Lloyd Owen May, III 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 18 2020, 7:55 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Michael P. DeArmitt Curtis T. Hill, Jr.
Columbus, Indiana Attorney General of Indiana
Steven Hosler
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Lloyd Owen May, III, November 18, 2020
Appellant-Defendant, Court of Appeals Case No.
20A-CR-1170
v. Appeal from the Bartholomew
Superior Court
State of Indiana, The Honorable James D. Worton,
Appellee-Plaintiff. Judge
Trial Court Cause No.
03D01-1907-F5-3852
Pyle, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-1170 | November 18, 2020 Page 1 of 6
Statement of the Case
[1] Lloyd Owen May III (“May”) appeals the four and one-half (4½) year sentence
imposed after he pled guilty to Level 5 felony intimidation.1 His sole argument
is that his sentence is inappropriate in light of the nature of the offense and his
character. Concluding that May’s sentence is not inappropriate, we affirm the
trial court.
[2] We affirm.
Issue
Whether May’s sentence is inappropriate in light of the nature of
the offense and his character.
Facts
[3] In July 2019, Steven Eubanks (“Eubanks”) saw May sitting in front of Eubanks’
neighbor’s front door. As Eubanks approached his neighbor’s house to
confront May, Eubanks noticed that May had plugged his cell phone into an
exterior outlet on the neighbor’s house. Eubanks told May to stop stealing
electricity and to leave the neighbor’s property. May stood up, pulled a knife
out of his pocket, and swung the knife less than an inch away from Eubanks’
face while threatening to “cut [Eubanks] up.” (App. Vol. 2 at 18). May also
threatened to return and burn down the neighbor’s house. As he walked away
1
I.C. § 35-45-2-1.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-1170 | November 18, 2020 Page 2 of 6
from the neighbor’s house, May turned around and yelled, “I’ll be back.”
(App. Vol. 2 at 18). Eubanks contacted the police, who located May near the
neighbor’s house. May admitted that he had used methamphetamine that day.
[4] The State charged May with Level 5 felony intimidation, Level 6 felony
possession of methamphetamine, Level 6 felony unlawful possession of a
syringe, and Class A misdemeanor resisting law enforcement. In April 2020,
May pled guilty to Level 5 felony intimidation, and the State dismissed the
remaining charges.
[5] At May’s sentencing hearing, May’s pre-sentence investigation report revealed
that May has an extensive criminal history that includes eight prior felony
convictions and twelve prior misdemeanor convictions. The felony
convictions, which occurred in both Indiana and Florida, include multiple
convictions for intimidation as well as convictions for strangulation, possession
of a controlled substance without a prescription, possession of a weapon, and
receiving stolen property. The misdemeanor convictions include multiple
convictions for battery and resisting law enforcement. May’s pre-sentence
investigation report also revealed multiple probation violations and that May
had had the opportunity to participate in substance abuse treatment outside of a
penal facility and had not successfully completed the treatment program. In
addition, May was on parole for a prior intimidation conviction when he
committed the intimidation offense in this case. The State further pointed out
that May had accrued two jail violations for battery and one jail violation for
intimidation while incarcerated for the offense in this case.
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[6] At the end of the sentencing hearing, the trial court sentenced May to four and
one-half (4½) years in the Department of Correction. May now appeals his
sentence.
Decision
[7] May argues that his sentence is inappropriate. Indiana Appellate Rule 7(B)
provides that we may revise a sentence authorized by statute if, after due
consideration of the trial court’s decision, we find that the sentence is
inappropriate in light of the nature of the offense and the character of the
offender. The defendant bears the burden of persuading this Court that his
sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).
Whether we regard a sentence 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).
[8] The Indiana Supreme Court has further explained that “[s]entencing is
principally a discretionary function in which the trial court’s judgment should
receive considerable deference.” Id. at 1222. “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).
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[9] When 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. Childress, 848 N.E.2d at 1081. Here, May pled guilty to a
Level 5 felony. The sentencing range for a Level 5 felony is one (1) to six (6)
years, and the advisory sentence is three (3) years. IND. CODE § 35-50-2-6.
Here, the trial court sentenced May to four and one-half (4½) years, which is
less than the maximum sentence.
[10] Regarding the nature of the offense, we note that when Eubanks asked May to
leave Eubanks’ neighbor’s property, May stood up, pulled a knife out of his
pocket, and swung the knife less than an inch away from Eubanks’ face while
threatening to “cut [Eubanks] up.” (App. Vol. 2 at 18). May also threatened to
return and burn down the neighbor’s house.
[11] As for May’s character, May has an extensive criminal history that includes
eight prior felony convictions and twelve prior misdemeanor convictions.
Several of the felony convictions were for intimidation, which is the offense to
which May pled guilty in this case. In addition, May accrued three jail
violations, including one for intimidation, while incarcerated for the offense in
this case. May’s former contacts with the law have not caused him to reform
himself. See Jenkins v. State, 909 N.E.2d 1080, 1086 (Ind. Ct. App. 2009), trans.
denied. May has failed to persuade this Court that his four and one-half (4½)
year sentence is inappropriate.
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[12] Affirmed.
Vaidik, J., and Brown, J., concur.
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