                                                                     FILED
                                                                May 16 2017, 8:03 am

                                                                     CLERK
                                                                 Indiana Supreme Court
                                                                    Court of Appeals
                                                                      and Tax Court




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Leanna Weissmann                                          Curtis T. Hill, Jr.
      Lawrenceburg, Indiana                                     Attorney General of Indiana
                                                                James B. Martin
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Tommy R. Pruitt,                                          May 16, 2017
      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                15A05-1606-CR-1235
              v.                                                Appeal from the
                                                                Dearborn Circuit Court
      State of Indiana,                                         The Honorable
      Appellee-Plaintiff.                                       James D. Humphrey, Judge
                                                                Trial Court Cause No.
                                                                15C01-0109-CF-54



      Kirsch, Judge.


[1]   Tommy R. Pruitt (“Pruitt”) was sentenced to death in 2003 for the murder of a

      law enforcement officer acting in the line of duty. The United States Court of

      Appeals for the Seventh Circuit (“Seventh Circuit”) granted habeas corpus

      relief, vacated Pruitt’s death sentence, and remanded to the trial court for re-


      Court of Appeals of Indiana | Opinion 15A05-1606-CR-1235 | May 16, 2017                 Page 1 of 19
      sentencing. On remand, the trial court found that the aggravating factors

      outweighed the mitigating factors and resentenced Pruitt to a term of sixty-five

      years for the murder, to run consecutive to his 115-year sentence, previously

      imposed for other related offenses, for an aggregate term of 180 years. Pruitt

      appeals raising the following restated issues:


                 I.       Whether the sentence of sixty-five years for murder was
                          prohibited under Blakely v. Washington;1 and


                 II.      Whether Pruitt’s sentence was inappropriate in light of the
                          nature of the offense and the character of the offender.


[2]   We affirm.


                                      Facts and Procedural History
[3]   Our Supreme Court, on direct appeal, set forth the facts regarding Pruitt’s

      crimes as follows:

                 On June 14, 2001, Morgan County Deputy Sheriff Daniel
                 Starnes was driving his unmarked patrol car on a routine
                 assignment serving warrants. His son, Ryan Starnes,
                 accompanied him as part of a college internship. A car driven by
                 Pruitt caught Starnes’s attention and Starnes followed Pruitt for
                 some distance, observing increasingly erratic driving. Eventually
                 Pruitt came to a stop and Starnes pulled in behind Pruitt’s car,
                 turned on his flashing lights, and approached Pruitt’s vehicle on
                 foot. Starnes obtained Pruitt’s driver’s license and registration



      1
          Blakely v. Washington, 542 U.S. 296 (2004).



      Court of Appeals of Indiana | Opinion 15A05-1606-CR-1235 | May 16, 2017       Page 2 of 19
                 and returned to his vehicle to call the information in. In
                 response, Starnes was told that a recent robbery report suggested
                 Pruitt might be in possession of stolen weapons. As Starnes
                 approached Pruitt’s car for a second time, Pruitt emerged with a
                 handgun and the two exchanged gunfire. Pruitt was shot at least
                 seven times and Starnes was struck by five shots. Pruitt also fired
                 at Ryan Starnes, who had remained in Starnes’s car.


      Pruitt v. State, 834 N.E.2d 90, 98-99 (Ind. 2005).2 Deputy Starnes ultimately

      died on July 10, 2001, and Pruitt was charged with numerous offenses,

      including murder.


[4]   In 2003, Pruitt was found guilty of murder,3 attempted murder, possession of a

      handgun without a license, resisting law enforcement, and four counts of

      receiving stolen property. Id. at 99. The jury found beyond a reasonable doubt

      that Pruitt killed a law enforcement officer acting in the line of duty and

      recommended the death penalty. Id. The jury then reconvened for a third

      phase of the trial and found Pruitt guilty of possession of a firearm by a serious

      violent felon as a Class B felony and possession of a handgun without a license

      as a Class C felony. Id. The jury also found Pruitt to be a habitual offender.

      On November 21, 2003, the trial court imposed the death penalty for the




      2
       For clarity we refer to the proceedings at trial and on direct appeal as “Pruitt I,” to the post-conviction
      proceedings as “Pruitt II,” and to the federal habeas corpus proceedings as “Pruitt III.”
      3
          Pruitt was also convicted of aggravated battery, a lesser-included offense of murder.



      Court of Appeals of Indiana | Opinion 15A05-1606-CR-1235 | May 16, 2017                               Page 3 of 19
      murder and sentenced Pruitt to an aggregate term of 115 years for the

      remaining counts.


[5]   Once Pruitt exhausted state court remedies (see Pruitt I, 834 N.E.2d 90 and

      Pruitt v. State, 903 N.E.2d 899 (Ind. 2009)), he sought federal habeas relief

      challenging the imposition of the death penalty. After Pruitt had been denied

      relief in federal district court, Pruitt v. Wilson, No. 3:09-CV-380-RLM, 2012 WL

      4513961 (N.D. Ind. Oct. 2, 2012), rev’d sub nom, Pruitt v. Neal, 788 F.3d 248 (7th

      Cir. 2015)), the Seventh Circuit reversed the district court and vacated the death

      penalty, finding that: (1) the Indiana Supreme Court’s decision that Pruitt had

      not shown that he is intellectually disabled was based on an unreasonable

      determination of the facts; and (2) Pruitt had demonstrated that he is

      intellectually disabled and constitutionally ineligible for the death penalty.

      Pruitt v. Neal, 788 F.3d 248, 270 (7th Cir. 2015), cert. denied, 136 S. Ct. 1161

      (2016). The Seventh Circuit granted a conditional writ of habeas corpus and

      ordered the State of Indiana to either initiate a new penalty-phase proceeding or

      release Pruitt. Id. at 276.


[6]   The case was remanded to the Dearborn Circuit Court for resentencing on the

      murder conviction only, and on April 20, 2016, that court conducted a new

      sentencing hearing. The parties understood that Pruitt was to be resentenced to




      Court of Appeals of Indiana | Opinion 15A05-1606-CR-1235 | May 16, 2017    Page 4 of 19
      a term of years for murder under Count I. Resent. Tr. at 4-5.4 Pruitt raised no

      objections to either the original presentence investigation report (“PSI”) or the

      probation department’s 2016 update to the PSI (“PSI Update”). Id. at 7.

      During the resentencing hearing, Pruitt urged the trial court to make its findings

      from the evidence already in the record. Defense counsel stated:

                 [A]n extensive trial in this matter and an extensive litigation
                 regarding . . . the mental condition of our client, Mr. Pruitt[,] that
                 occurred both prior to trial, at the penalty phase, and then at the
                 Post-Conviction trial, which the Court also conducted. At this
                 point, you know, that evidence is all actually already in the
                 record before the Court. As we understand the decision of the
                 [Seventh Circuit], essentially . . . the death penalty sentencing
                 was overturned because of what the Court felt [was] significant
                 evidence of intellectual disability and/or mental illness of our
                 client, Mr. Pruitt, at the time and before, you know, this
                 incidence occurred. And we would ask the Court to specifically
                 note the testimony that the Court actually issued a separate order
                 regarding what was then called, I think, “mental retardation.”
                 At that time - and heard testimony, as we understand it, from Dr.
                 Charles Golden, Dr. Brian Hudson, and Dr. George Schmedlen.


      Id. at 7-8.

[7]   Pruitt asked the trial court to consider and take judicial notice of the entire

      record, including the post-conviction proceedings, in order to find intellectual

      disability and mental illness were mitigating circumstances. Id. at 7-14. The




      4
          References to the transcript from the resentencing hearing are designated, “Resent. Tr. at.”



      Court of Appeals of Indiana | Opinion 15A05-1606-CR-1235 | May 16, 2017                            Page 5 of 19
      State asked the trial court to consider the aggravating circumstance that Pruitt

      had a lengthy criminal history and that Pruitt killed Deputy Starnes in the

      course of his duties, the latter circumstance having been found beyond a

      reasonable doubt by Pruitt’s 2003 jury. Resent. Tr. at 20. The trial court

      indicated that it would review the existing records from the years 2003 through

      2016. Id. at 19.


[8]   On May 2, 2016, the trial court reconvened for pronouncement of the new

      sentence which, as the trial court recognized, was required to reflect the

      sentencing scheme applicable at the time Pruitt committed murder. Appellant’s

      App. Vol. III at 184 (Resent. Order at 2). Accordingly, Pruitt was eligible to be

      sentenced within a range that had a “fixed term of fifty-five (55) years, with not

      more than ten (10) years added for aggravating circumstances or not more than

      ten (10) years subtracted for mitigating circumstances.” Ind. Code § 35-50-2-

      3(a) (2001). The trial court reviewed the remaining 2003 convictions and their

      respective sentences, stating that, at that time, the circumstances “justified a

      finding of aggravating circumstances to aggravate those sentences and to run

      them consecutive [to] each other.” Resent. Tr. at 25.


[9]   The trial court “incorporate[d] all applicable findings contained in the original

      Pronouncement of Sentence dated November 21, 2003, for purposes of

      resentencing.” Id. Pruitt did not object. The trial court stated,


              The sentences and applicable findings in that Order are
              confirmed. In addition, the Court considers the [PSI] previously



      Court of Appeals of Indiana | Opinion 15A05-1606-CR-1235 | May 16, 2017    Page 6 of 19
               ordered and entered on November 21, 2003. As to the April 21,
               2016 Sentencing, the Court considers the [PSI Update]. The
               Court also considers additional evidence presented in the victim’s
               statement provided by Mrs. Starnes at that Sentencing hearing.


               Additional factors considered in this matter, for purposes of
               Sentencing for Count I, Murder, are as follows. The Court has
               taken judicial notice of the evidence and trial proceedings.
               Evidence presented in the trial proceedings concluded in
               November of 2003. The Court considers the evidence presented
               at the hearing on Post-Conviction Relief, concluded in May of
               2007. The Court considers the contents of the files in each cause
               of action. The Court considers the arguments and evidence
               presented on April 20, 2016.


       Id. at 25-26.


[10]   During resentencing, the trial court considered the following aggravating

       circumstances: (1) Pruitt killed Deputy Starnes while the deputy was acting in

       the line of duty; and (2) Pruitt had an extensive criminal history. Resent. Tr. at

       20, 26, 27. Pruitt’s criminal history included “five prior felonies, prior crimes of

       violence, including a Robbery and a Battery, two probation violations, and a

       prior firearms violation.” Id. at 27. Pruitt had committed both state and federal

       crimes. Id. The trial court also took note of Pruitt’s post-sentence behavior, as

       outlined in the PSI Update, which revealed a pattern of bad conduct while

       incarcerated, including “Battery with a Weapon, Bodily Fluid or Serious Injury,

       Fleeing or Interfering with Staff,” and “Possession, Introduction, or Use of a

       Dangerous Weapon.” Id. at 27. The trial court found that Pruitt’s deliberate



       Court of Appeals of Indiana | Opinion 15A05-1606-CR-1235 | May 16, 2017   Page 7 of 19
       and unprovoked actions toward a uniformed police officer and his “history of

       criminal activity and behavior indicate[d Pruitt] is a substantial risk to commit

       future crimes and poses a substantial danger and threat to the public.” Id.


[11]   The trial court also considered that the nature and circumstances of the crime

       were particularly heinous and aggravating because: (1) Pruitt used a police

       scanner to hear radio traffic prior to his being stopped by Deputy Starnes, thus

       creating “a deadly and tragic trap for Deputy Starnes”; (2) Pruitt exited his

       vehicle with his gun and, unprovoked, shot Deputy Starnes five times, thereby

       showing his intent to kill the deputy; and (3) Deputy Starnes suffered and

       experienced significant pain from multiple gunshot wounds until he died,

       almost one month later. Id. at 26. Additionally, the trial court considered lack

       of remorse. Id. at 27-28. Specifically, the trial court noted that, while Deputy

       Starnes’s widow was making a statement during the Pruitt I sentencing hearing,

       Pruitt yelled, “Your husband was a fat coward.” Id. at 28. When Mrs. Starnes

       continued, Pruitt yelled out, “Your son’s a coward too.” Id. The trial court

       found this behavior was reprehensible. Id.


[12]   The only mitigating circumstance presented to the trial court for resentencing

       was Pruitt’s mental status and his intellectual functioning. The Seventh Circuit

       had made no finding regarding the impact of Pruitt’s mental status on a

       sentence for a term of years. Id. Explaining that it had heard and considered

       evidence regarding Pruitt’s mental status and intellectual functioning as

       presented at trial and in post-conviction proceedings, the trial court on



       Court of Appeals of Indiana | Opinion 15A05-1606-CR-1235 | May 16, 2017     Page 8 of 19
       resentencing noted that Pruitt did not raise an insanity defense at trial. Id. at

       28-29. The trial court also believed that Pruitt had knowledge and

       understanding of the wrongfulness of his acts. Id. at 29. It was through the

       police scanner and a list of various police radio frequencies that Pruitt

       understood he was about to be arrested by Deputy Starnes and, therefore,

       exited his car with a loaded firearm and began shooting at Deputy Starnes. Id.

       Suspecting that Ryan, who remained in the patrol car, was attempting to call

       for help through the police radio, Pruitt also shot at him. Finally, immediately

       after the shooting, Pruitt stated to officers that he wished he had complied with

       Deputy Starnes’s “request and given up.” Id. Further evidence that Pruitt was

       conscious of his actions was the fact that he planned to break into a

       Bloomington sporting goods store, as illustrated by his possession of a

       Bloomington city map and his removal of the pins from the door at the rear of

       the sporting goods store to gain entry. Id. at 29-30.


[13]   During resentencing, the trial court explained that it had considered “all the

       evidence and circumstances . . . including defendant’s mental health, mental

       status, and intellectual abilities,” and had given “due consideration and weight

       [to Pruitt’s mental status] as a possible mitigating factor.” Id. at 30. The trial

       court found that “given all the facts, circumstances, and evidence,” Pruitt’s

       mental status did not provide an excuse for Pruitt’s actions.” Id. Balancing

       various factors, the trial court found that the aggravating factors “substantially

       outweigh[ed]” any possible mitigating factors. Id. Further the trial court found

       that the aggravating factors were sufficient to support both an aggravated

       Court of Appeals of Indiana | Opinion 15A05-1606-CR-1235 | May 16, 2017     Page 9 of 19
       sentence and consecutive sentencing. The trial court resentenced Pruitt to the

       maximum term of sixty-five years for murder, giving credit for time served, and

       ordered that sentence be served consecutive to the 115-year term imposed

       during the sentencing hearing in Pruitt I. Pruitt now appeals.


                                       Discussion and Decision

                                    I.       Compliance with Blakely
[14]   Pruitt contends that, because he committed his crime on June 14, 2001, Blakely

       v. Washington, 542 U.S. 296 (2004) applies. Appellee’s Br. at 7. Specifically, he

       asserts that his enhanced sentence violates the United States Supreme Court’s

       decision in Blakely, because his Sixth Amendment right to have the facts

       supporting the enhancement of his sentence tried to a jury was violated. The

       State responds that Pruitt has forfeited his Blakely claims and, in any event,

       those claims are without merit. Appellee’s Br. at 14. We agree with the State.


[15]   In Blakely, the United States Supreme Court held the Sixth Amendment

       required, “[o]ther than the fact of a prior conviction, any fact that increases the

       penalty for a crime beyond the prescribed statutory maximum must be

       submitted to a jury, and proved beyond a reasonable doubt.” 542 U.S. 296, 301

       (2004) (quoting Apprendi v. New Jersey, 530 U.S. 466, 490 (2000)). In Smylie v.

       State, 823 N.E.2d 679 (Ind. 2005), cert. denied, 546 U.S. 976 (2005), the Indiana

       Supreme Court evaluated the constitutionality of Indiana’s presumptive

       sentencing scheme in light of Blakely. Our Court held:




       Court of Appeals of Indiana | Opinion 15A05-1606-CR-1235 | May 16, 2017   Page 10 of 19
               [P]ortions of Indiana’s sentencing scheme violate the Sixth
               Amendment’s right to trial by jury, and that the new rule of
               Blakely should apply to all cases pending on direct review at the
               time Blakely was announced in which the appellant has
               adequately preserved appellate review of the sentence.”


       Smylie, 823 N.E.2d at 681-82. The Smylie court concluded, “it is appropriate to

       be rather liberal in approaching whether an appellant and [his] lawyer have

       adequately preserved and raised a Blakely issue.” Id. at 690. Nevertheless, the

       Smylie court limited “the application of Blakely to any case pending on direct

       review . . . subject to the standard rules governing appellate procedure such as

       waiver and forfeiture.” Id. at 688 (emphasis added). Assuming without deciding

       that Pruitt was eligible for Blakely treatment during resentencing, Pruitt has

       forfeited that argument.


[16]   No later than 2005, Pruitt understood the impact of Blakely. On direct appeal,

       Pruitt unsuccessfully argued that Indiana’s capital sentencing scheme violated

       Blakely by failing to require juries to find beyond a reasonable doubt that

       aggravating circumstances outweigh mitigating circumstances when

       recommending a sentence of death. Pruitt I, 834 N.E.2d at 111-12. Pruitt,

       however, did not mention Blakely during his 2016 resentencing hearings nor did

       he request that findings regarding mitigating and aggravating factors be made

       by a jury. Even when the trial court clearly set forth the factors it would take

       into consideration, Pruitt did not object. Instead, he requested that the trial

       court consider the entire paper record from Pruitt I, Pruitt II, and Pruitt III, to



       Court of Appeals of Indiana | Opinion 15A05-1606-CR-1235 | May 16, 2017     Page 11 of 19
       make factual findings regarding the mitigating circumstance of his mental

       condition. When the trial court used that same record to find aggravating

       circumstances, Pruitt, again, did not object. Pruitt was resentenced long after

       Blakely was decided, but he made no objection to the fact finding of the trial

       court on resentencing, thereby forfeiting his Blakely claim.


[17]   Forfeiture, however, is not the only basis upon which Pruitt’s claim fails.

       During the resentencing hearings, the State, citing to Davies v. State, 758 N.E.2d

       981, 986 (Ind. Ct. App. 2001), trans. denied, argued, “Now that the death

       penalty has been taken away by the [Seventh] Circuit, Indiana [l]aw,

       specifically the Davies case, allows this Court to consider that aggravating

       factor; that [Deputy Starnes] was a police officer [acting] in the line of duty, as

       an aggravating factor in sentencing Mr. Pruitt in this case.” Resent. Tr. at 20.

       We agree. In Davies, our court held that “where defendant is eligible for either

       the death penalty or life without parole pursuant to Indiana Code section 35-50-

       2-9, but instead is sentenced to a term of years, “the trial court may consider the

       aggravating factors enumerated in Indiana Code Section 35-50-2-9 in addition

       to the factors listed in Indiana Code Section 35-38-1-7.1.” Davies, 758 N.E.2d

       at 986. Here, the act of killing an officer acting in the line of duty made Pruitt

       eligible for the death penalty under Indiana Code Section 35-50-2-9(b)(6).

       While the Seventh Circuit found that imposition of the death penalty was

       prohibited because of Pruitt’s mental status, that determination did not negate

       the fact that a jury had found beyond a reasonable doubt that Pruitt’s act of




       Court of Appeals of Indiana | Opinion 15A05-1606-CR-1235 | May 16, 2017   Page 12 of 19
       killing Deputy Starnes, who was acting in the line of duty, was an aggravating

       circumstance.


[18]   As our Supreme Court explained in Lambert v. State, 675 N.E.2d 1060, 1066

       (Ind. 1996), cert. denied, 520 U.S. 1255 (1997):


               The killing of a police officer in the course of duty is a most
               serious crime. Police officers routinely risk their lives in the
               sometimes high stakes gamble of protecting society. They do a
               job that we all want and need done, though few of us possess the
               bravery and skill to do. They ask for little in return, but they do
               ask for some protection. The General Assembly recognized this
               in enacting the statutory aggravator of Indiana Code § 35-50-2-
               9(b)(6).


       Like the facts in Lambert, here, “[t]he seriousness of this aggravator is magnified

       in the present case due to defendant’s use of such deadly force to kill an

       unaware and unsuspecting police officer in an otherwise nonviolent and

       ordinary [stop].” Id. at 1066 (citing Spranger v. State, 498 N.E.2d 931, 960 (Ind.

       1986), cert. denied, 481 U.S. 1033 (1987) (noting that “[t]he manner, the

       motivation, and other attendant circumstances of the offense are the type of

       considerations which may augment the value of this aggravating

       circumstance”). It was proper for the trial court to consider the aggravating

       factors that Pruitt killed an officer acting in the line of duty and that Pruitt had

       an extensive and serious criminal record. See Davis v. State, 835 N.E.2d 1087,

       1088 (Ind. Ct. App. 2005) (“Use of prior criminal history as an aggravator is

       exempt from Blakely’s jury fact-finding requirement.”).



       Court of Appeals of Indiana | Opinion 15A05-1606-CR-1235 | May 16, 2017    Page 13 of 19
[19]   While Pruitt contends that the trial court’s consideration of the other

       aggravating circumstances violated Blakely, we need not reach that issue. Our

       Supreme Court has said, “Where the use of some aggravators violates Blakely

       and others do not, we will remand for resentencing unless we can say with

       confidence that the trial court would have imposed the same sentence if it

       considered only the proper aggravators.” Robertson v. State, 871 N.E.2d 280,

       287 (Ind. 2007). In this case, we find remand for resentencing is not warranted.


[20]   Pruitt killed an officer in the line of duty and had an extensive criminal record.

       At resentencing, Pruitt relied on the status of his mental health as a mitigating

       circumstance. While we agree that Pruitt’s mental health is a mitigating factor,

       we note that this issue was raised at each phase of this case, during trial, on

       direct appeal, during the post-conviction proceedings, and during the federal

       habeas proceedings. Without even considering the aggravating circumstance

       that Pruitt had a significant criminal history, the jury in Pruitt I found beyond a

       reasonable doubt that killing an officer in the line of duty was an aggravating

       factor that outweighed the mitigating factor of Pruitt’s mental health.


[21]   Starting with the then-presumptive sentence of fifty-five years, the trial court

       could have aggravated Pruitt’s sentence to sixty-five years and ordered his

       sentences to run consecutively based on a single aggravating factor. See Gleason

       v. State, 965 N.E.2d 702, 712 (Ind. Ct. App. 2012) (same, single aggravator may

       be used both to enhance presumptive sentence and to justify consecutive

       sentences); McGinity v. State, 824 N.E.2d 784, 789 (Ind. Ct. App. 2005) (one



       Court of Appeals of Indiana | Opinion 15A05-1606-CR-1235 | May 16, 2017   Page 14 of 19
       aggravator is sufficient to justify a sentence enhancement), trans. denied. The

       trial court found at least two aggravating circumstances that complied with

       Blakely. The trial court also found that Pruitt’s mental status was a mitigating

       factor. However, addressing Pruitt’s mental status, the trial court explained,

       “there is evidence which indicates that the defendant had knowledge and

       understanding of the wrongfulness of his acts.” Resent. Tr. at 29. Based on

       Pruitt’s use of the scanner, planning of the robbery, and regret that he did not

       comply with Deputy Starnes’s request, the trial court diminished the

       significance of Pruitt’s mental status as a mitigating circumstance for

       resentencing. Here, the trial court had to balance two significant aggravating

       factors against the mitigating factor of Pruitt’s mental condition. Because we

       can say with confidence that the trial court would have imposed the same

       sentence had it considered only the aggravators that complied with Blakely, we

       find no error.


                                II.      Inappropriateness of Sentence
[22]   Pruitt also argues that his sentence is inappropriate. Under Indiana Appellate

       Rule 7(B), we “may revise a sentence authorized by statute if, after due

       consideration of the trial court’s decision, the Court finds that the sentence is

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

       offender.” The imposition of consecutive sentences may also be deemed

       inappropriate. See Bell v. State, 881 N.E.2d 1080, 1087 (Ind. Ct. App. 2008)

       (maximum consecutive sentences for three controlled buys in same



       Court of Appeals of Indiana | Opinion 15A05-1606-CR-1235 | May 16, 2017   Page 15 of 19
       investigation was inappropriate), trans. denied. “Although appellate review of

       sentences must give due consideration to the trial court’s sentence because of

       the special expertise of the trial bench in making sentencing decisions,

       Appellate Rule 7(B) is an authorization to revise sentences when certain broad

       conditions are satisfied.” Dupree v. State, 51 N.E.3d 1251, 1259 (Ind. Ct. App.

       2016) (quoting Shouse v. State, 849 N.E.2d 650, 660 (Ind. Ct. App. 2006), trans.

       denied), trans. denied.


[23]   The question under Appellate Rule 7(B) is not whether another sentence is more

       appropriate; rather, the question is whether the sentence imposed is

       inappropriate. King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008). “This

       determination turns on our sense of the culpability of the defendant, the severity

       of the crime, the damage done to others, and myriad other factors that come to

       light in a given case.” Myers v. State, 27 N.E.3d 1069, 1081-82 (Ind. 2015)

       (citations and internal quotation marks omitted). “We recognize that [t]he

       principal role of appellate review should be to attempt to leaven the outliers . . .

       but not to achieve a perceived ‘correct’ result in each case.” Id. at 1082

       (citations and internal quotation marks omitted). It is the defendant’s burden

       on appeal to persuade the reviewing court that the sentence imposed by the trial

       court is inappropriate. Chappell v. State, 966 N.E.2d 124, 133 (Ind. Ct. App.

       2012), trans. denied.


[24]   When determining whether a sentence is inappropriate, we recognize the

       presumptive sentence as the starting point the legislature has selected as



       Court of Appeals of Indiana | Opinion 15A05-1606-CR-1235 | May 16, 2017    Page 16 of 19
       appropriate for the crime. Weiss v. State, 848 N.E.2d 1070, 1072 (Ind. 2006). At

       the time Pruitt committed the crime, the presumptive sentence for murder was

       fifty-five years. At the time of resentencing, Pruitt was already facing an

       aggregate term of 115 years for the attempted murder of Ryan, for four counts

       of receiving stolen property, i.e., firearms, for possession of a firearm by a

       serious violent felon, and for a habitual offender finding. The burden is on

       Pruitt to persuade us that a sentence of sixty-five years, served consecutive to

       the earlier sentence of 115 years, is inappropriate in light of the nature of the

       offense and the character of the offender. Pruitt has not met that burden.


[25]   The nature of this offense was egregious. While Deputy Starnes and his son

       were serving warrants, they observed Pruitt engaging in increasingly erratic

       driving. Eventually, Pruitt came to a stop, and Starnes pulled in behind Pruitt’s

       car, turned on his flashing lights, and approached Pruitt’s vehicle on foot.

       Starnes obtained Pruitt’s driver’s license and registration and returned to his

       vehicle to call in the information. In response, Starnes was told that a recent

       robbery report suggested Pruitt might be in possession of stolen weapons. Pruitt

       had in his car a police scanner and a list of radio frequencies used by law

       enforcement, which allowed him to hear Deputy Starnes’s exchange. Pruitt,

       who had stolen firearms in his car, did not want to be arrested. As Starnes

       approached Pruitt’s car for a second time, Pruitt emerged with a handgun, and

       the two exchanged gunfire. Pruitt’s intent to kill Deputy Starnes was reflected

       in his act of essentially ambushing Deputy Starnes. Further, once Pruitt saw

       Deputy Starnes’s son, Ryan, trying to call for help on the squad car’s radio,


       Court of Appeals of Indiana | Opinion 15A05-1606-CR-1235 | May 16, 2017   Page 17 of 19
       Pruitt also shot at Ryan. Ryan saw his father get shot multiple times. Deputy

       Starnes lingered in great pain for a month before dying, leaving behind a widow

       and children.


[26]   Regarding Pruitt’s character, Pruitt’s criminal history included “five prior

       felonies, prior crimes of violence, including a Robbery and a Battery, two

       probation violations, and a prior firearms violation.” Resent. Tr. at 27. Pruitt

       had committed both state and federal crimes. Id. The trial court also took note

       of Pruitt’s post-sentencing behavior, as outlined in the PSI Update, which

       revealed a pattern of bad conduct while incarcerated. That pattern included,

       “Battery with a Weapon, Bodily Fluid or Serious Injury, Fleeing or Interfering

       with Staff,” and “Possession, Introduction, or Use of a Dangerous Weapon.”

       Id. The trial court found that Pruitt’s deliberate and unprovoked actions toward

       a uniformed police officer and his “history of criminal activity and behavior

       indicate[d Pruitt] is a substantial risk to commit future crimes and poses a

       substantial danger and threat to the public.” Id. Pruitt’s character was also

       reflected during the sentencing hearing in Pruitt I. Deputy Starnes’s widow was

       reading a prepared statement to the trial court when Pruitt interrupted her and

       yelled, “Your husband was a fat coward.” Id. at 28. Mrs. Starnes continued,

       and shortly thereafter, Pruitt, again, yelled out, “Your son’s a coward too.” Id.

       The trial court found this behavior was reprehensible. Id.


[27]   There is no question that Pruitt suffers from mental issues and has been

       diagnosed with some form of schizophrenia. The specifics of Pruitt’s mental



       Court of Appeals of Indiana | Opinion 15A05-1606-CR-1235 | May 16, 2017   Page 18 of 19
       challenges were set forth in Pruitt I, Pruitt II, and Pruitt III. Those issues,

       however, did not prompt defense counsel to pursue an insanity defense.

       Additionally, Pruitt seemed lucid on the day of the murder; he had a police

       scanner inside his vehicle, and after encountering Deputy Starnes, he listened to

       the scanner. It was at that time that Pruitt understood he would be arrested if

       Deputy Starnes found the stolen firearms in his car. Pruitt exited his car with a

       firearm in hand and shot Deputy Starnes. Pruitt argues that the trial court

       “unfairly ignore[d] what was going on behind the scenes with Pruitt’s untreated

       schizophrenia and low mental functioning,” when it “harshly judged Pruitt for

       having a police scanner and firing on an officer without provocation.”

       Appellant’s Br. at 30. In compliance with Pruitt’s request, the trial court

       accommodated Pruitt’s request to look carefully at the evidence regarding his

       mental capacity and functioning, and properly determined that Pruitt

       deliberately elected to shoot Deputy Starnes to avoid arrest and was fully aware

       of the wrongfulness of his conduct. We agree with the trial court on

       resentencing. Accordingly, Pruitt’s sentence is not inappropriate in light of the

       nature of the offense and the character of the offender.


[28]   Affirmed.


[29]   Robb, J., and Barnes, J., concur.




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