MEMORANDUM DECISION                                                              FILED
Pursuant to Ind. Appellate Rule 65(D),                                      Apr 27 2017, 10:41 am

this Memorandum Decision shall not be                                            CLERK
                                                                             Indiana Supreme Court
regarded as precedent or cited before any                                       Court of Appeals
                                                                                  and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Brian A. Karle                                           Curtis T. Hill, Jr.
Ball Eggleston, PC                                       Attorney General of Indiana
Lafayette, Indiana
                                                         Lyubov Gore
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Sidney D. Greenleaf,                                     April 27, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         79A02-1511-CR-1862
        v.                                               Appeal from the Tippecanoe
                                                         Circuit Court
State of Indiana,                                        The Honorable Thomas H. Busch,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         79C01-1502-F1-01



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 79A02-1511-CR-1862 | April 27, 2017                Page 1 of 12
[1]   Sidney Greenleaf appeals his sentence for attempted murder. Greenleaf raises

      two issues which we revise and restate as:


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

          II.     Whether his sentence is inappropriate in light of the nature of
                  the offense and the character of the offender.

      We affirm.


                                      Facts and Procedural History

[2]   On February 2, 2015, Greenleaf shot at Aaron Vance multiple times outside of

      a gas station. Vance was struck twice in the left forearm, twice in the left

      buttock, both feet, and his scrotum, causing Vance to lose a testicle. Police

      found five or six shell casings. Law enforcement eventually located Greenleaf,

      and he was detained and brought to Indiana in mid- to late-March.


[3]   On February 6, 2015, the State charged Greenleaf with: Count I, attempted

      murder as a level 1 felony; Count II, aggravated battery as a level 3 felony;

      Count III, battery as a level 5 felony; Count IV, battery as a level 5 felony;

      Count V, carrying a handgun without a license as a class A misdemeanor; and

      Count VI, carrying a handgun by a convicted felon as a level 5 felony. The

      State also alleged a sentencing enhancement for the unlawful use of a firearm in

      the commission of a felony that resulted in death or serious bodily injury as

      Count VII.


[4]   On August 17, 2015, Greenleaf and the State entered a plea agreement pursuant

      to which Greenleaf agreed to plead guilty to Count I, attempted murder as a
      Court of Appeals of Indiana | Memorandum Decision 79A02-1511-CR-1862 | April 27, 2017   Page 2 of 12
      level 1 felony, and Count VII, unlawful use of a firearm as a sentencing

      enhancement, and the State agreed to dismiss the remaining counts.


[5]   On October 9, 2015, the court held a sentencing hearing. Lafayette Police

      Detective Patrick Dempster testified that surveillance video appeared to show

      that Vance was shot while he was facing Greenleaf, while he was turned around

      walking away from Greenleaf, and while he was on the ground. When asked

      how Vance was doing in his recovery at the time he met with him a couple of

      weeks after the offense, Detective Dempster stated: “It’s slow and the feet are—

      he was having problems walking. Used a cane or was told to use a cane.”

      Transcript II at 22. Detective Jennifer Keifer testified that she interviewed

      Greenleaf and he was not initially forthcoming, but at some point admitted to

      shooting Vance. Detective Keifer also testified that Greenleaf said that he had

      taken the gun to his house and called somebody to retrieve the gun after

      someone called Greenleaf and notified him that the police were looking for

      him. Greenleaf stated: “I just want to say sorry for what I did.” Id. at 28. The

      probation officer completing the presentence investigation report (“PSI”)

      recommended that the court sentence Greenleaf to thirty-five years for

      attempted murder enhanced by ten years.


[6]   The court found the following aggravating factors: the harm, injury, loss, or

      damage suffered by the victim was significant and greater than the elements

      necessary to prove the commission of the offense, Greenleaf’s history of

      criminal or delinquent behavior, and Greenleaf had recently violated a

      condition of probation and attempted to avoid detection. The court found his

      Court of Appeals of Indiana | Memorandum Decision 79A02-1511-CR-1862 | April 27, 2017   Page 3 of 12
      guilty plea, acceptance of responsibility, mental illness, and difficult childhood

      to be mitigating factors. With respect to his guilty plea, the court stated: “The

      defendant did plead guilty and take responsibility and as far as I can tell there

      was minimum if any benefit to doing that so that is a certainly a mitigating

      factor . . . .” Id. at 39. The court found that the aggravating factors outweighed

      the mitigating factors and sentenced Greenleaf to the Department of Correction

      for thirty-five years for attempted murder, enhanced by ten years for an

      aggregate sentence of forty-five years.


                                                   Discussion

                                                         I.


[7]   The first issue is whether the trial court abused its discretion in sentencing. We

      review the sentence for an abuse of discretion. Anglemyer v. State, 868 N.E.2d

      482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218. An abuse of discretion

      occurs if the decision is “clearly against the logic and effect of the facts and

      circumstances before the court, or the reasonable, probable, and actual

      deductions to be drawn therefrom.” Id. A trial court abuses its discretion if it:

      (1) fails “to enter a sentencing statement at all;” (2) enters “a sentencing

      statement that explains reasons for imposing a sentence—including a finding of

      aggravating and mitigating factors if any—but the record does not support the

      reasons;” (3) enters a sentencing statement that “omits reasons that are clearly

      supported by the record and advanced for consideration;” or (4) considers

      reasons that “are improper as a matter of law.” Id. at 490-491. If the trial court

      has abused its discretion, we will remand for resentencing “if we cannot say
      Court of Appeals of Indiana | Memorandum Decision 79A02-1511-CR-1862 | April 27, 2017   Page 4 of 12
      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.

      The relative weight or value assignable to reasons properly found, or those

      which should have been found, is not subject to review for abuse of discretion.

      Id.


[8]   Greenleaf argues that the court abused its discretion by considering a material

      element of his offense as an aggravating circumstance. Specifically, he asserts

      that “serious bodily injury” is a material element of the sentencing

      enhancement and points to the court’s statement that “the harm, injury, loss, or

      damage suffered by the victim of an offense was significant and greater than the

      elements necessary to prove the commission of the offense . . . .” Appellant’s

      Appendix II at 40. The State argues that the trial court was not prohibited from

      considering the significant injuries the victim suffered as an aggravating

      circumstance and that even if the court erred, the remaining aggravating

      circumstances were sufficient on their own to support his sentence.


[9]   A material element of a crime may not be used as an aggravating factor to

      support an enhanced sentence. McElroy v. State, 865 N.E.2d 584, 589 (Ind.

      2007). However, when evaluating the nature of the offense, the trial court may

      properly consider the particularized circumstances of the factual elements as

      aggravating factors. Id. See also Ind. Code § 35-38-1-7.1 (“In determining what

      sentence to impose for a crime, the court may consider the following

      aggravating circumstances . . . the harm, injury, loss, or damage suffered by the



      Court of Appeals of Indiana | Memorandum Decision 79A02-1511-CR-1862 | April 27, 2017   Page 5 of 12
       victim of an offense was . . . significant; and . . . greater than the elements

       necessary to prove the commission of the offense.”).


[10]   At the sentencing hearing, the court stated:

               The—it’s a wonder based upon the facts as presented and the
               injuries that the defendant received—excuse me that the victim
               received that he isn’t dead. And it looks like the injuries inflicted
               were intended to inflict suffering and not only to cause death.
               And the extent of the injuries, well this is an interesting question.
               Because the injuries were certainly more severe than the elements
               necessary to prove the commission of the attempted murder.
               You can shoot and miss and cause attempted murder. The
               serious injury is the element—is part of the gun element which is
               an aggravator but that’s not I don’t think intended by the
               legislature to be the only way in which the extent of the injury
               can be considered in the—in considering the appropriate
               sentence so I will find that the harm, injury, loss and damage,
               suffering from the victim was significant and greater than the
               elements necessary to prove the commission of the offense, that’s
               an aggravating factor.


       Transcript II at 37-38.


[11]   We conclude that the court considered the injuries not as material elements of

       the crime or sentencing enhancement but as the nature and circumstances of the

       offense. Consequently, we cannot say that the trial court abused its discretion.

       See Caraway v. State, 959 N.E.2d 847, 850 (Ind. Ct. App. 2011) (holding that the

       trial court did not abuse its discretion by considering the nature and

       circumstances of the offense as an aggravator under Ind. Code § 35-38-1-7.1

       where the victim was shot seven times), trans. denied; Settles v. State, 791 N.E.2d


       Court of Appeals of Indiana | Memorandum Decision 79A02-1511-CR-1862 | April 27, 2017   Page 6 of 12
       812, 814-815 (Ind. Ct. App. 2003) (holding that facts evidencing the particular

       brutality of an attack may be considered as an aggravating circumstance when

       sentencing a defendant for aggravated battery and concluding that the trial

       court did not improperly consider the severity of the victim’s injuries as an

       aggravator).


                                                         II.


[12]   The next issue is whether Greenleaf’s sentence is inappropriate in light of the

       nature of the offense and his character. Ind. 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.” Under this rule, the

       burden is on the defendant to persuade the appellate court that his or her

       sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).


[13]   Greenleaf argues that his actions and the injuries sustained by Vance are not

       more egregious than the typical offense envisioned by the legislature when it set

       an advisory sentence for such conduct. He asserts that he pled guilty without

       the benefit of a plea agreement, took responsibility for his actions, cooperated

       with law enforcement and admitted to shooting Vance when confronted by law

       enforcement, endured a very difficult childhood, suffers from a learning

       disability, and was only twenty-five years old when he committed the offense.

       He also notes that all four of his previous felony convictions are non-violent

       offenses of criminal trespass.


       Court of Appeals of Indiana | Memorandum Decision 79A02-1511-CR-1862 | April 27, 2017   Page 7 of 12
[14]   Ind. Code § 35-50-2-4 provides that a person who commits a level 1 felony shall

       be imprisoned for a fixed term of between twenty and forty years with the

       advisory sentence being thirty years. At the time of the offense, Ind. Code § 35-

       50-2-11, which governs the sentence enhancement, provided “[i]f . . . the court

       (if the hearing is to the court alone) finds that the state has proved beyond a

       reasonable doubt that the person knowingly or intentionally used a firearm in

       the commission of the offense, the court may sentence the person to an

       additional fixed term of imprisonment of between five (5) years and twenty (20)

       years.” 1


[15]   Our review of the nature of the offense reveals that Greenleaf, who was born in

       1989, shot at Vance multiple times on February 2, 2015, and some of the shots

       occurred while Vance was turned around walking away from Greenleaf and

       while Vance was on the ground. Vance was struck twice in the left forearm,

       twice in the left buttock, both feet, and his scrotum. Vance lost a testicle.

       When asked what role drugs or alcohol played in the offense, Greenleaf stated:

       “I had been smoking weed and was drunk when it happened.” Appellant’s

       Appendix II at 66.


[16]   Our review of the character of the offender reveals that Greenleaf went to

       Chicago after the offense and told somebody to retrieve the gun after he was

       notified that police were looking for him. Law enforcement eventually located



       1
        Subsequently amended by Pub. L. No. 238-2015, § 18 (eff. July 1, 2015); Pub. L. No. 157-2016, § 1 (eff.
       July 1, 2016).

       Court of Appeals of Indiana | Memorandum Decision 79A02-1511-CR-1862 | April 27, 2017           Page 8 of 12
       him, he was detained and brought to Indiana in mid- to late-March, and he was

       not initially forthcoming, but at some point admitted to shooting Vance. He

       pled guilty, and the State dismissed the other charges. At the sentencing

       hearing, Greenleaf stated: “I just want to say sorry for what I did.” Transcript

       II at 28.


[17]   Greenleaf reported that he was raised by his mother and experienced problems

       during his childhood relating to his mother’s substance abuse problems. Two of

       Greenleaf’s three children were found to be children in need of services

       (“CHINS”) in 2009 due to Greenleaf and the children’s mother using marijuana

       in the home with the children present. He reported being ordered to pay $256

       per month in child support for two of his children and that he is approximately

       $20,000 in arrears, and that he was diagnosed with a learning disability in the

       third grade.


[18]   He reported consuming a bottle of cognac per day between the ages of thirteen

       and fourteen, two bottles of cognac per day between the ages of fifteen and

       eighteen, and a bottle of cognac per day between the ages of eighteen and

       nineteen and between ages twenty-one and twenty-five. He reported using

       marijuana every day between the ages of twelve and nineteen and between the

       ages of twenty-one and twenty-five, synthetic marijuana every other day

       between the ages of twenty-four and twenty-five, “sherms/Wet/Wikki Stix”

       every three days between the ages of twenty-one and twenty-three, cocaine once

       when he was eighteen, ecstasy every day between the ages of nineteen and

       twenty-five, and Vicodin four times when he was twenty-five. Appellant’s

       Court of Appeals of Indiana | Memorandum Decision 79A02-1511-CR-1862 | April 27, 2017   Page 9 of 12
       Appendix II at 66. He received substance abuse treatment in 2003 and 2010,

       but failed to participate in substance abuse treatment as ordered in the CHINS

       case in 2010.


[19]   As a juvenile, Greenleaf was adjudicated a delinquent for possession of a stolen

       motor vehicle in 2003, and his probation was terminated unsatisfactorily. He

       was alleged to have committed possession of a stolen motor vehicle, criminal

       trespass to a vehicle, and aggravated battery on a school employee in 2003, but

       these cases were dismissed. In 2004, he was adjudicated a delinquent for

       battery and his probation was terminated unsatisfactorily. That same year, he

       was alleged to have committed battery and possession of cannabis, but these

       cases were dismissed. In March 2007, a disposition was entered following

       allegations that he committed criminal mischief, battery, and criminal trespass,

       and the narrative in the PSI states that the case was transferred to Cook,

       County, Illinois, that he was ordered not to return to Tippecanoe County, that

       he was arrested again in Tippecanoe County in July, and that all charges were

       filed under cause number 79D03-0707-JD-370 (“Cause No. 370”). Under

       Cause No. 370, he was alleged to have committed possession of marijuana as a

       class A misdemeanor, delinquency alcohol violation, criminal trespass as a

       class A misdemeanor, battery resulting in bodily injury as a class A

       misdemeanor, criminal mischief as a class B misdemeanor, disorderly conduct

       as a class A misdemeanor, and false informing as a class B misdemeanor. He

       was waived from juvenile jurisdiction and convicted of battery resulting in

       bodily injury as a class A misdemeanor.


       Court of Appeals of Indiana | Memorandum Decision 79A02-1511-CR-1862 | April 27, 2017   Page 10 of 12
[20]   As an adult, he was convicted of operating a motor vehicle without ever

       receiving a license in 2008, and his probation in that case was revoked in 2009.

       Meanwhile, in 2008, he was convicted of resisting law enforcement as a class A

       misdemeanor. He was also charged with false informing and two counts of

       criminal trespass in 2008, but these cases were dismissed pursuant to a plea

       agreement in another cause. That same year, he was convicted of criminal

       trespass as a class A misdemeanor. In July 2009, he was convicted of operating

       a motor vehicle without ever receiving a license, criminal trespass, and false

       informing. In October 2009, he was convicted of criminal trespass as a class D

       felony. That same month, he was also charged with “Possession of Knife w/

       Blade That Opens Automatically/May be Propelled,” and the case was

       dismissed. Id. at 60.


[21]   In May 2010, he was convicted of criminal trespass as a class D felony and false

       informing as a class A misdemeanor. In October 2010, he was convicted of

       operating a vehicle with a schedule I or II controlled substance or its metabolite

       as a class C misdemeanor, and he was later unsatisfactorily discharged from

       probation.


[22]   In May 2012, he was convicted of battery resulting in bodily injury as a class A

       misdemeanor. In November 2012, he was convicted of criminal trespass as a

       class D felony. In September 2013, he was convicted of criminal trespass as a

       class D felony and resisting law enforcement as a class A misdemeanor. In

       October 2013, he was convicted of operating a motor vehicle without ever

       receiving a license as a class C misdemeanor. With respect to his criminal

       Court of Appeals of Indiana | Memorandum Decision 79A02-1511-CR-1862 | April 27, 2017   Page 11 of 12
       history, the trial court stated: “it’s as long and as intense history as one could

       have without having prior murder convictions and there is a repeated assaults

       causing injury and batteries, causing injury throughout the—I should say

       batteries causing injury throughout the defendant’s criminal record.”

       Transcript II at 38.


[23]   The PSI indicates that Greenleaf has failed to appear for hearings over twenty

       times and that he has had fourteen petitions to revoke probation filed against

       him with two having been found true. The PSI also states that he was on

       unsupervised probation at the time of the instant offense, he reported having a

       past gang affiliation as a juvenile, and his overall risk assessment score places

       him in the very high risk category to reoffend.


[24]   After due consideration, we conclude that Greenleaf has not sustained his

       burden of establishing that his sentence of forty-five years is inappropriate in

       light of the nature of the offense and his character.


                                                   Conclusion

[25]   For the foregoing reasons, we affirm Greenleaf’s sentence.


[26]   Affirmed.


       May, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 79A02-1511-CR-1862 | April 27, 2017   Page 12 of 12
