MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
                                                                     FILED
court except for the purpose of establishing                    Mar 30 2017, 7:29 am

the defense of res judicata, collateral                              CLERK
                                                                 Indiana Supreme Court
estoppel, or the law of the case.                                   Court of Appeals
                                                                      and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Thomas C. Allen                                          Curtis T. Hill, Jr.
Fort Wayne, Indiana                                      Attorney General of Indiana
                                                         George P. Sherman
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Dennis R. Freeman, Jr.,                                  March 30, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         02A03-1606-CR-1386
       v.                                                Appeal from the Allen Superior
                                                         Court
State of Indiana,                                        The Honorable John F. Surbeck,
Appellee-Plaintiff.                                      Jr., Judge
                                                         Trial Court Cause No.
                                                         02D06-1511-F5-329



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 02A03-1606-CR-1386 | March 30, 2017    Page 1 of 7
                                       Statement of the Case
[1]   Dennis Freeman (“Freeman”) appeals the sentence imposed following his

      convictions for Level 5 felony battery,1 Level 6 felony criminal recklessness,2

      Level 6 felony intimidation,3 and Class A misdemeanor resisting law

      enforcement.4 He specifically contends that his seven-year aggregate sentence is

      inappropriate in light of the nature of the offenses and his character. Because

      we conclude that Freeman’s sentence is not inappropriate, we affirm the

      judgment of the trial court.


[2]   We affirm.


                                                     Issue
                 The sole issue for our review is whether Freeman’s sentence is
                 inappropriate.


                                                     Facts
[3]   At approximately 6:30 p.m. on November 17, 2015, Fort Wayne Police

      Department Officer Richard Smith (“Officer Smith”) was dispatched to victim

      Y.H.’s (“Y.H.”) home. When Officer Smith arrived at the scene, Y.H. exited

      the house. She was naked from the waist up and covered in blood “like




      1
          IND. CODE § 35-42-2-1.
      2
          I.C. § 35-42-2-2.
      3
          I.C. § 35-45-2-1.
      4
          I.C. § 35-44.1-3-1.


      Court of Appeals of Indiana | Memorandum Decision 02A03-1606-CR-1386 | March 30, 2017   Page 2 of 7
      someone had just poured a bucket of blood over the top of her head.” (Tr. 159).

      She told the officer that Freeman, her boyfriend, had stabbed her in the head

      with a knife and run from the house.


[4]   Later that evening, Fort Wayne Police Department officers found forty-year-old

      Freeman at a friend’s house. When Freeman noticed the officers approaching

      the house, Freeman ran. One of the officers chased Freeman and yelled, “stop,

      police,” several times. (Tr. 213). The officer eventually apprehended Freeman

      and noticed a strong odor of an alcoholic beverage on Freeman’s breath.

      Freeman was also “extremely angry.” (Tr. 214).


[5]   Freeman was transported to the hospital for medical clearance because he had a

      laceration on the top of his head and appeared to be intoxicated. While he was

      at the hospital, Freeman yelled obscenities and kicked the walls. He also yelled

      that he would have a Mexican cartel kill the officers. At one point, Freeman

      looked directly at Fort Wayne Police Department Officer Tyler Clark (“Officer

      Clark”) and read the officer’s name and badge number. Freemen told Officer

      Clark, “[W]hen I get out of jail[,] I will find you on Google, I’ll find out where

      you live, and I’ll come to your house and kill you and your family.” (Tr. 206).


[6]   A jury convicted Freeman of Level 5 felony battery, Level 6 felony criminal

      recklessness, Level 6 felony intimidation, and Class A misdemeanor resisting

      law enforcement. Evidence at the sentencing hearing revealed that Freeman

      has a criminal history that spans over twenty years and includes nine




      Court of Appeals of Indiana | Memorandum Decision 02A03-1606-CR-1386 | March 30, 2017   Page 3 of 7
      misdemeanor convictions and one felony conviction. Freeman has also had his

      probation revoked on more than one occasion.


[7]   The trial court sentenced Freeman to five (5) years for the Level 5 felony battery

      conviction, two (2) years each for the Level 6 felony criminal recklessness and

      intimidation convictions, and one (1) year for the Class A misdemeanor

      resisting law enforcement conviction. The trial court then ordered the sentence

      for the Level 5 felony battery conviction to run concurrent to the sentence for

      the Level 6 felony criminal recklessness conviction and the sentence for the

      Level 6 felony intimidation conviction to run concurrent to the sentence for the

      Class A misdemeanor resisting law enforcement conviction. Lastly, the trial

      court ordered the sentence for the Level 5 battery conviction to run

      consecutively to the sentence for the Level 6 felony intimidation conviction, for

      an aggregate sentence of seven (7) years. Freeman now appeals his sentence.


                                                  Decision
[8]   Freeman’s sole argument is that his seven-year aggregate sentence is

      inappropriate. 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


      Court of Appeals of Indiana | Memorandum Decision 02A03-1606-CR-1386 | March 30, 2017   Page 4 of 7
       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).


[9]    The Indiana Supreme Court has further explained that “[s]entencing is

       principally a discretionary function in which the trial court’s judgment should

       receive considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind.

       2008). “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).


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

       the advisory sentence is the starting point the Legislature has selected as an

       appropriate sentence for the crime committed. Childress, 848 N.E.2d at 1081.

       Here, Freeman was convicted of one Level 5 felony, two Level 6 felonies, and

       one Class A misdemeanor. The sentencing range for a Level 5 felony is

       between one and six years, with an advisory sentence of three years. See I.C. §

       35-50-2-6. The sentencing range for a Level 6 felony is between six months and

       two and one-half years, with an advisory sentence of one year. I.C. § 35-50-2-7.

       The sentence for a Class A misdemeanor is not more than one year.


[11]   Here, the trial court sentenced Freeman to five years for the Level 5 felony

       battery conviction, two years each for the Level 6 felony criminal recklessness

       and intimidation convictions, and one year for the Class A misdemeanor


       Court of Appeals of Indiana | Memorandum Decision 02A03-1606-CR-1386 | March 30, 2017   Page 5 of 7
       resisting law enforcement conviction. The trial court ultimately imposed an

       aggregate sentence of seven years.


[12]   With regard to the nature of the offenses, Freeman stabbed his girlfriend in the

       head with a knife and later ran from police officers. While in the hospital,

       Freeman yelled obscenities and kicked the walls. In addition, Freeman read an

       officer’s name badge, threatened to look up the officer’s address on Google, go

       to the officer’s house, and kill the officer and his family. We agree with the

       State that “there is nothing positive to speak of concerning Freeman’s offense. .

       . . Freeman’s behavior on the day of the crimes was violent and destructive.”

       (State’s Br. 8).


[13]   With regard to the nature of Freeman’s character, he has a criminal history that

       spans over twenty years and includes nine misdemeanor convictions and one

       felony conviction. Specifically, Freeman has misdemeanor convictions for

       driving without a license, criminal mischief, criminal trespass, invasion of

       privacy, criminal recklessness, and disorderly conduct. His felony conviction

       was for battery, which is notably the same crime as one of his instant offenses.

       Freeman has also violated the conditions of probation on more than one

       occasion. His former contacts with the law have not caused him to reform

       himself. See Jenkins v. State, 909 N.E.2d 1080, 1086 (Ind. Ct. App. 2009), trans.

       denied.


[14]   Freeman has failed to persuade this Court that his seven-year aggregate

       sentence for his convictions for Level 5 felony battery, Level 6 felony criminal


       Court of Appeals of Indiana | Memorandum Decision 02A03-1606-CR-1386 | March 30, 2017   Page 6 of 7
       recklessness, Level 6 felony intimidation, and Class A misdemeanor resisting

       law enforcement is inappropriate.


[15]   Affirmed.


       May, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 02A03-1606-CR-1386 | March 30, 2017   Page 7 of 7
