MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                  FILED
regarded as precedent or cited before any                         May 31 2017, 10:17 am

court except for the purpose of establishing                           CLERK
the defense of res judicata, collateral                            Indiana Supreme Court
                                                                      Court of Appeals
                                                                        and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Marielena Duerring                                      Curtis T. Hill, Jr.
South Bend, Indiana                                     Attorney General of Indiana
                                                        J.T. Whitehead
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Tony Hesiben,                                           May 31, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        71A05-1609-CR-2223
        v.                                              Appeal from the St. Joseph
                                                        Superior Court
State of Indiana,                                       The Honorable Elizabeth C.
Appellee-Plaintiff.                                     Hurley, Judge
                                                        Trial Court Cause No.
                                                        71D08-1508-F6-586



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 71A05-1609-CR-2223 | May 31, 2017        Page 1 of 7
[1]   Tony Hesiben appeals his sentence for escape as a level 6 felony. Hesiben raises

      one issue which we revise and restate as whether his sentence is inappropriate

      in light of the nature of the offense and his character. We affirm.


                                      Facts and Procedural History

[2]   On December 22, 2014, Hesiben violated a home detention order by cutting off

      an electronic device on his ankle within a month of the court’s order. On

      August 26, 2015, the State charged Hesiben with escape as a level 6 felony in

      cause number 71D08-1508-F6-586 (“Cause No. 586”). On August 26, 2015,

      the court entered an order waiving juvenile jurisdiction to the Superior Court of

      St. Joseph County.


[3]   On July 19, 2016, the court held a guilty plea hearing at which Hesiben pled

      guilty without a plea agreement in Cause No. 586 as well as to robbery resulting

      in serious bodily injury as a level 2 felony under cause number 71D08-1511-F3-

      60 (“Cause No. 60”) relating to an incident that occurred on May 8, 2015.


[4]   On September 1, 2016, the court held a consolidated sentencing hearing in

      Cause No 60 and Cause No. 586. Beverly Dempsey, Hesiben’s aunt, testified

      that he “is a good kid” and she thought that “he just got caught up with the

      wrong people.” Sentencing Transcript at 2. She testified that Hesiben’s father

      had a nervous breakdown and a stroke. Dianne Walker, Hesiben’s mother,

      testified that she was a single mother and that Hesiben had emotional disability

      problems. Hesiben stated:




      Court of Appeals of Indiana | Memorandum Decision 71A05-1609-CR-2223 | May 31, 2017   Page 2 of 7
              I just wanted to apologize to the victim and I just want to say
              sorry for what happened and I wish I could take it back but, you
              know, I can’t take it back so I just wanted to, you know what I’m
              saying, apologize one more time. And I just, you know what I’m
              saying, ask can you at least leave me a little bit of life left to live,
              you know with my family. And since I’ve been here, you know,
              I done changed a lot, you know, you know what I’m saying,
              since that happened. And I just want to apologize again.


      Id. at 11. The probation officer that completed the presentence investigation

      report (“PSI”) recommended a sentence of two years to be served consecutive

      to the sentence in cause number 71D02-1507-F3-36 (“Cause No. 36”), which

      involved robbery.


[5]   The court recognized Hesiben’s age and took that into consideration. It stated

      that Hesiben had made “consistently horrible decisions through much of your

      life, the young life that you’ve lived up ‘til now.” Id. at 12. The court observed

      that Hesiben had been given opportunities to rehabilitate in the juvenile system.

      Specifically, it stated:

              I mean from probation to placement at the JJC to home
              detention to boys school to I mean just every possible
              rehabilitative effort that could have been – that could have
              happened while you were in the juvenile system happened, and
              your decision was to cut your monitor off and to just walk away
              instead of availing yourself and taking advantage of the
              opportunities that were given to you while you were involved in
              that system.


      Id. The court observed that Hesiben committed the crime of escape and then

      committed two separate armed robberies, one of which resulted in significant

      Court of Appeals of Indiana | Memorandum Decision 71A05-1609-CR-2223 | May 31, 2017   Page 3 of 7
      injury to Mr. Streeter who was permanently disabled “because of what

      [Hesiben] did.” Id. at 13. The court also noted Hesiben’s criminal history and

      the “escalation of behavior that just keeps getting worse and worse and more

      violent and more dangerous.” Id. It then stated that it found Hesiben’s age and

      guilty plea as mitigating factors. The court found the following aggravators: the

      harm that resulted from the robbery was far greater than what would have been

      needed to prove if it had gone to trial; the fact that he was serving a placement

      sentence on home detention as an aggravating factor; and his juvenile history.


[6]   The court sentenced Hesiben to one year suspended in Cause No. 586,

      seventeen and one-half years executed in Cause No. 60, and ordered that the

      sentences be served consecutive to the sentence in Cause No. 36 for which he

      had previously received a sentence of ten years with five years suspended and

      two years of probation.


                                                  Discussion

[7]   The issue is whether Hesiben’s sentence is inappropriate in light of the nature of

      the offense and his character. Ind. 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.” Under this rule, the

      burden is on the defendant to persuade the appellate court that his or her

      sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).




      Court of Appeals of Indiana | Memorandum Decision 71A05-1609-CR-2223 | May 31, 2017   Page 4 of 7
[8]    Hesiben argues that the trial court focused chiefly on discussing the facts and

       circumstances of other events to which he pled guilty. He asserts that it is

       significant that he apparently was receiving special education services due to a

       diagnosis of ADHD and emotional disability. He states that he last had contact

       with his father when he was eleven years old, his mother and maternal uncle

       have criminal records, he completed only the eleventh grade before he was

       expelled, he desires to obtain his high school diploma, and he used marijuana

       every day after first trying it at the age of fourteen and used it on the day of the

       offense. The State argues that the suspended advisory sentence is not

       inappropriate.


[9]    Our review of the nature of the offense reveals that Hesiben violated a home

       detention order by cutting off the electronic device on his ankle within a month

       of the court’s order.


[10]   Our review of the character of the offender reveals that Hesiben was born on

       November 3, 1997. He pled guilty without a plea agreement. As a juvenile, he

       was charged with a curfew violation in 2011, two counts of leaving home

       without permission of a parent, guardian, or custodian in 2012, and battery as a

       class B misdemeanor if committed by an adult in 2012. In August 2012, he was

       placed on probation for disorderly conduct as a class B misdemeanor if

       committed by an adult. In October 2012, a verified petition for modification

       was filed due to his refusal to participate in counseling, continued

       insubordination, disruptive behavior, and refusal to visit the office for a drug

       screen. The court ordered that Hesiben remain in secure custody at the

       Court of Appeals of Indiana | Memorandum Decision 71A05-1609-CR-2223 | May 31, 2017   Page 5 of 7
       Juvenile Justice Center, the petition for modification was dismissed, and

       Hesiben failed formal probation.


[11]   In October 2012, Hesiben was charged with robbery resulting in bodily injury

       and burglary as class B felonies if committed by an adult. The PSI indicates

       that the court ordered Hesiben to be transported to the Indiana Boys School on

       the allegation of burglary as a class B felony, and the charge of robbery resulting

       in bodily injury was dismissed with prejudice. In June 2014, Hesiben was

       arrested for leaving home without permission of a parent, guardian, or

       custodian. In November 2014, he was placed on probation for resisting law

       enforcement as a class A misdemeanor if committed by an adult. In July 2015,

       he failed formal probation.


[12]   After committing the present offense of escape in December 2014, the State

       charged him in July 2015 under Cause No. 36 with robbery as a level 3 felony

       related to an offense occurring in April 2015. Under Cause No. 60, the State

       charged Hesiben in November 2015 with robbery resulting in serious bodily

       injury related to an offense in May 2015, and Hesiben pled guilty.


[13]   Hesiben reported that his father has been in a nursing home after having a

       stroke when Hesiben was eleven years old, and that he was suspended and

       expelled from school for arguing with teachers. He reported using four “blunts”

       of marijuana a day and that he was supposed to participate in treatment at the

       Juvenile Justice Center in the past but “didn’t go.” Id.




       Court of Appeals of Indiana | Memorandum Decision 71A05-1609-CR-2223 | May 31, 2017   Page 6 of 7
[14]   After due consideration, we conclude that Hesiben has not sustained his burden

       of establishing that his suspended sentence of one year is inappropriate in light

       of the nature of the offense and his character.


                                                   Conclusion

[15]   For the foregoing reasons, we affirm Hesiben’s sentence.


[16]   Affirmed.


       May, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 71A05-1609-CR-2223 | May 31, 2017   Page 7 of 7
