MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                            Sep 18 2015, 9:06 am
this Memorandum Decision shall not be
regarded as precedent or cited before any
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
Ian O’Keefe                                              Gregory F. Zoeller
Lafayette, Indiana                                       Attorney General of Indiana
                                                         Karl M. Scharnberg
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jevon Deandre Ollins,                                    September 18, 2015
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         79A02-1502-CR-76
        v.                                               Appeal from the Tippecanoe
                                                         Superior Court
State of Indiana,                                        The Honorable Randy J. Williams,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         79D01-1408-FC-29



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 79A02-1502-CR-76 | September 18, 2015   Page 1 of 7
[1]   Jevon Ollins appeals his sentence for Battery Resulting in Serious Bodily

      Injury,1 a class C felony. Ollins argues that the trial court erred by failing to

      consider certain mitigating factors and that his sentence is inappropriate in light

      of the nature of the offense and his character. Finding no error, we affirm.


                                                      Facts
[2]   On June 11, 2014, while Ollins was incarcerated in the Tippecanoe County Jail

      awaiting trial for an unrelated burglary charge, he had an argument with

      another inmate. Nicholas Dettman, who was in the cell at the time, intervened

      to try to stop the two men from arguing. When he did so, Ollins punched him

      in the face, fracturing Dettman’s jaw in two places.


[3]   Dettman, not wanting to cause further trouble with Ollins, informed a jail

      deputy that he had fallen out of his bunk and hit his mouth against the floor.

      However, Dettman eventually told the deputy that someone had punched him.

      Dettman was taken to the hospital, where his jaw was wired shut. Dettman’s

      jaw remained wired shut for six weeks, during which he had to take his meals

      in liquid form through a straw. He experienced extreme pain as the result of the

      incident and lost feeling in his lip for a period of time.


[4]   On August 22, 2014, the State charged Ollins with class C felony battery

      resulting in serious bodily injury. Ollins pleaded guilty to the charge in open




      1
       Ind. Code § 35-42-2-1. Our criminal code has recently been amended with an effective date of July 1, 2014.
      We cite to the statute as it existed on the date Ollins committed the offense.

      Court of Appeals of Indiana | Memorandum Decision 79A02-1502-CR-76 | September 18, 2015         Page 2 of 7
      court on December 11, 2014. Ollins stated that he regretted his actions and

      apologized profusely to Dettman as well as to the trial court. On January 8,

      2015, the trial court sentenced Ollins to six years imprisonment, with four years

      executed, one year suspended to supervised probation, and one year suspended

      to unsupervised probation. The trial court ordered this sentence to run

      consecutively to Ollins’s sentence for the unrelated burglary conviction. Ollins

      now appeals.


                                   Discussion and Decision
[5]   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), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007). A

      trial court may abuse its discretion by issuing an inadequate sentencing

      statement, finding aggravating and mitigating factors that are not supported by

      the record, omitting factors that are clearly supported by the record and

      advanced for consideration, or by finding factors that are improper as a matter

      of law. Laster v. State, 956 N.E.2d 187, 193 (Ind. Ct. App. 2011).


[6]   Ollins first argues that the trial court failed to consider two proper mitigating

      factors that were advanced for consideration: (1) Ollins’s expression of remorse

      for his actions and (2) Dettman’s wishes in regard to Ollins’s sentence.

      However, Ollins’s argument is unavailing because the record makes clear that

      the trial court considered both of these factors.




      Court of Appeals of Indiana | Memorandum Decision 79A02-1502-CR-76 | September 18, 2015   Page 3 of 7
[7]   With regard to Ollins’s expression of remorse, the trial court’s sentencing order

      expressly identifies Ollins’s willingness to take responsibility for his actions as a

      mitigating factor. Appellant’s Br. p. 14. To the extent that Ollins argues that

      the trial court failed to give this factor sufficient weight, we note that a trial

      court cannot be said to have abused its discretion by failing to “properly weigh”

      aggravating and mitigating factors. Anglemyer, 868 N.E.2d at 491.


[8]   With regard to Ollins’s claim that the trial court failed to take Dettman’s wishes

      into account, we first note that Dettman expressed no opinion as to what

      sentence he wished Ollins to receive. When asked directly what he would like

      to see happen to Ollins, Dettman testified: “I don’t really want to be a part of

      what should happen to him.” Tr. p. 41. Furthermore, to the extent that the

      trial court may have viewed this testimony as a request for lenience, it chose to

      give Dettman’s testimony little weight. The trial court acknowledged that

      Dettman, as a young man in prison, likely recognized that his testimony

      concerning such matters could affect his reputation and, therefore, was reticent

      to discuss Ollins’s punishment. Id. at 51. In short, Dettman expressed no

      opinion as to Ollins’s sentence and, even if he had, the trial court was within its

      discretion to afford Dettman’s opinion little weight.


[9]   Ollins next argues that his sentence is inappropriate. Indiana Appellate Rule

      7(B) provides that “[t]he 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



      Court of Appeals of Indiana | Memorandum Decision 79A02-1502-CR-76 | September 18, 2015   Page 4 of 7
       of the offender.” It is the defendant’s burden to persuade us that his sentence is

       inappropriate. Stokes v. State, 947 N.E.2d 1033, 1038 (Ind. Ct. App. 2011).


[10]   In this case, Ollins pleaded guilty to class C felony battery resulting in serious

       bodily injury. “A person who commits a Class C felony . . . shall be imprisoned

       for a fixed term of between two (2) and eight (8) years, with the advisory

       sentence being four (4) years.” Ind. Code § 35-50-2-6. Here, the trial court

       sentenced Ollins to six years imprisonment, with four years executed and two

       years suspended to probation. In reviewing this sentence, we may consider the

       “totality of the penal consequences,” including the fact that a portion of Ollins’s

       sentence has been suspended. Davidson v. State, 926 N.E.2d 1023, 1024 (Ind.

       2010).


[11]   Ollins asks us to revise his sentence to accord with what he requested at the

       sentencing hearing, a five-year term with three years executed and two years

       suspended to probation. We note that, when reviewing sentences under Rule

       7(B), the question is not whether another sentence is more appropriate, but

       whether the sentence imposed is inappropriate. King v. State, 894 N.E.2d 265,

       268 (Ind. Ct. App. 2008).


[12]   With regard to the nature of his offense, the trial court found the fact that Ollins

       was in jail and on probation at the time he committed the offense to be an

       aggravating circumstance. Ollins acknowledges this fact and, on appeal, he

       points to no mitigating circumstances relating to the nature of the offense.




       Court of Appeals of Indiana | Memorandum Decision 79A02-1502-CR-76 | September 18, 2015   Page 5 of 7
[13]   As for his character, Ollins acknowledges that he has a substantial criminal

       history, consisting of eleven prior misdemeanor convictions and one felony

       conviction. However, he argues that “many if not all of his prior misdemeanor

       convictions were the result of misguided youthful behavior.” Appellant’s Br. p.

       11. Ollins points to the fact that he was only twenty-four years old at the time

       he pleaded guilty to the instant offense and that he has four young children.

       However, he concedes that he did not advance the issue of his four young

       children as a mitigating factor during his sentencing hearing.


[14]   We cannot say that the trial court erred in imposing an elevated sentence given

       these circumstances. The fact that Ollins committed the offense while

       incarcerated and on probation, combined with his numerous prior criminal

       convictions, shows that he has little respect for the law and has failed to take

       advantage of numerous opportunities to reform his behavior. While we

       acknowledge that Ollins has pleaded guilty and taken responsibility for his

       actions in this case, we agree with the trial court that this does not outweigh the

       substantial aggravating factors. Furthermore, while Ollins is a young man, he

       is nevertheless an adult, and his behavior, misguided as it is, has proven a

       danger to the safety of others. As for the length of his sentence, we note that

       the trial court has not imposed the maximum term authorized by statute and

       that the executed portion of the term accords with the advisory sentence of four

       years. We cannot say that this sentence is inappropriate under the

       circumstances.




       Court of Appeals of Indiana | Memorandum Decision 79A02-1502-CR-76 | September 18, 2015   Page 6 of 7
[15]   The judgment of the trial court is affirmed.


       Bailey, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 79A02-1502-CR-76 | September 18, 2015   Page 7 of 7
