MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                                  FILED
this Memorandum Decision shall not be                                        Feb 08 2018, 6:12 am

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



ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
James C. Spencer                                         Curtis T. Hill, Jr.
Dattilo Law Office                                       Attorney General of Indiana
Madison, Indiana
                                                         Angela N. Sanchez
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Thomas Downey,                                           February 8, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         39A04-1709-CR-2167
        v.                                               Appeal from the Jefferson Superior
                                                         Court
State of Indiana,                                        The Honorable Michael J.
Appellee-Plaintiff.                                      Hensley, Judge
                                                         Trial Court Cause Nos.
                                                         39D01-1608-F5-712, 39D01-1701-
                                                         CM-4, 39D01-1704-CM-326



Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 39A04-1709-CR-2167 | February 8, 2018          Page 1 of 10
                                          Case Summary
[1]   In August of 2016, Appellant-Defendant Thomas Downey was charged with a

      number of criminal offenses. On June 14, 2017, the trial court conducted a

      joint guilty plea and sentencing hearing.1 During this hearing, Downey pled

      guilty to Level 5 felony criminal confinement, Level 6 felony battery against a

      public safety official, Class A misdemeanor battery resulting in bodily injury,

      Class A misdemeanor interference with reporting a crime, and Class A

      misdemeanor resisting law enforcement. The trial court accepted Downey’s

      guilty plea and sentenced Downey to an aggregate three-year term with two

      years and three months executed and the remaining nine months suspended to

      probation. Recognizing that Downey’s mental state likely contributed to his

      criminal behavior, the trial court recommended that the executed portion of

      Downey’s sentence be served in the New Castle Correctional Facility so that

      Downey could receive mental health treatment during his term of incarceration.

      On appeal, Downey contends that his aggregate three-year sentence is

      inappropriate. We affirm.




      1
        Three separate cause numbers were heard together during Downey’s guilty plea and sentencing hearing.
      These cause numbers include 39D01-1608-F5-712 (“Cause No. F5-712”), 39D01-1701-CM-4 (“Cause No.
      CM-4”), and 39D01-1704-CM-326 (“Cause No. CM-326”). Downey’s contentions on appeal relate only to
      Cause No. F5-712. Downey makes no argument regarding the facts supporting his guilty pleas to or the
      sentences imposed in either Cause No. CM-4 or Cause No. CM-326. As such, we will limit our discussion to
      those facts which relate to Cause No. F5-712.

      Court of Appeals of Indiana | Memorandum Decision 39A04-1709-CR-2167 | February 8, 2018     Page 2 of 10
                             Facts and Procedural History2
[2]   Prior to the dates in question, Downey was diagnosed with schizophrenia. At

      the time of his arrest, Downey lived with his mother, Pamela Hicks. Hicks had

      experience dealing with schizophrenics given her long-term employment as a

      registered nurse at Madison State Hospital. Hicks testified that when taking the

      medication prescribed to treat his condition, Downey was “[n]inety percent

      good.” Tr. Vol. II, p. 21. However, when not taking his medication “he’s

      horrible, very delusional, thinks things are a certain way and they’re not, just

      [does] all kinds of things that he should not be doing.” Tr. Vol. II, p. 21. Over

      time, Hicks had become skilled at calming and controlling Downey’s behavior

      when he suffered an episode related to his mental condition. However, in the

      year leading up to August of 2016, Downey had stopped taking his medication.

      As a result, he was no longer responsive to Hicks’s efforts. Downey’s mental

      condition was exacerbated by both his refusal to take his medication and his

      abuse of drugs and alcohol.


[3]   Downey had been drinking alcohol during the evening hours of August 4, 2016,

      and early morning hours of August 5, 2016. At approximately 1:30 a.m. on

      August 5, 2016, Hicks asked Downey to quiet down. When Downey refused,




      2
        The factual basis provided to the trial court during the guilty plea hearing included only a basic factual
      overview and lacked the details necessary to provide context to the reader. Therefore, to the extent
      necessary, we will rely on Hicks’s testimony during the sentencing phase of the June 14, 2017 joint guilty plea
      and sentencing hearing and information contained in the probable cause affidavit filed in the underlying case
      to provide context to the readers.

      Court of Appeals of Indiana | Memorandum Decision 39A04-1709-CR-2167 | February 8, 2018           Page 3 of 10
      Hicks called 911. In an attempt to keep Hicks from calling 911, Downey

      grabbed her by the wrist and pushed her down onto a couch. Downey then

      confined her to the couch. As a result of Downey’s actions, Hicks suffered

      pain, bruising, and swelling in her wrist.


[4]   After arriving at Hicks’s home and observing Downey, responding officers

      came to believe that Downey should be taken to the hospital for evaluation.

      Downey refused to go to the hospital, telling the responding officers that he

      “just wanted to stay at home and drink his beer.” Appellant’s App. Vol. II, p.

      27. At some point, however, Downey attempted to leave the residence. As he

      did so, he approached a police officer who was standing in the doorway. In an

      attempt to get by the officer, Downey “grabbed [the officer’s] right wrist” and

      pulled his arm. Tr. Vol. II, p. 11. Downey also scuffled with other officers as

      they attempted to restrain him. Eventually, Downey was placed under arrest.


[5]   On August 5, 2016, Appellee-Plaintiff the State of Indiana (“the State”) charged

      Downey under Cause No. F5-712 with Level 5 felony criminal confinement,

      Level 6 felony battery against a public safety official, Class A misdemeanor

      battery resulting in bodily injury, Class A misdemeanor interference with

      reporting a crime, and Class A misdemeanor resisting law enforcement.




      Court of Appeals of Indiana | Memorandum Decision 39A04-1709-CR-2167 | February 8, 2018   Page 4 of 10
      Downey was subsequently released on bond while awaiting trial and was

      ordered to have no contact with Hicks.3


[6]   Meanwhile, in Cause Nos. CM-4 and CM-326, the State had charged Downey

      with Class A misdemeanor invasion of privacy and Class B misdemeanor

      public intoxication. Downey subsequently indicated that he wished to plead

      guilty to all of the charges contained in Cause Nos. F5-712, CM-4, and CM-

      326. The trial court conducted a joint guilty plea and sentencing hearing on

      June 14, 2017. During this hearing, the trial court found the factual basis to be

      sufficient and accepted Downey’s guilty pleas.


[7]   During the sentencing phase of the hearing, Downey indicated that prior to

      sentencing, he had been placed at the New Castle Correctional Facility. While

      at the New Castle Correctional Facility, Downey received treatment for his

      mental health issues and became compliant with his medication. Downey

      further indicated during sentencing that he believed his placement at the New

      Castle Correction facility had “helped” him. Tr. Vol. II, p. 17. Also during the

      sentencing phase of the hearing, Hicks indicated that she believed Downey

      required treatment for his mental condition as well has his drug and alcohol

      abuse. She further indicated that Downey would no longer be welcome to live




      3
       The State subsequently filed a motion to revoke Downey’s bail. It appears that this motion was granted as
      Downey was in custody as of the date of the joint guilty plea and sentencing hearing.

      Court of Appeals of Indiana | Memorandum Decision 39A04-1709-CR-2167 | February 8, 2018        Page 5 of 10
      with her because while she loves her son “very much,” she “just cannot deal

      with this anymore.” Tr. Vol. II, p. 23.


[8]   Following the hearing, the trial court issued an order in which it accepted

      Downey’s guilty pleas and sentenced Downey. The trial court sentenced

      Downey to time served in both Cause No. CM-4 and CM-326. In Cause No.

      F5-712, the trial court sentenced Downey to an aggregate three-year term with

      two years and three months executed and the remaining nine months

      suspended to probation. In sentencing Downey, the trial court recommended

      that Downey “be placed at the New Castle Correctional Facility and receive

      mental health treatment during the term of his incarceration.” Appellant’s

      App. Vol. III, p. 16.



                                  Discussion and Decision4
[9]   Downey contends that the three-year sentence imposed in Cause No. F5-712 is

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

      Appellate Rule 7(B) provides that “The Court may revise a sentence authorized

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

      that the sentence is inappropriate in light of the nature of the offense and the

      character of the offender.” In analyzing such claims, we “‘concentrate less on




      4
        We note that while Downey introduces his contention on appeal as whether the trial court abused its
      discretion in sentencing him, his entire argument relates to whether his sentence is inappropriate. We will
      therefore consider Downey’s challenge on appeal as an appropriateness challenge rather than an abuse of
      discretion challenge.

      Court of Appeals of Indiana | Memorandum Decision 39A04-1709-CR-2167 | February 8, 2018           Page 6 of 10
       comparing the facts of [the case at issue] to others, whether real or hypothetical,

       and more on focusing on the nature, extent, and depravity of the offense for

       which the defendant is being sentenced, and what it reveals about the

       defendant’s character.’” Paul v. State, 888 N.E.2d 818, 825 (Ind. Ct. App. 2008)

       (quoting Brown v. State, 760 N.E.2d 243, 247 (Ind. Ct. App. 2002), trans. denied).

       The defendant bears the burden of persuading us that his sentence is

       inappropriate. Sanchez v. State, 891 N.E.2d 174, 176 (Ind. Ct. App. 2008).


[10]   With respect to the nature of Downey’s offenses, the record reveals that

       Downey battered his own mother, causing injuries to her wrist. He also

       confined her to the couch in an attempt to stop her from calling 911. Once

       officers arrived at the residence, Downey grabbed one of the responding officers

       by the wrist and attempted to pull the officer away from his position by the

       door. Downey continued to demonstrate combative behavior by scuffling with

       several officers as they attempted to place him in restraints.


[11]   As for his character, the record reveals that Downey has a criminal history

       which includes both felony and misdemeanor convictions. Downey’s criminal

       history includes felony convictions for possession of a schedule I, II, III, or IV

       controlled substance; intimidation; and possession of two or more precursors

       for the manufacture of methamphetamine. It includes misdemeanor

       convictions for possession of marijuana, illegal possession of an alcoholic

       beverage, operating a vehicle while intoxicated, illegal consumption of an

       alcoholic beverage, and check deception.



       Court of Appeals of Indiana | Memorandum Decision 39A04-1709-CR-2167 | February 8, 2018   Page 7 of 10
[12]   The record also reveals that Downey is either unwilling or unable to follow

       both (1) the laws of this state and (2) rules and procedures aimed at

       rehabilitation. Downey was released on bond when he committed the charges

       filed under Cause Nos. CM-4 and CM-326. In addition, documents detailing

       Downey’s criminal history reveal that while he has previously been placed on

       probation, he has, on numerous occasions, committed violations of the terms of

       his probation. Further, the Indiana Risk Assessment System–Static Tool

       indicates that Downey is “in the VERY HIGH risk category to reoffend.”

       Appellant’s App. Vol. IV–Confidential, p. 10.


[13]   Furthermore, to the extent that Downey argues that his sentence is

       inappropriate merely because he was ordered to serve an executed portion in

       the Department of Correction (“DOC”) as opposed to Community Corrections,

       we disagree.


               The location where a sentence is to be served is an appropriate
               focus for application of our review and revise authority.
               Biddinger v. State, 868 N.E.2d 407, 414 (Ind. 2007). It is not,
               however, subject to review for abuse of discretion. See id.
               Nonetheless, we note that it will be quite difficult for a defendant
               to prevail on a claim that the placement of his sentence is
               inappropriate. Fonner v. State, 876 N.E.2d 340, 343 (Ind. Ct.
               App. 2007). This is because the question under Appellate Rule
               7(B) is not whether another sentence is more appropriate; rather,
               the question is whether the sentence imposed is inappropriate.
               Id. at 344. A defendant challenging the placement of a sentence
               must convince us that the given placement is itself inappropriate.
               Id. As a practical matter, trial courts know the feasibility of
               alternative placements in particular counties or communities. Id.
               at 343. For example, a court is aware of the availability, costs,

       Court of Appeals of Indiana | Memorandum Decision 39A04-1709-CR-2167 | February 8, 2018   Page 8 of 10
               and entrance requirements of community corrections placements
               in a specific locale. Id. at 343–44.


       King v. State, 894 N.E.2d 265, 267–68 (Ind. Ct. App. 2008).


[14]   In the instant matter, the trial court recognized that Downey’s mental state

       likely contributed to his criminal behavior, finding his mental illness to be a

       mitigating factor during sentencing. Also, in ordering that two years and three

       months of Downey’s three-year sentence be executed in DOC, the trial court

       recommended that Downey be placed at the New Castle Correctional Facility

       so that Downey could receive mental health treatment during his term of

       incarceration. Downey does not specify what treatment he requires that is not

       available through DOC. Further, the record reveals that Downey had been

       placed in the New Castle Correctional Facility while awaiting sentencing and

       that as of the date of sentencing, Downey was compliant with his medication

       and his mental state seemed to have stabilized.


[15]   Again, Downey bears the burden of persuading us that his sentence is

       inappropriate. Sanchez, 891 N.E.2d at 176. Upon review, we conclude that

       Downey has failed to convince us that his three-year sentence is inappropriate

       in light of the nature of his offenses and his character. Downey has also failed

       to convince us that his placement in DOC is inappropriate. As such, we affirm

       the judgment of the trial court.


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




       Court of Appeals of Indiana | Memorandum Decision 39A04-1709-CR-2167 | February 8, 2018   Page 9 of 10
Robb, J., and Crone, J., concur.




Court of Appeals of Indiana | Memorandum Decision 39A04-1709-CR-2167 | February 8, 2018   Page 10 of 10
