceration program in order to prepare him for life after
incarceration. With respect to sentencing, the trial court stated:
As far as the aggravating circumstances in this case . . . one
would be the Defendant’s prior criminal and juvenile history as
set forth in the Pre-Sentence Investigation Report. All of it is
concerning to the Court, but most relevant, related and troubling
are the Defendant’s multiple burglaries as a juvenile, two armed
robbery convictions in 2002, battery resulting in serious bodily
injury in 2006. Soon after being released from incarceration in
October of 2009, he committed another armed robbery in
January of 2011 and was adjudicated to be an habitual offender.
Then less than fifty days after his release from the Department of
Corrections [sic] in August of 2016, he committed Counts 1
through 6 in the case before the Court today. Also troubling to
the Court is the fact that this [is] the Defendant’s second
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adjudication as an habitual offender. The criminal history
amounts to almost a twenty year pattern of violence, use of
weapons, threats, and forcibly taking other people’s property. . . .
Second aggravating circumstance is the victim of Count 3 was [a]
child less than three years of age. Third aggravator is the
remaining counts other than Count 3, were knowingly
committed in the presence of this same small child. The fourth
aggravating circumstance is that at the time the Defendant
committed these offenses, he was on probation in two different
cases for separate armed robberies.[1] I do not find that there are
any mitigating circumstances in this case.
[4] Tr., Vol. 4 at 101-03. The trial court sentenced Newell to thirty years executed
for burglary enhanced by twenty years for the habitual offender finding, sixteen
years for armed robbery, sixteen years for criminal confinement, twelve years
for unlawful possession of a firearm by a serious violent felon, six years for
intimidation, and six years for battery by means of a deadly weapon, all to be
served concurrently with the burglary sentence for an aggregate sentence of fifty
years. Newell now appeals his sentence.
Discussion and Decision
I. Standard of Review
[5] Indiana Appellate Rule 7(B) provides, “[t]he Court may revise a sentence
authorized by statute if, after due consideration of the trial court’s decision, the
1
Newell’s probation in these two cases was revoked and the trial court also sentenced him for the probation
violations during the sentencing hearing in this case.
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Court finds that the sentence is inappropriate in light of the nature of the offense
and the character of the offender.” Whether a sentence is regarded as
inappropriate turns on “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). A
sentence review under Indiana Appellate Rule 7(B) is “very deferential to the
trial court.” Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012). This “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). The defendant bears the burden to persuade this court
that the sentence is inappropriate. Sandleben v. State, 29 N.E.3d 126, 136 (Ind.
Ct. App. 2015), trans. denied. The analysis is “not to determine whether another
sentence is more appropriate but rather whether the sentence imposed is
inappropriate.” Conley, 972 N.E.2d at 876 (quotation omitted).
II. Inappropriate Sentence
[6] Newell does not challenge the length of the sentence imposed by the trial court.
Instead, he challenges the sentence as inappropriate because it “failed to include
a recommendation for purposeful incarceration . . . .” Brief of Appellant at 8.
Purposeful Incarceration is a project where the Department of Correction
(“DOC”) “works in collaboration with Judges who can sentence chemically
addicted offenders and document that they will ‘consider a sentence
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modification’ should the offender successfully complete [a] . . . Therapeutic
community.” Therapeutic communities “provide intensive substance abuse
treatment . . . that hold the offenders highly accountable.” Purposeful
Incarceration, https://www.in.gov/idoc/2798.htm (last visited Mar. 15, 2018).
[7] The place where a sentence is to be served is subject to review under Rule 7(B).
Biddinger v. State, 868 N.E.2d 407, 414 (Ind. 2007). However, “it will be 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). Newell does not challenge his placement in the DOC, but rather
challenges the lack of a recommendation that he is eligible for the Purposeful
Incarceration program in the DOC. This underscores that the trial court cannot
order the DOC to place an offender in the Purposeful Incarceration program,
but can only alert the DOC to appropriate candidates. See Purposeful
Incarceration Details, http://www.in.gov/idoc/2798.htm (last visited Mar. 15,
2018) (“The Courts communicate with the [DOC] that this offender is a
[Purposeful Incarceration] offender.”). The program then assesses Purposeful
Incarceration offenders and only admits persons who meet the substance abuse
admission criteria. Id. The record does show that Newell asked the trial court
to recommend purposeful incarceration, but does not establish that he is a
chemically addicted offender. Instead, Newell argues that “[i]n light of his
character as an individual who has been incarcerated for a long period of time
of his life without the proper education on how to live in free society this should
have been viewed as an appropriate case of recommending Purposeful
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Incarceration.” Brief of Appellant at 11 (emphasis added). On appeal,
however, we do not decide “whether another sentence is more appropriate but
rather whether the sentence imposed is inappropriate.” Conley, 972 N.E.2d at
876 (quotation omitted). Although the trial court did not specifically address
Newell’s request for Purposeful Incarceration, we have stated that “it is absurd
to conclude that the General Assembly could have intended that all DOC
inmates be entitled to substance abuse treatment regardless of whether they in
fact suffer from substance abuse.” Cohn v. Strawhorn, 721 N.E.2d 342, 348-49
(Ind. Ct. App. 1999), trans. denied. Having failed to show that he meets the
criteria for recommendation to the program, Newell has failed to show that his
placement in the DOC without such recommendation is inappropriate.
[8] More generally, Newell does little to explain why his sentence is inappropriate
in light of the nature of his offense or his character. For the purpose of 7(B)
review, “[t]he nature of the offense is found in the details and circumstances of
the commission of the offense.” Townsend v. State, 45 N.E.3d 821, 831 (Ind. Ct.
App. 2015), trans denied. The record reveals that in carrying out these offenses,
Newell held a gun to the head of a two-year-old child, threatened to murder the
child and his father, and hit the child’s father in the head with a gun, causing
him to bleed, while still in the presence of the child. At sentencing, the trial
court noted the involvement of the child in two of the five aggravating factors.
We also believe Newell’s conduct to be particularly egregious in light of the
involvement of a young child. Therefore, we cannot say that Newell’s sentence
is inappropriate in light of the nature of his offenses.
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[9] In considering the character of the offender, it is “shown by the offender’s life
and conduct.” Id. Newell has an extensive criminal history as both a juvenile
and as an adult, including multiple convictions for armed robbery. At
sentencing, the trial court noted that Newell’s criminal history “amounts to
almost a twenty year pattern of violence, use of weapons, threats, and forcibly
taking other people’s property.” Tr., Vol. 4 at 102. Newell was out of prison
for less than two months before committing this armed robbery, while still on
probation for two other offenses of armed robbery. Considering Newell’s
criminal history, we cannot say his fifty-year sentence is inappropriate in light
of the nature of his character.
[10] Newell has not met his burden of convincing us that his placement in DOC
without a Purposeful Incarceration recommendation is inappropriate because
he has failed to show that he qualifies as a candidate for the program in the first
place. As for the length of Newell’s sentence, it is not inappropriate in light of
the nature of Newell’s crimes and his character.
Conclusion
[11] Newell’s sentence is not inappropriate in light of the nature of the offense and
his character. We therefore affirm his sentence of fifty years to be executed in
the Department of Correction.
[12] Affirmed.
Crone, J., and Bradford, J., concur.
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