MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                          FILED
regarded as precedent or cited before any                                 Jul 21 2017, 6:45 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
Sally Skodinski                                           Curtis T. Hill, Jr.
South Bend, Indiana                                       Attorney General of Indiana

                                                          Lyubov Gore
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Durwood Lee Elliott, Jr.,                                 July 21, 2017
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          71A04-1701-CR-95
        v.                                                Appeal from the St. Joseph
                                                          Superior Court
State of Indiana,                                         The Honorable Elizabeth C.
Appellee-Plaintiff                                        Hurley, Judge
                                                          Trial Court Cause No.
                                                          71D08-1606-F6-518



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 71A04-1701-CR-95 | July 21, 2017                 Page 1 of 5
                                             Case Summary

[1]   Durwood Elliott appeals his two-year sentence for invasion of privacy,

      disorderly conduct, and intimidation. He argues that his sentence is

      inappropriate. We disagree and affirm.


                             Facts and Procedural History                                   1




[2]   On May 25, 2016, Elliott pled guilty to invasion of privacy for violating a no-

      contact order protecting his wife, Mary, and he was sentenced to a year of

      probation. As a term of probation, he was ordered not to have any contact with

      Mary. Less than two weeks later, on June 7, 2016, Elliott, intoxicated, went to

      Mary’s house in South Bend. He banged on the door and demanded that she

      open it. When she refused, Elliott threatened to “kill her.” Tr. Vol. II p. 14.

      Mary called the police. When officers arrived, Elliott tried to leave the house.

      Officers attempted to handcuff him, and Elliott pulled away and struggled with

      them. They eventually had to tase him.




      1
        We take some of the facts from the probable-cause affidavit. The affidavit was incorporated by reference in
      the pre-sentence investigation report, the trial court relied upon this information in sentencing Elliott, and
      Elliott relied upon the affidavit in his brief.
      We also note that Elliott’s attorney failed to comply with Indiana Appellate Rule 50(C), which requires that
      the table of contents for an appendix “specifically identify each item contained in the Appendix, including
      the item’s date.” One entry in Elliott’s table of contents is “Clerk’s Record,” which is actually a compilation
      of numerous trial court documents that should have been separately identified. Furthermore, Elliott’s
      attorney did not include the date for any of the items in the appendix. We ask counsel to abide by Rule 50(C)
      in future appeals.

      Court of Appeals of Indiana | Memorandum Decision 71A04-1701-CR-95 | July 21, 2017                 Page 2 of 5
[3]   The State charged Elliott with Class A misdemeanor invasion of privacy (for

      violating the no-contact order), Class B misdemeanor disorderly conduct, and

      Class A misdemeanor intimidation. Elliott pled guilty to all three charges. At

      the sentencing hearing, the trial court took notice of Elliott’s criminal history,

      including at least seven felony and twenty-two misdemeanor convictions.

      Additionally, the court took notice that Elliott was on probation when he

      committed the instant offense. The trial court sentenced Elliott to one year for

      invasion of privacy, 180 days for disorderly conduct, and one year for

      intimidation. The trial court ordered the sentences for invasion of privacy and

      intimidation to be served consecutive to each other and concurrent to the

      sentence for disorderly conduct, for an aggregate sentence of two years.

[4]   Elliott now appeals his sentence.


                                 Discussion and Decision

[5]   Elliott contends that his two-year sentence is inappropriate in light of the nature

      of his offenses and his character. The Indiana Constitution authorizes

      independent appellate review and revision of a trial court’s sentencing decision.

      Brown v. State, 10 N.E.3d 1, 4 (Ind. 2014). This 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 defendant.” Ind. Appellate Rule 7(B). “[A] defendant

      must persuade the appellate court that his or her sentence has met this

      inappropriateness standard of review.” Childress v. State, 848 N.E.2d 1073, 1080

      Court of Appeals of Indiana | Memorandum Decision 71A04-1701-CR-95 | July 21, 2017   Page 3 of 5
      (Ind. 2006). 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. Cardwell

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


[6]   Here, Elliott faced up to two-and-a-half years in prison on his three convictions:

      one year on each Class A misdemeanor, see Ind. Code § 35-50-3-2, and six

      months on the Class B misdemeanor, see Ind. Code § 35-50-3-3. The trial court

      imposed an aggregate sentence of two years. Elliott has not persuaded us that

      this sentence is inappropriate.2

[7]   Turning first to the nature of the offense, Elliott went to Mary’s house in an

      intoxicated state just two weeks after being convicted of invading her privacy

      and ordered not to have any contact with her. Elliott argues that he did not

      intend to carry out his threats, but even if that were true, Mary had no way of

      knowing that. Although he notes that no physical harm was done to Mary or

      the officers, his conduct is still disturbing. He banged on Mary’s door and




      2
        Elliott easily could have faced more time. The invasion-of-privacy statute provides that the crime is a Class
      A misdemeanor unless the defendant “has a prior unrelated conviction for an offense under this section,” in
      which case it is a Level 6 felony. Ind. Code § 35-46-1-15.1. Because Elliott was convicted and sentenced for
      the same crime just two weeks earlier, his new invasion-of-privacy conviction could have been a felony. In
      fact, the caption of the State’s charging information indicated that it was charging him with two counts of
      invasion of privacy—one felony and one misdemeanor. However, the actual charging language of the
      “felony” count (Count I) was identical to the language of the misdemeanor count (Count II), making no
      mention of the prior conviction. Thus, when Elliot indicated his intent to plead guilty as charged, the trial
      court pointed out the deficient charging language of Count I, and the State moved to dismiss that count. If
      Elliott had been properly charged with and convicted of a Level 6 felony, he would have faced up to two-and-
      a-half years in prison on that count alone. See Ind. Code § 35-50-2-7(b). We are mindful of this fact as we
      evaluate his inappropriateness claim.

      Court of Appeals of Indiana | Memorandum Decision 71A04-1701-CR-95 | July 21, 2017                 Page 4 of 5
       insisted she open it. When Mary refused, he threatened to “kill her.” Tr. Vol.

       II p. 14. Although no physical harm was done, Elliott could have emotionally

       harmed Mary by his threats. Additionally, Elliott actively resisted arrest, which

       led officers to tase him before taking him to jail.

[8]    Elliott’s character does not fare much better. He has at least seven felony and

       twenty-two misdemeanor convictions. Elliott has been convicted of multiple

       crimes in which Mary was the victim. Moreover, Elliott was on probation

       during this offense. Elliott contends that much of his criminal history is related

       to his abuse of alcohol, but he does not direct us to any evidence that he has

       sought help for that problem or otherwise taken responsibility for it.

[9]    We conclude that Elliott’s two-year sentence is not inappropriate.3

[10]   Affirmed.

       Bailey, J., and Robb, J., concur.




       3
         Elliott also appears to argue that the trial court did not give enough mitigating weight to his guilty
       plea. However, our Supreme Court has made clear that a trial court’s weighing of aggravators and
       mitigators is no longer subject to review for abuse of discretion. Anglemyer v. State, 868 N.E.2d 482,
       491 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007).

       Court of Appeals of Indiana | Memorandum Decision 71A04-1701-CR-95 | July 21, 2017                     Page 5 of 5
