MEMORANDUM DECISION                                                              FILED
Pursuant to Ind. Appellate Rule 65(D), this                                 Dec 06 2017, 10:19 am
Memorandum Decision shall not be regarded as                                     CLERK
precedent or cited before any court except for the                           Indiana Supreme Court
                                                                                Court of Appeals
purpose of establishing the defense of res judicata,                              and Tax Court

collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Mary P. Lake                                             Curtis T. Hill, Jr.
La Porte, Indiana                                        Attorney General of Indiana
                                                         Indianapolis, Indiana

                                                         Angela N. Sanchez
                                                         Supervising Deputy Attorney General
                                                         Indianapolis, Indiana


                                             IN THE
    COURT OF APPEALS OF INDIANA

Dominique M. Peoples,                                    December 6, 2017

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         46A03-1705-CR-1096
        v.                                               Appeal from the La Porte Circuit
                                                         Court.
                                                         The Honorable Thomas J. Alevizos,
State of Indiana,                                        Judge.
Appellee-Plaintiff.                                      Trial Court Cause Nos.
                                                         46C01-1604-F5-377
                                                         46C01-0705-FB-236




Barteau, Senior Judge




Court of Appeals of Indiana | Memorandum Decision 46A03-1705-CR-1096 | December 6, 2017              Page 1 of 9
                                        Statement of the Case
                                                                                                           1
[1]   Dominique Peoples appeals his sentences for Level 5 felony aiding battery in

      one cause and for violating the terms of his probation in a separate cause. We

      affirm.


                                                        Issue
[2]   The sole issue Peoples raises on appeal is whether his sentences are

      inappropriate in light of the nature of the offense and the character of the

      offender.


                                 Facts and Procedural History
[3]   We begin with the relevant but somewhat complex procedural history that

      precedes the incident that gave rise to the appeal before us. In October 2007,

      under Cause No. 46C01-0705-FB-236, a separate cause that is unrelated to the

      facts of the instant case, Peoples pleaded guilty to dealing in cocaine as a Class

      B felony. He was sentenced to twelve years in the Indiana Department of

      Correction (DOC), with six years suspended, and was placed on probation for

      six years.


[4]   On October 26, 2015, the La Porte County probation department filed the first

      petition for revocation of suspended sentence against Peoples, alleging that




      1
       Ind. Code § 35-41-2-4 (1977) (aiding); Ind. Code § 35-42-2-1(f)(2) (2014) (battery by means of deadly
      weapon).

      Court of Appeals of Indiana | Memorandum Decision 46A03-1705-CR-1096 | December 6, 2017           Page 2 of 9
      Peoples failed to report to probation as directed. On December 17, 2015, the

      probation department filed a second petition for revocation of suspended

      sentence, alleging that Peoples failed to obtain permission to change his address

      and that he tested positive for controlled substances.


[5]   The incident that gave rise to the appeal before us occurred on February 28,

      2016. P.M., the victim, Lisa Santana, and Cheryl Santana were at a bar in La

      Porte, Indiana. A group of men, who also were in the bar, began staring at

      P.M. and then insulting P.M. Included in the group were Peoples and his

      brother, Troy. P.M. approached the group to determine if any of the men “had

      a problem with him.” Appellant’s App. Vol. 2, p. 141. Troy used derogatory

      language to refer to P.M. and stated that he was going to “beat this f**’s a**.”

      Id. at 140. After a small altercation, the bouncers removed P.M. from the bar.


[6]   Lisa and Cheryl walked P.M. to his vehicle because they heard the group of

      men inside the bar “talking about how they were going to beat [P.M.] up

      because he was gay.” Id. As P.M., Lisa, and Cheryl walked to P.M.’s vehicle,

      a group of six men, including Peoples and Troy, followed them. Troy

      approached P.M. and said, “I’m going to crack this f***** motherf***** in the

      head.” Id. The group of men, including Peoples, attacked P.M. and began

      punching and kicking him. Lisa and Cheryl saw Troy hit P.M. over the head

      with a bottle. Lisa and Cheryl also watched Troy reach into P.M.’s pockets as

      the other men were beating him and take his belongings, as well as rip a

      necklace from P.M.’s neck. During the attack, P.M. lost consciousness and



      Court of Appeals of Indiana | Memorandum Decision 46A03-1705-CR-1096 | December 6, 2017   Page 3 of 9
      suffered a deep laceration above his left eye. He was transported to the hospital

      where he received stitches for the laceration.


[7]   In March 2016, before Peoples was charged with any crimes for participating in

      the attack upon P.M., Peoples was charged with committing Level 4 felony

      possession of cocaine and Level 3 felony dealing in a narcotic drug under Cause

      No. 46D01-1603-F2-231. Based upon these two new criminal charges, on April

      4, 2016, the probation department filed a third petition for revocation of

      suspended sentence. Peoples later pleaded guilty under Cause No. F2-231 to

      possession of cocaine as a Level 4 felony and was sentenced to five years

      executed in the DOC with a recommendation that he be placed in a therapeutic

      community while serving the five-year sentence in the DOC.


[8]   On April 29, 2016, based upon his participation in the beating of P.M., Peoples

      was charged with aiding battery as a Level 5 felony. On February 24, 2017,

      Peoples entered into a plea agreement and pleaded guilty to aiding battery as a

      Level 5 felony, under Cause No. 46C01-1604-F5-377. He also admitted to a

      probation violation under Cause No. FB-236 (the case where Peoples pleaded

      guilty to dealing in cocaine as a Class B felony, was sentenced to twelve years

      in the DOC with six years suspended, and was placed on probation for six

      years).


[9]   On March 10, 2017, the trial court held a sentencing hearing on Peoples’s most

      recent guilty plea and probation violation admission. The trial court found as

      aggravating factors Peoples’s significant criminal history and that Peoples


      Court of Appeals of Indiana | Memorandum Decision 46A03-1705-CR-1096 | December 6, 2017   Page 4 of 9
       recently violated the terms of his probation by committing the current offense

       while on probation. The trial court found as a mitigating factor Peoples’s

       admission of culpability. After finding that the aggravating factors outweighed

       the mitigating factors, the trial court sentenced Peoples to five years in the

       DOC, with no time suspended, and ordered Peoples to pay $2,592.00 in

       restitution to the victim. Additionally, for violating the terms of his probation

       under Cause No. FB-236, the trial court ordered Peoples to serve in the DOC

       the remaining six years of his suspended sentence, with the possibility that two

       years of the sentence would be stayed if Peoples successfully completed the

       sentence he received in Cause No. F2-231 (conviction for Level 4 felony

       possession of cocaine). The trial court ordered the five-year sentence under

       Cause No. F5-377 (Level 5 felony aiding battery) and the six-year sentence

       under Cause No. FB-236 to be served consecutively. Peoples appeals.


                                    Discussion and Decision
[10]   Peoples’s argument is that both his five-year sentence for Level 5 felony aiding

       battery and his six-year sentence for the probation violation are inappropriate

       under Indiana Appellate Rule 7(B) in light of the nature of the offense and his

       character. As the State points out, however, Peoples’s six-year sentence was the

       result of his pleading guilty to violating the terms of his probation in a separate

       cause. The standard of review set forth in Rule 7(B) “is not the correct standard

       to apply when reviewing a sentence imposed for a probation violation.” Prewitt

       v. State, 878 N.E.2d 184, 188 (Ind. 2007). A trial court’s sentencing decision for

       a probation violation is reviewable using the abuse of discretion standard. Id.

       Court of Appeals of Indiana | Memorandum Decision 46A03-1705-CR-1096 | December 6, 2017   Page 5 of 9
       An abuse of discretion occurs where the decision is clearly against the logic and

       effect of the facts and circumstances. Id.


[11]   However, Peoples fails to make a cogent argument that his six-year sentence

       imposed for violating the terms of his probation was an abuse of discretion; as

       such, any claim of error with respect to that sentence is waived. See Foutch v.

       State, 53 N.E.3d 577, 580 n.1 (Ind. Ct. App. 2016) (noting that party must make

       cogent argument regarding abuse of discretion in sentencing separate from

       inappropriateness analysis in order to preserve claim for appellate review).

       Additionally, under Indiana Code section 35-50-1-2(e) (2015), Peoples was

       required to serve the remainder of his sentence imposed under Cause No. FB-

       236 (Class B felony dealing in cocaine) consecutive to his sentence for the Level

       5 felony aiding battery conviction under Cause No. F5-377 because he was

       arrested for aiding battery before he was discharged from probation under

       Cause No. FB-236. The trial court had no choice in the matter. As such, the

       only issue properly before us in this appeal is whether Peoples’s five-year

       sentence for Level 5 felony aiding battery is inappropriate.


[12]   Indiana 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. The defendant bears the burden of persuading this

       Court that his sentence is inappropriate. Childress v. State, 848 N.E.2d 1073,

       1080 (Ind. 2006). Whether we regard a sentence as inappropriate turns on the

       “culpability of the defendant, the severity of the crime, the damage done to

       Court of Appeals of Indiana | Memorandum Decision 46A03-1705-CR-1096 | December 6, 2017   Page 6 of 9
       others, and myriad other factors that come to light in a given case.” Cardwell v.

       State, 895 N.E.2d 1219, 1224 (Ind. 2008).


[13]   Our Supreme Court has further explained that “[s]entencing is principally a

       discretionary function in which the trial court’s judgment should receive

       considerable deference.” Id. at 1222. “Such deference 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).


[14]   When determining whether a sentence is inappropriate, we acknowledge that

       the advisory sentence is the starting point the General Assembly has selected as

       an appropriate sentence for the crime committed. Childress, 848 N.E.2d at

       1081. Here, Peoples was convicted of a Level 5 felony, for which the

       sentencing range is between one and six years, with an advisory sentence of

       three years. See Ind. Code § 35-50-2-6 (2014). The trial court sentenced Peoples

       to five years, which is above the advisory sentence but below the maximum

       sentence allowed under the statute.


[15]   As to the nature of the offense, Peoples attempts to downplay its nature by

       asserting that he was not the aggressor in the attack and did not strike the victim

       with the bottle. We are not persuaded by his assertions. Peoples, along with

       five other men, first harassed P.M. and then referred to him using derogatory

       language, apparently because they believed that P.M. was gay. The men,


       Court of Appeals of Indiana | Memorandum Decision 46A03-1705-CR-1096 | December 6, 2017   Page 7 of 9
       including Peoples, then followed P.M. out of the bar and brutally attacked him.

       P.M. was kicked and punched repeatedly by Peoples and the rest of the men.

       P.M. was hit on the head with a bottle, which caused a deep laceration above

       his eye that required stitches. Witnesses recalled that derogatory terms were

       hurled at P.M. both inside the bar and as the attack occurred. P.M. lost

       consciousness due to the attack, and he was robbed of his wallet, his cell phone,

       and his necklace. The offense arose from a senseless, brutal attack. We decline

       to find that Peoples’s sentence was inappropriate in light of the nature of the

       offense.


[16]   Regarding Peoples’s character, Peoples concedes that he has a significant

       criminal record but argues that he suffers from a “severe drug problem with

       marijuana, cocaine, and heroin” and that he does not have a violent criminal

       history. Appellant’s Brief p. 10. However, the trial court did not recognize this

       evidence as mitigating factors but, instead, focused on Peoples’s criminal

       history that includes a Class B misdemeanor conviction for disorderly conduct,

       two felony convictions for Class B felony dealing in cocaine, a conviction for

       Level 4 felony possession of cocaine, and (now) a conviction for Level 5 felony

       aiding battery. Also, five petitions for revocation of suspended sentence have
                                            2
       been filed against Peoples. He violated the conditions of probation on more




       2
         On May 17, 2016, the probation department filed a fourth petition for revocation of suspended sentence
       based upon the aiding battery charge filed against Peoples for his participation in the attack on P.M. Prior to
       the filings of the four most recent petitions for revocation of suspended sentence, in 2005, the probation
       department filed a petition for revocation of suspended sentence against Peoples in a case that resulted in a
       conviction for Class B misdemeanor disorderly conduct.

       Court of Appeals of Indiana | Memorandum Decision 46A03-1705-CR-1096 | December 6, 2017             Page 8 of 9
       than one occasion, twice failed to appear to court, and committed the instant

       offense while on probation. Finally, Peoples willingly participated in a mob-

       like group beating of P.M., apparently because he and the other members of the

       group took issue with P.M.’s perceived sexual orientation. We cannot say that

       Peoples’s sentence was inappropriate in light of his character.


                                                Conclusion
[17]   Peoples has failed to persuade this Court that the five-year sentence imposed for

       his conviction for Level 5 felony aiding battery is inappropriate in light of the

       nature of his offense and his character. We affirm the trial court’s sentence.


[18]   Affirmed.


       Bailey, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 46A03-1705-CR-1096 | December 6, 2017   Page 9 of 9
