 MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                    FILED
regarded as precedent or cited before any                            Aug 07 2017, 8:32 am
court except for the purpose of establishing
                                                                         CLERK
the defense of res judicata, collateral                              Indiana Supreme Court
                                                                        Court of Appeals
estoppel, or the law of the case.                                         and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Leanna Weissmann                                         Curtis T. Hill, Jr.
Lawrenceburg, Indiana                                    Attorney General of Indiana
                                                         James B. Martin
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Donald C. Powers, Jr.,                                   August 7, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         16A05-1612-CR-2855
        v.                                               Appeal from the Decatur Superior
                                                         Court
State of Indiana,                                        The Honorable Matthew Bailey,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause Nos.
                                                         16D01-1502-F2-109
                                                         16D01-1507-F1-482



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 16A05-1612-CR-2855 | August 7, 2017        Page 1 of 13
[1]   Donald C. Powers, Jr. appeals the aggregate thirty-year sentence imposed after

      he pled guilty under separate cause numbers to Level 3 felony burglary 1 and

      Level 3 felony attempted aggravated battery. 2 Powers raises one issue on

      appeal, which we restate as whether his sentences are inappropriate in light of

      the nature of his offenses and his character. We affirm.


                                Facts and Procedural History
[2]   On February 27, 2015, Powers was subject to a no-contact order that was

      imposed as a condition of bail in a Level 5 felony case against Powers in Ripley

      County. That no-contact order prohibited Powers from contacting his wife,

      Shannon, from whom Powers was estranged. Shannon was living in a house

      she was renting for herself, where Powers had never lived, and to which

      Shannon had never given Powers access. Powers was living elsewhere.


[3]   On that day, Powers broke into Shannon’s home. She repeatedly asked him to

      leave, but Powers threw her down on the couch and began choking her.

      Shannon tried to yell to alert her neighbor that she needed help. Powers put his

      hand over her mouth so that she could not breathe, and he threatened to kill

      her. Powers hit Shannon in the mouth causing her to bleed. As she was trying

      to breathe and fight Powers off, Powers pulled a knife and said “is this really

      the way you want to go?” (State’s Ex. 1 at 9.) Powers then said, “You don’t




      1
          Ind. Code § 35-43-2-1(2) (2014).
      2
          Ind. Code §§ 35-41-5-1 (attempt) (2014); 35-42-2-1.5 (aggravated battery) (2014).


      Court of Appeals of Indiana | Memorandum Decision 16A05-1612-CR-2855 | August 7, 2017   Page 2 of 13
      have to do this. We could get back together, and everything would be fine.”

      (Id.) Shannon managed to get outside the house, but the altercation continued

      and Powers tackled her as she tried to call 911. After Powers left, Shannon

      went to the emergency room, where she was found to have a sprained left

      ankle, bruises around her neck and her rib cage, bruises and scratches on her

      arm, and a busted lip.


[4]   After visiting the emergency room, Shannon reported the event to police and

      provided sworn testimony of the events before a judge, who issued a warrant for

      Powers’ arrest. The State charged Powers with Level 2 felony burglary with

      intent to commit intimidation or confinement, while armed with a deadly

      weapon. 3 Over the next two weeks, Shannon had telephone contact with

      Powers and tried to persuade him to turn himself in to police. Instead Powers

      threatened to kill himself and blamed Shannon for his situation.


[5]   At some point, Powers told police he would turn himself in, but he did not

      arrive when he said he would, so the Decatur County Sheriff’s Department,

      with assistance from the Indiana State Police fugitive team, began looking for

      him to serve the arrest warrant. When those authorities could not locate

      Powers, the Sheriff’s Department requested assistance from a task force headed

      by the United States Marshall’s Service. Trooper Shaun Hannon, a detective

      with the Indiana State Police, who also served on the United States Marshall’s




      3
          Ind. Code § 35-43-2-1(3)(A) (2014).


      Court of Appeals of Indiana | Memorandum Decision 16A05-1612-CR-2855 | August 7, 2017   Page 3 of 13
      Service task force, was assigned the duty of serving Powers with the warrant.

      Detective Hannon was able to locate Powers by tracking his cell phone, and on

      March 11, 2015, twelve task force officers approached the house where they

      believed Powers was hiding. Officers were told Powers had fled the house, was

      wearing a ghillie suit, 4 did not want to go back to prison, was armed, and was

      prepared to take “extreme measures” to avoid being taken into custody. (Tr. at

      46.) After learning Powers had fled the house, Detective Hannon requested

      additional assistance. Approximately sixty police officers, some dogs, and a

      helicopter then searched the surrounding woods but were unable to locate

      Powers.


[6]   Detective Hannon decided to call off the search, but he and Trooper Justin

      Bean remained at the house to see if Powers would return. While there, they

      spoke by cell phone to Powers’ brother, who told them: “Donald’s not going to

      give up . . . he’s got a gun . . . you guys are probably gonna shoot him.” (Id. 52-

      53.) During that phone call, police heard a faint knock at a door on the back of

      the house, so they exited from a door on the side of the house to investigate.

      Detective Hannon went out first, armed with a taser, and Trooper Bean

      followed with a gun to provide cover for Detective Hannon. Trooper Bean

      testified, “I knew that he had made the decision to go less than lethal and uh,

      that I made the decision to, to be his cover and to make sure that nothing




      4
       Detective Hannon testified a ghillie suit is clothing typically worn by hunters and military snipers, and it is
      designed to help the wearer blend into his surroundings so that he cannot be seen.

      Court of Appeals of Indiana | Memorandum Decision 16A05-1612-CR-2855 | August 7, 2017                Page 4 of 13
      happened to either him or me.” (Id. at 56.) As Detective Hannon rounded the

      corner of the house, he issued commands to Powers and then deployed his

      taser. Trooper Bean followed around the corner and saw the taser “was

      ineffective, I saw [Powers] start coming back up and that’s when I saw the

      barrel of [Powers’] shot gun and another hand coming up . . . and that’s when I

      was given my commands and I started . . . firing.” (Id. at 55.) After Trooper

      Bean fired a couple of rounds, Powers’ “shot gun went off,” (id. at 56), and it

      “looked like a torch coming out of the end of that . . . shot gun, a big fireball

      coming toward you.” (Id. at 56-57.) Neither Detective Hannon nor Trooper

      Bean was injured during the gunfight, but Powers’ spinal cord was severed,

      leaving him paralyzed in all but his neck and one arm. For firing his gunshot

      during the confrontation with the two Troopers, the State charged Powers with

      one count of Level 1 felony attempted murder. 5


[7]   Nearly eighteen months after the shooting, Powers and the State entered a

      conditional guilty plea agreement. The State agreed to amend the charges from

      Level 2 felony burglary to Level 3 felony burglary, and from Level 1 felony

      attempted murder to Level 3 felony attempted aggravated battery. In exchange,

      Powers agreed to receive consecutive sentences that were between nine and

      fifteen years each. The trial court accepted that agreement.




      5
          Ind. Code §§ 35-41-5-1 (attempt) (2014) & 35-42-1-1(1) (murder) (2014).


      Court of Appeals of Indiana | Memorandum Decision 16A05-1612-CR-2855 | August 7, 2017   Page 5 of 13
[8]   After hearing evidence, the court entered two fifteen-year sentences to be served

      consecutively for an aggregate sentence of thirty years with six months of the

      burglary sentence suspended to probation. In support thereof, the court found

      three aggravators: Powers’ criminal history, which consisted of fourteen prior

      convictions, including felony resisting law enforcement; (2) Powers’ violation of

      the no-contact order from Ripley County; and (3) the fact Shannon’s injuries

      from the burglary were greater than necessary to prove the elements of the

      charged offense. As for mitigators, the trial court accepted only Powers’

      remorse as a significant mitigating factor. The court noted Powers’ guilty plea,

      but found it was a pragmatic decision and had taken over a year to be entered,

      such that the court declined to give it significant weight. The court also refused

      to accept as mitigators Powers’ health needs, any hardship on his daughter from

      his incarceration, and his alleged probability to respond positively to probation.


                                 Discussion and Decision
[9]   Powers contends neither his offenses nor his character warrant thirty years in

      prison. Indiana Appellate Rule 7(B) provides we “may revise a sentence

      authorized by statute if, after due consideration of the trial court’s decision, [we

      find] the sentence is inappropriate in light of the nature of the offense and the

      character of the offender.” Our review is deferential to the trial court’s decision,

      and our goal is to determine whether the defendant’s sentence is inappropriate,

      not whether some other sentence would be more appropriate. Conley v. State,

      972 N.E.2d 864, 876 (Ind. 2012), reh’g denied. An appellant has the burden to

      persuade us that his sentence is inappropriate. Childress v. State, 848 N.E.2d

      Court of Appeals of Indiana | Memorandum Decision 16A05-1612-CR-2855 | August 7, 2017   Page 6 of 13
       1073, 1080 (Ind. 2006). Revision of a sentence under Rule 7(B) requires the

       appellant demonstrate his sentence is “inappropriate in light of both the nature

       of the offenses and his character.” Williams v. State, 891 N.E.2d 621, 633 (Ind.

       Ct. App. 2008) (emphasis in original).


[10]   With respect to the nature of the offenses, the advisory sentence is the starting

       point for determining the appropriateness of a sentence. Anglemyer v. State, 868

       N.E.2d 482, 494 (Ind. 2007), clarified on reh’g 878 N.E.2d 218 (2007). The

       sentencing range for a Level 3 felony is three to sixteen years, with the advisory

       sentence being nine years. Ind. Code § 35-50-2-5 (2014). Thus, for each of

       Powers’ convictions, the court imposed sentences that were toward the top of

       the range of possible sentences. When determining the appropriateness of a

       deviation from the advisory sentence, we consider whether there is anything

       more or less egregious about the offense committed by the defendant that

       makes it different from the “typical” offense accounted for by the legislature

       when it set the advisory sentence. Rich v. State, 890 N.E.2d 44, 54 (Ind. Ct.

       App. 2008), trans. denied.


[11]   Level 3 felony aggravated battery occurs when a person “knowingly or

       intentionally inflicts injury on a person that creates a substantial risk of death or

       causes: (1) serious permanent disfigurement; (2) protracted loss or impairment

       of the function of a bodily member or organ; or (3) the loss of a fetus.” Ind.

       Code § 35-42-2-1.5 (2014). An “attempt” occurs when “acting with the

       culpability required for commission of the crime, the person engages in conduct

       that constitutes a substantial step toward commission of the crime.” Ind. Code

       Court of Appeals of Indiana | Memorandum Decision 16A05-1612-CR-2855 | August 7, 2017   Page 7 of 13
       § 35-41-5-1 (2014). Powers’ plea of guilty was based on his firing a 12-gauge

       shotgun at not one, but two, police officers who were attempting to serve an

       arrest warrant on him. Powers knew about the arrest warrant and about the

       officers looking for him, but rather than turn himself in to police, as he had

       promised he would do, Powers put on camouflage, armed himself with a

       weapon, and hid in the woods. Powers’ claim that he did not mean to fire at

       officers does not change the facts his shotgun was loaded and fired as he moved

       the barrel in the direction of the officers.


[12]   Level 3 felony burglary occurs when a person “breaks and enters the building or

       structure of another person, with the intent to commit a felony or theft in it . . .

       [and it] results in bodily injury to any person other than a defendant.” Ind.

       Code § 35-43-2-1 (2014). When Powers broke into Shannon’s house, he did not

       just commit burglary, he also violated a no-contact order that had been court

       ordered as a condition of his parole in another felony case. He was armed with

       and threatened to harm Shannon with a knife, such that his behavior satisfied

       the elements of Level 2 felony burglary. See Ind. Code § 35-43-2-1(3)(A) (crime

       is Level 2 felony if “committed while armed with a deadly weapon”). His

       conviction required “bodily injury,” but any one of the many injuries Shannon

       sustained -- a sprained ankle, bruising around her neck, ribs, and wrists, and

       scrapes to her arm and a bloody lip -- would have satisfied the statutory

       requirement. Thus, we agree with the trial court that she had more injuries

       than required to prove Powers’ burglary.




       Court of Appeals of Indiana | Memorandum Decision 16A05-1612-CR-2855 | August 7, 2017   Page 8 of 13
[13]   There is nothing about the nature of Powers’ offenses that would suggest a

       thirty-year sentence is inappropriate. Nor do we believe the nature of those

       offenses is somehow mitigated, as Powers asserts, by the facts that Powers

       failed to obtain the treatment he needed for his alleged heroin addiction and is

       confined to a wheelchair as a result of his decision to point a shotgun at police

       officers. Thus, we turn to Powers’ character.


[14]   Our review of an offender’s character begins with a defendant’s criminal

       history. Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct. App. 2007). The

       significance of a defendant’s criminal history depends on the nature, number,

       and gravity of the prior offenses in relation to the current offense. Id. Powers

       was convicted of Class A misdemeanor theft in 1999; Class A misdemeanor

       possession of marijuana and five counts of Class C misdemeanor illegal

       possession of alcoholic beverages in 2001; Class B misdemeanor public

       intoxication and Class A misdemeanor driving while suspended in 2003; Class

       A misdemeanor operating while intoxicated and Class D felony resisting law

       enforcement in 2004; Class D felony theft in 2005; and Class B misdemeanor

       public intoxication in 2007. Powers committed the instant crimes while on

       parole for a Level 5 felony alleged to have been committed against his ten-year-

       old daughter, and in violation of a no-contact order entered as a condition of

       that parole.


[15]   Powers testified he takes full responsibility for the crimes committed in these

       cases, and the trial court found his remorse genuine. We have no reason to

       doubt the trial court’s finding. However, we agree with the State that Powers’

       Court of Appeals of Indiana | Memorandum Decision 16A05-1612-CR-2855 | August 7, 2017   Page 9 of 13
       injuries, while tragic, are not relevant to determining whether a thirty-year

       sentence is inappropriate for his character. Further, Powers’ criminal history is

       extensive. After due consideration, we conclude that his aggregate thirty-year

       sentence is not inappropriate in light of the nature of his offenses and his

       character.


                                               Conclusion
[16]   For the foregoing reasons, we affirm Powers’ aggregate sentence of thirty years.


[17]   Affirmed.


       Pyle, J., concurs.


       Brown, J., dissents with separate opinion.




       Court of Appeals of Indiana | Memorandum Decision 16A05-1612-CR-2855 | August 7, 2017   Page 10 of 13
                                                  IN THE
           COURT OF APPEALS OF INDIANA

       Donald C. Powers, Jr.,                                   Court of Appeals Case No.
                                                                16A05-1612-CR-2855
       Appellant-Defendant,

               v.

       State of Indiana,
       Appellee-Plaintiff.




       Brown, Judge, dissenting.


[18]   I respectfully dissent from the majority’s conclusion that Powers’s aggregate

       sentence of thirty years is not inappropriate. Powers was sentenced to the

       thirty-year maximum provided under the plea agreement with six months

       suspended to probation. With respect to the nature of the offense, I recognize

       that he fled into the woods when law enforcement arrived to serve an arrest

       warrant and ultimately discharged a shotgun. His testimony was that he tried

       to shoot himself. Whether or not that’s true, he was shot in the back by an
       Court of Appeals of Indiana | Memorandum Decision 16A05-1612-CR-2855 | August 7, 2017   Page 11 of 13
       officer, his spine was severed, he cannot move from just below his armpits

       down, and he will be confined to a wheelchair for the rest of his life. Powers

       testified that, while in the general population, another inmate helped him by

       picking him up, placing him in a shower chair and pushing him into the

       shower, and then picking him up and placing him back in his bed. The

       presentence investigation report states that he is paralyzed from his chest down

       as a result of being shot multiple times and he suffers from pressure sores on his

       hip and has stomach issues. His physical ability to reoffend would be quite low

       compared with able-bodied individuals and he is facing a life sentence of

       confinement to a wheelchair.


[19]   As for his character, Powers pled guilty pursuant to a plea agreement. The

       record reflects that his criminal history is comprised primarily of class B and

       class C misdemeanors, with his last offense occurring in 2007. He took full

       responsibility for his crimes, stating his actions were one hundred percent his

       fault, apologized to the officers, and stated it was his own fault he was in a

       wheelchair. Shannon Powers testified that her first nine years of her marriage

       to Powers were the best years of her life, that things changed when he did not

       stop using drugs, and that all of his bad actions occurred in the span of about

       six months. She agreed to provide the constant medical care he needs. Powers

       has visited Centerstone as a guest speaker to inspire individuals to stop using

       heroin by seeing him in a wheelchair and hearing his story.


[20]   In light of the fact Powers received an aggregate executed sentence six months

       shy of the maximum contemplated by his plea agreement, his remorse, and the

       Court of Appeals of Indiana | Memorandum Decision 16A05-1612-CR-2855 | August 7, 2017   Page 12 of 13
fact he was rendered paralyzed from the chest down and confined to a

wheelchair, I would remand for the trial court to resentence Powers to the

advisory sentence of ten years for his conviction for burglary and ten years for

his conviction for attempted aggravated battery and for those sentences to be

served consecutively for an aggregate executed sentence of twenty years with

six months suspended to probation.




Court of Appeals of Indiana | Memorandum Decision 16A05-1612-CR-2855 | August 7, 2017   Page 13 of 13
