MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                               FILED
this Memorandum Decision shall not be                            Jun 18 2020, 6:27 am
regarded as precedent or cited before any
                                                                     CLERK
court except for the purpose of establishing                     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
Joseph P. Hunter                                         Curtis T. Hill, Jr.
Quirk and Hunter, P.C.                                   Attorney General of Indiana
Muncie, Indiana
                                                         Benjamin J. Shoptaw
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Dillon G. Jackson,                                       June 18, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-3079
        v.                                               Appeal from the Delaware Circuit
                                                         Court
State of Indiana,                                        The Honorable Thomas A.
Appellee-Plaintiff.                                      Cannon, Jr., Judge
                                                         Trial Court Cause No.
                                                         18C05-1707-MR-5



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-3079 | June 18, 2020            Page 1 of 11
                                       Statement of the Case
[1]   Dillon Jackson appeals his sentence following his convictions for reckless

      homicide, a Level 5 felony, and pointing a firearm, as a Level 6 felony,

      following a jury trial. Jackson presents two issues for our review:


              1.       Whether the trial court abused its discretion when it
                       sentenced him.

              2.       Whether the trial court erred when it did not apply the
                       sentencing cap under Indiana Code Section 35-50-1-2.


[2]   We affirm.


                                 Facts and Procedural History
[3]   In July 2017, Jackson and Tracy Wheat were best friends and roommates.

      During the evening of July 22 and the early morning hours of July 23, Jackson,

      Wheat, Jacob Knight, and Storm Rollins were drinking alcohol and smoking

      marijuana at Jackson and Wheat’s home in Muncie. At approximately 5:00

      a.m., Knight found Jackson and Wheat in the kitchen, and he saw Wheat grab

      a knife sharpener. In response, Jackson shot Wheat in the head from close

      range. Knight told Jackson to call 9-1-1, which Jackson did after some delay.

      Wheat was still alive when Delaware County Sheriff’s Deputy Grant Delagarza

      arrived at the scene. EMTs transported Wheat to the local hospital, and he was

      placed on life support. After consulting with the doctors, Wheat’s parents took

      him off of life support and he died.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-3079 | June 18, 2020   Page 2 of 11
[4]   The State charged Jackson with felony murder and pointing a firearm, as a

      Level 6 felony. A jury found Jackson guilty of reckless homicide, a Level 5

      felony, and pointing a firearm, as a Level 6 felony. The trial court entered

      judgment of conviction accordingly and sentenced Jackson to consecutive terms

      of six years for reckless homicide and two years for pointing a firearm, for an

      aggregate eight-year term. This appeal ensued.


                                     Discussion and Decision
                            Issue One: Abuse of Discretion in Sentencing

[5]   Jackson first contends that the trial court abused its discretion when it

      sentenced him. Sentencing decisions lie within the sound discretion of the trial

      court. Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008). An abuse of

      discretion occurs if the decision is “clearly against the logic and effect of the

      facts and circumstances before the court, or the reasonable, probable, and actual

      deductions to be drawn therefrom.” Gross v. State, 22 N.E.3d 863, 869 (Ind. Ct.

      App. 2014) (citation omitted), trans. denied.


[6]   A trial court abuses its discretion in sentencing if it does any of the following:


              (1) fails “to enter a sentencing statement at all;” (2) enters “a
              sentencing statement that explains reasons for imposing a
              sentence—including a finding of aggravating and mitigating
              factors if any—but the record does not support the reasons;” (3)
              enters a sentencing statement that “omits reasons that are clearly
              supported by the record and advanced for consideration;” or (4)
              considers reasons that “are improper as a matter of law.”



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-3079 | June 18, 2020   Page 3 of 11
      Id. (quoting Anglemyer v. State, 868 N.E.2d 482, 490-91 (Ind.), clarified on reh’g on

      other grounds, 875 N.E.2d 218 (Ind. 2007)).


[7]   In its sentencing statement, the trial court identified the following mitigators:

      Jackson’s youth (twenty-two); he has the emotional and personal support of

      family and friends; he was gainfully employed; and he is remorseful. In

      addressing aggravating factors, the court stated in relevant part as follows:


              The sentencing range for an adult convicted of Reckless
              Homicide, as a Level 5 felony, is one (1) to six (6) years, with the
              advisory sentence being three (3) years. The sentencing range for
              an adult convicted of Pointing a Firearm, as a Level 6 felony, is
              six (6) months to two and one-half (2 1/2) years, with the
              advisory sentence being one (1) year.

              The Court determines the statutory aggravator set forth in I.C.
              35-38-1-7.1(a)(1) is applicable in this case. It reads: “The harm,
              injury, loss, or damage suffered by the victim of an offense was
              (a) significant, and (b) greater than the elements necessary to
              prove the commission of the offense.” Tracy Wheat died as a
              consequence of the defendant’s reckless actions after lingering at
              death’s door for many hours, hooked up to tubes and machines
              artificially keeping him alive, all the while suffering the
              indignities inherent in such a prolonged process. Tracy Wheat
              was nineteen (19) years old at the time of his death, preventing
              him from experiencing his entire adult life, which includes
              knowing and raising his son who was born months after his
              death.

              Apart from the listed statutory aggravating circumstance, there
              are several non-statutory aggravators that the Court considers to
              be significant.

              The death of Tracy Wheat was particularly devastating to the

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-3079 | June 18, 2020   Page 4 of 11
        family members, relatives, and friends he left behind. His death
        was senseless and tragic, leaving those that loved him
        understandably deeply grieving over his loss. His absence and
        their thoughts as to what might have been the future for and with
        him can never be satisfactorily remedied.

        The defendant, after he shot Tracy Wheat, took steps to conceal
        his crime, including delaying in calling 911, calling his father,
        instructing others present at the scene to leave and to provide
        false information to the authorities if contacted, and he also
        provided false and misleading information during the
        investigation.

        The defendant has significant substance abuse issues which he
        not only has failed to address voluntarily, but also he seems to
        deny. As self-reported in the presentence investigation report, the
        defendant began drinking alcohol and smoking marijuana at age
        fourteen (14); at age eighteen (18) he began snorting cocaine and
        hydrocodone; then, at age nineteen (19) he “experimented” with
        ingesting LSD/acid. His alcohol use is advanced enough that he
        reports experiencing hangovers and headaches, vomiting, passing
        out, blackouts, and engaging in morning drinking, all common
        symptoms of the disease of alcoholism. Incredibly, the defendant
        concludes that his drug abuse is “recreational use.” The
        defendant’s substance abuse was a significant aggravating factor
        in the crimes for which he has been convicted, yet the defendant
        has been unable or unwilling to recognize his problem. Available
        at the Delaware County Jail are addictions recovery programs,
        yet there is no evidence that the defendant has taken any steps to
        avail himself of any of these programs.

        The facts of this case are particularly disturbing. In the six hours
        leading up to the death of Tracy Wheat, there occurred repeated
        acts of reckless behavior primarily orchestrated by the defendant.
        Five underage teenagers gathered at the defendant’s residence for
        a night of drinking and smoking marijuana. A half-gallon of
        alcohol was consumed and a substantial amount of marijuana

Court of Appeals of Indiana | Memorandum Decision 19A-CR-3079 | June 18, 2020   Page 5 of 11
        was smoked. The defendant and one of the other partygoers
        fired their guns outside randomly towards a wooded area on the
        property. The defendant was waving his father’s new gun
        around, and passing the gun around even though it was still
        loaded with one round of ammunition and ended up pointing it
        at Tracy Wheat. Later, the defendant took the gun, chambered
        the last bullet remaining in the gun, and went outside to confront
        the occupants of an automobile that pulled up in his driveway
        and after determining that they were not a threat, did not
        unload his gun, nor put it up. Thereafter, he had this locked and
        loaded weapon in his hand when it went off striking the fatal
        wound to Tracy Wheat’s head literally at point blank range. The
        defendant then took various actions to cover up what had
        occurred as previously mentioned.

        The defendant was in a position of trust with Tracy Wheat by his
        own description of their relationship. The evidence introduced
        during the trial showed that the Defendant and Tracy were not
        just friends, but more accurately viewed each other as brothers.
        The relationship that existed between these two clearly shows a
        position of trust between them. The Defendant’s actions were a
        complete betrayal of the friendship that he had with Tracy. As
        such, it should be considered as an aggravating circumstance.

        Finally, the defendant’s character, at least at this point in his life,
        can be summed up by noting his agreement, as set out in the
        presentence report, with the phrase, “Do Unto Others Before
        They Do Unto You.” From the facts and evidence involved in
        this case, the defendant seems to possess personality
        characteristics that are self-indulgent, and lacking in self-
        awareness and impulse control. The Court concludes that the
        defendant appears to be obsessed with guns and violence and
        until he recognizes the effect of his substance abuse issues it is
        likely that he continues to present a danger to others in the
        community.

        The Court recognizes and understands the elements of Reckless

Court of Appeals of Indiana | Memorandum Decision 19A-CR-3079 | June 18, 2020   Page 6 of 11
              Homicide, but under the facts of this case believes the
              recklessness element proved at trial involves reckless conduct to
              the extreme.

              Having considered the nature of the offenses and the character of
              the defendant, the Court believes the aggravating circumstances
              outweigh the mitigating circumstances and strongly balance in
              support of a fully enhanced sentence. Anything less than a fully
              executed sentence would diminish the unpardonable conduct of
              the defendant, and alternative sentencing options are simply not
              appropriate.


      Appellant’s App. Vol. 3 at 73-76.


[8]   On appeal, Jackson asserts that the trial court abused its discretion when it:

      considered the material elements of reckless homicide as an aggravator;

      considered the impact of Wheat’s death on his family as an aggravator; and

      “overlooked significant mitigating circumstances in sentencing” him.

      Appellant’s Br. at 18. We address each contention in turn.


                                     Material Elements of the Offense

[9]   Jackson’s argument on this issue is three sentences long:


              That “Tracy Wheat died as a consequence of [Jackson’s] reckless
              actions” are the material elements of the offense of reckless
              homicide. A trial court may not use a material element of the
              offense as an aggravating circumstance. Spears v. State, 735
              N.E.2d 1161, 1167 (Ind. 2000). However, the trial court may
              find the nature and circumstances of the offense to be an
              aggravating circumstance. Id. (citing Dowdell v. State, 720 N.E.2d
              1146, 1154 (Ind. 1999).



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-3079 | June 18, 2020   Page 7 of 11
       Appellant’s Br. at 16.


[10]   Jackson takes the court’s statement on this issue out of context and

       mischaracterizes it. The full context of the court’s identification of this

       aggravator is as follows:


               The Court determines the statutory aggravator set forth in I.C.
               35-38-1-7.1(a)(1) is applicable in this case. It reads: “The harm,
               injury, loss, or damage suffered by the victim of an offense was
               (a) significant, and (b) greater than the elements necessary to
               prove the commission of the offense.” Tracy Wheat died as a
               consequence of the defendant’s reckless actions after lingering at
               death’s door for many hours, hooked up to tubes and machines
               artificially keeping him alive, all the while suffering the
               indignities inherent in such a prolonged process. Tracy Wheat
               was nineteen (19) years old at the time of his death, preventing
               him from experiencing his entire adult life, which includes
               knowing and raising his son who was born months after his
               death.


       Appellant’s App. Vol. 3 at 73. Thus, rather than merely relying on the elements

       of reckless homicide, the trial court found that Wheat’s prolonged death and

       young life cut short were significant harms and greater than the elements

       necessary to prove reckless homicide. We cannot say that the court abused its

       discretion when it found this aggravator.


                                               Impact on Family

[11]   Jackson asserts that the trial court erred when it found aggravating the impact

       of Wheat’s death on his family and friends. Jackson is correct that “under

       normal circumstances the impact upon family is not an aggravating

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-3079 | June 18, 2020   Page 8 of 11
       circumstance for purposes of sentencing.” Bacher v. State, 686 N.E.2d 791, 801

       (Ind. 1997). As such, we agree with Jackson that this aggravator is improper.

       However, it is well settled that a court’s reliance on an improper aggravator is

       harmless unless the defendant can show that the trial court would have imposed

       a different sentence absent the aggravator. See Kayser v. State, 131 N.E.3d 717,

       722 (Ind. Ct. App. 2019). And here, there were multiple other valid

       aggravating factors upon which the trial court relied in imposing Jackson’s

       sentence. Thus, we are confident that the trial court would have rendered the

       same sentence irrespective of this aggravator.


                                             Overlooked Mitigator

[12]   Jackson contends that the trial court erred when it did not consider his lack of

       criminal history to be a mitigating factor. But Jackson ignores the trial court’s

       statement indicating its reasons for not finding this proffered mitigator. As the

       court found,


               [a]lthough his felony convictions in this case are his first formal
               charges and convictions, his lifestyle choices have included
               criminal activities involving underage drinking and the illegal use
               and possession of drugs, and therefore it is a fiction to find that
               the defendant has led a law-abiding life for a substantial period of
               time before the commission of the crime.


       Appellant’s App. Vol. 3 at 72. The trial court did not err when it did not find

       Jackson’s lack of criminal history to be a mitigating factor. See Conley v. State,

       972 N.E.2d 864, 874 (Ind. 2012) (noting defendant’s lack of criminal history



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-3079 | June 18, 2020   Page 9 of 11
       was “offset by his actual criminal behavior of smoking marijuana and drinking

       alcohol”).


                               Issue Two: Episode of Criminal Conduct

[13]   Finally, Jackson contends that, under Indiana Code Section 35-50-1-2 (2017),

       the trial court was required to cap his sentence at seven years. That statute

       provides in relevant part as follows:


               (b) As used in this section, “episode of criminal conduct” means
               offenses or a connected series of offenses that are closely related
               in time, place, and circumstance.

               (c) [The court shall] determine whether terms of imprisonment
               shall be served concurrently or consecutively. . . .

                                                       ***

               The court may order terms of imprisonment to be served
               consecutively even if the sentences are not imposed at the same
               time. However, except for crimes of violence, the total of the
               consecutive terms of imprisonment, exclusive of terms of
               imprisonment under IC 35-50-2-8 and IC 35-50-2-10 (before its
               repeal) to which the defendant is sentenced for felony convictions
               arising out of an episode of criminal conduct shall not exceed the
               period described in subsection (d).

               (d) Except as provided in subsection (c), the total of the
               consecutive terms of imprisonment to which the defendant is
               sentenced for felony convictions arising out of an episode of
               criminal conduct may not exceed the following:

                                                       ***



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-3079 | June 18, 2020   Page 10 of 11
                        (2) If the most serious crime for which the defendant
                        is sentenced is a Level 5 felony, the total of the
                        consecutive terms of imprisonment may not exceed
                        seven (7) years.


       I.C. § 35-50-1-2.


[14]   Jackson asserts that, pursuant to this statute, his aggregate sentence for his

       convictions for reckless homicide (a crime of violence) and pointing a firearm

       (not a crime of violence) cannot exceed seven years. But, as the State correctly

       points out, our Supreme Court has squarely rejected Jackson’s contention on

       this issue. In Ellis v. State, the Court “interpreted the statute to exempt from the

       sentencing limitation (1) consecutive sentencing among crimes of violence, and

       (2) consecutive sentencing between a crime of violence and those that are not crimes of

       violence.” 736 N.E.2d 731, 737 (Ind. 2000) (emphases added). Accordingly,

       here, the trial court’s imposition of an eight-year aggregate sentence was not

       error.


[15]   Affirmed.


       Kirsch, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-3079 | June 18, 2020   Page 11 of 11
