MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                               FILED
this Memorandum Decision shall not be                           Feb 20 2018, 6:17 am
regarded as precedent or cited before any
                                                                     CLERK
court except for the purpose of establishing                     Indiana Supreme Court
                                                                    Court of Appeals
the defense of res judicata, collateral                               and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
P. Jeffrey Schlesinger                                   Curtis T. Hill, Jr.
Crown Point, Indiana                                     Attorney General of Indiana
                                                         Jesse R. Drum
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Alexander Marvel Jones,                                  February 20, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         45A03-1709-CR-2112
        v.                                               Appeal from the Lake Superior
                                                         Court
State of Indiana,                                        The Honorable Salvador Vasquez,
Appellee-Plaintiff.                                      Judge
                                                         The Honorable Natalie Bokota,
                                                         Judge Pro Tempore
                                                         Trial Court Cause No.
                                                         45G01-1701-F2-2



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 45A03-1709-CR-2112 | February 20, 2018   Page 1 of 8
                                                Case Summary
[1]   Alexander Marvel Jones (“Jones”) challenges his five-year sentence, imposed

      after Jones pleaded guilty to Criminal Recklessness, as a Level 5 felony.1


[2]   We affirm.



                                                    Issues
[3]   Jones presents the following issues:


                 I.       Whether the trial court abused its discretion in sentencing
                          him; and


                 II.      Whether his sentence is inappropriate.


                                Facts and Procedural History
[4]   On January 1, 2017, Adrian Ortiz (“Ortiz”) was parking in Hammond when

      another vehicle parked behind his. Eriec Campbell (“Campbell”) was driving

      the other vehicle, and Jones was a passenger. Campbell exited the vehicle,

      approached Ortiz, and then fired several shots into Ortiz’s vehicle. Ortiz began

      to drive off, at which point Jones shot toward the rear of the vehicle.




      1
          Ind. Code §§ 35-42-2-2(a), -2(b)(2)(A).


      Court of Appeals of Indiana | Memorandum Decision 45A03-1709-CR-2112 | February 20, 2018   Page 2 of 8
[5]   In the wake of the shooting, Jones faced three felony counts: Attempted

      Murder, as a Level 1 felony;2 Attempted Robbery Resulting in Serious Bodily

      Injury, as a Level 2 felony;3 and Attempted Armed Robbery, as a Level 3

      felony.4 Jones and the State reached a plea agreement whereby the State would

      amend the charging information to include a charge of Criminal Recklessness,

      as a Level 5 felony—to which Jones would plead guilty—and the State would

      move to dismiss the remaining counts. Jones later pleaded guilty pursuant to

      the plea agreement. Thereafter, the trial court held a sentencing hearing, and

      sentenced Jones to five years in the Indiana Department of Correction.


[6]   Jones now appeals.



                                      Discussion and Decision
                                          Abuse of Discretion
[7]   The sentencing range for a Level 5 felony is between one year and six years,

      with an advisory sentence of three years. I.C. § 35-50-2-6. Where, as here, the

      trial court has imposed a sentence within the statutory range, the sentence “is

      subject to review only for abuse of discretion.” Anglemyer v. State, 868 N.E.2d

      482, 490 (Ind. 2007), clarified on reh’g. The trial court abuses its discretion if its




      2
          I.C. §§ 35-42-1-1, 35-41-5-1.
      3
          I.C. §§ 35-42-5-1, 35-41-5-1.
      4
          Id.


      Court of Appeals of Indiana | Memorandum Decision 45A03-1709-CR-2112 | February 20, 2018   Page 3 of 8
       decision is clearly against the logic and effect of the facts and circumstances

       before it, or the reasonable deductions to be drawn therefrom. Id.


[8]    Pursuant to Indiana Code Section 35-38-1-3, “[b]efore sentencing a person for a

       felony, the court must conduct a hearing to consider the facts and

       circumstances relevant to sentencing.” If, upon the hearing, the court identifies

       aggravating circumstances or mitigating circumstances, the court must enter a

       “statement of the court’s reasons for selecting the sentence that it imposes.”

       I.C. § 35-38-1-3. In its sentencing statement, the trial court need not identify

       every aggravating or mitigating circumstance, but it is obligated to “identify all

       significant mitigating and aggravating circumstances.” Anglemyer, 868 N.E.2d at

       490 (emphasis added). Moreover, the trial court is not obligated to explain why

       it did not find a circumstance to be significantly mitigating. Id. at 493.


[9]    On appeal, “[a]n allegation that the trial court failed to identify or find a

       mitigating factor requires the defendant to establish that the mitigating evidence

       is both significant and clearly supported by the record.” Id. Nonetheless, even

       where a trial court has failed to identify a significant mitigating circumstance,

       we will not remand for resentencing unless “we cannot say with confidence that

       the trial court would have imposed the same sentence had it properly

       considered reasons that enjoy support in the record.” Id. at 491.


[10]   In sentencing Jones, the trial court identified two mitigating circumstances: that

       Jones had completed programs while in jail and that Jones was helpful to his

       elderly mother. The court gave the latter factor “relatively low weight” because


       Court of Appeals of Indiana | Memorandum Decision 45A03-1709-CR-2112 | February 20, 2018   Page 4 of 8
       Jones had committed several crimes while living with his mother, and Jones

       had made plans to move out of state. App. Vol. II at 72. The trial court also

       identified aggravating circumstances, including Jones’s criminal history (three

       felony convictions and six misdemeanor convictions), and Jones’s continued

       engagement in unlawful behavior after receiving leniency in prior criminal

       matters. Moreover, the trial court gave “moderate weight” to the impact on

       Ortiz, who was severely injured when Campbell shot into the car, and who

       suffered from fear, anxiety, and depression due to the incident. Id. at 73.


[11]   Jones argues that the trial court abused its sentencing discretion by failing to

       identify certain mitigating circumstances, including his decision to plead guilty.

       “[T]he significance of a guilty plea as a mitigating factor varies from case to

       case.” Anglemyer v. State, 875 N.E.2d 218, 221 (Ind. 2007), on reh’g. “For

       example, a guilty plea may not be significantly mitigating when it does not

       demonstrate the defendant’s acceptance of responsibility . . . or when the

       defendant receives a substantial benefit in return for the plea.” Id. Moreover, a

       guilty plea may not be significantly mitigating if it appears to be more likely the

       result of pragmatism than acceptance of responsibility and remorse. Id.


[12]   Here, Jones’s decision to plead guilty appears to have been pragmatic, in that

       the State agreed to seek dismissal of three counts that carried greater sentencing

       exposure. Thus, we cannot say that the trial court abused its discretion by not

       identifying the decision to plead guilty as a significant mitigating circumstance.




       Court of Appeals of Indiana | Memorandum Decision 45A03-1709-CR-2112 | February 20, 2018   Page 5 of 8
[13]   Jones next argues that the court should have determined that his remorse was a

       significant mitigating circumstance. “Remorse, or lack thereof, by a defendant

       often is something that is better gauged by a trial judge who views and hears a

       defendant’s apology and demeanor first hand and determines the defendant’s

       credibility.” Gibson v. State, 856 N.E.2d 142, 148 (Ind. Ct. App. 2006); see also

       Pickens v. State, 767 N.E.2d 530, 535 (Ind. 2002) (“Without evidence of some

       impermissible consideration by the court, we accept its determination of

       credibility.”). Here, the trial court made equivocal remarks regarding Jones’s

       credibility: at one point, the trial court stated that it “believe[d]” Jones was

       sincere, Tr. Vol. II at 50, but it later remarked that it “hop[ed]” Jones was

       sincere. Id. at 51. Thus, it appears that the court was not fully convinced of

       Jones’s credibility, and we are not persuaded that the trial court abused its

       discretion by not identifying remorse as a significant mitigating circumstance.


                                      Inappropriate Sentence
[14]   Although a trial court may have acted within its discretion in sentencing a

       criminal defendant, the Indiana Constitution authorizes independent appellate

       review and revision of the selected sentence. Ind. Const. art. 7, §§ 4, 6. This

       authority is implemented through Indiana Appellate Rule 7(B), which provides

       that an appellate court “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 appropriateness of a sentence “turns on ‘myriad . . . factors that

       come to light in a given case,’” Taylor v. State, 86 N.E.3d 157, 165 (Ind. 2017)

       Court of Appeals of Indiana | Memorandum Decision 45A03-1709-CR-2112 | February 20, 2018   Page 6 of 8
       (quoting Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008)), and the principal

       role of our review “is to attempt to leaven the outliers.” McCain v. State, 88

       N.E.3d 1066, 1067 (Ind. 2018) (per curiam). We begin our “analysis with

       ‘substantial deference to the trial court’s sentence,’ then ‘independently

       examine’ the defendant’s offenses and character.” Taylor, 86 N.E.3d at 165

       (quoting Satterfield v. State, 33 N.E.3d 344, 355 (Ind. 2015)).


[15]   Regarding the offense, we observe that the legislature selected an advisory

       sentence of three years. See I.C. § 35-50-2-6. As to the nature of the offense,

       while Ortiz was driving to safety after Campbell shot him, Jones fired at Ortiz’s

       vehicle. Jones argues that his shots did not strike Ortiz or the vehicle, yet Jones

       placed Ortiz—and anyone else nearby—in danger. Moreover, in asking us to

       revise his sentence, Jones attempts to minimize his actions, arguing that he was

       intoxicated and thought Campbell was in danger. Jones asserts that although

       he “knowingly fired at the vehicle, he believed he was justified in doing so

       thereby mitigating the nature of the offense.” Appellant’s Br. at 10. However,

       we are not inclined to disturb the sentence based on this extraordinary belief.


[16]   As to the character of the offender, Jones has accumulated six misdemeanor

       convictions and three felony convictions. Jones argues that none of his felonies

       were for violent acts. Jones also argues that he accepted responsibility by

       pleading guilty and that he expressed remorse prior to being sentenced—actions

       that generally reflect positively on his character. However, in previous criminal

       matters, Jones has had his probation revoked, and he violated the terms of his

       conditional discharge in Illinois. Thus, despite the prior leniency afforded to

       Court of Appeals of Indiana | Memorandum Decision 45A03-1709-CR-2112 | February 20, 2018   Page 7 of 8
       him, Jones has continued to make poor decisions—including the decision to

       carry a weapon and drink alcohol to the point that he could personally

       rationalize shooting at another vehicle. Moreover, although it appears that

       Jones is a helpful son, Jones committed several crimes while living with his

       mother, despite the support network Jones has with his law-abiding family.

       Ultimately, Jones has had several opportunities to reform his behavior, but has

       continued to engage in criminal activity that this time put others in danger.


[17]   After evaluating the nature of the offense and Jones’s character, we are not

       persuaded that the five-year sentence is inappropriate.



                                               Conclusion
[18]   The trial court did not abuse its sentencing discretion, and the sentence is not

       inappropriate.


[19]   Affirmed.


       Kirsch, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 45A03-1709-CR-2112 | February 20, 2018   Page 8 of 8
