Riley v. State
| Decision Date | 28 March 2022 |
| Docket Number | 21A-CR-1664 |
| Court | Indiana Appellate Court |
| Parties | Levonuia Riley, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff. |
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.
Appeal from the Allen Superior Court The Honorable Frances C. Gull Judge Trial Court Cause Nos. 02D04-1703-F6-309 02D05-1802-F6-222
ATTORNEY FOR APPELLANT Donald J. Frew Ft. Wayne, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Caroline G. Templeton Deputy Attorney General Indianapolis, Indiana
[¶1] Levonuia Riley appeals the trial court's sentence imposed for his conviction for theft, a Level 6 felony, and the imposition of his previously suspended sentence as a result of his probation revocation in a previous case. Riley seeks to have the sentences revised under Indiana Appellate Rule 7(B) as inappropriate in light of the nature of his offenses and his character. We affirm.
[¶2] The issues before us are as follows:
[¶3] On March 18, 2017, law enforcement was dispatched to Kroger in response to a report of a theft in progress. Kroger's loss prevention specialist reported that Riley was in the liquor aisle and concealed ten bottles of liquor in his jacket. Riley fled from law enforcement by vehicle and then on foot. Riley later admitted that he exited the store with five bottles of liquor he did not purchase. The total value of the items stolen was $243.90.
[¶4] On March 23, 2017, the State charged Riley with theft, a Level 6 felony, and resisting law enforcement, a Class A misdemeanor, in Cause No. 02D04-1703-F6-309 ("Cause F6-309"). On May 11, 2017, pursuant to a plea agreement, Riley pleaded guilty to theft, and the State dismissed the resisting law enforcement charge. The State and Riley agreed to a two-and-one-half year sentence suspended to probation. In accordance with the plea agreement, the trial court sentenced Riley to two-and-one-half years suspended to probation.
[¶5] On October 12, 2017, the State filed a petition to revoke Riley's suspended sentence in Cause F6-309 and alleged that Riley violated his probation by testing positive for cocaine, codeine, morphine, and hydromorphone. Riley also admitted to using MDMA.[1] On December 29, 2017, Riley admitted to the probation violations, and the trial court revoked Riley's probation and transferred him to the drug court program.
[¶6] On February 28, 2018, the State charged Riley with theft, a Level 6 felony, in Cause No. 02D05-1802-F6-222 ("Cause F6-222") for stealing multiple bottles of alcohol from Kroger that had a total value of $1, 979.32. Riley pleaded guilty on March 19, 2018, and was again placed in the drug court program.
[¶7] On November 28, 2018, the trial court issued an arrest warrant for Riley in both Cause F6-309 and Cause F6-222, because Riley violated the drug court rules by attempting to interfere with a drug test. The warrant was served on May 27, 2021. In both Cause F6-309 and Cause F6-222, the State filed petitions to terminate Riley's participation in drug court.
[¶8] In Cause F6-309, the State filed an amended petition to revoke probation on June 11, 2021, alleging that Riley had failed to complete drug court. Riley admitted that he violated probation, and the trial court revoked Riley's probation and imposed the entirety of his previously suspended sentence on July 9, 2021.
[¶9] On June 14, 2021, in Cause F6-222, Riley admitted that he violated the terms of the drug court. At the sentencing hearing, the trial court found in mitigation that Riley: (1) pleaded guilty; (2) expressed remorse; and (3) made substantial progress in drug court. The trial court found that Riley's criminal history was an aggravating factor, noting that it contained failed efforts at rehabilitation, including shorter jail sentences, unsupervised probation, active probation, Indiana Department of Correction ("DOC") commitments, parole, home detention, and reentry programs. The trial court also noted that: (1) Riley was on probation in Cause F6-309 at the time he committed the offenses in Cause F6-222; (2) Riley absconded from drug court for approximately two years; and (3) Riley had other pending charges. The trial court sentenced Riley to two years in the DOC to be served consecutively to the balance of his previously suspended sentence in Cause F6-309. Riley now appeals.
[¶10] The Indiana Constitution authorizes independent appellate review and revision of a trial court's sentencing decision. See Ind. Const. art. 7, §§ 4, 6; Jackson v. State, 145 N.E.3d 783, 784 (Ind. 2020). Our Supreme Court has implemented this authority through Indiana Appellate Rule 7(B), which allows this Court to revise a sentence when it is "inappropriate in light of the nature of the offense and the character of the offender." Our review of a sentence under Appellate Rule 7(B) is not an act of second guessing the trial court's sentence; rather, "[o]ur posture on appeal is [ ] deferential" to the trial court. Bowman v State, 51 N.E.3d 1174, 1181 (Ind. 2016) (citing Rice v. State, 6 N.E.3d 940, 946 (Ind. 2014)). We exercise our authority under Appellate Rule 7(B) only in "exceptional cases, and its exercise 'boils down to our collective sense of what is appropriate.'" Mullins v. State, 148 N.E.3d 986, 987 (Ind. 2020) (per curiam) (quoting Faith v. State, 131 N.E.3d 158, 160 (Ind. 2019)).
[¶11] "'The principal role of appellate review is to attempt to leaven the outliers.'" McCain v. State, 148 N.E.3d 977, 985 (Ind. 2020) (quoting Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008)). The point is "not to achieve a perceived correct sentence." Id. "Whether a sentence should be deemed 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.'" Id. (quoting Cardwell, 895 N.E.2d at 1224). Deference to the trial court's sentence "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). Though we must consider both the nature of the offense and the character of the offender, an appellant need not prove that each prong independently renders a sentence inappropriate. See, e.g., State v. Stidham, 157 N.E.3d 1185, 1195 (Ind. 2020) (); Connor v. State, 58 N.E.3d 215, 219 (Ind.Ct.App. 2016); see also Davis v. State, 173 N.E.3d 700, 707-09 (Tavitas, J., concurring in result).
[¶12] 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. Fuller v. State, 9 N.E.3d 653, 657 (Ind. 2014). In Cause F6-222, Riley was convicted of theft, as a Level 6 felony, due to his prior convictions for theft. Indiana Code Section 35-50-2-7(b) provides: "A person who commits a Level 6 felony shall be imprisoned for a fixed term of between six (6) months and two and one-half (2 ½) years, with the advisory sentence being one (1) year." The trial court sentenced Riley to two years in the DOC to be served consecutively to his previously suspended sentence in Cause F6-309.
[¶13] Our analysis of the "nature of the offense" requires us to look at the nature, extent, and depravity of the offense. Sorenson v. State, 133 N.E.3d 717, 729 (Ind.Ct.App. 2019), trans. denied. On eight separate days, Riley concealed liquor bottles in his clothing and exited a store without paying for them. Any one of the shoplifting events would have been sufficient to sustain a conviction for theft, a Level 6 felony, because Riley had prior unrelated convictions for theft. See Ind. Code § 35-43-4-2(a)(1)(C). Thus, Riley committed seven additional felony-level thefts, which the State charged as only one offense. Due to the extent of Riley's theft activities, we cannot find that Riley has met his burden of demonstrating that the nature of his offense renders his two-year sentence inappropriate.
[¶14] Secondly, we look to the character of the offender. Our analysis of the character of the offender involves a "broad consideration of a defendant's qualities," Adams v. State, 120 N.E.3d 1058 1065 (Ind.Ct.App. 2019), including the defendant's age, criminal history, background, and remorse. James v. State, 868 N.E.2d 543, 548-59 (Ind.Ct.App. 2007). "The significance of a criminal history in assessing a defendant's character and an appropriate sentence varies based on the gravity, nature, proximity, and number of prior offenses in relation to the current offense." Sandleben v. State, 29 N.E.3d 126, 137 (Ind.Ct.App. 2015) (citing Bryant v. State, 841 N.E.2d 1154, 1156 (Ind. 2006)), trans. denied. "Even a minor criminal history is a poor reflection of a defendant's character." Prince v. State, 148 N.E.3d 1171, 1174 (Ind.Ct.App. 2020) (...
To continue reading
Request your trial