MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any                             Sep 28 2016, 6:36 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
Frederick Vaiana                                        Gregory F. Zoeller
Voyles Zahn & Paul                                      Attorney General of Indiana
Indianapolis, Indiana
                                                        Justin F. Roebel
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Taiwan Lundy,                                           September 28, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        49A04-1509-CR-1447
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Mark D. Stoner,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        49G06-1311-FA-72474



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A04-1509-CR-1447| September 28, 2016       Page 1 of 15
[1]   Taiwan Lundy appeals his sentence for twenty-nine convictions in connection

      with an extended home invasion. Lundy raises one issue which we revise and

      restate as whether the trial court abused its discretion in sentencing him. We

      affirm.


                                      Facts and Procedural History

[2]   At approximately 5:00 a.m. on October 24, 2013, Adrian Anthony, Trae Spells,

      Michael Pugh, and Lundy broke into a home in Indianapolis belonging to R.N.

      and B.N. One of the men entered the bedroom and held R.N. and B.N. at

      gunpoint, and the other men grabbed their cell phones and ransacked the house,

      taking anything of value including jewelry, purses, a vase containing coins,

      cologne, watches, electronics, DVD players, an iPod, and televisions.


[3]   The men demanded money, and R.N. indicated their money was in the bank.

      One of the men fired a gun within a foot of R.N.’s head, shooting the wall.

      R.N. identified his debit card and wrote down his pin code so the men could

      use the ATM, and one of the men drove B.N.’s Jeep to an ATM. The men at

      the house stated that, if the man who went to the ATM was unable to obtain

      money, they were going to kill R.N. and B.N. The man who went to the ATM

      returned and stated “[t]hey lied. It didn’t work. The pin code didn’t work” and

      “[l]et’s shoot them.” Transcript at 69, 219.


[4]   The men took R.N. and B.N. from the bedroom to a living room, ordered them

      to their knees, and placed a pillow over their heads. R.N. and B.N. believed

      they were going to be shot at that point. The men kicked R.N. in the head, and


      Court of Appeals of Indiana | Memorandum Decision 49A04-1509-CR-1447| September 28, 2016   Page 2 of 15
      R.N. pleaded with the men until they agreed to take him to the ATM. R.N.

      drove Anthony, who held R.N. at gunpoint, to the ATM. R.N. attempted to

      withdraw money, but was unsuccessful because access to his account had been

      locked due to the number of unsuccessful prior attempted transactions, and

      Anthony stated “[y]ou lied to me again. You guys are dead. You are dead

      absolutely.” Id. at 79. R.N. told Anthony that B.N. had a separate account

      with a separate debit card, Anthony agreed to retrieve B.N.’s debit card, and

      R.N. drove back to the house. While Anthony and R.N. were traveling to and

      from the ATM, the other men removed televisions from the walls. One of the

      men forced B.N. to lay on the floor with a blanket over her head, rubbed her

      back, butt, and breasts, and stated that “if he had a condom he would rape [her]

      but he didn’t want his DNA inside” her. Id. at 229.


[5]   After R.N. and Anthony returned to the house, Anthony forced B.N. at

      gunpoint to drive him to the ATM. There, B.N. attempted to withdraw $800

      but it did not work, and then she successfully withdrew $500. B.N. then

      unsuccessfully attempted to make additional withdrawals. Anthony told B.N.

      to tell the other men that she was able to withdraw only $400. Meanwhile, as

      Anthony and B.N. were traveling to and from the ATM, Spells asked R.N. for a

      passcode to a computer, which R.N. did not provide. R.N. was tied up with an

      orange extension cord, and Spells and Lundy struck R.N. with an iron urn,

      shattered a glass vase on his head, hit him in the head with a pizza stone, and

      punched him in the face.




      Court of Appeals of Indiana | Memorandum Decision 49A04-1509-CR-1447| September 28, 2016   Page 3 of 15
[6]   Anthony and B.N. arrived back at the house, the men bound B.N. with a rope

      or cord and duct tape, and one of the men wrapped a cord around B.N.’s neck

      and “touched [her] vagina really forcefully.” Id. at 247. The men struck R.N.

      and B.N. on their heads severely and repeatedly with a DVD player, and the

      blows were so forceful that B.N. at first thought she had been shot. The men

      loaded items into R.N. and B.N.’s Jeep and Subaru. Spells initially attempted

      to drive the Subaru but did not know how to drive a manual transmission, and

      he left the vehicle against a light post in the front yard of the house. After the

      men left, R.N. and B.N. removed their restraints, ran to a neighbor’s house, and

      called 911. The police discovered the Jeep and recovered some of the stolen

      items.


[7]   The State, in an amended charging information, alleged Lundy, Anthony,

      Spells, and Pugh committed burglary as a class A felony, conspiracy to commit

      burglary as a class A felony, three counts of robbery as class B felonies, eleven

      counts of criminal confinement as class B felonies, two counts of intimidation

      as class C felonies, attempted robbery as a class B felony, thirteen counts of

      forgery as class C felonies, conspiracy to commit forgery as a class C felony,

      sexual battery as a class C felony, criminal deviate conduct as a class A felony,

      three counts of battery as class C felonies, and two counts of carjacking as class

      B felonies. Anthony, Pugh, and Lundy were tried together, and Spells testified

      that he entered a plea agreement, that his understanding was that he could be

      sentenced to fifty to eighty years, and that he agreed to testify in this case. The

      jury was given an instruction on accomplice liability. The jury found Lundy


      Court of Appeals of Indiana | Memorandum Decision 49A04-1509-CR-1447| September 28, 2016   Page 4 of 15
      guilty on thirty counts and not guilty on one count of battery as a class C

      felony, the State dismissed nine counts, and the court merged the conviction for

      conspiracy to commit burglary with the conviction for burglary. Ultimately,

      judgments of conviction were entered on the following: burglary as a class A

      felony under Count 1; robbery as class B felonies under Counts 3, 4, and 28;

      criminal confinement as class B felonies under Counts 10, 22, 23, 26, 27, and

      37; attempted robbery as a class B felony under Count 11; forgery as class C

      felonies under Counts 12 through 21 and 29 through 31; conspiracy to commit

      forgery under Count 32; battery as class C felonies under Counts 33 and 38; and

      carjacking as class B felonies under Counts 39 and 40.


[8]   At sentencing, Lundy’s counsel elicited testimony from Lundy’s mother that

      she attempted to convince Lundy to testify but that “he was scared of the

      repercussions and the fact that he’s going to have to do all these years in jail

      with these same people and he doesn’t want it to come back on him and he

      doesn’t want anything to come back on his sisters in the street.” Transcript at

      978. Lundy’s counsel argued in part:

              I would ask the Court to take into consideration, uh, Mr. Spells’
              sentence; and he did cooperate, he received a 70-year sentence
              from my understanding, based upon his cooperation. But I think
              Mr. Lundy is even differently, differently situated from Mr.
              Spells, and the Court saw what Mr. Spells was all about first
              hand when he came into court and testified in this case. Um. By
              all accounts, Mr. Spells maybe not an overt admission, but by all
              accounts Mr. Spells was the, was the individual who was
              responsible for tying Ms. Nowak up, um, who was responsible
              for the unspeakable things that were done to her, that, that, you

      Court of Appeals of Indiana | Memorandum Decision 49A04-1509-CR-1447| September 28, 2016   Page 5 of 15
              know, will never be forgotten and she’ll have to deal with for the
              rest of her life. And that individual received a 70-year sentence. .
              ..

              But we’re asking for a fifty-year sentence, and in mitigation, we’d
              ask the Court to consider Mr. Lundy’s relevant youth at the time
              of the occurrence of this case; his mental health issues. I believe
              that he has addiction issues. I think he’s had addiction issues
              since birth. Um. His youth and his upbringing which in the
              beginning he was an adopted child, and I think that’s clear from
              the presentence investigation report.

              The aggravators are also clear. He does have some, some
              criminal history, as his mom testified to. However, that criminal
              history pales in comparison to what he’s looking at here today
              and what he’s been convicted of. And he, and he knows that.
              One last thing, Your Honor, Mr. Lundy is not making a
              statement of allocution, but in some respects, he made a
              statement, or made his statement of allocution to the community
              when he went, when he went on with Fox 59 and gave his
              statement of apology and sorrow for his actions.


      Id. at 999-1002. The court asked whether Spells received seventy years in this

      case or in all cases, and the prosecutor responded that the sentence “was a

      combination” and “[h]e got forty years on this case and thirty on the Court

      Four case.” Id. at 1004.


[9]   The trial court later stated:


              Now, as to Mr. Lundy, Court notes as mitigating circumstances,
              as I indicated earlier, that substance abuse evaluation and
              treatment, mental health evaluation and treatment, as the
              presentence report makes clear that the defendant was adopted,
              was born with Fetal Alcohol Syndrome. Unlike the other
              defendants, he was not involved in the College Avenue matter.
      Court of Appeals of Indiana | Memorandum Decision 49A04-1509-CR-1447| September 28, 2016   Page 6 of 15
        The defense did cite that he is relatively young. The Court,
        however, given his, the length of his criminal history which I’ll
        go into in just a minute, and noted that all of the other
        defendants are also relatively young age, Court doesn’t find that
        to be a significant mitigating circumstance.

        In terms of aggravating circumstances for Mr. Lundy’s criminal
        history, Court notes that his first referral was when he was
        thirteen for minor misdemeanor offenses. Most significant
        juvenile matter then occurs in 2007 with a theft true finding that
        would have been a D felony if committed by an adult given an
        opportunity to be placed on probation. . . . Indicated that he has
        had a number of opportunities to receive treatment in the juvenile
        system and for whatever reason was unsuccessful with that. He
        had a second true finding in 2010 at the age of seventeen for a
        theft which would have been a felony if committed by an adult.



        Also had a criminal mischief in terms of destruction of property
        in 2010 which would have been a misdemeanor. . . . But the
        defendant was over the age of eighteen when he committed theft
        under the cause number in Court 15 under the cause number
        ending in 738. Disposition for that was in June of 2011. He had
        a felony conviction for that. Given an opportunity to be placed
        on probation. His probation was revoked. He was sent to the
        Department of Correction and was released from the Department
        of Correction and had only been out from the Department of
        Correction for five or six months when these offenses occurred.

        So, those are the individual aggravating and mitigating
        circumstances as it relates to each defendant. Court notes as an
        overall aggravating circumstance as the State of Indiana
        indicated, that this was [a] significant crime in the sense that it
        involved the sanctity of the home, and done at a time in which
        individuals would have been expected . . . in the home, and the
        Court believes on the facts and circumstances that it was clear the
        defendants knew that, counted on that, and yet invaded the home

Court of Appeals of Indiana | Memorandum Decision 49A04-1509-CR-1447| September 28, 2016   Page 7 of 15
        anyway. But having gone into the home, that they were engaged
        in a significant act of terror as to the victims in this case. . . .

        [Y]ou guys did more than steal. You brutalized, you terrorized,
        you victimized them in ways that were just absolutely
        unnecessary for obtaining property, which is what you were after.
        . . . The violence that you did, the sexual activity you did wasn’t
        necessary. It just simply wasn’t necessary and it creates a greater
        aggravating circumstance than most burglaries and that is true for
        each and every one of you.

        Mr. Lundy’s attorney has asked for consideration and the Court
        will be giving consideration in the sense that one, he wasn’t
        involved in the College Avenue case. Two, that he has a less
        significant criminal history. But the bottom line is, is that, the
        Court can’t give you a significant mitigating circumstance
        because you didn’t cooperate, because you didn’t do what Mr.
        Spells did. Even when Mr. Spells lied, and he clearly did, about
        some of the things that happened in the case, he still came
        forward and decided to do something in terms of the right thing
        to do. And if you had only listened, Mr. Lundy, to your mother
        and your attorney, your sentence would have been significantly
        different than what it is. Because everyone really deserved to
        know exactly what happened. And between Mr. Spells, and you
        Mr. Lundy, we might have been able to sift out who was
        cheating in terms of their own involvement, and be able to figure
        out who exactly did what.

        But because you didn’t come forward, because you chose to
        honor the code of lawbreakers instead of honoring the code of
        doing the right thing in terms of telling the truth, you sit here and
        you’re going to get a significant sentence that you otherwise
        wouldn’t have gotten. And that’s a tragedy for you, but that’s the
        choice you made. You choose to run with these guys, you
        choose to stay with these guys, and not do the right thing. And
        so, the Court wanted to address you specifically because that
        doesn’t – your co-defendants aren’t in that category.


Court of Appeals of Indiana | Memorandum Decision 49A04-1509-CR-1447| September 28, 2016   Page 8 of 15
       Id. at 1016-1018, 1020-1022.


[10]   The court sentenced Lundy to forty years on Count 1; ten years on Counts 3, 4,

       10, 11, 22, 23, 26, 27, 28, 37, 39, and 40; and four years on Counts 12 through

       21, 29 through 33, and 38. The court ordered that Counts 1, 3, 12, 33, 38, and

       39 be served consecutively and that all other counts be served concurrently, for

       an aggregate sentence of seventy-two years.1


                                                      Discussion

[11]   The issue is whether the trial court abused its discretion in sentencing Lundy.

       We review the trial court’s sentence for an abuse of discretion. Anglemyer v.

       State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind.

       2007). An abuse of discretion occurs if the decision is clearly against the logic

       and effect of the facts and circumstances. Id.


[12]   Lundy asserts the trial court abused its discretion when it impermissibly

       punished him for exercising his constitutional rights to a trial by jury and

       freedom from self-incrimination. Lundy argues that the court’s comments at

       his sentencing hearing, “if allowed to stand, hauntingly chill the exercise of

       these core constitutional principles” because, “as affirmatively stated by the trial

       court to Lundy, should an accused choose to exercise one or both of these

       rights,” the “consequences of doing so will result in a signiﬁcantly greater



       1
         The court sentenced Pugh and Anthony to aggregate terms of eighty-eight years and ordered that the
       sentences be served consecutive to the sentences they received for their participation in the College Avenue
       case.

       Court of Appeals of Indiana | Memorandum Decision 49A04-1509-CR-1447| September 28, 2016          Page 9 of 15
       sentence than if he had not elected to proceed to jury trial and/or had elected to

       forfeit his right against self-incrimination.” Appellant’s Brief at 15-16. Lundy

       argues that the trial court’s statements “plainly and affirmatively outline that he

       received a harsher sentence than he otherwise would have had he not elected to

       exercise his basic constitutional rights to a trial by jury and to be free from self-

       incrimination.” Id. at 18.


[13]   Lundy states that he “is mindful of the beneﬁts of plea bargaining” and “agrees

       that it is constitutionally sound for a defendant to receive leniency at sentencing

       in consideration for a decision to bargain with the state and correspondingly

       utilize less resources of the parties and the courts,” but that “[t]he problem

       presented at [his] sentencing is the fact that the trial court affirmatively outlined

       its reasons for imposing a harsher sentence upon him,” “[t]hose reasons

       principally being he exercised his right to a trial by jury along with Pugh and

       Anthony and elected not to testify against them.” Id. at 19-20. Lundy argues

       this court could exercise its authority under Ind. Appellate Rule 7(B) and

       impose a sentence it feels is appropriate, could remand the case for

       resentencing, or could remand the case for resentencing with directions, and he

       asks this court to consider a sentence of fifty years as a realistic starting point in

       fashioning a remedy to the issues presented regarding his sentencing.


[14]   The State maintains that the court did not abuse its discretion in sentencing

       Lundy to an aggregate sentence of seventy-two years, that the law requires

       courts to consider cooperation with the State and guilty pleas as mitigating

       circumstances at sentencing, and that here the court did not punish Lundy for

       Court of Appeals of Indiana | Memorandum Decision 49A04-1509-CR-1447| September 28, 2016 Page 10 of 15
       failing to assist the police or for demanding a jury trial but instead explained

       that a significantly mitigated sentence, such as the sentence Spells received for

       cooperating and testifying, was not merited because Lundy did not cooperate.

       The State argues that the trial court’s statements were made in direct response

       to Lundy’s arguments that he should be given a shorter sentence than Spells

       because of his lesser involvement, that as such the court was commenting on

       Spells’s entitlement to mitigation for cooperating and pleading guilty and was

       not suggesting Lundy was being punished for exercising his constitutional

       rights, and that these issues only became relevant because Lundy asked the

       court to consider Spells’s sentence in fashioning Lundy’s sentence. The State

       also asserts that Lundy does not present any significant indicia that the court

       enhanced his sentence to punish him for exercising his right to a jury trial or

       right against self-incrimination, that nothing in the court’s statement indicates it

       was holding Lundy’s decision to go to trial against him, and that Lundy

       concedes that it is constitutionally sound for a defendant to receive leniency at

       sentencing in consideration for a guilty plea.


[15]   The Indiana Supreme Court has observed that it is improper to rely on a

       defendant’s maintaining his innocence as an aggravator and that a defendant’s

       constitutional privilege against self-incrimination protects him from having to

       confess to the police. Angleton v. State, 686 N.E.2d 803, 816 (Ind. 1997), reh’g

       denied. Further, it is constitutionally impermissible for a trial court to impose a

       more severe sentence because the defendant has chosen to stand trial rather




       Court of Appeals of Indiana | Memorandum Decision 49A04-1509-CR-1447| September 28, 2016 Page 11 of 15
       than plead guilty. Hill v. State, 499 N.E.2d 1103, 1107 (Ind. 1986) (citing Walker

       v. State, 454 N.E.2d 425, 429 (Ind. Ct. App. 1983), trans. denied).


[16]   The Court has further observed that “[t]he propriety of using leniency to

       encourage guilty pleas, however, has also been upheld.” Id. (citing Gajdos v.

       State, 462 N.E.2d 1017, 1025 (Ind. 1984) (stating a defendant who enters a

       guilty plea “has extended a substantial benefit to the state and deserves to have

       a substantial benefit extended to him in return” and that “when the defendant

       proceeds to trial and his accomplice pleads guilty, the sentences need not be

       identical”) (citations omitted)). Further, a defendant who pleads guilty deserves

       to have mitigating weight extended to the guilty plea in return, and the

       significance of this mitigating factor will vary from case to case, based in part

       on the benefit extended to the State or the victim. Francis v. State, 817 N.E.2d

       235, 238 (Ind. 2004).


[17]   In Hill, the Court stated that, while leniency in sentencing is constitutionally

       permissible as an incentive for an otherwise proper plea of guilty, a more severe

       sentence may not be imposed upon a defendant because he foregoes the

       opportunity to plead guilty and exercises his right to trial by jury. 499 N.E.2d

       at 1107. The Court stated that “[w]hether the severity of a particular sentence

       was improperly influenced by a defendant’s jury trial election requires an

       individualized consideration” and held that “[i]n the present case, we are not

       directed to, nor do we find, anything in the record indicating that the

       defendant’s decision to proceed with jury trial affected the severity of the

       sentence ultimately imposed.” Id. The Court noted that it did not “find any

       Court of Appeals of Indiana | Memorandum Decision 49A04-1509-CR-1447| September 28, 2016 Page 12 of 15
       indication that the trial judge was involved in the defendant’s plea negotiations,

       nor did the judge encourage the defendant to plead guilty, or threaten him with

       a more severe sentence if convicted following jury trial.” Id. The Court also

       noted that the trial court reviewed the facts of the case against the defendant’s

       substantial history of criminal activity and concluded that, “[a]bsent a

       significant indicia that the defendant’s exercise of his jury trial right may have

       contributed to the severity of his resulting sentence, we will not remand for

       resentencing upon this issue.” Id.


[18]   In Pauley v. State, Albert Pauley and Steve Phillips were at the home of Robert

       Patchett and, when Phillip Paul arrived, he was beaten and stabbed. 668

       N.E.2d 1212, 1213 (Ind. 1996). Pauley was found guilty of murder. Id. He

       and Phillips received sixty years for their roles in the crime, and Patchett pled

       guilty and received thirty years. Id. On appeal, Pauley argued he was

       penalized for invoking his right to trial by jury. Id. The Court discussed Hill

       and concluded that Pauley did not demonstrate that the trial court enhanced his

       sentence because he elected to go to trial. Id.


[19]   We observe that Lundy did not object to his sentence below on the basis that it

       represented punishment for maintaining his innocence or insisting on a trial by

       jury and does not argue or point to the record on appeal that the trial court was

       involved in his plea negotiations, encouraged him to plead guilty, or threatened

       him with a more severe sentence if convicted following jury trial. We further

       observe that Lundy’s counsel asked the court to take Spells’s sentence into

       consideration and argued that Spells was the person responsible for the actions

       Court of Appeals of Indiana | Memorandum Decision 49A04-1509-CR-1447| September 28, 2016 Page 13 of 15
       against B.N. Lundy’s counsel requested that the court sentence Lundy to fifty

       years and asked it to consider Lundy’s relative youth, mental health, addiction

       issues, and expression to the community of his sorrow for his actions. In

       response, the court stated that “the bottom line” was that the court could not

       give Lundy “a significant mitigating circumstance” because he “didn’t do what

       Mr. Spells did.” Transcript at 1021. The court’s comments related to the

       reasons Spells could receive the sentence he received for his participation,

       namely, his guilty plea and cooperation extended a substantial benefit to the

       State. See Gajdos, 462 N.E.2d at 1025 (stating, “when the defendant proceeds to

       trial and his accomplice pleads guilty, the sentences need not be identical”).

       We further note that, as set forth in the record and in part above, the court

       identified aggravating and mitigating circumstances, which Lundy does not

       challenge, and explained its reasons for rejecting Lundy’s argument regarding

       his relative participation and for attributing little weight to certain mitigating

       circumstances advanced by his counsel. The court noted that Lundy was not

       involved in another matter which the other defendants had been involved,

       noted his age and why it did not find his relative age to be a significant

       mitigating circumstance, reviewed his criminal history, and discussed the brutal

       nature of the offenses committed during the course of the home invasion.


                                                   Conclusion

[20]   Based upon the record, we conclude that Lundy has not demonstrated that the

       trial court enhanced his sentence for impermissible reasons and that it did not



       Court of Appeals of Indiana | Memorandum Decision 49A04-1509-CR-1447| September 28, 2016 Page 14 of 15
       abuse its discretion in imposing an aggregate sentence of seventy-two years for

       Lundy’s crimes.


[21]   For the foregoing reasons, we affirm Lundy’s sentence.


[22]   Affirmed.


       Baker, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1509-CR-1447| September 28, 2016 Page 15 of 15
