980 N.E.2d 449 (Ind.App. 2012), 22A01-1204-CR-153, Deloney v. State

Docket Nº22A01-1204-CR-153.
Citation980 N.E.2d 449
Opinion JudgeMATHIAS, Judge.
Party NameQuintez DELONEY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
AttorneyBruce A. Brightwell, New Albany, IN, Attorney for Appellant. Gregory F. Zoeller, Attorney General of Indiana, Ryan D. Johanningsmeier, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Judge PanelKIRSCH, J., and CRONE, J., concur.
Case DateDecember 28, 2012
CourtCourt of Appeals of Indiana

Page 449

980 N.E.2d 449 (Ind.App. 2012)

Quintez DELONEY, Appellant-Defendant,

v.

STATE of Indiana, Appellee-Plaintiff.

No. 22A01-1204-CR-153.

Court of Appeals of Indiana.

December 28, 2012

Appeal from the Floyd Superior Court; The Honorable Susan Orth, Judge; Cause No. 22D01-0705-MR-315.

Bruce A. Brightwell, New Albany, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Ryan D. Johanningsmeier, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

MEMORANDUM DECISION— NOT FOR PUBLICATION

MATHIAS, Judge.

In 2009, Quintez Deloney (" Deloney" ) was convicted after a jury trial in Floyd Superior Court of Class A felony attempted robbery resulting in serious bodily injury and Class A felony burglary resulting in bodily injury. He was sentenced to fifty years for Class A felony attempted robbery and thirty years for Class A felony burglary. Deloney appealed. In 2010, this court affirmed his conviction and sentence for Class A felony burglary resulting in bodily injury, but it remanded the case and instructed the trial court to reduce his conviction and sentence for attempted robbery from a Class A felony to a Class C felony.

On remand, the trial court resentenced him to consecutive, executed sentences of eight years for Class C felony robbery and thirty years for Class A burglary. Deloney raises three issues on appeal, which we rephrase as: whether the trial court abused its discretion in sentencing Deloney; whether Deloney's sentence is inappropriate; and whether the trial court's sentence subjects Deloney to cruel and unusual punishment.

We affirm.

Facts and Procedural History

The underlying facts of this case, as reported in this court's opinion of Deloney's original appeal, are as follows:

On January 22, 2007, Lewis James was shot and killed. The evidence at the crime scene included a cell phone and a red hat. Deloney and Lance Douglas were arrested three weeks later after it was discovered the cell phone at the scene belonged to Douglas and Deloney allegedly had bragged about his involvement in the crime. The State charged Deloney with Class A felony attempted robbery resulting in serious bodily injury, Class A felony burglary resulting in bodily injury, and murder.

At trial, the State presented evidence and expert testimony, over Deloney's objection, from DNA technician Amy Winters regarding DNA collected from the red hat found at the scene. She testified the sample contained DNA from two or three people, which made it impossible for her to calculate the probability that Deloney contributed to the DNA found on the red hat. Winters could not exclude Deloney or Douglas from the DNA profiles, but neither could she include them. The State also presented evidence that Deloney was seen with Douglas on the night of the crime near the crime scene, he ceased calling Douglas's cell phone after the incident, and he told multiple people of his involvement with the crime.

Following a jury trial, Deloney was acquitted of murder, but convicted of Class A felony attempted robbery resulting in serious bodily injury and Class A felony burglary resulting in bodily injury. The court sentenced him to fifty years for Class A felony attempted robbery resulting in bodily injury, and thirty years for Class A felony burglary resulting in bodily injury, with his sentences to be served consecutively for an aggregate sentence of eighty years.

Deloney v. State, 938 N.E.2d 724, 727-28 (Ind.Ct.App.2010), trans. denied. Deloney appealed and argued that the trial court erred in admitting DNA evidence from the hat; that his convictions subjected him to double jeopardy; and that the aggravating and mitigating circumstances used to determine his sentence were an abuse of discretion. This court held that the trial court erred in admitting the DNA evidence, but held the error was harmless and thus affirmed his " conviction of and sentence for Class A felony burglary resulting in bodily injury[.]" Id. at 727. The court " remand[ed] to the trial court to reduce his conviction of and sentence for attempted robbery from a Class A felony to a Class C felony" after finding that his conviction violated double jeopardy. Id.

On March 9, 2012, the trial court conducted Deloney's sentencing hearing and sentenced him to consecutive, executed sentences of eight years for Class C felony attempted robbery and thirty years for Class A felony burglary.

Deloney now appeals.

I. Sentencing Discretion

Deloney argues that the trial court abused its discretion in sentencing him, because it failed to consider his age and learning disability as significant mitigating factors. " [S]entencing decisions rest within the sound discretion of the trial court and are reviewed on appeal only for an abuse of discretion." Anglemyer v. State, 868 N.E.2d 482, 490 (Ind.2007), reh'g granted on other grounds, 875 N.E.2d 218 (Ind.2007). " The trial court can abuse its discretion by (1) issuing an inadequate sentencing statement, (2) finding aggravating or mitigating factors that are not supported by the record, (3) omitting factors that are clearly supported by the record and advanced for consideration, or (4) by finding factors that are improper as a matter of law." Phelps v. State, 969 N.E.2d 1009, 1019 (Ind.Ct.App.2012) (citing Laster v. State, 956 N.E.2d 187 (Ind.Ct.App.2011)), trans. denied.

Deloney does not contest that the trial court's issuing statement was inadequate or that the trial court failed to consider his learning disability and his age as mitigators. In fact, the trial court considered his learning disability and his age as mitigators but found that the " aggravating factors clearly outweigh[ed] the mitigating" factors. Tr. p. 53. Thus, it appears Deloney is challenging the weight given to these factors. As this court previously noted in Deloney's initial appeal, " [w]hile we review the aggravating and mitigating factors considered by the trial court for abuse of discretion, we do not review the relative weight or value assigned to each factor." Deloney, 938 N.E.2d at 732 (citing Anglemyer, 868 N.E.2d at 491). Thus, " we cannot review Deloney's allegation the trial court assigned too little weight to the fact that Deloney was only fifteen years old when the underlying crime occurred[,]" id. at 732 n. 12, and we cannot review whether the trial court assigned too little weight to his learning disability.

Deloney also challenges the trial...

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