MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                   FILED
regarded as precedent or cited before any                          Aug 29 2017, 9:16 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




ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Jacob P. Wahl                                            Curtis T. Hill, Jr.
Steven E. Ripstra                                        Attorney General of Indiana
Ripstra Law Office
                                                         Monika Prekopa Talbot
Jasper, Indiana                                          Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

James B. Weathers,                                       August 29, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         63A01-1703-CR-683
        v.                                               Appeal from the Pike Circuit Court
                                                         The Honorable Jeffrey L.
State of Indiana,                                        Biesterveld, Judge
Appellee-Plaintiff.                                      Trial Court Cause No.
                                                         63C01-1611-F4-712



Vaidik, Chief Judge.



                                    Case Summary


Court of Appeals of Indiana | Memorandum Decision 63A01-1703-CR-683 | August 29, 2017       Page 1 of 6
[1]   James B. Weathers snuck a razor blade into jail during the booking process

      because he wanted to harm himself. Later that same day, he attempted suicide

      in his holding cell. The State charged him with Level 4 felony possession of a

      deadly weapon while incarcerated. Following a plea agreement, the trial court

      sentenced him to the maximum term of twelve years. Weathers contends that

      his sentence is inappropriate because he did not intend to harm a fellow

      prisoner or prison staff. Because Weathers’s goal was to harm himself, we find

      that the maximum sentence is inappropriate. We therefore remand this case to

      the trial court for the imposition of a sentence of ten years.



                            Facts and Procedural History
[2]   On October 28, 2016, Weathers was served with an arrest warrant for criminal-

      confinement and domestic-battery charges concerning his wife. See Appellant’s

      App. Vol. II p. 48; Tr. Vol. II p. 15. He was serving a community-corrections

      sentence at the time. See Appellant’s App. Vol. II p. 46; Tr. Vol. II p. 50.

      Suspecting that charges concerning his wife were forthcoming, Weathers had

      taped a razor blade to himself using two bandages so that he could commit

      suicide in jail. Tr. Vol. II pp. 15-16, 43. Weathers was booked into the Pike

      County Jail, and the razor blade apparently went undetected.


[3]   That same day, Indiana State Trooper James Manning was in the dispatch area

      of the Pike County Jail when Weathers’s cell mate alerted dispatch that there

      was an issue. Trooper Manning and other officers responded to the holding

      cell, where they saw blood “everywhere.” Id. at 38. Weathers was leaning

      Court of Appeals of Indiana | Memorandum Decision 63A01-1703-CR-683 | August 29, 2017   Page 2 of 6
      against the wall, with most of his body on the ground. Weathers was slipping

      in and out of consciousness and was in “fairly bad shape.” Id. at 44. Trooper

      Manning removed a tourniquet from his belt and applied it to Weathers’s left

      arm.1 An ambulance was called.


[4]   Thereafter, the State charged Weathers with Level 4 felony possession of a

      deadly weapon while incarcerated. In February 2017, Weathers and the State

      entered into a plea agreement. According to the plea agreement, Weathers

      agreed to plead guilty as charged, and the State agreed to dismiss “all pending

      matters” against him—which included the charges involving his wife as well as

      a charge in a second cause number—and to modify the sentence in a third cause

      number to “time served.” Appellant’s App. Vol. II p. 36. Sentencing was left

      to the discretion of the judge after hearing argument from counsel.


[5]   At the March 2017 sentencing hearing, evidence was presented that Weathers

      had attempted suicide on a second occasion in December 2016 while in DOC

      custody. Id. at 50; Tr. Vol. II pp. 17, 27. Indeed, at the time of the sentencing

      hearing, Weathers was housed in the psychiatric unit at New Castle

      Correctional Facility, a DOC facility, because of his suicide attempts.

      Appellant’s App. Vol. II p. 43. Weathers testified that he was currently taking

      Zyprexa and Prozac and was a “totally different person” than he was when he

      tried to kill himself. Tr. Vol. II p. 18. The trial court identified the following



      1
       Trooper Manning did not have any gloves on him at the time and did not put any on. As a result of his
      exposure to Weathers’s blood, Trooper Manning underwent a battery of tests, which came back negative.

      Court of Appeals of Indiana | Memorandum Decision 63A01-1703-CR-683 | August 29, 2017          Page 3 of 6
      aggravators: (1) Weathers’s criminal history (nine felonies and two

      misdemeanors) (2) the IRAS assessment showed that he was at a high risk to

      reoffend; (3) prior lenient treatment had failed; (4) taping the razor blade to his

      body required planning; (5) Weathers’s suicide attempt at the jail affected

      people other than himself; and (6) he violated his community-corrections

      placement. The court identified one mitigator: Weathers pled guilty. The trial

      court sentenced him to the maximum term of twelve years.


[6]   Weathers now appeals his sentence.



                                 Discussion and Decision
[7]   Weathers contends that his twelve-year sentence is inappropriate and asks us to

      modify it to “less than the maximum.” Appellant’s Br. p. 11. Indiana

      Appellate Rule 7(B) provides that an appellate 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.” Because we generally defer to the judgment

      of trial courts in sentencing matters, defendants have the burden of persuading

      us that their sentences are inappropriate. Schaaf v. State, 54 N.E.3d 1041, 1044-

      45 (Ind. Ct. App. 2016). “Whether a sentence is 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) (citing Cardwell v.

      State, 895 N.E.2d 1219, 1224 (Ind. 2008)).

      Court of Appeals of Indiana | Memorandum Decision 63A01-1703-CR-683 | August 29, 2017   Page 4 of 6
[8]   Weathers does not claim that there are redeeming aspects to his character that

      warrant a reduction in his sentence. Rather, his argument focuses on the nature

      of the offense:


              While the threat of harm to law enforcement was present, harm
              to law enforcement occurs every time a prisoner possesses a
              weapon, and such harm is greater in degree when the prisoner
              attacks other inmates or prison staff. While Weathers did place
              corrections officers at risk, his action[s] are arguably less harmful
              than the risk involved in a typical prisoner in possession of a
              deadly weapon case . . . .


      Appellant’s Br. pp. 10-11. We agree. The evidence in this case is that Weathers

      intended to use the razor blade only on himself. See Tr. Vol. II p. 45 (Trooper

      Manning testifying that they did not find any evidence that Weathers “tried to

      harm anybody but himself”). Indeed, Weathers used the razor blade on himself

      the very day that he was booked into jail. In other words, he did not store the

      razor blade in jail for a period of time, thereby increasing the risk of danger to

      others. When Trooper Manning found Weathers in the holding cell, he was

      slipping in and out of consciousness and in “fairly bad shape.” Given that

      Weathers tried to kill himself (for which he is now receiving effective mental-

      health treatment), we find that the maximum sentence is inappropriate. We

      therefore remand this case to the trial court for the imposition of a sentence of




      Court of Appeals of Indiana | Memorandum Decision 63A01-1703-CR-683 | August 29, 2017   Page 5 of 6
      ten years.2 See Ind. Code § 35-50-2-5.5 (providing that the sentencing range for

      a Level 4 felony is two to twelve years, with an advisory sentence of six years).


[9]   Reversed and remanded.


      Mathias, J., and Crone, J., concur.




      2
        Weathers also argues that the trial court abused its discretion in not identifying as an additional mitigator
      that the crime is unlikely to reoccur given the mental-health treatment that he is receiving. This is closely
      related to his inappropriateness argument, and even if we were to separately address it and agree with him,
      we would still impose a sentence of ten years.

      Court of Appeals of Indiana | Memorandum Decision 63A01-1703-CR-683 | August 29, 2017                 Page 6 of 6
