MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                          FILED
regarded as precedent or cited before any                            Nov 22 2019, 8:47 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
David M. Payne                                          Curtis T. Hill, Jr.
Ryan & Payne                                            Attorney General of Indiana
Marion, Indiana
                                                        Samuel J. Dayton
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Elberta N. Jackson,                                     November 22, 2019
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        19A-CR-1325
        v.                                              Appeal from the Grant Superior
                                                        Court
State of Indiana,                                       The Honorable Jeffrey D. Todd,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        27D01-1807-F4-39



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1325 | November 22, 2019             Page 1 of 6
                                       Statement of the Case
[1]   Elberta N. Jackson appeals her sentence after she pleaded guilty to battery, as a

      Level 5 felony; battery, as a Level 6 felony; and resisting law enforcement, as a

      Class A misdemeanor. Jackson raises a single issue for our review, namely,

      whether her aggregate sentence of four years, with all but her already-served

      time suspended to probation, is inappropriate in light of the nature of the

      offenses and her character. We affirm.


                                 Facts and Procedural History
[2]   On July 20, 2018, Marion Police Department officers placed Jackson under

      arrest. Jackson did not comply with the officers’ requests, however. In relevant

      part, she refused to get in a police vehicle, and as a result officers had to “drag”

      her into the vehicle. Tr. Vol. II at 11. Upon arriving at the jail, she “slammed

      [her] body” into the body of an escorting officer. Id. at 12. And when officers

      at the jail attempted to remove a ring from Jackson’s finger and take out a hair

      tie, she “struggl[ed]” with them and bit one of the officers on the leg, leaving a

      bite mark and bruising. Id. at 13.


[3]   Among other offenses, the State charged Jackson with battery, as a Level 5

      felony; battery, as a Level 6 felony; and resisting law enforcement, as a Class A

      misdemeanor. After the court empaneled a jury but before the parties began to

      try the case, Jackson agreed to plead guilty to those three offenses, and, in

      exchange, the State dismissed the remaining counts.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1325 | November 22, 2019   Page 2 of 6
[4]   Thereafter, the trial court held a sentencing hearing. Following that hearing,

      the court ordered Jackson to serve an aggregate term of four years with all but

      her time already served suspended to probation. In determining Jackson’s

      sentence, the court found her criminal history to be an aggravating factor and

      found her remorse, her history of mental-health issues, and that she was

      “extremely emotionally distressed at the time the offenses were committed” to

      be mitigating factors. Appellant’s App. Vol. 2 at 9-10. This appeal ensued.


                                     Discussion and Decision
[5]   On appeal, Jackson asserts that her sentence is inappropriate in light of the

      nature of the offenses and her character. Indiana Appellate Rule 7(B) provides

      that “[t]he 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

      offender.” This Court has often recognized that “[t]he advisory sentence is the

      starting point the legislature has selected as an appropriate sentence for the

      crime committed.” Sanders v. State, 71 N.E.3d 839, 844 (Ind. Ct. App. 2017).

      And the Indiana Supreme Court has explained that “[t]he principal role of

      appellate review should be to attempt to leaven the outliers . . . but not achieve

      a perceived ‘correct’ result in each case. Defendant has the burden to persuade

      us that the sentence imposed by the trial court is inappropriate.” Shoun v. State,

      67 N.E.3d 635, 642 (Ind. 2017) (citations omitted; omission in original).


[6]   Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate

      sentence to the circumstances presented, and the trial court’s judgment “should
      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1325 | November 22, 2019   Page 3 of 6
      receive considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind.

      2008). Whether we regard a sentence as inappropriate at the end of the day

      turns on “our sense of the culpability of the defendant, the severity of the crime,

      the damage done to others, and myriad other facts that come to light in a given

      case.” Id. at 1224. The question is not whether another sentence is more

      appropriate, but rather whether the sentence imposed is inappropriate. King v.

      State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008). Deference to the trial court

      “prevail[s] unless overcome by compelling evidence portraying in a positive

      light the nature of the offense (such as accompanied by restraint, regard, and

      lack of brutality) and the defendant’s character (such as substantial virtuous

      traits or persistent examples of good character).” Stephenson v. State, 29 N.E.3d

      111, 122 (Ind. 2015).


[7]   Pursuant to Indiana Code Section 35-50-2-6 (2019), a person who commits a

      Level 5 felony is subject to a term of imprisonment between one and six years,

      with an advisory term of three years. Indiana Code Section 35-50-2-7 provides

      that a person who commits a Level 6 felony is subject to a term of

      imprisonment between six months and two and one-half years, with an

      advisory term of one year. And Indiana Code Section 35-50-3-2 provides that a

      person who commits a Class A misdemeanor may be imprisoned for up to one

      year. Thus, a defendant who commits a Level 5 felony, a Level 6 felony, and a

      Class A misdemeanor faces a maximum possible term of nine and one-half

      years.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1325 | November 22, 2019   Page 4 of 6
[8]    Jackson asserts on appeal that her sentence is inappropriate for the following

       reasons: there was a large crowd when she was arrested; she was “upset that

       day for a couple of reasons,” including the recent death of her brother; although

       she slammed her body into one officer, she “didn’t take a swing at him”; “she

       was having a bad day”; she pleaded guilty and, in exchange, obtained the

       dismissal of at least one count the State could not prove anyway; she was

       remorseful and later apologized to at least one of the officers in person; and she

       has had “numerous traumatic experiences throughout her life” and related

       mental-health issues. Appellant’s Br. at 12-15.


[9]    We cannot say that Jackson’s aggregate sentence of four years, with all but time

       served suspended to probation, is inappropriate in light of the nature of the

       offenses. Jackson resisted numerous law enforcement officers as they placed

       her under arrest and moved her to the jail. Her resistance included two

       different physical altercations, and during one of those altercations she bit an

       officer’s leg, leaving a visible bite mark. The nature of her offenses is not

       “overcome by compelling evidence portraying in a positive light the nature of

       the offense[s].” Stephenson, 29 N.E.3d at 122.


[10]   Neither is her sentence inappropriate in light of her character. We

       acknowledge, as the trial court did, that Jackson has appeared to be remorseful,

       that she was, as she says, “having a bad day,” and that she has had a history of

       mental-health issues. Appellant’s Br. at 13. Jackson has multiple prior felony

       convictions, and she has multiple prior convictions for battery on an officer and

       resisting law enforcement. She has also had numerous prior revocations of her

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1325 | November 22, 2019   Page 5 of 6
       probation. Further, she pleaded guilty only after the court had already

       empaneled a jury, which did not spare the State the time and expense of

       preparing for trial. Accordingly, we cannot say that the evidence of her

       character justifies overcoming our usual deference to the trial court on

       sentencing. See Stephenson, 22 N.E.3d at 122.


[11]   In sum, we affirm Jackson’s sentence.


[12]   Affirmed.


       Vaidik, C.J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1325 | November 22, 2019   Page 6 of 6
