MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                           FILED
this Memorandum Decision shall not be                                       Mar 14 2019, 7:07 am
regarded as precedent or cited before any
court except for the purpose of establishing                                     CLERK
                                                                             Indiana Supreme Court
                                                                                Court of Appeals
the defense of res judicata, collateral                                           and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke                                    Curtis T. Hill, Jr.
Wieneke Law Office                                       Attorney General
Brooklyn, Indiana
                                                         Evan Matthew Comer
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Brooke D. Shelton,                                       March 14, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-1261
        v.                                               Appeal from the Lawrence
                                                         Superior Court
State of Indiana,                                        The Honorable William G. Sleva,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         47D02-1710-F3-1590



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1261 | March 14, 2019                       Page 1 of 7
                                          Case Summary
[1]   Brooke Shelton was convicted of Level 3 felony aggravated battery for stabbing

      a man with a knife. The trial court sentenced her to sixteen years, with thirteen

      years to serve and three years suspended to probation. Shelton appeals her

      sentence, arguing that it is inappropriate in light of the nature of her offense and

      her character. We disagree and affirm.



                            Facts and Procedural History
[2]   In May 2016, Shelton started dating Rebecca Nunn. The two were still together

      when, in September 2017, Rebecca began seeing her neighbor, Matthew

      Lawson. Suffice it to say, Shelton and Matthew did not get along. In the early

      morning hours of October 17, 2017, Shelton went to Rebecca’s house. Rebecca

      went outside to talk to Shelton on the front porch. While they were on the

      porch, Matthew left his house and walked toward Rebecca’s house, leading to a

      violent altercation between Shelton and Matthew. Shelton stabbed Matthew in

      the back and the side, and Matthew inflicted various injuries on Shelton. The

      State charged Shelton with Level 3 felony aggravated battery and Level 5 felony

      battery with a deadly weapon but did not charge Matthew with a crime.


[3]   A jury trial was scheduled for March 2018, and Shelton filed a notice that she

      intended to claim self-defense. At trial, the State presented evidence that as

      Matthew approached the porch Shelton “jumped up” from her seat and

      “lunged” at him with a knife in her hand, Tr. Vol. IV pp. 135-37, that Shelton


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1261 | March 14, 2019   Page 2 of 7
      stabbed Matthew in the back, and that Matthew fought back, resulting in the

      injuries to Shelton (and the stab wound to Matthew’s side). Shelton offered a

      very different version of events, testifying that Matthew tackled her to the

      ground and started beating her, prompting her to take her knife out of her

      pocket and stab him in self-defense.


[4]   The jury rejected Shelton’s claim of self-defense and found her guilty as

      charged. The trial court merged the battery-with-a-deadly-weapon count into

      the aggravated-battery count. In sentencing Shelton on the aggravated-battery

      conviction, the trial court identified one aggravating circumstance—Shelton’s

      criminal history—and no mitigating circumstances. The court imposed a

      sentence of sixteen years, with thirteen years to serve and three years suspended

      to probation.


[5]   Shelton now appeals, challenging her sentence but not her conviction.



                                Discussion and Decision
[6]   Shelton contends that her sentence is inappropriate and asks us to revise it

      pursuant to Indiana Appellate Rule 7(B), which 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.” “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


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1261 | March 14, 2019   Page 3 of 7
      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)). 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).


[7]   We begin by addressing Shelton’s repeated assertion that she received the

      “maximum sentence” for Level 3 felony aggravated battery. Appellant’s Br. pp.

      4, 5, 11, 12, 16, 17. That is incorrect. Indiana Code section 35-50-2-5 provides

      that a person who commits a Level 3 felony “shall be imprisoned for a fixed

      term of between three (3) and sixteen (16) years, with the advisory sentence

      being nine (9) years.” As such, the maximum sentence for a Level 3 felony is a

      sentence of sixteen years in prison. Here, the trial court imposed a sentence of

      sixteen years, but it suspended three of those years to probation, meaning that

      Shelton will have to serve thirteen years in prison (minus credit time), not

      sixteen years, if she does not violate the terms of her probation. That is not the

      maximum sentence. See Jenkins v. State, 909 N.E.2d 1080, 1085-86 (Ind. Ct.

      App. 2009) (“[F]or purposes of Rule 7(B) review, a maximum sentence is not

      just a sentence of maximum length, but a fully executed sentence of maximum

      length.”), trans. denied; see also Davidson v. State, 926 N.E.2d 1023, 1025 (Ind.

      2010) (“We decline to narrowly interpret the word ‘sentence’ in Appellate Rule

      7 to constrict appellate courts to consider only the appropriateness of the

      aggregate length of the sentence without considering also whether a portion of




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1261 | March 14, 2019   Page 4 of 7
      the sentence is ordered suspended or otherwise crafted using any of the variety

      of sentencing tools available to the trial judge.”).


[8]   With that in mind, we address the nature of Shelton’s offense and her character.

      Shelton does not dispute that this was a serious crime with serious

      consequences. When Shelton saw Matthew approaching, she “jumped up”

      from her seat, “lunged” at Matthew with a knife in her hand, and stabbed him

      in the back. As a result of the attack, Matthew had to be airlifted to a hospital

      and, according to his victim-impact statement, had to be hospitalized twice

      more in the months that followed, had to have emergency surgery, and “almost

      died.” Appellant’s App. Vol. II p. 212.


[9]   Nor does Shelton dispute that her lengthy criminal history reflects poorly on her

      character. Most notably, this was not the first time Shelton stabbed someone.

      In 2013, she was convicted of Class D felony criminal recklessness after

      stabbing her stepfather. She claims that she did so in self-defense, but the felony

      conviction suggests otherwise. In addition to that conviction, Shelton had two

      juvenile adjudications (theft in 2002 and alcohol consumption in 2003) and

      eleven misdemeanor convictions (public intoxication in 2005, trespass in 2006

      (reduced from felony residential entry), public intoxication in 2009, operating

      while intoxicated in 2010, criminal conversion in 2010 (reduced from felony

      theft), resisting law enforcement in 2011, public intoxication in 2014, trespass in

      2015, visiting a common nuisance and possession of paraphernalia in 2016, and

      theft in 2017). Shelton also had numerous probation violations in relation to

      those convictions, including the conviction for the earlier stabbing.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1261 | March 14, 2019   Page 5 of 7
[10]   Nonetheless, Shelton argues that her sentence is inappropriate for two reasons.

       First, she asserts that Matthew provoked her to attack. She does not cite any

       actual trial testimony in support of this assertion. Even Shelton did not testify

       that Matthew provoked her—she testified that Matthew violently attacked her

       and that she stabbed him in self-defense, a claim that the jury rejected. Still,

       Shelton contends that “the jury did not believe that [she] acted without

       provocation.” Appellant’s Br. p. 16. In support of this claim, she cites her own

       attorney’s closing argument at the sentencing hearing. There, her attorney

       noted that, after trial, a juror remarked that the prosecutor “didn’t charge

       enough people.” Tr. Vol. VI p. 164. Needless to say, the fact that a juror

       believed that Matthew should have been charged with something does not

       mean that the jury, as a whole, believed that Matthew provoked Shelton.


[11]   Shelton’s primary argument, though, is that she has experienced significant

       trauma that explains both her actions in this case and her criminal history. She

       says that her mother was an addict who paid little attention to her and who was

       abusive and dated abusive men; that her biological father was in prison for most

       of her life and raped her when she was 10 or 11 and again when she was 21 or

       22; that her stepfather was very abusive and once shot at her mother with a

       shotgun; that her family moved frequently and that she attended seven different

       schools before she was expelled during her freshman year in high school; and

       that she was diagnosed with ADD, bipolar disorder, and depression. She says

       that she started experimenting with alcohol and marijuana when she was 10,

       that she later abused Xanax and started using cocaine and meth, and that she


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1261 | March 14, 2019   Page 6 of 7
       used drugs daily from the time she was 16 until the time of the attack on

       Matthew. She says that one of her drug suppliers, with whom she was living at

       the time, fired a gun at her. She says that she was diagnosed with PTSD after

       stabbing her stepfather. Shelton contends that her criminal history “reflected

       her serious addiction to drugs and her abusive relationship with her stepfather,”

       Appellant’s Br. p. 12, and that she perceived Matthew as a threat and

       overreacted because of her history of being abused by men.


[12]   We agree with the trial court that the past Shelton describes is horrific. Tr. Vol.

       VI p. 169 (“[I]t clearly has been chaotic, and a life, if all true, no one would

       want to go through[.]”). However, we also agree with the trial court’s

       conclusion that Shelton’s past, “in and of itself, does not, in any way, justify

       what the jury found was a non-defense-related attack on this victim with a

       knife, causing substantial injury.” Id. The purpose of 7(B) review is to “leaven

       the outliers.” Cardwell, 895 N.E.2d at 1225. Given the seriousness of Shelton’s

       crime, her prior felony conviction for a stabbing and her other criminal history,

       and her failure to take advantage of previous opportunities for rehabilitation,

       her above-advisory sentence of sixteen years with three years suspended is not

       an outlier.


[13]   Affirmed.


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




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1261 | March 14, 2019   Page 7 of 7
