MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                       FILED
regarded as precedent or cited before any                         Mar 28 2018, 6:30 am

court except for the purpose of establishing                           CLERK
                                                                   Indiana Supreme Court
the defense of res judicata, collateral                               Court of Appeals
                                                                        and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
William T. Myers                                         Curtis T. Hill, Jr.
Grant County Public Defender                             Attorney General of Indiana
Marion, Indiana
                                                         Matthew B. MacKenzie
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Brandon M. Newell,                                       March 28, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         27A04-1708-CR-1850
        v.                                               Appeal from the Grant Superior
                                                         Court
State of Indiana,                                        The Honorable Jeffrey Todd,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         27D01-1609-F2-15



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 27A04-1708-CR-1850 | March 28, 2018      Page 1 of 8
                                Case Summary and Issue
[1]   Following a jury trial, Brandon Newell was convicted of burglary, a Level 2

      felony; armed robbery and criminal confinement, both Level 3 felonies;

      unlawful possession of a firearm by a serious violent felon, a Level 4 felony;

      and intimidation and battery by means of a deadly weapon, both Level 5

      felonies. The jury also found Newell to be an habitual offender. The trial court

      sentenced Newell to a total of fifty years, thirty years for the Level 2 burglary

      conviction, enhanced by twenty years for the habitual offender adjudication.

      The sentences for the remaining crimes were ordered to be served concurrently

      with the Level 2 felony sentence. Newell appeals, raising the sole issue of

      whether his sentence is inappropriate in light of the nature of his offense and his

      character. Concluding Newell’s sentence is not inappropriate, we affirm.



                            Facts and Procedural History
[2]   On September 24, 2016, Jesus Martinez was on his front porch with his two-

      year-old son when a person, later identified as Newell, approached him and

      asked him for a cigarette. After he provided Newell with a cigarette, Martinez

      turned around and saw that Newell “ha[d] my son and a pistol.” Transcript,

      Volume 2 at 54. Newell told Martinez to go in the house and said “he was

      gonna kill me and my son” if Martinez did not comply. Id. at 58. After they

      entered the house, Newell struck Martinez in the head with the pistol and took

      his cell phone and wallet. Newell again threatened to kill Martinez and his son

      if Martinez did not give him more money. Eventually, Newell threw

      Court of Appeals of Indiana | Memorandum Decision 27A04-1708-CR-1850 | March 28, 2018   Page 2 of 8
      Martinez’s son back to him, threatened to kill him if he called the police, took

      Martinez’s bike off the front porch, and rode off. Martinez chased Newell in

      his car and Newell subsequently abandoned the bicycle and ran off on foot.

      Martinez saw a Chrysler 300 speed down the street, stop, and pick up Newell.

      Martinez chased this vehicle until Newell got out and ran behind a house.

      Martinez then returned home and eventually contacted police. Martinez later

      identified Newell from a photo array assembled by police.


[3]   The State charged Newell with burglary, armed robbery, criminal confinement,

      unlawful possession of a firearm by a serious violent felon, intimidation, and

      battery by means of a deadly weapon. The State also alleged Newell was an

      habitual offender. A jury found him guilty of all charges and also found him to

      be an habitual offender. At sentencing, Newell asked to be placed in a

      Purposeful Incarceration program in order to prepare him for life after

      incarceration. With respect to sentencing, the trial court stated:


              As far as the aggravating circumstances in this case . . . one
              would be the Defendant’s prior criminal and juvenile history as
              set forth in the Pre-Sentence Investigation Report. All of it is
              concerning to the Court, but most relevant, related and troubling
              are the Defendant’s multiple burglaries as a juvenile, two armed
              robbery convictions in 2002, battery resulting in serious bodily
              injury in 2006. Soon after being released from incarceration in
              October of 2009, he committed another armed robbery in
              January of 2011 and was adjudicated to be an habitual offender.
              Then less than fifty days after his release from the Department of
              Corrections [sic] in August of 2016, he committed Counts 1
              through 6 in the case before the Court today. Also troubling to
              the Court is the fact that this [is] the Defendant’s second

      Court of Appeals of Indiana | Memorandum Decision 27A04-1708-CR-1850 | March 28, 2018   Page 3 of 8
              adjudication as an habitual offender. The criminal history
              amounts to almost a twenty year pattern of violence, use of
              weapons, threats, and forcibly taking other people’s property. . . .
              Second aggravating circumstance is the victim of Count 3 was [a]
              child less than three years of age. Third aggravator is the
              remaining counts other than Count 3, were knowingly
              committed in the presence of this same small child. The fourth
              aggravating circumstance is that at the time the Defendant
              committed these offenses, he was on probation in two different
              cases for separate armed robberies.[1] I do not find that there are
              any mitigating circumstances in this case.


[4]   Tr., Vol. 4 at 101-03. The trial court sentenced Newell to thirty years executed

      for burglary enhanced by twenty years for the habitual offender finding, sixteen

      years for armed robbery, sixteen years for criminal confinement, twelve years

      for unlawful possession of a firearm by a serious violent felon, six years for

      intimidation, and six years for battery by means of a deadly weapon, all to be

      served concurrently with the burglary sentence for an aggregate sentence of fifty

      years. Newell now appeals his sentence.



                                  Discussion and Decision
                                       I. Standard of Review
[5]   Indiana Appellate Rule 7(B) provides, “[t]he Court may revise a sentence

      authorized by statute if, after due consideration of the trial court’s decision, the




      1
       Newell’s probation in these two cases was revoked and the trial court also sentenced him for the probation
      violations during the sentencing hearing in this case.

      Court of Appeals of Indiana | Memorandum Decision 27A04-1708-CR-1850 | March 28, 2018            Page 4 of 8
      Court finds that the sentence is inappropriate in light of the nature of the offense

      and the character of the offender.” Whether a sentence is regarded as

      inappropriate turns on “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.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). A

      sentence review under Indiana Appellate Rule 7(B) is “very deferential to the

      trial court.” Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012). This “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). The defendant bears the burden to persuade this court

      that the sentence is inappropriate. Sandleben v. State, 29 N.E.3d 126, 136 (Ind.

      Ct. App. 2015), trans. denied. The analysis is “not to determine whether another

      sentence is more appropriate but rather whether the sentence imposed is

      inappropriate.” Conley, 972 N.E.2d at 876 (quotation omitted).


                                  II. Inappropriate Sentence
[6]   Newell does not challenge the length of the sentence imposed by the trial court.

      Instead, he challenges the sentence as inappropriate because it “failed to include

      a recommendation for purposeful incarceration . . . .” Brief of Appellant at 8.

      Purposeful Incarceration is a project where the Department of Correction

      (“DOC”) “works in collaboration with Judges who can sentence chemically

      addicted offenders and document that they will ‘consider a sentence

      Court of Appeals of Indiana | Memorandum Decision 27A04-1708-CR-1850 | March 28, 2018   Page 5 of 8
      modification’ should the offender successfully complete [a] . . . Therapeutic

      community.” Therapeutic communities “provide intensive substance abuse

      treatment . . . that hold the offenders highly accountable.” Purposeful

      Incarceration, https://www.in.gov/idoc/2798.htm (last visited Mar. 15, 2018).


[7]   The place where a sentence is to be served is subject to review under Rule 7(B).

      Biddinger v. State, 868 N.E.2d 407, 414 (Ind. 2007). However, “it will be quite

      difficult for a defendant to prevail on a claim that the placement of his or her

      sentence is inappropriate.” Fonner v. State, 876 N.E.2d 340, 343 (Ind. Ct. App.

      2007). Newell does not challenge his placement in the DOC, but rather

      challenges the lack of a recommendation that he is eligible for the Purposeful

      Incarceration program in the DOC. This underscores that the trial court cannot

      order the DOC to place an offender in the Purposeful Incarceration program,

      but can only alert the DOC to appropriate candidates. See Purposeful

      Incarceration Details, http://www.in.gov/idoc/2798.htm (last visited Mar. 15,

      2018) (“The Courts communicate with the [DOC] that this offender is a

      [Purposeful Incarceration] offender.”). The program then assesses Purposeful

      Incarceration offenders and only admits persons who meet the substance abuse

      admission criteria. Id. The record does show that Newell asked the trial court

      to recommend purposeful incarceration, but does not establish that he is a

      chemically addicted offender. Instead, Newell argues that “[i]n light of his

      character as an individual who has been incarcerated for a long period of time

      of his life without the proper education on how to live in free society this should

      have been viewed as an appropriate case of recommending Purposeful

      Court of Appeals of Indiana | Memorandum Decision 27A04-1708-CR-1850 | March 28, 2018   Page 6 of 8
      Incarceration.” Brief of Appellant at 11 (emphasis added). On appeal,

      however, we do not decide “whether another sentence is more appropriate but

      rather whether the sentence imposed is inappropriate.” Conley, 972 N.E.2d at

      876 (quotation omitted). Although the trial court did not specifically address

      Newell’s request for Purposeful Incarceration, we have stated that “it is absurd

      to conclude that the General Assembly could have intended that all DOC

      inmates be entitled to substance abuse treatment regardless of whether they in

      fact suffer from substance abuse.” Cohn v. Strawhorn, 721 N.E.2d 342, 348-49

      (Ind. Ct. App. 1999), trans. denied. Having failed to show that he meets the

      criteria for recommendation to the program, Newell has failed to show that his

      placement in the DOC without such recommendation is inappropriate.


[8]   More generally, Newell does little to explain why his sentence is inappropriate

      in light of the nature of his offense or his character. For the purpose of 7(B)

      review, “[t]he nature of the offense is found in the details and circumstances of

      the commission of the offense.” Townsend v. State, 45 N.E.3d 821, 831 (Ind. Ct.

      App. 2015), trans denied. The record reveals that in carrying out these offenses,

      Newell held a gun to the head of a two-year-old child, threatened to murder the

      child and his father, and hit the child’s father in the head with a gun, causing

      him to bleed, while still in the presence of the child. At sentencing, the trial

      court noted the involvement of the child in two of the five aggravating factors.

      We also believe Newell’s conduct to be particularly egregious in light of the

      involvement of a young child. Therefore, we cannot say that Newell’s sentence

      is inappropriate in light of the nature of his offenses.


      Court of Appeals of Indiana | Memorandum Decision 27A04-1708-CR-1850 | March 28, 2018   Page 7 of 8
[9]    In considering the character of the offender, it is “shown by the offender’s life

       and conduct.” Id. Newell has an extensive criminal history as both a juvenile

       and as an adult, including multiple convictions for armed robbery. At

       sentencing, the trial court noted that Newell’s criminal history “amounts to

       almost a twenty year pattern of violence, use of weapons, threats, and forcibly

       taking other people’s property.” Tr., Vol. 4 at 102. Newell was out of prison

       for less than two months before committing this armed robbery, while still on

       probation for two other offenses of armed robbery. Considering Newell’s

       criminal history, we cannot say his fifty-year sentence is inappropriate in light

       of the nature of his character.


[10]   Newell has not met his burden of convincing us that his placement in DOC

       without a Purposeful Incarceration recommendation is inappropriate because

       he has failed to show that he qualifies as a candidate for the program in the first

       place. As for the length of Newell’s sentence, it is not inappropriate in light of

       the nature of Newell’s crimes and his character.



                                               Conclusion
[11]   Newell’s sentence is not inappropriate in light of the nature of the offense and

       his character. We therefore affirm his sentence of fifty years to be executed in

       the Department of Correction.


[12]   Affirmed.


       Crone, J., and Bradford, J., concur.
       Court of Appeals of Indiana | Memorandum Decision 27A04-1708-CR-1850 | March 28, 2018   Page 8 of 8
