MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                           FILED
this Memorandum Decision shall not be                                        Apr 22 2016, 6:14 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Charles W. Lahey                                         Gregory F. Zoeller
South Bend, Indiana                                      Attorney General of Indiana
                                                         Christina D. Pace
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Leonard Talton,                                          April 22, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         71A03-1510-CR-1677
        v.                                               Appeal from the St. Joseph
                                                         Superior Court
State of Indiana,                                        The Honorable Elizabeth C.
Appellee-Plaintiff                                       Hurley, Judge
                                                         Trial Court Cause No.
                                                         71D08-1404-FC-76



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 71A03-1510-CR-1677 | April 22, 2016                Page 1 of 7
[1]   Leonard Talton appeals the sentence imposed by the trial court after Talton

      pleaded guilty to class C felony possession of cocaine, two counts of class D

      felony resisting law enforcement, and class A misdemeanor possession of

      marijuana. Talton argues that the trial court abused its discretion in the

      mitigating factors it considered and how it weighed those factors. He also

      contends that the sentence is inappropriate in light of the nature of the offenses

      and his character. Finding no abuse of discretion and that the sentence is not

      inappropriate, we affirm.


                                                     Facts
[2]   On April 9, 2014, shortly after midnight, South Bend Police Officers Erik

      Schlegelmilch and Michael Stuk observed a fast-moving vehicle travel through

      a red light. The officers began to pursue the vehicle, which was driven by a

      person later identified as Talton. Attempting to initiate a traffic stop, the

      officers activated their police vehicle’s emergency lights and siren. Talton

      stopped the vehicle, exited, and fled on foot into a dark alley. The officers

      pursued Talton and, after catching up to him, Officer Stuk deployed his taser.

      Talton fell to the ground and then got up and continued to flee. Officer

      Schlegelmilch then deployed his taser, which slowed Talton enough that Officer

      Stuk was able to get on top of him. As the two officers attempted to subdue

      Talton, he continued to struggle, kicking Officer Schlegelmilch’s shin hard

      enough to cause bleeding, redness, swelling, and severe pain. Talton continued

      to struggle and resist being arrested, kicking at the officers and grabbing for their

      utility belts. The officers were unable to handcuff Talton until two additional

      Court of Appeals of Indiana | Memorandum Decision 71A03-1510-CR-1677 | April 22, 2016   Page 2 of 7
      officers arrived at the scene and assisted. The officers arrested Talton and later

      found 6.6 grams of cocaine in Talton’s pants pocket.


[3]   The State charged Talton with class C felony possession of cocaine, two counts

      of class D felony resisting law enforcement, class A misdemeanor possession of

      marijuana, and class A misdemeanor operating a vehicle under the influence of

      alcohol. On June 8, 2015, Talton pleaded guilty as charged except for the

      operating a vehicle under the influence charge, which the State dismissed. On

      October 10, 2015, the trial court sentenced Talton as follows: (1) five years for

      possession of cocaine; (2) two years each for the two counts of resisting law

      enforcement; and (3) one year for possession of marijuana. The trial court

      ordered the sentences for possession of cocaine and one of the counts of

      resisting law enforcement to be served consecutively, with the remaining

      sentences to be served concurrently, for an aggregate seven-year sentence.

      Talton now appeals.


                                   Discussion and Decision
                                       I. Mitigating Factors
[4]   While Talton frames his argument as an appropriateness argument, he actually

      contends in part that the trial court erred in its consideration of mitigating

      factors. As we apply a different standard of review to this argument, we will

      consider it separately. The determination of mitigating circumstances is within

      the discretion of the trial court. Rogers v. State, 878 N.E.2d 269, 272 (Ind. Ct.

      App. 2007). The trial court is not obligated to accept the defendant’s argument

      Court of Appeals of Indiana | Memorandum Decision 71A03-1510-CR-1677 | April 22, 2016   Page 3 of 7
      as to what constitutes a mitigating factor, nor is it required to give the same

      weight to proffered mitigators as does the defendant. Cotto v. State, 829 N.E.2d

      520, 525 (Ind. 2005). We no longer review a trial court’s weighing of mitigators

      and aggravators. Anglemyer v. State, 868 N.E.2d 482, 490-91 (Ind. 2007),

      clarified on reh’g, 875 N.E.2d 218.


[5]   Initially, we note that the trial court found two mitigators: Talton’s guilty plea

      and his employment. To the extent that Talton contends that the trial court did

      not weigh these mitigators heavily enough, we will not review the argument.

      Id.


[6]   At the sentencing hearing, Talton presented multiple letters from friends and

      colleagues regarding his positive involvement in the community. The trial

      court declined to find this as a mitigator, and Talton contends that it abused its

      discretion in this regard. We disagree. It would have been reasonable for the

      trial court to have concluded that, while the letter writers were aware of one

      facet of Talton’s life, they were not aware of his extensive and violent criminal

      history. As such, it was not an abuse of discretion for the trial court to conclude

      that the substance of the letters was not significant or mitigating. See Guzman v.

      State, 985 N.E.2d 1125, 1133 (Ind. Ct. App. 2013) (holding that there is no

      abuse of discretion in refusing to find mitigators where they are disputable in

      nature, weight, or significance).




      Court of Appeals of Indiana | Memorandum Decision 71A03-1510-CR-1677 | April 22, 2016   Page 4 of 7
                                          II. Appropriateness
[7]   Next, Talton contends that the aggregate seven-year sentence is inappropriate in

      light of the nature of the offenses and his character. Indiana Appellate Rule

      7(B) provides that this Court may revise a sentence if it is inappropriate in light

      of the nature of the offense and the character of the offender. We must

      “conduct [this] review with substantial deference and give ‘due consideration’

      to the trial court’s decision—since the ‘principal role of [our] review is to

      attempt to leaven the outliers,’ and not to achieve a perceived ‘correct’

      sentence . . . .” Knapp v. State, 9 N.E.3d 1274, 1292 (Ind. 2014) (quoting

      Chambers v. State, 989 N.E.2d 1257, 1259 (Ind. 2013)) (internal citations

      omitted).


[8]   Here, Talton was convicted of one class C felony, two class D felonies, and one

      class A misdemeanor. For the class C felony, he faced a sentence of two to

      eight years, with an advisory term of four years. Ind. Code § 35-50-2-6.1 He

      received a term of five years—slightly more than the advisory term but well

      under the maximum. For the class D felonies, he faced a term of six months to

      three years, with an advisory term of one and one-half years. I.C. § 35-50-2-7.

      Talton received terms of two years—again, slightly more than the advisory term

      but under the maximum. For the class A misdemeanor conviction, Talton

      received a maximum one-year term. I.C. § 35-50-3-2. The trial court elected to




      1
       We apply the versions of the sentencing statutes that were in effect at the time Talton committed the
      offenses.

      Court of Appeals of Indiana | Memorandum Decision 71A03-1510-CR-1677 | April 22, 2016             Page 5 of 7
       run only two of these terms consecutively, for an aggregate term of seven years,

       far less than Talton potentially faced had all terms been run consecutively.


[9]    As for the nature of the offenses, Talton led two police officers in a foot chase.

       He resisted arrest with such force that he injured one of the officers, required

       them to deploy their tasers more than once, and necessitated a call for two back-

       up officers. Only with the presence of the two additional officers—four total—

       were they able to subdue and arrest him. He also possessed a substantial

       amount of cocaine—6.6 grams, which is more than twice the amount required

       for a class C felony conviction. Ind. Code § 35-48-4-6. We do not find that the

       nature of these offenses aids Talton in his inappropriateness argument.


[10]   As for Talton’s character, we are compelled to highlight his extensive criminal

       history. He has six prior felony convictions, including resisting law

       enforcement, intimidation, felon in possession of a handgun, and dealing in a

       sawed-off shotgun. He has nine prior misdemeanor convictions, including

       multiple resisting law enforcement convictions, criminal mischief, and criminal

       trespass. Talton committed the present offenses while out on bond on five

       separate cases, totaling nine charges, including possession of marijuana,

       conversion, battery, and operating a vehicle while intoxicated. He was alleged

       to have committed another, new resisting law enforcement misdemeanor while

       out on bond for the present offense. Talton’s criminal history evinces a plain

       disregard for the rule of law, his fellow citizens, and, most pointedly, the

       commands and safety of law enforcement officers. He has had multiple

       opportunities to reform his behavior but has been either unwilling or unable to

       Court of Appeals of Indiana | Memorandum Decision 71A03-1510-CR-1677 | April 22, 2016   Page 6 of 7
       do so. We do not find Talton’s attempts to point out other, more positive,

       facets of his character to be compelling in light of this history. In sum, we do

       not find the sentence imposed by the trial court to be inappropriate in light of

       the nature of the offenses and Talton’s character.


[11]   The judgment of the trial court is affirmed.


       May, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 71A03-1510-CR-1677 | April 22, 2016   Page 7 of 7
