MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                                   FILED
regarded as precedent or cited before any                                  Jul 31 2019, 11:27 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
Karen Celestino-Horseman                                  Curtis T. Hill, Jr.
Of Counsel, Austin & Jones, P.C.                          Attorney General of Indiana
Indianapolis, Indiana                                     Samuel J. Dayton
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Roderick Nelson,                                          July 31, 2019
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          19A-CR-218
        v.                                                Appeal from the Marion Superior
                                                          Court
State of Indiana,                                         The Honorable Lisa F. Borges,
Appellee-Plaintiff.                                       Judge
                                                          Trial Court Cause No.
                                                          49G04-1707-F2-25324



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-218 | July 31, 2019                           Page 1 of 11
[1]   Roderick Nelson appeals his sentence for armed robbery as a level 3 felony as

      enhanced by his status as an habitual offender, residential entry as a level 6

      felony, and two counts of unlawful possession of a firearm by a serious violent

      felon as level 4 felonies. He raises one issue which we revise and restate as

      whether his sentence is inappropriate in light of the nature of the offenses and

      his character. We affirm.


                                      Facts and Procedural History

[2]   In June 2017, Herbert Coleman, who went by the nickname Big Baby and has

      chronic degenerative disk disease and chronic back pain, lived in a house in

      Indianapolis with his son and his son’s girlfriend. At that time, Coleman knew

      Nelson by the nickname Roger and had known him for about a month and a

      half, and he had been to Coleman’s house a couple of times with one of

      Coleman’s friends.


[3]   On June 20, 2017, Coleman was awakened by Nelson who was nudging him in

      the face with a gun. Nelson was with Lemon, a man Coleman knew from the

      neighborhood, and “a white guy that had [a] yellow bandanna over his face”

      looking in the window. Transcript Volume II at 54. Coleman tried to reach for

      his pellet pistol, but Nelson told him, “Uh-uh, uh-uh, move, move,” and made

      him sit down. Id. Nelson pulled the mattress out and “tore the bed up looking

      for stuff.” Id. at 55.


[4]   Nelson made Coleman move from the bed to a chair, told him to sit there, and

      took his wallet out of his pocket, which contained forty or fifty dollars, his bank


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-218 | July 31, 2019   Page 2 of 11
      card, and his insurance disability card. While Coleman was sitting in the chair,

      Nelson said: “You must don’t know who I am. I’m Roger.” Id. at 61. Nelson

      raised up his shirt, and Coleman observed a scar from his navel to his chest.

      Lemon stood at the back door “watching out,” while the white male was

      “loading stuff,” including his TVs and a DVD player, and “taking it out to the

      SUV.” Id. at 56. Nelson took Coleman’s collection of DVDs. One of the men

      threw Coleman’s glucose meter in a five-gallon bucket of paint. Nelson and the

      others left in a white SUV, and Coleman called 911.


[5]   Meanwhile, Coleman’s neighbor, Edward Embry, who had suffered a stroke in

      2009 and was on disability, lived with his wife Stacey and had a camera at his

      back door which allowed him to view the back of Coleman’s property. He

      observed Nelson and others place things in a white SUV.


[6]   Sometime later, Embry and Stacey saw Nelson talking to a friend, and Stacey

      called the friend and told the friend he did not need to be around Nelson if he

      was doing what everybody said he did, but she did not realize she was on

      speakerphone during the call. Later, Nelson and two other people entered

      Embry’s home through a closed screen door. Nelson had a pistol with him and

      told Embry and Stacey that he “didn’t do something,” and Embry told him that

      he did not care and to go back outside. Id. at 107. Nelson said “your wife, you

      know, running her mouth.” Id. He also said, “Eddie, I respect you,” put his

      hand on his pistol, and started to bring the pistol up when Stacey jumped in the

      middle and started screaming, “No, don’t do it. It’s not worth it, don’t, don’t,

      don’t don’t.” Id. at 107, 128. Embry also had a gun and told Nelson: “My wife

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-218 | July 31, 2019   Page 3 of 11
      ain’t got nothing to do with this.” Id. at 108. He also yelled at the two people

      with Nelson: “This s*** is gonna to get you guys killed.” Id. at 108. Nelson

      and the others then left.


[7]   On July 10, 2017, the State charged Nelson with: Count I, burglary as a level 2

      felony; Count II, armed robbery as a level 3 felony; Count III, unlawful

      possession of a firearm by a serious violent felon as a level 4 felony; Count IV,

      residential entry as a level 6 felony; Count V, pointing a firearm as a level 6

      felony; and Count VI, unlawful possession of a firearm by a serious violent

      felon as a level 4 felony. On November 13, 2018, the State filed a notice of

      intent to have Nelson sentenced as an habitual offender.


[8]   In December 2017, Coleman was placed in Marion County Jail II, also known

      as the CCA, and was placed in the same room as Nelson during the first day.

      At some point, another inmate gave Coleman a note from Nelson which read in

      part:


              I’m sorry what happened. I was cracked out and lost bad.
              Everyday I sit here want take things that I done. I’m sorry and I
              hope you can forgive me Big Bro. Look, my mother is at old age
              and I’m not trying to be in prison for life knowing that I couldn’t
              say bye, Bro. I was off all types of drugs Big Baby. Please
              forgive me.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-218 | July 31, 2019   Page 4 of 11
       Id. at 165. 1


[9]    On November 26 and 27, 2018, the court held a jury trial. The jury found

       Nelson guilty of armed robbery as a level 3 felony and residential entry as a

       level 6 felony and not guilty of burglary as a level 2 felony and pointing a

       firearm as a level 6 felony. Nelson then pled guilty to two counts of unlawful

       possession of a firearm by a serious violent felon as level 4 felonies and

       admitted to his status as an habitual offender.


[10]   At the sentencing hearing, Nelson’s counsel asked for a total sentence of

       twenty-four years with sixteen years in the Department of Correction (“DOC”)

       and eight years in community corrections. The court found Nelson’s criminal

       history to be a significant aggravator, noted his conduct at the DOC, and

       acknowledged he had not had problems while at the CCA. The court stated: “I

       do find that the victims – the couple that lived next door are clearly disabled

       and infirm. And that the victim of this offense was a disabled individual. And

       I think its something that you knew.” Transcript Volume III at 28. The court

       recognized that he had admitted to some of the charges and being an habitual

       offender as mitigators. The court found that the aggravators far outweighed the

       mitigators.




       1
        The text of the letter included in the record is difficult to decipher. When Detective Wanda Perry was
       asked to read the letter aloud, she provided the foregoing text in her answer without objection.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-218 | July 31, 2019                    Page 5 of 11
[11]   The court sentenced Nelson to sixteen years for Count II, armed robbery as a

       level 3 felony, and enhanced that sentence by twenty years for his status as an

       habitual offender, twelve years for Count III, unlawful possession of a firearm

       by a serious violent felon as a level 4 felony, two years for Count IV, residential

       entry as a level 6 felony, and ten years for Count VI, unlawful possession of a

       firearm by a serious violent felon as a level 4 felony. The court ordered that the

       sentences for Counts II and III be served consecutive to each other, that the

       sentence for Count IV be served concurrent to Count VI, and that Count VI be

       served consecutive to Count III. The court stated: “I will recommend the

       Therapeutic Community. However, I will not consider a sentence modification

       for that, all right. . . . I’m not going to put you on probation or Community

       Corrections, or suspend any of that time. I just think that that has never

       worked for you, and to [sic] I am not going to do that.” Id. at 29.


                                                    Discussion

[12]   The issue is whether Nelson’s sentence is inappropriate in light of the nature of

       the offenses and his character. Nelson argues that he was sentenced to the

       maximum sentences for Count II, robbery as a level 3 felony, and Count III,

       possession of a firearm by a serious violent felon as a level 4 felony. He

       contends that his criminal history, while lengthy, does not involve much in the

       way of violent crimes. He also argues that there was no evidence presented that

       he knew or should have known about the infirmities of Coleman and Embry.

       He contends that he will be unable to provide emotional or financial support to

       his children during the remainder of their childhood due to his sentence, that he

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-218 | July 31, 2019   Page 6 of 11
       pled guilty to two counts of unlawful possession of a firearm as a serious violent

       felon and admitted to being an habitual offender, that he apologized to

       Coleman before trial, that he had never been offered the opportunity to

       participate in a substance abuse program while in prison, and that he completed

       four twelve-week programs regarding living without violence, substance abuse,

       victim impact, and living positively. The State argues that Nelson’s sentence is

       not inappropriate in light of his extensive criminal history, disrespect for the

       law, illegal possession of firearms, and threats of violence against multiple

       disabled victims.


[13]   Ind. Appellate Rule 7(B) provides that we “may revise a sentence authorized by

       statute if, after due consideration of the trial court’s decision, [we find] that the

       sentence is inappropriate in light of the nature of the offense and the character

       of the offender.” Under this rule, the burden is on the defendant to persuade

       the appellate court that his or her sentence is inappropriate. Childress v. State,

       848 N.E.2d 1073, 1080 (Ind. 2006).


[14]   Ind. Code § 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.” Ind. Code § 35-50-2-8

       provides that a court “shall sentence a person found to be a habitual offender to

       an additional fixed term that is between . . . six (6) years and twenty (20) years,

       for a person convicted of murder or a Level 1 through Level 4 felony” and that

       “[a]n additional term imposed under this subsection is nonsuspendible.” Ind.

       Code § 35-50-2-5.5 provides that a person who commits a level 4 felony “shall

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-218 | July 31, 2019   Page 7 of 11
       be imprisoned for a fixed term of between two (2) and twelve (12) years, with

       the advisory sentence being six (6) years.” Ind. Code § 35-50-2-7 provides that

       a person who commits a level 6 felony “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.”


[15]   Our review of the nature of the offenses reveals that Coleman suffered from

       chronic degenerative disk disease and chronic back pain, and Nelson nudged

       him with a gun in the face while he was sleeping and made Coleman move

       from the bed to a chair. Nelson and others with him took Coleman’s DVDs,

       TVs, a DVD player, and his wallet, which contained cash and his insurance

       disability card. One of the men threw Coleman’s glucose meter in a five-gallon

       bucket of paint. Nelson later entered the home of Embry, who had suffered a

       stroke and was on disability, and started to bring the pistol up when Stacey

       jumped in the middle and started screaming. The presentence investigation

       report (“PSI”) states: “When asked about the Instant Offense the defendant

       admitted, ‘I took the television and sold it’ admitting he used the money for

       drugs.” Appellant’s Appendix Volume III at 103.


[16]   Our review of the character of the offender reveals that Nelson pled guilty to

       two counts of unlawful possession of a firearm by a serious violent felon as level

       4 felonies and admitted to his status as an habitual offender after the jury found

       him guilty of armed robbery as a level 3 felony and residential entry as a level 6

       felony. Nelson has a lengthy criminal history. As a juvenile, he had true

       findings for disorderly conduct in 1996 and possession of marijuana/hash

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-218 | July 31, 2019   Page 8 of 11
oil/hashish and disorderly conduct in 1997. He also had multiple charges

including rioting, battery, battery resulting in bodily injury, which were either

dismissed, resulted in no action taken, or in which prosecution was rejected. As

an adult, Nelson has convictions for two counts of resisting law enforcement as

class D felonies, failure to stop after an accident as a class B misdemeanor, and

possession of marijuana/hash oil/hashish as a class A misdemeanor in 2000;

resisting law enforcement as a class A misdemeanor in 2001; auto

theft/receiving stolen parts as a class D felony, two counts of criminal trespass

as class A misdemeanors, and resisting law enforcement as a class A

misdemeanor in 2002; possession of marijuana/hash oil/hashish as a class A

misdemeanor, operating a motor vehicle without ever receiving a license as a

class C misdemeanor, criminal recklessness, and carrying a handgun without a

license as a class A misdemeanor in 2003; possession of cocaine or a schedule I

or II drug as a class D felony, robbery as a class C felony, intimidation as a class

C felony, intimidation as a class D felony, criminal confinement as a class D

felony, and battery as a class A misdemeanor in 2005; operating a vehicle while

intoxicated in 2006; strangulation as a class D felony in 2010; strangulation as a

class D felony and domestic battery as a class A misdemeanor in 2011;

operating while intoxicated endangering a person and criminal conversion as

class A misdemeanors in 2012; and two counts of counterfeiting as class D

felonies in 2014. The PSI also listed pending charges of residential entry as a

level 6 felony and criminal mischief as a class B misdemeanor in Marion

County under cause number 49G04-1707-F6-27563 (“Cause No. 63”). At the

sentencing hearing, Nelson pled guilty to residential entry as a level 6 felony

Court of Appeals of Indiana | Memorandum Decision 19A-CR-218 | July 31, 2019   Page 9 of 11
       related to events on July 23, 2017, under Cause No. 63, the State dismissed the

       remaining count, and the court ordered the sentence under Cause No. 63 be

       served concurrently with the sentence under the present case. The PSI

       summarizes Nelson’s adult history as including twenty-seven arrests resulting in

       nine misdemeanor convictions and nine felony convictions. Nelson had his

       probation revoked multiple times. The PSI states that the DOC records

       indicate forty-five incidents including fighting and disorderly conduct.


[17]   The PSI further indicates Nelson first consumed alcoholic beverages at the age

       of sixteen, used marijuana prior to his incarceration whenever he had the

       money or was around someone who had it, and used cocaine in the amount of

       one-half ounce a week prior to his arrest. The PSI states that, regarding any

       substance abuse treatment, he “replied, ‘just last year when I was in CCA,’” but

       it also states that he claimed he never sought substance abuse treatment. Id. at

       104. The PSI indicates that he has a fifteen-year-old daughter who lives with

       her mother in Anderson and a one-year-old daughter who lives in foster care.

       He advised that he was not ordered to pay child support for his children. The

       PSI indicates that his overall risk assessment score places him in the very high

       risk to reoffend category.


[18]   After due consideration and in light of his lengthy criminal history, we

       conclude that Nelson has not sustained his burden of establishing that his




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-218 | July 31, 2019   Page 10 of 11
       aggregate sentence is inappropriate in light of the nature of the offenses and his

       character. 2


[19]   For the foregoing reasons, we affirm Nelson’s sentence.


[20]   Affirmed.


       Altice, J., and Tavitas, J., concur.




       2
         To the extent Nelson argues the court abused its discretion by finding that he violated the conditions of
       pretrial release as an aggravator, we need not address this issue because we find that his sentence is not
       inappropriate under Ind. Appellate Rule 7(B). See Windhorst v. State, 868 N.E.2d 504, 507 (Ind. 2007)
       (holding that, in the absence of a proper sentencing order, Indiana appellate courts may either remand for
       resentencing or exercise their authority to review the sentence pursuant to Ind. Appellate Rule 7(B)), reh’g
       denied; Shelby v. State, 986 N.E.2d 345, 370 (Ind. Ct. App. 2013) (holding that “even if the trial court did
       abuse its discretion by failing to consider the alleged mitigating factor of residual doubt, this does not require
       remand for resentencing”), trans. denied; Chappell v. State, 966 N.E.2d 124, 134 n.10 (Ind. Ct. App. 2012)
       (holding that any error in sentencing is harmless if the sentence imposed is not inappropriate), trans. denied;
       Mendoza v. State, 869 N.E.2d 546, 556 (Ind. Ct. App. 2007) (citing Windhorst and holding that, “even if the
       trial court is found to have abused its discretion in the process it used to sentence the defendant, the error is
       harmless if the sentence imposed was not inappropriate”), trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-218 | July 31, 2019                         Page 11 of 11
