Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                                        Jul 07 2014, 9:29 am
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:

MARCE GONZALEZ, JR.                                  GREGORY F. ZOELLER
Dyer, Indiana                                        Attorney General of Indiana

                                                     KARL M. SCHARNBERG
                                                     Deputy Attorney General
                                                     Indianapolis, Indiana




                               IN THE
                     COURT OF APPEALS OF INDIANA

MAURICE V. BROWN,                                    )
                                                     )
       Appellant-Defendant,                          )
                                                     )
               vs.                                   )      No. 45A04-1311-CR-554
                                                     )
STATE OF INDIANA,                                    )
                                                     )
       Appellee-Plaintiff.                           )


                       APPEAL FROM THE LAKE SUPERIOR COURT
                          The Honorable Clarence D. Murray, Judge
                               Cause No. 45G02-1302-FC-17


                                           July 7, 2014

                MEMORANDUM DECISION - NOT FOR PUBLICATION

PYLE, Judge
                               STATEMENT OF THE CASE

          Following a guilty plea, Maurice Vance Brown (“Brown”) appeals his sentence for

his conviction of Class D felony stalking.1

          We affirm.

                                           ISSUE

          Whether Brown’s sentence is inappropriate pursuant to Indiana Appellate
          Rule 7(B).

                                          FACTS

           In January of 2013, Leslie Northern (“Northern”) ended a romantic relationship

with Brown. Between January 15th and 30th of 2013, Brown badgered Northern by

making threatening phone calls, leaving threatening voice messages, leaving threatening

text messages, and sending various photographs of his penis. Similarly, via text message,

Brown sent Northern a photograph of her deceased grandmother with a caption that stated,

“Ain’t this your bitch dead ass grandmother[?]” (App. 38). Additionally, Brown sent

naked photographs and videos of Northern to some of Northern’s Facebook friends and to

her landlord. Moreover, Brown told Northern that he had HIV and that he had infected

her. Brown also posted several pictures of Northern on Facebook and claimed on Facebook

that Northern had HIV. Following that, Brown repeatedly called Northern, her friends, and

her family. Brown left several voicemails threatening to harm Northern for putting his

belongings outside.



1
    IND. CODE § 35-45-10-5.
                                              2
       On January 16, 2013, a trial court issued a protective order for Northern against

Brown. Northern informed Brown of the protective order; however, Brown continued to

call and text Northern. As a result of Brown’s telephone calls and text messages, Northern

changed her telephone number. Brown obtained Northern’s new telephone number and

continued to call and text Northern; Brown also left Northern voicemail messages in which

he called her “derogatory names and threatened to do harm to her[.]” (App. 39).

       On January 25, 2013, while Northern was making a report to the police, Brown sent

Northern ten text messages, he called Northern ten times, and he left Northern two

voicemail messages. (App.39). Particularly, Brown left a voicemail message on Nothern’s

phone in which Brown maintained that he “didn’t give a fuck about going to jail.” (App.

39).

       On February 4, 2013, the trial court charged Brown with Class C felony stalking

and Class D felony intimidation. (App. vol. 1, 19). On August 19, 2013, pursuant to a

written plea agreement, Brown pled guilty to a reduced charge of Class D felony stalking

in exchange for the State’s dismissal of the Class C felony stalking and Class D felony

intimidation charges. During the guilty plea hearing, Brown entered into a stipulated

factual basis in which he admitted to the facts set forth above. (App. 35-39).

       On October 7, 2013, the trial court held a sentencing hearing. During the sentencing

hearing, Brown’s attorney asserted that Brown had “no excuses, whatsoever,” for his

actions other than that this was a “break-up situation” and that Brown had acted “more out

of anger.” (Tr. 25). When Brown addressed the trial court during sentencing, he agreed

                                             3
that his actions were merely done “out of anger.” (Tr. 28, 29). When sentencing Brown,

the trial court found Brown’s guilty plea to be a mitigating circumstance. The trial court

also found the following aggravating circumstances: (1) Brown’s thirteen “contacts with

law enforcement[,]” including four misdemeanor convictions; (2) Brown’s recent

probation violation; (3) the nature and circumstances of his crime, particularly Brown’s

posting of nude photographs of Northern on the internet and his threats against Northern’s

life and the lives of her children; (4) Brown’s past gang affiliation with the Latin Kings;

and (5) Brown’s fabrication about exposing Northern to HIV. (App. 41). The trial court

sentenced Brown to the maximum of three (3) years in the Department of Corrections.

Brown now appeals.

                                             DECISION

       Brown contends that his three (3) year sentence for his Class D felony stalking

conviction is inappropriate because the trial court did not consider his mental health

disorders.

       Under Appellate Rule 7(B), we may revise a sentence if it is inappropriate in light

of the nature of the offense and the character of the offender. Whether a sentence is

inappropriate ultimately depends 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.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). Our previous jurisprudence

has established that the principle role of a Rule 7(B) standard or review “should be to

attempt to leaven the outliers, and identify some guiding principles for trial courts and those

                                              4
charged with improvement of the sentencing statutes, but not to achieve a perceived

‘correct’ result in each case.” Id. at 1225. Moreover, the defendant has the burden of

persuading us that his sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080

(Ind. 2006).

       When determining whether a sentence is inappropriate, we acknowledge that the

advisory sentence “is the starting point the Legislature has selected as an appropriate

sentence for the crime committed.” Id. at 1081. The sentencing range for a Class D felony

is between six (6) months and three (3) years, with the advisory sentence being one and

one half (1 ½) years. IND. CODE § 35-50-2-7.

       1. The Nature of the Offense

       For approximately two weeks, Brown egregiously stalked Northern by sending her

a barrage of disconcerting texts messages and by inundating her phone with phone calls

and voicemail messages. Similarly, Brown sent naked photographs and indecent videos of

Northern to her friends, family, and landlord. Comparatively, in a text message, Brown

sent Northern a photograph of her deceased grandmother with an unsettling message asking

Northern, “Ain’t this your bitch dead ass grandmother[?]” (App. 38). Moreover, Brown

informed Northern that he exposed her to HIV. He also used Facebook to correspond with

Northern’s peers to claim that Northern had HIV. Furthermore, Brown called Northern ten

times and left Northern two voicemail messages while Northern was making a report to the

police. The record highlights the callous nature of Brown’s offense. Brown has not

convinced us that his sentence is inappropriate given the nature of this offense.

                                             5
       2.   The Character of The Offender

       As to Brown’s character, the presentence investigation report reveals that Brown

has had thirteen contacts with law enforcement and that he has four misdemeanor

convictions in Cook County Illinois for domestic battery, aggravated assault, obstructing

an officer, and cannabis possession. Moreover, Brown has violated his probation in Cook

County, Illinois. While the presentence investigation report indicates that Brown reported

that a doctor previously diagnosed him with paranoid schizophrenia and manic depression,

it also indicates that Brown’s diagnosis did not require prescription medication. At

sentencing, Brown attributed his behavior towards Northern to his anger with her for

ending their relationship. Conversely, on appeal, Brown blames his actions on mental

illness. Despite his failure to raise his mental illness argument at sentencing, his mental

illness does not mitigate the other facts in the record regarding his character. Anglemyer

v. State, 868 N.E.2d 482, 492 (Ind. 2007) (citing Creekmore v. State, 853 N.E.2d 523, 530

(Ind. Ct. App. 2006) (“[I]f the defendant fails to advance a mitigating circumstance at the

sentencing, this court will presume that the factor is not significant, and the defendant is

precluded from advancing it as a mitigating circumstance for the first time on appeal.”),

clarified on reh’g, 858 N.E.2d 230 (Ind. 2006)), clarified on reh’g, 875 N.E.2d 218 (Ind.

2006). Additionally, Brown called Northern and told her that he “didn’t give a fuck about

going to jail” after Northern informed Brown of her protective order against him and after

Northern changed her phone number. (App. 39). Brown’s history of criminal activity, his

blatant defiance of the protective order, and his recent probation violation reflect poorly on

                                              6
his character and indicate that Brown has a disregard for the law. Brown has not persuaded

us that his sentence is inappropriate. Therefore, we affirm the trial court’s sentence.

   Affirmed.

FRIEDLANDER, J., and MATHIAS, J., concur.




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