MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                                FILED
regarded as precedent or cited before any                                  Jan 17 2020, 10:10 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Ronald J. Moore                                          Curtis T. Hill, Jr.
The Moore Law Firm, LLC                                  Attorney General of Indiana
Richmond, Indiana
                                                         Angela N. Sanchez
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Roy Truman Nelson,                                       January 17, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-1562
        v.                                               Appeal from the Wayne Superior
                                                         Court
State of Indiana,                                        The Honorable Charles K. Todd,
Appellee-Plaintiff                                       Jr. Judge
                                                         Trial Court Cause No.
                                                         89D01-1903-F6-175



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1562 | January 17, 2020                    Page 1 of 6
[1]   Roy Truman Nelson appeals his sentence for Level 6 felony resisting law

      enforcement. 1 He argues his sentence is inappropriate in light of the nature of

      his offense and his character. We affirm.



                                Facts and Procedural History
[2]   On March 9, 2019, Officer Tyler Smith and Officer Tyler Shoemaker of the

      Richmond Police Department received a dispatch regarding a possible domestic

      disturbance at Nelson’s residence. The dispatch relayed that Nelson had left his

      house in a burgundy Kia Optima, that Nelson was intoxicated, and that Nelson

      did not have a valid driver’s license. The officers located Nelson’s vehicle and

      began to follow him in their police car. When the officers got behind Nelson’s

      vehicle, Nelson immediately performed a u-turn. The officers also made a u-

      turn and activated their emergency lights and siren. However, Nelson did not

      pull over. He continued to drive for approximately one mile, and then he

      parked in the driveway of his house. The officers exited their car and

      repeatedly ordered Nelson to exit his vehicle. Nelson exited his vehicle, but he

      disobeyed the officers’ commands to face away from them, to put his hands in

      the air, and to walk backward toward them. At one point, Officer Smith

      deployed his taser, but it was not effective. Eventually, the officers handcuffed

      Nelson.




      1
          Ind. Code § 35-44.1-3-1 (2016).


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1562 | January 17, 2020   Page 2 of 6
[3]   The State charged Nelson with Level 6 felony resisting law enforcement based

      on Nelson’s act of fleeing from police officers in a vehicle after the officers

      activated their patrol vehicle’s lights and siren. On May 16, 2019, Nelson pled

      guilty without a plea agreement. The trial court accepted his plea and entered

      the conviction. On June 11, 2019, the trial court held a sentencing hearing. On

      June 26, 2019, the trial court sentenced Nelson to an executed term of one and

      one-half years in the Wayne County Jail. The trial court found two aggravating

      circumstances: (1) Nelson’s significant criminal history, and (2) Nelson’s

      commission of the instant offense while on probation for a crime he committed

      in Virginia. Additionally, the trial court found Nelson’s acceptance of

      responsibility and expression of remorse to be a mitigating circumstance.



                                 Discussion and Decision
[4]   We “may revise a sentence authorized by statute if, after due consideration of

      the trial court’s decision, [we determine] the sentence is inappropriate in light of

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

      Rule 7(B). Our role in reviewing a sentence pursuant to Appellate Rule 7(B)

      “should be to attempt to leaven the outliers, and identify some guiding

      principles for trial courts and those charged with improvement of the sentencing

      statutes, but not to achieve a perceived ‘correct’ result in each case.” Cardwell v.

      State, 895 N.E.2d 1219, 1225 (Ind. 2008). “The defendant bears the burden of

      persuading this court that his or her sentence is inappropriate.” Kunberger v.

      State, 46 N.E.3d 966, 972 (Ind. Ct. App. 2015). “Whether a sentence is


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1562 | January 17, 2020   Page 3 of 6
      inappropriate ultimately turns on the culpability of the defendant, the severity

      of the crime, the damage done to others, and a myriad of other factors that

      come to light in a given case.” Thompson v. State, 5 N.E.3d 383, 391 (Ind. Ct.

      App. 2014).


[5]   In assessing the nature of an offense, “the advisory sentence is the starting point

      for determining the appropriateness of a sentence.” Pelissier v. State, 122 N.E.3d

      983, 990 (Ind. Ct. App. 2019), trans. denied. We assess whether a particular

      offense is different from the “typical” offense accounted for by the legislature in

      setting the advisory sentence. See Rich v. State, 890 N.E.2d 44, 54 (Ind. Ct. App.

      2008), trans. denied. A Level 6 felony is punishable by a term of imprisonment

      between six months and two and one-half years, with the advisory sentence

      being one year. Ind. Code § 35-50-2-7. Therefore, Nelson’s sentence is above

      the advisory sentence but below the maximum sentence. Nelson acknowledges

      “his offense was serious in nature and put himself and police in danger.”

      (Appellant’s Br. at 15.) We agree and cannot say there is anything about his

      offense that makes it more or less egregious than the typical act of using a

      vehicle to resist law enforcement. See Rich, 890 N.E.2d at 54 (holding

      defendant’s offense was not more or less egregious than a typical burglary).


[6]   Nelson argues his sentence is inappropriate in light of his character because he

      is remorseful and is capable of being reformed. Nelson notes he was employed

      prior to his arrest and he hopes to return to work when released. In assessing a

      defendant’s character, one relevant factor is the defendant’s criminal history.

      Garcia v. State, 47 N.E.3d 1249, 1251 (Ind. Ct. App. 2015), trans. denied.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1562 | January 17, 2020   Page 4 of 6
      Nelson’s criminal history is significant. Nelson has seven prior felony

      convictions, including convictions of robbery with a dangerous weapon and

      assault by strangulation in North Carolina, and eleven misdemeanor

      convictions, including a previous resisting law enforcement conviction. His

      record includes five probation violations. That Nelson committed the current

      offense while on probation also reflects poorly on his character. See Eisert v.

      State, 102 N.E.3d 330, 335 (Ind. Ct. App. 2018) (stating defendant’s repeated

      violations of the terms of pre-trial release and court orders “does not suggest

      [he] is a person who respects the law or the court’s authority”), trans. denied.


[7]   The trial court considered Nelson’s expression of remorse at sentencing.

      Nelson’s employment prior to incarceration and his desire to work when

      released from incarceration do not render his sentence inappropriate. See

      Holmes v. State, 86 N.E.3d 394, 399 (Ind. Ct. App. 2017) (stating “many people

      are gainfully employed; therefore, a defendant’s employment is not necessarily

      a mitigating factor”), trans. denied. Therefore, in light of his offense and

      character, Nelson’s sentence is not inappropriate. See Garcia, 47 N.E.3d at 1252

      (holding sentence above the advisory sentence was not inappropriate given

      defendant’s significant criminal history).



                                              Conclusion
[8]   Nelson’s sentence is not inappropriate given the nature of his offense and his

      character, particularly his significant criminal history and his status as a

      probationer at the time of the instant offense. Accordingly, we affirm.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1562 | January 17, 2020   Page 5 of 6
[9]   Affirmed.


      Crone, J., and Pyle, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1562 | January 17, 2020   Page 6 of 6
