Deloney v. State
Decision Date | 28 December 2012 |
Docket Number | No. 22A01-1204-CR-153,22A01-1204-CR-153 |
Parties | QUINTEZ DELONEY, Appellant-Defendant, v. STATE OF INDIANA, Appellee-Plaintiff. |
Court | Indiana Appellate Court |
Pursuant to Ind. Appellate Rule 65(D), this 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:
BRUCE A. BRIGHTWELL
GREGORY F. ZOELLER
Attorney General of Indiana
RYAN D. JOHANNINGSMEIER
Deputy Attorney General
Indianapolis, Indiana
APPEAL FROM THE FLOYD SUPERIOR COURT
The Honorable Susan Orth, Judge
MEMORANDUM DECISION - NOT FOR PUBLICATIONMATHIAS, 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:
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 trialcourt 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 court's decision that the sentences should run consecutively. Courts have discretion to determine whether sentences should run concurrently or consecutively. Ind. Code § 35-50-1-2; see also Williams v. State, 891 N.E.2d 621, 630 (Ind. Ct. App. 2008). Williams, 891 N.E.2d at 630 (internal citations omitted). Here, the trial court articulated many reasons that support its decision to order consecutive sentences: (1) the callous and "brutal" circumstances of the crime that resulted in the death of the victim; (2) the "purposeful" and "calculated" nature of Deloney's actions; (3) Deloney's criminal history; (3) Deloney's lack of sympathy and empathy for the victim's family; and (4) Deloney's intimidation of witnesses. For all of these reasons, we hold that the trial court did not abuse its discretion in sentencing Deloney.
II. Inappropriateness of Sentence
Deloney argues that his aggregate, executed sentence of thirty-eight years is inappropriate in light of the nature of the offense and his character, particularly given his age. Under Indiana Appellate Rule 7(B), we 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."Although we may review and revise a sentence, "[t]he 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 v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). We must give "deference to a trial court's sentencing decision, both because Rule 7(B) requires us to give due consideration to that decision and because we understand and recognize the unique perspective a trial court brings to its sentencing decisions." Trainor v. State, 950 N.E.2d 352, 355-56 (Ind. Ct. App. 2011), trans. denied (quoting Stewart v. State, 866 N.E.2d 858, 866 (Ind. Ct. App. 2007)) (internal quotation marks omitted).
In reviewing the appropriateness of a sentence, we consider "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, 895 N.E.2d at 1224. The defendant has the burden to persuade us "that the sentence imposed by the trial court is inappropriate." Id. (citing Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006)).
The maximum sentence for a Class A felony is fifty years with an advisory sentence of thirty years,1 and the maximum sentence for a Class C felony is eight years with an advisory sentence of four years.2 Here, Deloney received the advisory sentence for Class A felony robbery and the maximum sentence for Class C felony.
Deloney argues the maximum sentence should be reserved for the worst offenses and offenders. Appellant's Br. at 8. We agree, see Buchanan v. State, 767 N.E.2d 967,973 (Ind. 2002); however, we also note that Deloney was not given the maximum sentence on both counts. In determining whether a sentence is...
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