Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                                        Apr 02 2014, 8:49 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT:                            ATTORNEYS FOR APPELLEE:

THOMAS W. VANES                                    GREGORY F. ZOELLER
Office of the Public Defender                      Attorney General of Indiana
Crown Point, Indiana
                                                   ANDREW FALK
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana




                               IN THE
                     COURT OF APPEALS OF INDIANA

JAQUARI DAQUION DODD,                              )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )      No. 45A04-1309-CR-462
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                      APPEAL FROM THE LAKE SUPERIOR COURT
                          The Honorable Salvador Vasquez, Judge
                              Cause No. 45G01-1212-FB-119



                                         April 2, 2014


                MEMORANDUM DECISION - NOT FOR PUBLICATION


DARDEN, Senior Judge
                               STATEMENT OF THE CASE

       Jaquari Daquion Dodd appeals his below-advisory sentence of three and a half

years for Class C felony robbery. We affirm.

                                         ISSUE

       Dodd’s sole issue for our review is whether the trial court abused its discretion in

sentencing him.

                         FACTS AND PROCEDURAL HISTORY

       On September 19, 2012, eighteen-year-old Dodd and another individual went to

Walter Griffin’s apartment in Hammond, Indiana, and stole his television and cell phone

by force or threat of force.

       In December 2012, the State initially charged Dodd with Class B felony robbery

while armed with a deadly weapon. In June 2013, the parties reached a plea agreement in

which Dodd would plead guilty to a lesser charge of Class C felony robbery, with both

sides to argue their respective positions at sentencing; in exchange, the State would agree

to a sentencing cap of five years and would dismiss a separate cause number against

Dodd involving a Class C felony intimidation charge.

       The sentencing hearing was continued twice while waiting for juvenile records

from Cook County, Illinois, where Dodd’s presentence investigation report showed

thirteen arrests but no record of dispositions. At the beginning of the August 2013

sentencing hearing, the trial court noted that the juvenile records had not been received

but that the court was “prepared to move forward, notwithstanding the incomplete

presentence investigation report, specifically with regard to the 13 something contacts the

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defendant has had through juvenile court.” Tr. p. 17. Dodd did not object to the hearing

proceeding on that day, and his counsel indicated in open court that the presentence

investigation report was otherwise accurate.

         Dodd’s mother Tasha Dodd testified on behalf of Dodd that he was the father of

two children, a two-month-old and a six-month-old, both born while he was in custody.

She also testified that Dodd had been suspended or expelled from school and sent to an

alternative school. As to his juvenile arrest record, his mother testified that Dodd had

been placed on probation once and put in a juvenile detention facility twice. She also

affirmed that Dodd had a pending burglary charge in Illinois.

         Dodd argued for an advisory four-year sentence, with credit for time served and

the remainder suspended to probation. The State argued for an enhanced sentence of five

years.

         The trial court imposed a sentence of three and a half years to be executed in the

Department of Correction.       Its written sentencing order reflects that it identified as

mitigating circumstances that Dodd had pleaded guilty and admitted responsibility. As

aggravating circumstances, the court identified his pending burglary charge and his

extensive record of arrests and contacts with law enforcement, to-wit:

         [A]lthough the court has no records to show convictions, the defendant has
         one(1) [sic] pending Burglary from the State of Illinois and seventeen (17)
         prior contacts with . . . law enforcement as a juvenile beginning at the age
         of 13. Some of the arrests were for aggravated assault or battery.

Appellant’s App. p. 49. In its oral sentencing statement, the court said:




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               Your sentence is three and a half years in the Department of
       Correction as a result of all your juvenile adjudications and contacts, and
       the fact that you have a pending burglary in Illinois. And that’s a gift.
               I could have rejected your plea and forced you to go to trial on an
       armed robbery and now you’re looking at six to 20. So appreciate this idea
       that I’ve given you. Whether you like it or not, it’s a gift as I see it. And
       try very hard not to come back here again. Get your life in order and
       appreciate the fact that you have a family still having your back.

Tr. p. 58.

       Dodd now appeals his sentence.

                             DISCUSSION AND DECISION

       Sentencing decisions rest within the sound discretion of the trial court and are

reviewed on appeal only for an abuse of discretion. Anglemyer v. State, 868 N.E.2d 482,

490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (2007). An abuse of discretion

occurs if the decision is clearly against the logic and effect of the facts and circumstances

before the court or the reasonable, probable, and actual deductions to be drawn therefrom.

Id. Among other ways, the trial court abuses its discretion when it enters a sentencing

statement that includes reasons that are unsupported by the record. Id.

       Dodd contends the trial court abused its discretion in sentencing him by relying on

his juvenile record as an aggravator even though there was no evidence of any juvenile

adjudications. He claims the court’s comments at the sentencing hearing showed it

assumed from the sheer number of juvenile arrests that some of them must have resulted

in adjudications: “So in the end, you have all these juvenile contacts. And I’m convinced




                                             4
at least some of those were adjudications. Seventeen, if I’m not mistaken -- if not 15, 16,

17 -- that’s a lot.” 1 Tr. p. 54.

       But the court’s conclusion that Dodd had at least some adjudications was not

based entirely on the number of juvenile arrests. Rather, Dodd’s mother testified at the

sentencing hearing, without objection or impeachment of her testimony, that as a result of

his juvenile arrests, Dodd had been placed on probation once and put in a juvenile

detention facility twice.

       Moreover, our reading of the sentencing statements indicates that the trial court

was more concerned about his extensive record of arrests, some of which were for violent

offenses, than his juvenile adjudications. It is well established that allegations of prior

criminal activity need not be reduced to conviction before they may be properly

considered as aggravators by a sentencing court. Tunstill v. State, 568 N.E.2d 539, 544-

45 (Ind. 1991). The Indiana Supreme Court has stated:

       While a record of arrests does not establish the historical fact of prior
       criminal behavior, such a record does reveal to the court that subsequent
       antisocial behavior on the part of the defendant has not been deterred even
       after having been subject to the police authority of the State and made
       aware of its oversight of the activities of its citizens. This information is
       relevant to the court’s assessment of the defendant’s character and the risk
       that he will commit another crime and is therefore properly considered by a
       court in determining sentence.

Id. at 545. Dodd’s record of arrests, including the nature of the underlying offenses, was

thus a proper consideration when the trial court determined his sentence.
1
 The trial court was mistaken. The presentence investigation report’s summary of Dodd’s legal history
shows that he has had seventeen contacts with law enforcement, with thirteen of those contacts occurring
when he was a juvenile. Appellant’s App. p. 63. Although Dodd notes this discrepancy in a footnote, see
Appellant’s Br. p. 4 n.2, he does not argue that it requires any revision to his sentence, nor would we
agree with such a claim.
                                                   5
       In any event, the trial court also cited Dodd’s pending burglary charge in Illinois

as an aggravator. Criminal charges pending at the time of a defendant’s sentencing

hearing may properly be considered as an aggravating circumstance. Id. at 545. Dodd’s

pending burglary charge alone would have been enough to support an enhanced sentence.

See Guzman v. State, 985 N.E.2d 1125, 1133 (Ind. Ct. App. 2013) (noting that a single

aggravating factor is sufficient to warrant an enhanced sentence).

       Instead of an enhanced sentence of five years as argued by the State, or even

Dodd’s requested advisory sentence of four years, the trial court imposed only three and a

half years. Given Dodd’s pending burglary charge, his extensive record of arrests and

contacts with law enforcement, and the fact that his plea agreement allowed him to plead

to a lesser charge of Class C felony robbery and to avoid prosecution in a separate felony

case, we agree with the trial court that the sentence of three and a half years was a show

of leniency intended to encourage rehabilitation. We conclude the trial court did not

abuse its discretion in sentencing him.

                                     CONCLUSION

       We therefore affirm Dodd’s sentence.

ROBB, J., and PYLE, J., concur.




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