MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                               FILED
regarded as precedent or cited before any                                  Jul 02 2020, 9:02 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
David W. Stone IV                                         Curtis T. Hill, Jr.
Anderson, Indiana                                         Attorney General of Indiana

                                                          John R. Millikan
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Troy L. Neal,                                             July 2, 2020
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          19A-CR-2280
        v.                                                Appeal from the Madison Circuit
State of Indiana,                                         Court

Appellee-Plaintiff                                        The Honorable Angela Warner
                                                          Sims, Judge
                                                          Trial Court Cause No.
                                                          48C01-1801-F1-2787




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2280 | July 2, 2020                       Page 1 of 10
          May, Judge.


[1]   Troy L. Neal challenges his thirty-five-year sentence for Level 2 felony

      attempted voluntary manslaughter. 1 Neal argues: (1) his sentence is

      inappropriate based on his character and the nature of his offense, and (2) the

      trial court abused its discretion when it considered his criminal history as an

      aggravating factor, while disregarding two mitigating circumstances. We

      affirm.



                                Facts and Procedural History

[2]   Neal and Kimberley Puckett married in July 2015 but formally separated in

      October 2018. The couple lived in Chesterfield, Indiana, but Neal moved to

      Losantville, Indiana, after their separation. Neal continued to watch and spy

      on Puckett, because he was suspicious that she was seeing another man and

      because he hoped for reconciliation. Although they were separated, Puckett

      continued to stay in touch with Neal to assist him with healthcare needs and

      day-to-day activities.


[3]   Puckett met Axel Scheirs at the beginning of September 2018 at her place of

      work and the two developed a friendship. On October 25, 2018, Puckett invited

      Scheirs and his children to her house for dinner. At approximately 7:00 p.m.,

      while Puckett and Scheirs were making dinner, Neal entered the home and



      1
          Ind. Code § 35-42-1-3(a) (voluntary manslaughter); Ind. Code § 35-41-5-1 (attempt).




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2280 | July 2, 2020              Page 2 of 10
      demanded to know whether Puckett was dating Scheirs. Puckett did not

      answer Neal’s question but instead asked Neal what he was doing at her house.

      Visibly upset, Neal pulled out a “SWAT knife,” (Tr. Vol. I at 119), and stabbed

      Scheirs, who was sitting at the dinner table, hitting Scheirs five times in the

      back. Scheirs attempted to ward Neal off with a gun that he had holstered at

      his right side. With the help of Puckett’s son, D.J., Scheirs was able to get Neal

      to leave the house. As Neal left, he slashed one of Scheirs’ tires before driving

      off in his own truck.


[4]   Following the attack, Scheirs was transported via ambulance to the hospital for

      Level 1 Trauma injuries to his thorax, chest, and back, which required

      immediate emergency treatment. The attending trauma surgeon described

      Scheirs’ injuries as follows:


              He had one (1) wound in the emergency room that had a skin
              bleeder and a large hematoma that was developing under that.
              We put a quick figure of eight (8) whip stitch in that just to kind
              of put some pressure on it, which took care of the bleeding. We
              then got a cat scan of the chest, which showed that he had a
              small numal thorax on the left, which is just an air cavity that
              indicates that something has penetrated the lung cavity. If the
              lung goes down, it means that there’s been a wound, [an]
              entrance and exit wound somewhere into the lung cavity. On the
              right side, he had a numal thorax as well, the same, talking about
              [a] hemothorax, which there was a pocket of blood within the
              lung cavity itself, so some vessel had been hit and he was
              bleeding into the lung cavity.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2280 | July 2, 2020   Page 3 of 10
      (Tr. Vol. I at 191.) The surgeon explained that because Scheirs’ injuries were

      located near vital organs and thin soft tissue, Scheirs was lucky that his wounds

      were not more serious or fatal.


[5]   Later in the evening on October 25, two police officers who heard about the

      incident on the police radio confronted Neal at local gas station. Neal got into

      his vehicle and drove away, which resulted in a multi-vehicle high-speed chase.

      The pursuit ended after Neal exited his vehicle and attempted to escape into the

      woods on foot. The officers warned Neal to get on the ground, however after

      Neal did not listen to several orders to stop, police deployed a taser. Police

      subsequently placed Neal into handcuffs and took him to the police station.


[6]   On October 31, 2018, the State charged Neal with Level 1 felony attempted

      murder, 2 Level 1 felony burglary with intent to commit a felony, 3 Level 2 felony

      burglary with intent to commit a felony with a deadly weapon, 4 and Level 6

      felony resisting law enforcement. 5 On March 18, 2019, the State additionally

      alleged Neal was a habitual offender. 6


[7]   After a jury trial, the trial court found Neal guilty of the lesser-included offense

      of Level 2 felony attempted voluntary manslaughter. Neal admitted he was a



      2
          Ind. Code § 35-42-1-1 (murder); Ind. Code § 35-41-5-1 (attempt).
      3
          Ind. Code § 35-43-2-1.
      4
          Ind. Code § 35-43-2-1(3)(A).
      5
          Ind. Code § 35-44.1-3-1(a)(3).
      6
          Ind. Code § 35-50-2-8.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2280 | July 2, 2020   Page 4 of 10
      habitual offender, and the trial court adjudicated him as such. Following a

      sentencing hearing, the trial court imposed a thirty-five-year sentence, based on

      twenty-five years for the felony and a ten-year enhancement for his habitual

      offender adjudication.



                                 Discussion and Decision

                                   1. Inappropriate Sentencing
[8]   We will reverse only if we determine Neal’s sentence is inappropriate based on

      the nature of the crime and Neal’s character. See Ind. Appellate Rule 7(B)

      (allowing appellate review of sentences based on defendant’s character and

      nature of the offense). The defendant ultimately bears the burden of

      demonstrating the inappropriateness of his sentence. Patterson v. State, 909

      N.E.2d 1058, 1063 (Ind. Ct. App. 2009). When considering the nature of the

      offense, the advisory sentence is the starting point to determine the

      appropriateness of a sentence. Johnson v. State, 986 N.E.2d 852, 856 (Ind. Ct.

      App. 2013). The minimum penalty for a Level 2 felony is ten years and the

      maximum penalty is thirty years, with a seventeen-and-a-half-year advisory

      period. Ind. Code § 35-50-2-4.5


[9]   Regarding the nature of his crime, Neal attempts to minimize the injuries he

      inflicted upon Scheirs by emphasizing that they had no permanent physical

      effect on Scheirs nor did they require extensive hospitalization. (Br. of

      Appellant 15.) This minimizing sentiment is not shared by Scheirs, who




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2280 | July 2, 2020   Page 5 of 10
       confirmed that the immediate pain from the five knife wounds to separate parts

       of his body was the worst pain he had experienced in his life. Even after his

       twenty-four-hour hospitalization, Scheirs required two additional weeks of pain

       management medication, without which he felt extreme pain. Furthermore,

       although Scheirs required only twenty-four hours of hospitalization, the

       attending trauma surgeon testified that Scheirs was “lucky” the wounds were

       not more serious or fatal. (Tr. Vol. I at 193–94.) Indeed, Neal himself admitted

       that the only reason he did not inflict even more damage was due to the layout

       of the rods on the back of the chair where Scheirs was sitting. Neal fully

       recognized the potential severity and the purpose of his actions, and he

       admitted during his police interview that he was “trying to kill” Scheirs, (id. at

       118), that he was going to “take [Scheirs’] life[,]” (id. at 115), that he did not

       thrust the knife as hard as he could have, and that he was not sorry for stabbing

       Scheirs. These admissions demonstrate that Neal’s actions, albeit fueled by

       passion, inflicted unnecessary pain on an unsuspecting victim and could have

       potentially resulted in a needless fatality.


[10]   When considering the character of the offender, one relevant fact is the

       defendant's criminal history. Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct.

       App. 2007). The pre-sentence investigation report (PSI) elucidated Neal’s

       criminal history, which included convictions for felony auto theft, felony sexual

       battery, felony burglary, misdemeanor resisting law enforcement, and

       misdemeanor operating a vehicle with alcohol concentration of .15 or more.

       Additionally, Neal was out on bond for pending charges of Level 6 felony




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2280 | July 2, 2020   Page 6 of 10
       operating a vehicle while intoxicated endangering a person and misdemeanor

       operating a vehicle with alcohol concentration of .15 or more when he stabbed

       Scheirs, indicating a serious disregard for law and order. Although the extent

       to which a defendant’s criminal history may be used to guide an appropriate

       sentence “varies based on the gravity, nature, and number of prior offenses in

       relation to the current offense,” it is indicative as a “poor reflection on the

       defendant’s character, [as] it may reveal that he or she has not been deterred

       even after having been subjected to the police authority of the State.” Cotto v.

       State, 829 N.E.2d 520, 526 (Ind. 2005). Consequently, Neal’s lengthy criminal

       record reflects poorly on his character. See Mateo v. State, 981 N.E.2d 59, 75

       (Ind. Ct. App. 2012) (defendant failed to show that his sentence of twenty years

       for inflicting great bodily injury upon an unarmed victim was inappropriate

       given his numerous criminal offenses), trans. denied.


                                        2. Abuse of Discretion
[11]   Sentencing decisions rest within the sound discretion of the trial court and are

       reviewed only for abuse of discretion. Amalfitano v. State, 956 N.E.2d 208, 211

       (Ind. Ct. App. 2011), trans. denied. Pursuant to their statutory authority, trial

       courts may impose any sentence that is statutorily and constitutionally

       permissible “regardless of the presence or absence of aggravating circumstances

       or mitigating circumstances.” Ind. Code § 35-38-1-7.1(d).


[12]   The trial court considered four aggravating factors that guided its sentencing

       decision: (1) Neal’s extensive criminal history beginning in 1990; (2) Neal’s




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2280 | July 2, 2020   Page 7 of 10
       being out on bond for a pending offense in Delaware County when he stabbed

       Scheirs; (3) the injuries suffered by Scheirs exceeded what was required to prove

       attempted voluntary manslaughter; and (4) the multiple injuries and stab

       wounds inflicted upon Scheirs. Neal argues the trial court abused its discretion

       in considering his criminal history as an aggravating factor, but he does not

       challenge the other three aggravating factors that guided the trial court during

       sentencing. It is well-established that a single aggravating factor may support

       the enhancement of a sentence. Miller v. State, 634 N.E.2d 57, 64 (Ind. Ct. App.

       1994). As there were three unchallenged aggravators upon which Neal’s

       sentence could have been based, we need not consider whether the trial court’s

       consideration of his criminal history as an aggravator was an abuse of

       discretion. 7


[13]   Neal further argues the trial court failed to give credence to two proposed

       mitigators: (1) the offense was not likely to recur, because the present incident

       had stemmed out of Neal’s continuing aspiration and motive to reconcile with

       Puckett, and (2) Neal was gainfully employed as a heavy equipment mechanic



       7
         We note, however, that the trial court is permitted by statute to consider a defendant’s “history of criminal
       or delinquent behavior” when sentencing him. Ind. Code § 35-38-1-7.1(a)(2). We do not agree with Neal’s
       contention that his criminal history is not a relevant aggravating factor. Although Neal argues that his only
       violent crime was for sexual battery twenty-five years ago and is thus unrelated, it is nonetheless similar to
       that of attempted voluntary manslaughter because both crimes involve physical harm to another person. See
       Long v. State, 867 N.E.2d 606, 617 (Ind. Ct. App. 2007) (defendant attempted to downplay the “gravity and
       proximity in time” of his twenty-year criminal history, however at least one of his convictions, criminal
       conversion and forgery, was similar to theft; such crimes involved the common factor of dishonesty).
       Further, a “record of arrest, particularly a lengthy one, may reveal that a defendant has not been deterred
       even after having been subject to the police authority of the State.” Barber v. State, 863 N.E.2d 1199, 1207
       (Ind. Ct. App. 2007).




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2280 | July 2, 2020                        Page 8 of 10
       for many years. (Br. of Appellee 8.) However, Neal did not argue these factors

       were mitigating during his sentencing hearing. “If the defendant does not

       advance a factor to be mitigating at sentencing, this Court will presume that the

       factor is not significant and the defendant is precluded from advancing it as a

       mitigating circumstance for the first time on appeal.” Spears v. State, 735 N.E.2d

       1161, 1167 (Ind. 2000). Waiver notwithstanding, to show that the court failed

       to find a valid mitigating factor, a defendant must establish that the mitigating

       evidence is “both significant and clearly supported by the record.” Anglemyer v.

       State, 868 N.E.2d 482, 493 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind.

       2007). However, the Court is not obligated to credit mitigating circumstances

       in the same manner as would the defendant. Id.


[14]   Although Neal attempts to persuade us that he is unlikely to commit a similar

       offense in the future, the trial court was not required to credit his assertion.

       Neal had an excessive and violent response to seeing Puckett with a man she

       was not even dating at the time. Neal asserts that his crime was one of sudden

       passion, yet this does not reassure us that he will be able to control his emotions

       if a similar encounter occurs in the future. Further, Neal on multiple occasions

       emphasized his lack of remorse for stabbing Scheirs and his lone regret of

       failing to thrust the knife harder into Scheirs’ back.


[15]   As his final mitigating factor, Neal argues that his status as a long-term

       employee, a productive member of society, is enough to warrant mitigation of

       his sentence. This is not persuasive because “[m]any people are gainfully

       employed such that this would not require the trial court to note it as a



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2280 | July 2, 2020   Page 9 of 10
       mitigating factor or afford it the same weight as [the defendant] proposes.”

       Newsome v. State, 797 N.E.2d 293, 301 (Ind. Ct. App. 2003), trans. denied.


[16]   Finally, when a trial court is found to have abused its discretion in the process

       used to sentence the defendant, the error is harmless if the sentence imposed

       was not inappropriate. Mendoza v. State, 869 N.E.2d 546, 556 (Ind. Ct. App.

       2007). As stated supra, we conclude that Neal’s sentence is not inappropriate.

       Therefore, we also conclude the trial court did not abuse its discretion when it

       sentenced Neal.



                                               Conclusion
[17]   We hold that Neal’s sentence was not inappropriate given his character and the

       nature of the crime he committed, and Neal has not demonstrated the trial

       court abused its discretion. Accordingly, we affirm.


[18]   Affirmed.


       Robb, J., and Vaidik, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2280 | July 2, 2020   Page 10 of 10
