      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                           FILED
      regarded as precedent or cited before any                                 Jun 22 2020, 10:02 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
      Devon M. Sharpe                                          Curtis T. Hill, Jr.
      Jenner & Pattison                                        Attorney General of Indiana
      Madison, Indiana
                                                               Evan Matthew Comer
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Joseph Newcome,                                          June 22, 2020
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               19A-CR-2961
              v.                                               Appeal from the Jefferson Circuit
                                                               Court
      State of Indiana,                                        The Honorable Donald J. Mote,
      Appellee-Plaintiff.                                      Judge
                                                               Trial Court Cause No.
                                                               39C01-1905-F1-551



      Mathias, Judge.


[1]   Joseph Newcome was sentenced by the Jefferson Circuit Court to thirty-eight

      years in the Department of Correction (“DOC”) following his plea of guilty but


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2961 | June 22, 2020                      Page 1 of 9
      mentally ill to Level 1 felony attempted murder. On appeal, Newcome contends

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

      character as an offender.


[2]   We affirm.


                                 Facts and Procedural History
[3]   On May 3, 2019, Newcome and Jonathan Bell, coworkers at a factory in

      Madison, Indiana, went together after their shift to Bell’s room at a local inn.

      Newcome used methamphetamine and made a sexual advance on Bell, who

      did not return the advance but allowed Newcome to stay in the room. After

      some time, Newcome was overcome by anger, suspicion, and paranoia toward

      Bell, who had fallen asleep on his bed with a sheathed knife attached to his belt.

      Newcome texted his mother pictures of the sleeping Bell and stated he would

      “fix [Bell’s] tune” and “just jump on him and get it fixed.” Ex. Vol., pp. 5–11.

      Newcome ignored his mother’s advice to “chill.” Id. at 12.


[4]   Newcome instead grabbed the knife from Bell’s belt and stabbed Bell three

      times, in the abdomen and the arm. Newcome stole Bell’s paycheck before

      fleeing the room. He discarded his shirt and encountered a neighbor, from

      whom he demanded a new shirt to change into. The neighbor allowed

      Newcome to use her phone and overheard Newcome say that he had “taken

      care of it” and not to call the police. Appellant’s App. pp. 24–27. The neighbor

      called the police after Newcome left and provided law enforcement with his

      description.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2961 | June 22, 2020   Page 2 of 9
[5]   Meanwhile, officers with the Jefferson County Sheriff’s Department responded

      to a report of a stabbing at the inn and a suspect who had fled on foot. Bell was

      found lying on his back, critically injured, and was transported via stat flight to

      the University of Louisville hospital in Kentucky for emergency treatment.

      There he underwent surgery to remove his right kidney, which had been

      “completely shattered and lacerated almost in half,” and to partially resect his

      small intestine, which had been perforated “through and through.” Confidential

      Ex. Vol., pp. 20–21. Bell also suffered a lacerated liver, diaphragm injury, and

      hematoma on the right side of his body. Id.


[6]   Based on the neighbor’s description of the man who had entered her house to

      change clothes, and on the eyewitness at the inn, officers identified Newcome

      as the likely suspect in the stabbing. Law enforcement located Newcome’s

      mother and reviewed their text messages from earlier that day. After changing

      his shirt, Newcome had arrived at his mother’s workplace, and she gave him

      money for food. Approximately five hours after his attack on Bell, Newcome

      was apprehended in the parking lot of a local Burger King, where he had

      bought a meal with the money from his mother. Bell’s paycheck was found in

      Newcome’s possession. Newcome admitted to stabbing Bell during a

      subsequent jail interview with a Madison City police detective.


[7]   Newcome was charged on May 6, 2019, with Level 1 felony attempted murder,

      Level 1 felony burglary, Level 3 felony aggravated battery, and an habitual

      offender enhancement. The charges were later amended, with the State

      omitting the burglary offense and adding two counts of Level 2 felony robbery,

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2961 | June 22, 2020   Page 3 of 9
      Level 4 felony burglary, and Class A misdemeanor theft. The trial court entered

      an order appointing two mental health experts upon Newcome’s motion for

      immediate hearing to determine his competency to stand trial, and it set the

      competency hearing for August 26, 2019. Newcome was subsequently

      examined by two disinterested professionals. Dr. Daniel Hackman, a forensic

      psychiatrist, filed his report on August 19, which concluded that Newcome was

      “capable of understanding the proceedings against him and assisting in the

      preparation of his defense.” Appellant’s App. pp. 51–59. Dr. Stephanie

      Callaway, a licensed clinical psychologist, filed her report on August 21,

      similarly concluding that Newcome “has an understanding of the proceedings

      and he has the ability to aid his attorney in his defense.” Id. at 60–66. Newcome

      thus withdrew his competency motion on August 27.


[8]   A plea agreement was filed with the court following a plea hearing on October

      8, 2019. Newcome pleaded guilty but mentally ill to Level 1 felony attempted

      murder, and the remaining charges were dismissed. The agreement left

      sentencing to the discretion of the trial court, subject to the statutory penalty

      range for that class of offense. On November 20, 2019, the trial court entered an

      order on the plea and held Newcome’s sentencing hearing. Judgment of

      conviction and a sentencing order were entered on November 22, with

      Newcome ordered to serve a thirty-eight-year sentence in the DOC with no

      time suspended. This appeal followed.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2961 | June 22, 2020   Page 4 of 9
                                      Discussion and Decision
[9]    Newcome’s sole contention on appeal is that his thirty-eight-year executed

       sentence is inappropriate in light of the nature of his offense and his character as

       an offender. Newcome was convicted of Level 1 felony attempted murder. The

       sentencing range for a Level 1 felony conviction is between twenty and forty

       years, with an advisory sentence of thirty years. Ind. Code § 35-50-2-4.

       Newcome appeals for a downward revision of his sentence.


[10]   Article 7, Sections 4 and 6 of the Indiana Constitution authorize “independent

       appellate review and revision of a sentence imposed by the trial court.” Roush v.

       State, 875 N.E.2d 801, 812 (Ind. Ct. App. 2007). This appellate authority is

       exercised through Appellate Rule 7(B), which states that we “may revise a

       sentence authorized by statute if, after due consideration of the trial court’s

       decision, [this] Court finds that the sentence is inappropriate in light of the

       nature of the offense and the character of the offender.”


[11]   Indiana’s sentencing scheme allows trial courts to tailor appropriate sentences

       based on the circumstances presented; accordingly, the trial court’s judgment

       should receive “considerable deference” and our role upon appellate review is

       to attempt to “leaven the outliers.” Cardwell v. State, 895 N.E.2d 1219, 1223,

       1225 (Ind. 2008). Our review may include the aggravators and mitigators

       identified by the trial court, in addition to any other pertinent factors in the

       record, such as the “sense of the culpability of the defendant, the severity of the

       crime, [and] the damage done to others.” Id. at 1224. We will not revise a


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2961 | June 22, 2020   Page 5 of 9
       sentence in the absence of compelling evidence that portrays in a positive light

       the nature of the offense and the defendant’s character. Stephenson v. State, 29

       N.E.3d 111, 122 (Ind. 2015). Furthermore, we do not probe whether the

       defendant’s sentence is appropriate or if another sentence might be more

       appropriate; rather, the test is whether the sentence imposed is inappropriate.

       Fonner v. State, 876 N.E.2d 340, 344 (Ind. Ct. App. 2008). Thus, revision under

       Rule 7(B) is proper only in “exceptional cases.” Livingston v. State, 113 N.E.3d

       611, 613 (Ind. 2018). It is the defendant’s burden to persuade the Court that his

       sentence meets the inappropriateness standard. Anglemyer v. State, 868 N.E.2d

       482, 494 (Ind. 2007).


[12]   In considering whether a sentence is inappropriate in light of the nature of the

       offense, we compare the elements of the offense to the “details and

       circumstances of the commission of the offense.” Townsend v. State, 45 N.E.3d

       821, 831 (Ind. Ct. App. 2015), trans. denied. Newcome stabbed Bell while Bell

       slept, causing significant injury that necessitated Bell’s ambulatory airlift to

       receive critical care, including emergency surgery. Confidential Ex. Vol., pp.

       20–21. Based on the evidence of Bell’s life-threatening injuries, the trial court

       did not err in determining that the injury Newcome caused was “greater than

       the elements necessary to prove the commission of [Level 1 felony attempted

       murder].” Tr. p. 80. We note, too, the additional, disturbing circumstances of

       Newcome’s attack on Bell that warrant an elevated sentence: Newcome’s texts

       to his mother shortly before the attack are evidence of his awareness that Bell

       could suffer serious injury; Bell’s inability, as he slept, to defend himself at the


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2961 | June 22, 2020   Page 6 of 9
       moment of Newcome’s attack; and Newcome’s opportunistic choice to steal

       from Bell before fleeing the scene. Accordingly, nothing about the

       circumstances of Newcome’s commission of Level 1 felony attempted murder

       indicates that an above-advisory sentence of thirty-eight years is inappropriate.

       See Reis v. State, 88 N.E.3d 1099 (Ind. Ct. App. 2017) (finding that the egregious

       nature of an offense supports a sentence in excess of the advisory sentence).


[13]   Newcome also contends that his character as an offender warrants a sentencing

       revision. The character of a defendant as evidenced by his life and conduct is

       relevant for sentencing purposes. Washington v. State, 940 N.E.2d 1220, 1222

       (Ind. Ct. App. 2011), trans. denied. A defendant’s criminal history is part of our

       consideration of his character under Appellate Rule 7(B). Pelissier v. State, 122

       N.E.3d 983, 990 (Ind Ct. App. 2019), trans. denied. And it is well-settled that a

       defendant’s criminal history varies in significance based upon the “gravity,

       nature and number of prior offenses as they relate to the current offense.” Smith v.

       State, 889 N.E.2d 261, 263 (Ind. 2008) (emphasis added) (internal quotation

       marks and citation omitted).


[14]   Here, Newcome admitted to being under the influence of methamphetamine

       when he attacked his victim. Tr. pp. 31, 58. Newcome’s admission in the

       instant case is only the most recent and egregious example of the nexus between

       his drug use and his criminality: Newcome has past illegal-substance-related

       misdemeanor convictions and a prior conviction for Class D felony unlawful

       possession of a syringe, among others. Appellant’s App. pp. 119–20. That

       Newcome was previously charged with Class A felony conspiracy to commit

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2961 | June 22, 2020   Page 7 of 9
       dealing in methamphetamine further reflects poorly on his character, as an

       indication that past contact with the criminal justice system has not deterred

       him from committing further criminal acts. See Cotto v. State, 829 N.E.2d 520,

       526 (Ind. 2016).


[15]   And, Newcome has not persuaded us, nor do the expert psychiatric reports

       indicate, that aspects of his character, including his history of mental illness,

       call for downward revision of his sentence. During sentencing, the trial court

       appropriately considered Newcome’s mental illness a mitigating factor. Tr. pp.

       79–80. On appeal, Newcome argues that his mental disorder diminishes his

       culpability for the attack on Bell and thus should be considered as an aspect of

       his character warranting a lesser sentence. Appellant’s Br. pp. 15–16. But the

       results of Newcome’s psychiatric evaluations included the finding that

       Newcome was not exhibiting “active or acute signs of mental disorder,” and

       rather that the auditory hallucinations he claimed to have experienced at the

       time of his attack were more likely an effect of his drug abuse. Appellant’s App.

       p. 66. Based on Newcome’s admission that he was under the influence of

       methamphetamine, there was no error in the trial court’s determination that the

       significance of Newcome’s mental illness was diminished as a mitigating factor.

       Accordingly, our review of Newcome’s character as an offender does not

       indicate that an above-advisory sentence of thirty-eight years is inappropriate.


                                                 Conclusion
[16]   Newcome’s argument that his thirty-eight-year sentence—two years shorter

       than the maximum allowed by statute—amounted to a “de facto maximum
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2961 | June 22, 2020   Page 8 of 9
       sentence” is of no avail. Appellant’s Br. pp. 12, 14. Newcome has not

       persuaded us that his thirty-eight-year sentence is inappropriate in light of the

       nature of his offense and his character as an offender, such that it warrants

       revision under Appellate Rule 7(B). Accordingly, we hold that Newcome’s

       thirty-eight-year sentence is not inappropriate.


[17]   Affirmed.


       Riley, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2961 | June 22, 2020   Page 9 of 9
