MEMORANDUM DECISION                                                         FILED
                                                                       May 21 2018, 6:25 am
Pursuant to Ind. Appellate Rule 65(D),
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
Sally Skodinski                                         Curtis T. Hill, Jr.
South Bend, Indiana                                     Attorney General of Indiana
                                                        Evan Matthew Comer
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana




                                          IN THE
    COURT OF APPEALS OF INDIANA

Julian Byrd,                                            May 21, 2018
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        71A04-1709-CR-2209
        v.                                              Appeal from the St. Joseph
                                                        Superior Court
State of Indiana,                                       The Honorable John M.
Appellee-Plaintiff.                                     Marnocha, Judge
                                                        Trial Court Cause No.
                                                        71D02-1704-F1-5




Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 71A04-1709-CR-2209| May 21, 2018              Page 1 of 4
                                          Case Summary
[1]   Following a jury trial, Julian Byrd was convicted of Level 3 felony armed

      robbery and Level 5 felony battery with a deadly weapon. The trial court

      sentence Byrd to concurrent sentences of sixteen years for armed robbery and

      six years for battery. On appeal, Byrd argues that the trial court abused its

      discretion in lending considerable weight to his prior criminal history, which

      included more than twenty misdemeanors and five juvenile adjudications.

      Because the trial court did not abuse its discretion when it considered Byrd’s

      criminal history during sentencing, we affirm.



                            Facts and Procedural History
[2]   On April 15, 2017, Byrd arrived at the home of Daniyell Franklin in South

      Bend armed with a gun. Byrd was looking for Darcy Neilly. After knocking,

      someone cracked the door to see who was there. Byrd pushed the door open

      and entered the home. Byrd went to the bedroom where Franklin and Neilly

      were sleeping and fired his gun into the air. Byrd pointed his gun at Neilly and

      fired it, hitting him in the upper-left side of his chest. After shooting Neilly,

      Byrd took $30 from Neilly’s pocket and fled the scene.


[3]   On April 18, 2017, Byrd was charged with Level 1 felony burglary, Level 3

      felony armed robbery, and Level 5 felony battery with a deadly weapon. A jury

      trial was held on August 1 and 2, 2017. On August 2, 2017, the jury found

      Byrd guilty of armed robbery and battery and acquitted him of the burglary


      Court of Appeals of Indiana | Memorandum Decision 71A04-1709-CR-2209| May 21, 2018   Page 2 of 4
      charge. A sentencing hearing was held on August 30, 2017. During the

      hearing, the trial court was presented with evidence of Byrd’s extensive criminal

      history. In total, Byrd had been convicted of twenty-five misdemeanors and

      had received five juvenile adjudications. The trial court sentenced Byrd to

      sixteen years for Count II with a concurrent six-year sentence for Count III.



                                Discussion and Decision
[4]   We begin by noting that sentencing decisions rest within the sound discretion of

      the trial court and are reviewed on appeal only for an abuse of discretion.

      Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), modified on other grounds on

      reh’g, 875 N.E.2d 218 (Ind. 2007). “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.


              One way in which a trial court may abuse its discretion is failing
              to enter a sentencing statement at all. Other examples include
              entering 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, or the sentencing statement omits reasons that are
              clearly supported by the record and advanced for consideration,
              or the reasons given are improper as a matter of law. Under
              those circumstances, remand for resentencing may be the
              appropriate remedy if 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.



      Court of Appeals of Indiana | Memorandum Decision 71A04-1709-CR-2209| May 21, 2018   Page 3 of 4
      Id. at 490–91. In claiming that the trial court abused its discretion in sentencing

      him, Byrd argues that the trial court improperly balanced the aggravating and

      mitigating circumstances. However, “[a] trial court cannot […] be said to have

      abused its discretion in failing to ‘properly weigh’ such factors.” Anglemyer, at

      491. This is a request for us to reweigh the aggravators and mitigators which

      we will not do. See id. Based upon a review of the record, there was ample

      evidence to support Byrd’s sentence.


[5]   The trial court found that Byrd’s extensive criminal history was an aggravating

      circumstance, which justified giving him the maximum possible sentences for

      armed robbery and battery. Specifically, the trial court said that Byrd’s “25

      adult criminal convictions and 5 juvenile adjudications … say it all.” Tr. Vol.

      IV, p. 4. The trial court also characterized his most recent offense as “by far the

      most serious [thing] that you’ve been involved with.” Tr. Vol. IV, p. 4.


[6]   Byrd’s only argument is that the trial court gave too much weight to his

      criminal history during sentencing. He does not claim that his sentence is

      inappropriate in light of the nature of his offense or character. Because the trial

      court did not abuse its discretion considering Byrd’s criminal history during

      sentencing and Byrd has failed to raise a cognizable claim for relief, we affirm

      the trial court’s sentence.


[7]   The judgment of the trial court is affirmed.


      Baker, J., and Kirsch, J., concur.


      Court of Appeals of Indiana | Memorandum Decision 71A04-1709-CR-2209| May 21, 2018   Page 4 of 4
