                                                                        FILED
      MEMORANDUM DECISION                                           Jul 08 2016, 8:20 am

      Pursuant to Ind. Appellate Rule 65(D), this                       CLERK
                                                                    Indiana Supreme Court
      Memorandum Decision shall not be regarded as                     Court of Appeals
                                                                         and Tax Court
      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
      Jeremy K. Nix                                          Gregory F. Zoeller
      Matheny, Hahn, Denman & Nix, L.L.P.                    Attorney General of Indiana
      Huntington, Indiana
                                                             James B. Martin
                                                             Deputy Attorney General
                                                             Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Jeremiah Barnaby Ricks,                                    July 8, 2016

      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 35A05-1602-CR-342

              v.                                                 Appeal from the Huntington
                                                                 Superior Court
      State of Indiana,                                          The Hon. Jeffrey R. Heffelfinger,
                                                                 Judge
      Appellee-Plaintiff.
                                                                 Trial Court Cause No. 35D01-1511-
                                                                 F6-250




      Bradford, Judge.



                                            Case Summary
[1]   On October 11, 2015, Appellant-Defendant Jeremiah Ricks violently attacked

      Jeremy Voland while both were incarcerated in Huntington County. Ricks

      Court of Appeals of Indiana | Memorandum Decision 35A05-1602-CR-342 | July 8, 2016         Page 1 of 9
      punched Voland several times in the face, breaking Voland’s nose and causing

      him to require stitches. The State charged Ricks with Level 6 felony battery,

      and Ricks waived his right to counsel, choosing to represent himself. A jury

      ultimately convicted Ricks of Level 6 felony battery, and the trial court

      sentenced him to two-and-one-half years of incarceration. Ricks contends that

      his waiver of trial counsel was invalid and that his sentence in inappropriately

      harsh. Concluding that Ricks’s arguments lack merit, we affirm.



                            Facts and Procedural History
[2]   On October 11, 2015, Ricks, Voland, and Taz Dowdy were inmates in the

      Huntington County Jail. At around midday, Ricks was “hanging out” with

      Dowdy in the cell shared by Dowdy and Voland. Tr. p. 101. Voland, who was

      nearby, observed Ricks going through his things, which he kept in a box. When

      Voland confronted Ricks and took back his box, Ricks began punching him in

      the face with a closed fist. Ricks hit Voland approximately nine times, and,

      although Voland did turn away and cover his face, he did not attempt to hit

      Ricks. Voland received nine stitches for a cut on his forehead and suffered a

      broken nose, which he reset himself, causing “excruciating” pain. Tr. p. 106.

      Voland has suffered severe headaches since the incident, which he did not suffer

      before. Approximately a week-and-a-half before trial, Voland encountered

      Ricks, who told Voland that he “better just say that I was swinging on him,

      too.” Tr. p. 109.




      Court of Appeals of Indiana | Memorandum Decision 35A05-1602-CR-342 | July 8, 2016   Page 2 of 9
[3]   On November 18, 2015, the State charged Ricks with Level 6 felony battery.

      On November 24, 2015, at the initial hearing, the trial court advised Ricks of

      his right to counsel: “You are advised that you have the absolute right to hire

      an attorney at all critical stages of these proceedings.” Tr. p. 17. At a hearing

      on December 1, 2015, Ricks indicated that he desired to represent himself.

      Although Ricks indicated that he had never represented himself before, he also

      indicated that he had experience with the legal system, experience with

      discovery, experience with cross-examination, and had earned his GED. The

      trial court then advised Ricks as follows:

                  THE COURT: Okay. Do you understand the Court is
              advising you that you may [be] at a disadvantage [in]
              representing yourself. The Court will not give you any assistance
              with regard to filing any Motions, with regard to legal advice on
              how to proceed, and if it proceeds to trial the court will not give
              you any assistance in jury selection, in making opening
              statements, in conducting any of your examination and in
              making closing statements, in preparing and submitting written
              jury instructions. You are on your own on those. Do you
              understand that?
                   DEFENDANT: Yes, your Honor.
      Tr. p. 29.
[4]   On February 2, 2016, the State moved to amend its charging information to

      include a charge of Class A misdemeanor battery. Jury trial was held on

      February 4, 2016, after which the jury found Ricks guilty of Level 6 felony

      battery. That day, the trial court conducted a sentencing hearing. The State

      noted Ricks’s prior convictions for two felonies and several misdemeanors and

      that Ricks had committed two offenses since being incarcerated in the

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      Huntington County Jail since March of 2015: possession of marijuana and the

      instant battery. The State also noted that Ricks had a pending theft case in

      Adams County. The trial court cited Ricks’s criminal history, the offenses

      committed while incarcerated in Huntington County Jail, the severity of

      Voland’s injuries, Ricks’s pending felony charge, and the videotape of the

      incident indicated which that “[he] and Mr. Dowdy gave a fist to fist”

      afterwards. Tr. p. 199. The trial court sentenced Ricks to two-and-one-half

      years of incarceration.


                                 Discussion and Decision
                                      I. Waiver of Counsel
[5]   Ricks contends that his waiver of counsel was not made voluntarily and

      intelligently.


              The Sixth Amendment, applicable to the states through the
              Fourteenth Amendment, guarantees a criminal defendant the
              right to counsel before he may be tried, convicted, and punished.
              Faretta v. California, 422 U.S. 806, 807, 95 S. Ct. 2525, 45 L. Ed.
              2d 562 (1975). This protection also encompasses an affirmative
              right for a defendant to represent himself in a criminal case. Id.
              However, “[i]t is undeniable that in most criminal prosecutions
              defendants could better defend with counsel’s guidance than by
              their own unskilled efforts.” Id. at 834, 95 S. Ct. 2525. Because
              the defendant who waives his right to counsel and proceeds to
              trial unrepresented is forgoing “many of the traditional benefits
              associated with the right to counsel.... the accused must
              ‘knowingly and intelligently’ forgo those relinquished benefits.”
              Id. “[H]e should be made aware of the dangers and
              disadvantages of self-representation, so that that the record will

      Court of Appeals of Indiana | Memorandum Decision 35A05-1602-CR-342 | July 8, 2016   Page 4 of 9
              establish that ‘he knows what he is doing and his choice is made
              with eyes open.’” Id. at 835, 95 S. Ct. 2525 (quoting Adams v.
              United States ex rel. McCann, 317 U.S. 269, 279, 63 S. Ct. 236, 87
              L. Ed. 268 (1942)).
              There is no particular formula or script that must be read to the
              defendant. The information that must be given “will depend on
              a range of case-specific factors, including the defendant’s
              education or sophistication, the complex or easily grasped nature
              of the charge, and the stage of the proceeding.” Iowa v. Tovar,
              541 U.S. 77, 88, 124 S. Ct. 1379, 158 L. Ed. 2d 209 (2004).
              Courts determining whether a waiver of counsel for trial was
              made voluntarily and intelligently must consider (1) the extent of
              the court’s inquiry into the defendant’s decision, (2) other
              evidence in the record that establishes whether the defendant
              understood the dangers and disadvantages of self-representation,
              (3) the background and experience of the defendant, and (4) the
              context of the defendant’s decision to proceed pro se. We have
              drawn these factors from case law in the Seventh Circuit, see
              United States v. Hoskins, 243 F.3d 407 (7th Cir. 2001), and applied
              them in situations as diverse as trial for battery, Poynter v. State,
              749 N.E.2d 1122 (Ind. 2001), and for capital murder, Kubsch v.
              State, 866 N.E.2d 726 (Ind. 2007).
      Hopper v. State, 957 N.E.2d 613, 617-18 (Ind. 2011).


[6]   The trial court thoroughly informed Ricks of the perils of self-representation,

      advising him that he may be at a disadvantage representing himself. The trial

      court also advised Ricks that it would not give him legal advice on how to

      proceed or any assistance with filing motions, jury selection, making opening

      statements, witness examination, making closing statements, or preparing and

      submitting written jury instructions. The trial court made it clear to Ricks that




      Court of Appeals of Indiana | Memorandum Decision 35A05-1602-CR-342 | July 8, 2016   Page 5 of 9
      “[y]ou are on your own on those.” Tr. p. 29. Ricks has not established that the

      trial court failed to adequately advise him of the perils of self-representation.


[7]   The trial court also inquired into Ricks’s background and education. Ricks

      indicated that he had previous experience in the legal system, as his somewhat

      extensive criminal history would indicate.1 Ricks also indicated that he has

      experience with discovery and cross-examining witnesses in depositions. The

      record supports a finding that he might be better prepared than most to

      represent himself in a criminal proceeding. Following the trial court’s

      advisements and inquiries, Ricks reaffirmed his decision to represent himself.


[8]   Finally, the context in which Ricks’s decision was made does not indicate any

      lack of understanding or voluntariness on his part. There is no hint of coercion

      or exertion of pressure by the State, the trial court, or anyone else. Ricks

      indicated early in the process that he wished to represent himself, and never

      wavered until he lost. Overall, application of the factors identified by the

      Indiana Supreme Court leads us to conclude with little hesitation that Ricks’s

      waiver of his right to counsel was knowing, intelligent, and voluntary. See, e.g.,

      Jackson v. State, 992 N.E.2d 926, 933 (Ind. Ct. App. 2013) (concluding that

      waiver of counsel was valid where trial court advised defendant of perils of self-

      representation, defendant had little formal education but ample experience with




      1
        Ricks’s familiarity with the criminal justice system is demonstrated when, at the hearing where he
      expressed his desire to represent himself, he also requested a suppression hearing, a deposition, and a “fast
      and speedy” trial. Tr. p. 30.

      Court of Appeals of Indiana | Memorandum Decision 35A05-1602-CR-342 | July 8, 2016                   Page 6 of 9
       criminal justice system, defendant seemed to have reasonable tactical reason to

       represent himself as he believed public defender had conflict of interest, and

       there was no indication of coercion), trans. denied.


                 II. Whether Ricks’s Sentence is Inappropriate
[9]    We “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.” Ind.

       Appellate Rule 7(B). “Although appellate review of sentences must give due

       consideration to the trial court’s sentence because of the special expertise of the

       trial bench in making sentencing decisions, Appellate Rule 7(B) is an

       authorization to revise sentences when certain broad conditions are satisfied.”

       Shouse v. State, 849 N.E.2d 650, 660 (Ind. Ct. App. 2006), trans. denied (citations

       and quotation marks omitted). “The defendant has the burden of persuading us

       that his sentence is inappropriate.” King v. State, 894 N.E.2d 265, 267 (Ind. Ct.

       App. 2008).


[10]   The principal role of Rule 7(B) review “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). We “should focus on the forest—the aggregate sentence—rather than

       the trees—consecutive or concurrent, number of counts, or length of the

       sentence on any individual count.” Id. Whether a sentence is inappropriate


       Court of Appeals of Indiana | Memorandum Decision 35A05-1602-CR-342 | July 8, 2016   Page 7 of 9
       ultimately turns on 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. Id. at 1224. Here, Ricks received a two-and-one-half year sentence,

       which is the maximum sentence he could have received for Level 6 felony

       battery. See Ind. Code § 35-50-2-7(b) (“A person who commits a Level 6 felony

       (for a crime committed after June 30, 2014) shall be imprisoned for a fixed term

       of between six (6) months and two and one-half (2 ½ ) years, with the advisory

       sentence being one (1) year.”).


[11]   The nature of Ricks’s offense justifies an enhanced sentence. For no apparent

       reason, Ricks viciously attacked Voland, punching him in the face

       approximately nine times. Moreover, Ricks’s actions could very easily have

       supported a more serious battery charge. Serious bodily injury, which Indiana

       Code section 35-31.5-2-292 defines as bodily injury that causes “extreme

       pain[,]” can support a charge of Level 5 felony battery. Voland, who made no

       attempt to fight back against Ricks, suffered a cut requiring ten stitches and a

       broken nose. Voland’s broken nose caused him “excruciating” pain when reset.

       Additionally, Voland now suffers headaches severe enough to have caused him

       to seek hospitalization on three to four occasions since the attack. Voland’s

       injuries could easily have supported a conviction for Level 5 felony battery, and

       fully justify Ricks’s enhanced sentence for Level 6 felony battery.


[12]   Ricks’s character also justifies a fully-enhanced sentence. Ricks’s extensive

       criminal history reflects very poorly on his character, including prior

       convictions for Class B felony robbery; Level 6 felony theft; Class A

       Court of Appeals of Indiana | Memorandum Decision 35A05-1602-CR-342 | July 8, 2016   Page 8 of 9
       misdemeanors operating a vehicle while intoxicated and operating a vehicle

       never having had a license; Class B misdemeanor marijuana possession; and

       Class C misdemeanors minor consuming alcohol, criminal trespass, false

       informing, and three counts of operating a vehicle never having had a license.

       The probation imposed following Ricks’s robbery conviction was revoked,

       resulting in the execution of two previously-suspended years of his sentence. At

       the time of his trial in this matter, Ricks had a pending charge for Level 6 felony

       theft in Adams County. Ricks, who was born on October 7, 1984, has been

       incarcerated or on probation most of the time since 2003. Despite Ricks’s

       frequent convictions, incarcerations, and other contacts with the criminal

       justice system, Ricks has not chosen to conform his behavior to the norms of

       society. Ricks has not established that his two-and-one-half-year sentence for

       Level 6 felony battery is inappropriate in light of the nature of his offense and

       his character.


[13]   The judgment of the trial court is affirmed.


       Bailey, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 35A05-1602-CR-342 | July 8, 2016   Page 9 of 9
