Christopher A. Bracken 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 Nov 09 2020, 8:28 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.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Valerie K. Boots Curtis T. Hill, Jr.
Ellen M. O’Connor Attorney General of Indiana
Marion County Public Defender Agency
Caroline G. Templeton
– Appellate Division Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Christopher A. Bracken, November 9, 2020
Appellant-Defendant, Court of Appeals Case No.
20A-CR-503
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Grant W.
Appellee-Plaintiff. Hawkins, Judge
Trial Court Cause No.
49G05-1909-F5-35958
Mathias, Judge.
[1] Christopher Bracken (“Bracken”) was convicted in Marion Superior Court of
two counts of Level 5 felony failure to register as a sex offender and Class A
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misdemeanor possession of paraphernalia. He was ordered to serve an
aggregate six-year sentence. Bracken appeals and argues that his sentence is
inappropriate in light of the nature of the offense and the character of the
offender.
[2] We affirm.
Facts and Procedural History
[3] On March 19, 2003, Bracken was convicted of rape and ordered to register as a
sex offender. In 2013, Bracken was convicted of failure to register as a sex
offender. Bracken was again convicted of failure to register as a sex offender in
2019 under cause number 49G06-1802-F5-3945 (“Cause 3945”).
[4] As a result of the 2019 conviction and a subsequent probation violation,
Bracken was placed on GPS monitoring. On August 16, 2019, Bracken reported
to the Marion County Sheriff’s Office Sex or Violent Offender registry and
registered his address as 1634 Winfield Avenue in Indianapolis.
[5] In September 2019, on several dates, Bracken’s GPS monitor did not record any
location hits at his registered address. A sheriff’s deputy attempted compliance
checks on September 9 and 11, but no contact was made with Bracken on either
date. On September 11, 2019, the deputy spoke to Bracken’s next-door neighbor
who recognized Bracken’s picture and stated she had not seen him in several
days.
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[6] That same day, sheriff’s deputies located Bracken at a laundromat on the
eastside of Indianapolis by using his GPS tracking monitor. Bracken was
arrested, and during the search incident to arrest, officers found a clear pipe
typically used for ingesting methamphetamine or crack cocaine. Bracken
admitted he had not lived at his registered address for several days and stated
that he was homeless.
[7] Bracken was charged with two counts of Level 5 felony failure to register as a
sex offender. He was also charged with Class A misdemeanor possession of
paraphernalia.1 As a result of the charges and other alleged probation
violations, on September 17, 2019, the State also filed a notice of probation
violation in Cause 3945.
[8] Bracken agreed to plead guilty without the benefit of a plea agreement and his
guilty plea hearing was held on January 31, 2020. The State established a
factual basis for the charged crimes and Bracken pleaded guilty as charged. His
probation in Cause 3945 was also revoked.
[9] At the sentencing hearing held the same day, the trial court weighed Bracken’s
significant criminal history against his guilty plea and acceptance of
responsibility. Tr. pp. 24–25. Bracken’s adult criminal history dates back to
1989 and includes several probation and community corrections violations, six
1
Bracken has a 2019 conviction for possession of paraphernalia, which elevated the charge in this case to a
Class A misdemeanor.
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misdemeanor convictions, and eleven felony convictions for auto theft, rape,
criminal deviate conduct, criminal confinement, escape, robbery, carrying a
handgun without a license, and failure to register as a sex offender.
[10] Bracken attributed much of his criminal history and homelessness to his issues
with substance abuse. Bracken informed the court that he began using illegal
substances after his mother died of cancer when he was sixteen years old.
Bracken admitted to using cocaine and marijuana. Bracken stated he smoked
marijuana on a daily basis before he was arrested in this case. Bracken was
diagnosed with depression after he participated in a mental health evaluation at
the Marion County Jail.
[11] After considering the aggravating and mitigating circumstances, the court
ordered Bracken to serve concurrent terms of six years in the Department of
Correction (“DOC”) for the Level 5 felony failure to register convictions and a
concurrent term of 190 days for the possession of paraphernalia conviction. In
Cause 3945, the court revoked 1,095 days of Bracken’s probation. The court
ordered the aggregate six-year sentence in this case to be served consecutive to
the sentence in Cause 3945. The court stated it would reconsider Bracken’s
placement after three calendar years if he has successfully completed programs
available to him in the DOC and has both a place to live and available
employment.
[12] Bracken now appeals his sentence.
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Discussion and Decision
[13] Bracken argues that his aggregate six-year sentence is inappropriate. Pursuant
to Indiana Appellate Rule 7(B), “[t]he Court may revise a sentence authorized
by statute if, after due consideration of the trial court’s decision, the Court finds
that the sentence is inappropriate in light of the nature of the offense and the
character of the offender.” We must exercise deference to a trial court’s
sentencing decision because Rule 7(B) requires us to give due consideration to
that decision, and we understand and recognize the unique perspective a trial
court brings to its sentencing decisions. Rose v. State, 36 N.E.3d 1055, 1063 (Ind.
Ct. App. 2015). “Such 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).
[14] The determination of whether we regard a sentence as inappropriate “turns on
our sense of 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.” Bethea v. State, 983 N.E.2d 1134, 1145 (Ind. 2013) (quoting Cardwell v.
State, 895 N.E.2d 1219, 1224 (Ind. 2008)). The applicable question is not
whether another sentence is more appropriate, but whether the sentence
imposed is inappropriate. Rose, 36 N.E.3d at 1063.
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[15] Although we have the power to review and revise sentences, the principal role
of appellate review should be to attempt to “leaven the outliers, and identify
some guiding principles for trial courts and those charged with improvement of
the sentencing statutes, but not to achieve a perceived ‘correct’ result in each
case.” Cardwell, 895 N.E.2d at 1225. Our review under Rule 7(B) should focus
on “the forest—the aggregate sentence—rather than the trees—consecutive or
concurrent, number of counts, or length of the sentence on any individual
count.” Id. And it is the defendant’s burden on appeal to persuade us that the
sentence imposed by the trial court is inappropriate. Childress v. State, 848
N.E.2d 1073, 1080 (Ind. 2006).
[16] The sentencing range for a Level 5 felony is between one and six years. Ind.
Code § 35-50-2-6. Bracken was ordered to serve the maximum six-year sentence
for each Level 5 felony failure to register conviction. Bracken was ordered to
serve 190 days for his possession of paraphernalia conviction, which is less than
the maximum one-year sentence that may be imposed for a Class A
misdemeanor conviction. See Ind. Code 35-50-3-2. Bracken was ordered to
serve his sentences concurrently for an aggregate sentence of six years.
[17] We agree with Bracken that there are no facts surrounding the nature of his
offenses that would support a maximum sentence for failure to register as a sex
offender. However, Bracken’s character, particularly his prior criminal history,
more than supports his aggregate six-year sentence.
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[18] Bracken’s prior criminal history consists of eleven prior felony convictions,
lengthy terms of imprisonment, and several probation and community
corrections violations. Bracken has two prior convictions for failing to register
as a sex offender. He committed these current offenses while his was on
probation for his 2019 failure to register conviction. His other felony
convictions include the violent offenses of rape, criminal confinement, and
robbery. Bracken also admitted to cocaine use and smoking marijuana every
day prior to his arrest in this case.
[19] Bracken has been given the benefit of lenient sentences in the past but has not
taken advantage of the opportunity for rehabilitation. In this case, Bracken
accepted responsibility and pleaded guilty to the offenses he committed, a fact
that reflects well on his character. For that reason, the trial court informed
Bracken that it would consider modification to Bracken’s placement after three
calendar years2 if Bracken successfully completed programming provided by the
DOC and has both a place to live and available employment.
Conclusion
[20] Although Bracken accepted responsibility for the offenses he committed, he has
not demonstrated that he is able to lead a law-abiding life or that he has taken
advantage of prior opportunities for rehabilitation. For this reason, Bracken has
2
Bracken was ordered to serve the three-year sentence imposed for the probation violation in Cause 3945
before serving the six-year sentence imposed in this case.
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not persuaded us that his aggregate six-year sentence is inappropriate in light of
the nature of the offense and the character of the offender.
[21] Affirmed.
Bradford, C.J., and Najam, J., concur.
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