MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                          FILED
regarded as precedent or cited before any                               Jul 17 2020, 10:33 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
R. Brian Woodward                                         Curtis T. Hill, Jr.
Crown Point, Indiana                                      Attorney General of Indiana

                                                          Evan M. Comer
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jeffrey Lee Murray,                                       July 17, 2020
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          20A-CR-543
        v.                                                Appeal from the Lake Superior
                                                          Court
State of Indiana,                                         The Honorable Samuel L. Cappas,
Appellee-Plaintiff                                        Judge
                                                          Trial Court Cause No.
                                                          45G04-1808-F5-152



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A-CR-543 | July 17, 2020                     Page 1 of 10
[1]   Jeffrey Lee Murray challenges his two-year-and-three-month sentence following

      his conviction of Level 6 felony domestic battery. 1 Murray argues his

      placement is inappropriate based on his character. We affirm.



                                Facts and Procedural History
[2]   Murray and C.M. were in a romantic relationship for the past fifteen years and

      have two children together, aged nine and three. On July 13, 2018, at

      approximately 6:30 p.m., Murray and C.M. were visiting friends in Gary,

      Indiana. Murray and C.M. began arguing, and Murray punched C.M. in the

      head, knocking her unconscious. Gary Police Officers responded to a report of

      an unconscious female and, upon arrival, found C.M. lying unresponsive on the

      living room sofa with visible swelling on one side of her face. Paramedics

      transported C.M. to Methodist Northlake Hospital for treatment. The police

      officers questioned three women at the scene regarding the events leading up to

      C.M.’s injuries. The women reported that C.M. had gotten into a verbal and

      physical altercation with Murray outside of the apartment and that Murray

      responded by punching C.M. in the head in the presence of their two children,

      who were playing in the nearby playground at the time. 2




      1
          Ind. Code § 35-42-2-1.3(b)(3).
      2
          Based on the probable cause affidavit, it would seem Murray fled the scene after the first attack.


      Court of Appeals of Indiana | Memorandum Decision 20A-CR-543 | July 17, 2020                             Page 2 of 10
[3]   C.M. was discharged from the hospital and returned to the apartment complex

      that same day. She was talking to Kassandra Blodgett in the parking lot of the

      apartment complex at approximately 11:20 p.m. when Murray approached

      them. Murray began arguing with C.M. and punched C.M., who fell to the

      ground unresponsive. Blodgett had Murray assist her with carrying C.M. into

      Blodgett’s apartment, and Blodgett attempted to call 911. The dispatcher noted

      that, during the call, Murray was in the apartment with C.M. and Blodgett, and

      he kept arguing with Blodgett and grabbing for her phone. Murray finally

      managed to disconnect the emergency call and fled the scene. Gary Police

      Officers responded to the new report of a battered woman at the same

      apartment complex, and paramedics again transported C.M. to the hospital for

      treatment of swelling and scrapes to her forehead, swelling and scrapes to her

      left eye, and swelling to her lips. Blodgett also noted that C.M. was

      complaining of chest and face pain. At the time of the attack, C.M. was nine

      weeks pregnant. A CT scan during the second hospital visit revealed an

      “apparent acute traumatic subarachnoid hemorrhage.” (App. Vol. II at 16.)


[4]   On August 24, 2018, the State charged Murray with two counts of Level 5

      felony domestic battery resulting in serious bodily injury, 3 one count of Level 6

      felony domestic battery resulting in moderate bodily injury, one count of Level

      6 felony domestic battery in the presence of a child less than sixteen years of



      3
          Ind. Code § 35-42-2-1.3(c)(1).


      Court of Appeals of Indiana | Memorandum Decision 20A-CR-543 | July 17, 2020   Page 3 of 10
      age, 4 and one count of Class A misdemeanor interference with and prevention

      of using 911 emergency services. 5 On December 5, 2019, Murray entered into a

      stipulated plea agreement whereby Murray agreed to plead guilty to one count

      of Level 6 felony domestic battery causing moderate bodily injury and the State

      agreed to dismiss all other charges. Following a sentencing hearing on

      February 7, 2020, the trial court imposed a twenty-seven-month sentence and

      ordered Murray to serve two years executed in Lake County Jail and three

      months in Marion County Community Corrections. 6



                                      Discussion and Decision
[5]   We will reverse a sentence as inappropriate only if we determine Murray’s

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

      character. See Ind. Appellate Rule 7(B) (“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.”). The nature of offense analysis compares

      the defendant’s actions with the required showing to sustain a conviction under

      the charged offense, Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008), while




      4
          Ind. Code § 35-42-2-1.3(b)(2).
      5
          Ind. Code § 35-45-2-5(1).
      6
       Murray lives in Indianapolis, so the trial court allowed him to serve his time on Community Corrections
      where he lives instead of in Lake County, where the crime occurred.

      Court of Appeals of Indiana | Memorandum Decision 20A-CR-543 | July 17, 2020                   Page 4 of 10
      the character of the offender analysis permits for a broader consideration of a

      defendant’s character. Douglas v. State, 878 N.E.2d 873, 881 (Ind. Ct. App.

      2007).


[6]   Ultimately, our determination about appropriateness “turns on our sense of the

      culpability of the defendant, the severity of the crime, the damage done to

      others, and myriad other factors that come to light in a given case.” Cardwell,

      895 N.E.2d at 1224. We do not look to see if another sentence is more

      appropriate, but rather we determine if the sentence imposed is inappropriate.

      Barker v. State, 994 N.E.2d 306, 315 (Ind. Ct. App. 2013), trans. denied. The

      defendant ultimately bears the burden of demonstrating the inappropriateness

      of the sentence. Patterson v. State, 909 N.E.2d 1058, 1063 (Ind. Ct. App. 2009).


[7]   Murray does not object to the length of his sentence, but challenges the trial

      court’s decision to order a portion of his sentence executed in Lake County Jail

      rather than in a community corrections program. 7 Although “the place that a



      7
       As part of his defense, Murray primarily argues that he is entitled to revision of his sentence due to an
      inappropriate evaluation of his now improved character and urges us to base our review of his sentence solely
      on his character. This court has previously determined that, under the guidelines of Appellate Rule 7(B), a
      defendant must demonstrate inappropriateness of a sentence with respect to both character and the nature of
      the offense, or the issue was waived. Williams v. State, 891 N.E.2d 621, 633 (Ind. Ct. App. 2008). In our
      discretion, we may choose to review the sentence waiver notwithstanding. Id. However, in Connor v. State,
      58 N.E.3d 215, 219 (Ind. Ct. App. 2016), another panel of our court determined that an appellant is not
      required to establish both prongs of the inappropriateness analysis. Instead, that panel said, “although the
      rule does state that we may revise a sentence we find to be inappropriate “in light of the nature of the offense
      and the character of the offender . . . we view that as a statement that we as the reviewing court must consider
      both of those prongs in our assessment, and not as a requirement that the defendant must necessarily prove
      each of those prongs render his sentence inappropriate.” Id. Judge Najam’s concurring opinion, however,
      recognized that in permitting an appellant to choose either prong, the court unwillingly becomes an advocate
      for the appellant, which is incongruent with our designated role and dilutes our standard of review. Id. at


      Court of Appeals of Indiana | Memorandum Decision 20A-CR-543 | July 17, 2020                       Page 5 of 10
      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

      nonetheless “quite difficult for a defendant to prevail on a claim that the

      placement of his or her sentence is inappropriate.” Fonner v. State, 876 N.E.2d

      340, 343 (Ind. Ct. App. 2007). As we explained in Fonner: “As a practical

      matter, trial courts know the feasibility of alternative placements in particular

      counties or communities. For example, a trial court is aware of the availability,

      costs, and entrance requirements of community corrections placements in a

      specific locale.” Id. at 343-4.


[8]   In sentencing Murray, the trial court found ten aggravating factors, which

      significantly outweighed the five mitigating circumstances found. One of the

      factors considered by the trial court, which points to the severity of Murray’s

      offense, was that the harm suffered by C.M. was far greater than that necessary

      to prove Murray guilty of a single count of Level 6 felony domestic battery

      resulting in moderate bodily injury. During the first instance of battery, Murray

      struck C.M. so hard she was rendered unconscious, which necessitated

      transportation to the nearby hospital. Then, upon seeing C.M. after she

      returned from the hospital that same evening, Murray punched her again,




      222-223. Despite our court’s varied decisions, we recognize that each panel of this court is not bound by
      coequal decisions of other panels, as Indiana law does not recognize horizontal stare decisis. Smith v. State, 21
      N.E.3d 121, 126 (Ind. Ct. App. 2014). We agree with the concurrence in Connor and require that the
      appellant demonstrate both prongs of the inappropriateness analysis.



      Court of Appeals of Indiana | Memorandum Decision 20A-CR-543 | July 17, 2020                         Page 6 of 10
       which induced visible facial swelling and chest pain in C.M. C.M. was

       transported to the hospital a second time for her injuries, and during this

       hospitalization a CT scan revealed that C.M. suffered a substantial head injury.

       We recognize that Murray did not display any “restraint, regard, and lack of

       brutality” that would portray “in a positive light the nature of the offense,”

       Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015), thus Murray has failed to

       demonstrate that the nature of his offense requires placement solely in

       community corrections.


[9]    The bulk of Murray’s argument rests in his attempt to persuade us that his

       changed character and efforts at rehabilitation merit re-evaluation of where he

       serves his sentence. When considering the character of the offender, one

       relevant fact is the defendant’s criminal history. Rutherford v. State, 866 N.E.2d

       867, 874 (Ind. Ct. App. 2007). Although the extent to which a defendant’s

       criminal history may be used to guide an appropriate sentence “varies based on

       the gravity, nature, and number of prior offenses in relation to the current

       offense,” repeated contacts with the criminal justice system reflect poorly on the

       defendant’s character, because such contacts suggest the defendant “has not

       been deterred [from further criminal behavior] even after having been subjected

       to the police authority of the State.” Cotto v. State, 829 N.E.2d 520, 526 (Ind.

       2005).


[10]   The pre-sentence investigation report (PSI) detailed Murray’s criminal history,

       which began in 2003 with juvenile adjudications of misdemeanor battery and

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-543 | July 17, 2020   Page 7 of 10
       misdemeanor resisting law enforcement; Murray was given alternative sentence

       placements of house-arrest and probation, but yet failed both. Murray has since

       acquired two misdemeanors, one in 2017 for invasion of privacy and the other

       in 2018 for operating a vehicle while intoxicated; for his OWI conviction

       Murray was granted 364 days of probation with conditions, but a petition to

       revoke his probation is pending. Murray also has a total of three felony

       convictions on his criminal record. In 2008 Murray pled guilty to robbery and

       was sentenced to five years in the Department of Correction; although four of

       those years were suspended to probation, a petition to revoke probation was

       granted in 2011 and Murray was subsequently discharged unsatisfactorily. In

       2011 Murray pled guilty to burglary and was sentenced to ten years in the

       Department of Correction, with four years to be served as an alternative

       sentence. Finally, in 2014, Murray pled guilty for failure to return to lawful

       detention and was sentenced to two years in the Department of Correction.


[11]   Notwithstanding his criminal history, Murray has failed to demonstrate that his

       attempts at rehabilitation and counseling left a significant and lasting

       impression that would deter him from future offenses. Although Murray argues

       his placement is improper because he and C.M. underwent individual and

       family counseling and separate anger management services prior to his

       sentencing hearing, we cannot overlook Murray’s history of recidivism and his

       failure to alter his behavior after receiving alternative placements in the past.

       Additionally, those services were by the court as part of its dispositional order


       Court of Appeals of Indiana | Memorandum Decision 20A-CR-543 | July 17, 2020   Page 8 of 10
       in the Child in Need of Services case, which was a result of the domestic battery

       incidents. Despite the fact that, on multiple occasions, Murray was granted

       placement in community corrections or probation, all such placements have

       ended with revocation or unsatisfactory completion meriting a return to the

       Department of Correction, and Murray was not deterred from committing

       additional offenses.


[12]   Nor are we convinced that Murray’s placement in Lake County Jail rather than

       community corrections would result in hardship for him or his family. See

       Dowdell v. State, 720 N.E.2d 1146, 1154 (Ind. 1999) (“incarcerated people have

       children, so just having children does not amount to an undue hardship

       meriting a lesser sentence,” particularly when defendant was not ordered to pay

       child support). During the trial court’s sentencing hearing, C.M. testified that

       neither she nor Murray have guardianship of their two children because they

       are going through a Department of Child Services case, the children are

       currently staying with relatives, and Murray has not been ordered to pay any

       child support.


[13]   Despite Murray’s initiative to seek rehabilitation and his contention that

       incarceration would result in hardship, his criminal history demonstrates that

       probation and alternative sentencing programs do not work well to deter him

       from crime. See Fonner, 876 N.E.2d at 344 (placement in the Department of

       Correction is not inappropriate when prior, less restrictive efforts at

       rehabilitation have been unsuccessful). Murray has been placed on probation

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-543 | July 17, 2020   Page 9 of 10
       multiple times and has had probation revoked several times. Most telling is that

       Murray was on probation when he committed the present batteries against

       C.M. on the same day. See Childress v. State, 848 N.E.2d 1073, 1081 (Ind. 2006)

       (defendant’s sentence did not merit alteration after defendant pled guilty to

       committing additional offenses while he was on bond for resisting law

       enforcement), and see Zavala v. State, 138 N.E.3d 291, 301 (Ind. Ct. App. 2019)

       (defendant’s sentence was deemed appropriate due to his continued antisocial

       behavior demonstrated by three misdemeanor convictions for battery and

       domestic battery and a felony conviction for failure to return to lawful

       detention; additionally, the defendant was on probation at the time he

       committed the offense at issue). Murray’s lengthy criminal record and inability

       to follow rules of probation reflect poorly on his character and demonstrate a

       pattern of violent and destructive behavior that has occurred consistently over

       the course of Murray’s adult life.



                                               Conclusion
[14]   We conclude the trial court’s decision to order Murray to serve two years in
       Lake County Jail and three months in Marion County Community Corrections
       was not inappropriate. Accordingly, we affirm.

       Affirmed.


       Robb, J., concurs.


       Vaidik, J., concurs in result without opinion.
       Court of Appeals of Indiana | Memorandum Decision 20A-CR-543 | July 17, 2020   Page 10 of 10
