Willis James Simmons v. State of Indiana

Pursuant to Ind.Appellate Rule 65(D), this Aug 14 2013, 5:37 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:
GARY L. GRINER GREGORY F. ZOELLER
Mishawaka, Indiana Attorney General of Indiana
J. T. WHITEHEAD
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
WILLIS JAMES SIMMONS, )
)
Appellant-Defendant, )
)
vs. ) No. 71A04-1301-CR-31
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE ST. JOSEPH SUPERIOR COURT
The Honorable John M. Marnocha, Judge
Cause No. 71D02-1209-FD-864
August 14, 2013
MEMORANDUM DECISION – NOT FOR PUBLICATION
RILEY, Judge
STATEMENT OF THE CASE
Appellant–Defendant, Willis James Simmons (Simmons), appeals the sentence
imposed following his conviction of domestic battery in the presence of his children, a
class D felony, Ind. Code Section 35-42-2-1.3.
We affirm.
ISSUES
Simmons raises a single issue on appeal, which we restate as follows: Whether
Simmons’ sentence is inappropriate.
FACTS AND PROCEDURAL HISTORY
Simmons married Jamila Jackson (Jackson) in July 2012. At the time Jackson and
her three children, ages thirteen, eight and six, were staying at the Center for the
Homeless in South Bend, Indiana. On September 21, 2012, Jackson, Simmons and the
three children visited a family friend at his apartment. Jackson and Simmons had been
drinking that night, and at some point during the night, Jackson and Simmons got into an
oral argument. In the process of it all, Jackson packed up some bags and left the
apartment with her three children to return to the Center for the Homeless. Simmons
began looking for Jackson and her children and he eventually found them sitting on a
step. Simmons approached Jackson and they started arguing again.
This time, however, the argument between Jackson and Simmons turned into a
physical fight. Simmons hit Jackson on the back of her head, punched and also pulled
Jackson’s hair. During this time, Jackson’s children were watching the fight and they
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were crying and screaming. All three children tried to help Jackson by pulling her away
from Simmons. At some point, Jackson called 911 seeking help. When the police
arrived, Jackson and her three children flagged down the responding officer, Joshua
Mann (Officer Mann) of the South Bend Police Department. Officer Mann handcuffed
Simmons, while Officer John Cox (Officer Cox) spoke to Jackson. Officer Cox took
photographs of Jackson’s injuries. Thereafter, Officer Mann and Officer Cox transported
Simmons to the police station.
On September 22, 2012, the State charged Simmons with domestic battery, a Class
D felony, I. C. § 35-42-2-1.3. On December 3, 2012, Simmons’ trial commenced. On
December 4, 2012, the jury found Simmons guilty as charged. On January 9, 2013, the
trial court sentenced Simmons to three years at the Indiana Department of Correction.
Simmons now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
Simmons argues that his three-year sentence imposed by the trial court was
inappropriate given the nature of the offense and his character. Ind. Appellate Rule 7(B)
provides that the “[c]ourt may revise a sentence authorized by statute if, after due
consideration of the trial court’s decision, the [c]ourt finds that the sentence is
inappropriate in light of the nature of the offense and the character of the offender.” We
defer to the trial court during appropriateness review, Stewart v. State, 866 N.E.2d 858,
866 (Ind. Ct. App. 2007), and we refrain from merely substituting our judgment for that
of the trial court. Golden v. State, 862 N.E.2d 1212, 1218 (Ind. Ct. App. 2007), trans.
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denied. The burden is on the defendant to persuade the reviewing court that his sentence
is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). We also note
that when considering whether the sentence is inappropriate, we must examine both the
nature of the offense and the defendant’s character. See Payton v. State, 818 N.E.2d 493,
498 (Ind. Ct. App. 2004), trans. denied.
Simmons received a three year sentence for the domestic battery offense, which is
the maximum sentence for a Class D felony. Simmons argues that “[t]he only injury
Jackson reported was pain resulting from Simmons pulling her hair” (Appellant’s Br. p.
6). He thus argues that the battery charge was not that egregious, and as such he did not
deserve to get the maximum sentence for the domestic violence offense. We find this
argument unpersuasive. We have previously explained that:
If we were to take this language literally, we would reserve the maximum
punishment for only the single most heinous offense.... We should concentrate less
on comparing the facts of this case to others, whether real or hypothetical, and
more on focusing on the nature, extent, and depravity of the offense for which the
defendant is being sentenced, and what it reveals about the defendant’s character.
Brown v. State, 760 N.E.2d 243, 247 (Ind. Ct. App. 2002), trans. denied.
Here, with respect to the character of the offender, we recognize Simmons’
previous criminal history. The pre-sentence investigation report showed that Simmons
had over a period of seven years, picked up a total of nine misdemeanors and one prior
felony conviction. The record shows that in 2005, Simmons was convicted of two
charges for criminal conversion. In 2007, he was charged with driving without a license.
In the same year, Simmons was charged with carrying a handgun without a license. In
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2008, Simmons was charged and convicted of criminal conversion, criminal trespass and
resisting law enforcement. In 2009, Simmons was convicted of another resisting law
enforcement offense. Lastly, in 2010, Simmons was convicted of a domestic battery
offense which he also committed in front of a child. We find that Simmons has shown a
disregard for the legal system and an inability to take responsibility for correcting his
behaviors. His sentence is not inappropriate.
With respect to the nature of the offense, with nine prior misdemeanor convictions
and one felony conviction, Simmons battered his wife in front of his step children.
Moreover, he committed this current offense when he was on parole for his prior
domestic violence offense. His prior convictions show a disregard for the law as well as
an escalation in the severity of the crimes. See Ruiz v. State 818 N.E.2d 927, 929 (Ind.
2004)
CONCLUSION
For the foregoing reasons, we conclude that Simmons’ sentence was not
inappropriate in light of the nature of the offense and the character of the offender.
Affirmed.
BRADFORD, J. and BROWN, J. concur
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