MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                    FILED
regarded as precedent or cited before any                           Feb 10 2017, 5:29 am
court except for the purpose of establishing
                                                                         CLERK
the defense of res judicata, collateral                              Indiana Supreme Court
                                                                        Court of Appeals
estoppel, or the law of the case.                                         and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Michael R. Fisher                                        Curtis T. Hill, Jr.
Marion County Public Defender Agency                     Attorney General of Indiana
Indianapolis, Indiana
                                                         Richard C. Webster
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Tradale Jones,                                           February 10, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A04-1608-CR-1833
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Sheila A. Carlisle,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         49G03-1512-F1-43936



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A04-1608-CR-1833 | February 10, 2017     Page 1 of 8
[1]   Tradale Jones appeals the fifty-year aggregate sentence imposed for two counts

      of Level 1 felony rape 1 and one count each of Level 3 felony robbery with a

      deadly weapon, 2 Level 3 felony kidnapping while armed with a deadly

      weapon, 3 and Level 3 felony criminal confinement while armed with a deadly

      weapon. 4 Finding nothing inappropriate about his sentence, we affirm.



                                Facts and Procedural History
[2]   At approximately 3:00 a.m. on December 5, 2014, as F.B. was walking alone

      from her boyfriend’s house to her own house, she was confronted by a stranger,

      later identified as Jones, who was carrying a shotgun. Jones ordered F.B. to

      walk up a hill between two houses. Jones put the shotgun to her back, and F.B.

      complied. Jones took her between the two houses into the backyard of a house,

      where a second man was waiting. Jones gave the shotgun to the second man

      and removed F.B.’s jacket and pants. He felt around under her shirt looking for

      possessions or money. They found and took her cell phone.


[3]   Jones and the second man then forced F.B. at gunpoint to walk back between

      the houses, across the street, and into a garage, where they forced F.B. to kneel

      and perform oral sex on Jones and the second man. When F.B. cried, the men




      1
          Ind. Code § 35-42-4-1(a)(1) (2014).
      2
          Ind. Code § 35-42-5-1(2) (2014).
      3
          Ind. Code § 35-42-3-2(a) (2014).
      4
          Ind. Code § 35-42-3-3(a) (2014).


      Court of Appeals of Indiana | Memorandum Decision 49A04-1608-CR-1833 | February 10, 2017   Page 2 of 8
      told her to shut up and threatened to kill her. Jones then compelled F.B. to

      submit to sexual intercourse while the second man pointed the shotgun at her.

      The two men left the garage after telling F.B. they would kill her if she moved

      or tried to leave.


[4]   F.B. waited a few minutes, put her underwear back on, and walked toward her

      boyfriend’s house. An officer on patrol saw F.B. walking without pants or

      shoes and crying hysterically, so he stopped to check on her. F.B. reported she

      had been raped, so the officer called a detective from the sex crimes unit. The

      detective took a report from F.B. and then the two of them drove to the places

      F.B. described and found her pants and shoes in the backyard where they had

      been removed. F.B. went to the hospital to have a sexual assault kit performed.

      Samples of DNA recovered from F.B. matched the DNA of Jones.


[5]   The State charged Jones with two counts of Level 1 felony rape and one count

      each of Level 3 felony armed robbery, Level 3 felony kidnapping, Level 3

      felony criminal confinement, and Class A misdemeanor pointing a firearm. A

      jury found Jones not guilty of pointing a firearm, but guilty of the other five

      charged crimes. The trial court imposed a thirty-two-year sentence for each

      count of rape and ordered the two rape sentences served concurrently; imposed

      nine-year sentences for each of the three Level 3 felony convictions; ordered the

      nine-year sentence for criminal confinement served concurrent with the others;

      and ordered the nine-year sentences for armed robbery and for kidnapping

      served consecutive to each other and to the thirty-two-year rape sentence, for an

      aggregate sentence of fifty years.

      Court of Appeals of Indiana | Memorandum Decision 49A04-1608-CR-1833 | February 10, 2017   Page 3 of 8
                                 Discussion and Decision
[6]   Jones asserts his fifty-year sentence is inappropriate. We may revise a sentence

      if it is inappropriate in light of the nature of the offense and the character of the

      offender. Williams v. State, 891 N.E.2d 621, 633 (Ind. Ct. App. 2008) (citing

      Ind. Appellate Rule 7(B)). As we conduct our review, we consider not only the

      aggravators and mitigators found by the trial court, but also any other factors

      appearing in the record. Roney v. State, 872 N.E.2d 192, 206 (Ind. Ct. App.

      2007), trans. denied. The appellant bears the burden of demonstrating his

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


[7]   When considering the nature of the offense, the advisory sentence is the starting

      point to determine the appropriateness of a sentence. Anglemyer v. State, 868

      N.E.2d 482, 494 (Ind. 2007), clarified on reh’g 878 N.E.2d 218 (Ind. 2007). The

      sentencing range for a Level 1 felony is “a fixed term of between twenty (20)

      and forty (40) years, with the advisory sentence being thirty (30) years.” Ind.

      Code § 35-50-2-4(b) (2014). For Jones’ Level 1 felony rape convictions, the trial

      court imposed concurrent thirty-two-year sentences, which are only two years

      above the advisory sentence. See id. The sentencing range for a Level 3 felony

      is “a fixed term of between three (3) and sixteen (16) years, with the advisory

      sentence being nine (9) years.” Ind. Code § 35-50-2-5 (2014). For Jones’

      convictions of Level 3 felony robbery, kidnapping, and criminal confinement,

      the court imposed three nine-year sentences, which are the advisory. The court

      ordered Jones’ sentences for kidnapping and robbery served consecutive to each

      other and to one of the sentences for rape, for an aggregate sentence of fifty

      Court of Appeals of Indiana | Memorandum Decision 49A04-1608-CR-1833 | February 10, 2017   Page 4 of 8
      years. Because Jones committed “crimes of violence,” see Ind. Code § 35-50-1-

      2(a) (2014), his sentence for this episode of criminal conduct was not capped at

      “the advisory sentence for a felony which is one (1) class of felony higher than

      the most serious of the felonies for which the person has been convicted,” Ind.

      Code § 35-50-1-2(d) (2014), which would have been fifty-five years. See Ind.

      Code § 35-50-2-3(a) (2007) (advisory sentence for murder is fifty-five years).

      Instead, the maximum sentence Jones could have received was eighty-eight

      years. See, e.g., Brown v. State, 760 N.E.2d 243, 245 (Ind. Ct. App. 2002)

      (maximum sentence on both charges to be served consecutively indicates a

      maximum sentence), trans. denied. In light of Jones receiving a sentence for

      each of his crimes that was at or barely above the advisory sentence, and in light

      of Jones receiving a cumulative sentence for his episode of violent criminal

      conduct that was less than the maximum he could have received for non-violent

      crimes, we see nothing inappropriate about his 50-year aggregate sentence for

      robbery, kidnapping, confinement, and two counts of rape, all of which were

      committed with a shotgun.


[8]   Jones asserts “[i]t is primarily the nature of Mr. Jones’ character . . . that

      warrants a lesser sentence . . . .” (Appellant’s Br. at 17.) When considering the

      character of the offender, one relevant fact is the defendant’s criminal history.

      Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct. App. 2007). The significance

      of a criminal history in assessing a defendant’s character varies based on the

      gravity, nature, and number of prior offenses in relation to the current offense.

      Id. Jones asserts his criminal history “did not distinguish him as a serious


      Court of Appeals of Indiana | Memorandum Decision 49A04-1608-CR-1833 | February 10, 2017   Page 5 of 8
      felon.” (Appellant’s Br. at 17.) His criminal history includes a 2009 true

      finding as a juvenile for an act that would have been battery resulting in bodily

      injury if committed by an adult, a 2011 conviction of Class D felony criminal

      recklessness, and a 2013 conviction of Class A misdemeanor criminal

      conversion, and two 2015 convictions of Class A misdemeanor theft. Jones’

      record included numerous other charges that had been dismissed and revealed

      his placement in probation was revoked in 2011 and his placement in

      community corrections was revoked in 2015. With regard to Jones’ criminal

      history, the trial court noted:

              [A]lthough the convictions are not for serious felonies, what I
              can tell from your criminal history is that you don’t have a
              problem, even as a juvenile, hurting another person, and you
              certainly don’t have a problem taking things that aren’t yours.


              And then finally, I see from your criminal history that you did
              have opportunities to rehabilitate yourself through both
              probation and Community Corrections. And neither of those
              you took advantage because both of those placements had to be
              revoked.


      (Tr. Vol. III at 58.)


[9]   Jones also asserts his sentence is inappropriate for his character because he

      expressed remorse before trial, loves his children, is only twenty-two years old,

      and had a “miserable upbringing.” (Br. of Appellant at 17.) We cannot say

      Jones’ love for his children justifies a shorter sentence when Jones does not

      provide any financial support for those children. We acknowledge Jones’


      Court of Appeals of Indiana | Memorandum Decision 49A04-1608-CR-1833 | February 10, 2017   Page 6 of 8
       report that his parents did not raise him because they were addicted to drugs;

       however, he also reported he was raised by his grandmother and aunt, and

       “was never the victim of any type of abuse or neglect,” (App. Vol III at 9); both

       his grandmother and aunt still provide financial support to him and allow him

       to stay with them; and he has a family that loves him. While his childhood

       may not have been ideal, neither does the evidence demand it be characterized

       as “miserable.” (Br. of Appellant at 17.)


[10]   Jones did express remorse when he was interviewed by a detective before trial

       but, after being convicted by a jury, he told the probation officer preparing the

       presentence investigation report that he “payed [F.B.] for sex and she said I

       raped her.” (App. Vol. III at 12.) If Jones does not accept responsibility for

       commission of these egregious crimes, we doubt he could feel sincere remorse.

       See, e.g., Hape v. State, 903 N.E.2d 977, 1003 (Ind. Ct. App. 2009) (defendant’s

       “expression of remorse is belied by his subsequent attempts to blame others for

       his situation”), trans. denied.


[11]   As for Jones being only twenty years old when he committed these offenses, we

       agree with the trial court that it is “concerning . . . that [Jones] could commit

       such a serious offense at such a young age.” (Tr. Vol. II at 62.) A defendant’s

       young age can be a mitigator. See Coleman v. State, 952 N.E.2d 377, 385 (Ind.

       Ct. App. 2011). However, a defendant must be not only young but also

       “clueless” or “led astray by a more commanding older person,” id., and that is

       not what happened here. The testimony and other evidence indicate Jones

       initiated and led this crime spree – he alone stopped F.B., he ordered her up the

       Court of Appeals of Indiana | Memorandum Decision 49A04-1608-CR-1833 | February 10, 2017   Page 7 of 8
       hill and put a shotgun to her back, he took her clothes off of her and searched

       her, he pulled her by her hair to another location, he grabbed her head with his

       hands and forced her to perform oral sex on him, he threatened to kill her if she

       did not stop crying, and he raped her. Jones may have been only twenty years

       old when he committed these crimes, but his behavior was that of a man who is

       an experienced criminal. Id.


[12]   Jones has not convinced us that his character makes a fifty-year sentence

       inappropriate for the episode of criminal conduct he committed. See Corbally v.

       State, 5 N.E.3d 463, 472-73 (Ind. Ct. App. 2014) (reviewing lengths of sentences

       given for commission of “a single episode of sexual violence against one

       victim” and reducing Corbally’s sentence from 270 years to 165 years).



                                               Conclusion
[13]   Nothing about Jones’ character or offenses leads us to believe his fifty-year

       sentence is inappropriate. We accordingly affirm.


[14]   Affirmed.


       Najam, J., and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1608-CR-1833 | February 10, 2017   Page 8 of 8
