      MEMORANDUM DECISION
                                                                                 FILED
      Pursuant to Ind. Appellate Rule 65(D), this                            Aug 13 2018, 7:31 am
      Memorandum Decision shall not be regarded as
      precedent or cited before any court except for the                         CLERK
                                                                             Indiana Supreme Court
      purpose of establishing the defense of res judicata,                      Court of Appeals
                                                                                  and Tax Court
      collateral estoppel, or the law of the case.



      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Susan D. Rayl                                            Curtis T. Hill, Jr.
      Smith Rayl Law Office, LLC                               Attorney General of Indiana
      Indianapolis, Indiana
                                                               Monika Prekopa Talbot
                                                               Supervising Deputy Attorney General
                                                               Indianapolis, Indiana


                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Mark B. Howard,                                          August 13, 2018

      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               49A04-1711-CR-2601
              v.                                               Appeal from the Marion Superior
                                                               Court

      State of Indiana,                                        The Honorable Marc T. Rothenberg,
      Appellee-Plaintiff.                                      Judge

                                                               Trial Court Cause No.
                                                               49G02-1509-F2-32201



      Barteau, Senior Judge.


                                       Statement of the Case
[1]   Appellant Mark B. Howard appeals the terms of his release on bail and his

      sentence. We affirm.

      Court of Appeals of Indiana | Memorandum Decision 49A04-1711-CR-2601 | August 13, 2018         Page 1 of 10
                                                    Issues
[2]   Howard presents two issues for our review, which we restate as:


          I. Whether the trial court erred by altering the conditions of Howard’s bail.

          II. Whether Howard’s sentence is inappropriate.


                               Facts and Procedural History
[3]   Howard and Amber Brown were involved in a relationship for several years,

      and they have a son together. Once their relationship ended in 2014, Howard

      and Amber stayed in contact with one another because of their son. At some

      point after ending her relationship with Howard, Amber became friends with a

      man named Will. Howard became very upset when he learned of Amber’s

      friendship with Will, and, throughout the day of September 8, 2015, he sent

      threatening text messages to Amber.


[4]   Due to the threatening nature of Howard’s messages, Amber planned to stay

      somewhere else that night. Amber asked her brother, Lee, to accompany her

      and her son to her apartment so she could gather some clothes and things.

      Once they had entered the apartment and shut and locked the door, someone

      began kicking in the door. Amber yelled for her brother who was in the other

      room and then took her son to a room at the back of the apartment. As Lee

      was nearing the front door of the apartment and Amber was heading to the

      back of the apartment with her son, they both saw an arm and a gun appear in

      the open doorway. Lee pulled out his handgun and began firing. He then


      Court of Appeals of Indiana | Memorandum Decision 49A04-1711-CR-2601 | August 13, 2018   Page 2 of 10
      walked to the door and recognized the person on the floor as Howard. Amber

      called the police, and Howard asked Lee to hide his gun.


[5]   Based upon this incident, the State charged Howard with attempted murder, a
                            1                               2                                      3
      Level 1 felony; burglary, a Level 2 felony; intimidation, a Level 6 felony; and
                                                                             4
      carrying a handgun without a license, a Level 5 felony. Following a jury trial

      on these charges, Howard was found guilty of burglary, intimidation, and

      carrying a handgun without a license. The trial court sentenced him to an

      aggregate sentence of twenty-five years with five years suspended. Howard

      now appeals.


                                          Discussion and Decision
                                            I. Conditions of Bail
[6]   Howard contends the trial court erred by altering the conditions for his bail.

      Particularly, he claims that, after he was released on bond, the trial court

      granted the State’s request for the additional conditions of home detention and

      GPS monitoring without a showing of good cause as required by Indiana Code

      section 35-33-8-5 (2004).




      1
          Ind. Code § 35-42-1-1 (2014).
      2
          Ind. Code § 35-43-2-1 (2014).
      3
          Ind. Code § 35-45-2-1 (2014).
      4
          Ind. Code § 35-47-2-1 (2014).


      Court of Appeals of Indiana | Memorandum Decision 49A04-1711-CR-2601 | August 13, 2018   Page 3 of 10
[7]   The State argues this issue is moot. Indeed, Howard concedes in his brief that

      “there [is] nothing that this Court can now do to correct the trial court’s error.”

      Appellant’s Br. p. 12. Nonetheless, he maintains that the issue should be

      addressed.


[8]   An issue is deemed moot when it is no longer “live” or when the parties lack a

      legally cognizable interest in the outcome. Jones v. State, 847 N.E.2d 190, 200

      (Ind. Ct. App. 2006), trans. denied. “Stated differently, when we are unable to

      provide effective relief upon an issue, the issue is deemed moot, and we will not

      reverse the trial court’s determination ‘where absolutely no change in the status

      quo will result.’” Id. (quoting In re Utley, 565 N.E.2d 1152, 1154 (Ind. Ct. App.

      1991)). An issue that is otherwise moot may nevertheless be decided on its

      merits if it involves a question of “great public interest.” Mosley v. State, 908

      N.E.2d 599, 603 (Ind. 2009). Such cases raise important policy concerns and

      present issues that are likely to recur. Id. Any decision we would render in this

      case would result in no change in the status quo for Howard. Further, this issue

      does not present an important policy question. Accordingly, we decline to

      address this issue because it is moot.


                                    II. Inappropriate Sentence
[9]   Next, Howard asserts his sentence is inappropriate in light of the nature of his

      offense and his character. Howard appeals his sentence only as to his burglary

      conviction.




      Court of Appeals of Indiana | Memorandum Decision 49A04-1711-CR-2601 | August 13, 2018   Page 4 of 10
[10]   Although a trial court may have acted within its lawful discretion in imposing a

       sentence, article VII, sections 4 and 6 of the Indiana Constitution authorize

       independent appellate review and revision of sentences through Indiana

       Appellate Rule 7(B), which provides that we may revise a sentence authorized

       by statute if, after due consideration of the trial court’s decision, we determine

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

       character of the offender. Thompson v. State, 5 N.E.3d 383, 391 (Ind. Ct. App.

       2014). However, “we must and should exercise deference to a trial court’s

       sentencing decision, both because Rule 7(B) requires us to give ‘due

       consideration’ to that decision and because we understand and recognize the

       unique perspective a trial court brings to its sentencing decisions.” Stewart v.

       State, 866 N.E.2d 858, 866 (Ind. Ct. App. 2007). The principal role of appellate

       review under Rule 7(B) is to attempt to leaven the outliers, not to achieve a

       perceived “correct” result in each case. Garner v. State, 7 N.E.3d 1012, 1015

       (Ind. Ct. App. 2014). In other words, the question under Appellate Rule 7(B) is

       not whether another sentence is more appropriate; rather, the question is

       whether the sentence imposed is inappropriate. King v. State, 894 N.E.2d 265,

       268 (Ind. Ct. App. 2008). The defendant bears the burden of persuading the

       appellate court that his or her sentence is inappropriate. Childress v. State, 848

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


[11]   To assess whether the sentence is inappropriate, we look first to the statutory

       range established for the class of the offense. Here, the offense is a Level 2

       felony burglary, for which the advisory sentence is seventeen and one-half


       Court of Appeals of Indiana | Memorandum Decision 49A04-1711-CR-2601 | August 13, 2018   Page 5 of 10
       years, with a minimum sentence of ten years and a maximum of thirty years.

       Ind. Code § 35-50-2-4.5 (2014). Howard was sentenced to an aggregate term of

       twenty-five years with five years suspended. The trial court ordered that he

       serve eighteen years in the DOC and two years on home detention for his

       conviction of burglary.


[12]   Next, we look to the nature of the offense and the character of the offender. As

       to the nature of the burglary offense, we note that to commit this offense,

       Howard equipped himself with a ski mask and a gun. Armed with the gun, he

       kicked in the door of the apartment where his seven-year-old son resided and

       committed this offense in the presence of his son while also putting his son in

       grave danger.


[13]   With regard to the character of the offender, we observe that at age twenty-eight

       Howard had already amassed a noteworthy criminal history. As a juvenile,

       Howard had several interactions with the juvenile system, two of which

       resulted in formal proceedings. In one instance, he participated in a diversion

       program for an offense that, if committed by an adult, would be battery

       resulting in bodily injury with a prior offense, a Class D felony. In another,

       Howard was charged with offenses that, if committed by an adult, would

       constitute resisting law enforcement as a Class D felony, resisting law

       enforcement as a Class A misdemeanor, and reckless driving as a Class B

       misdemeanor. These charges resulted in a true finding for resisting law

       enforcement as a Class D felony, for which Howard completed community

       service work and formal probation.

       Court of Appeals of Indiana | Memorandum Decision 49A04-1711-CR-2601 | August 13, 2018   Page 6 of 10
[14]   At age eighteen, Howard commenced his adult criminal history with the

       charges of theft, as a Class D felony; battery as a Class A misdemeanor;

       criminal mischief, as a Class B misdemeanor; and criminal conversion, as a

       Class A misdemeanor. He was convicted of theft and two counts of

       misdemeanor battery. Subsequently, his probation was revoked for violations

       including committing an additional criminal offense, submitting diluted urine

       drug screens, failing to report to probation, failing to pay court ordered fees,

       and submitting a drug screen positive for THC. He was ordered to serve 120

       days in DOC, 120 days on work release, and 120 days on home detention. He

       later violated the conditions of his community corrections placement.


[15]   From 2010 to 2015, Howard steadily committed new offenses. He accumulated

       convictions for possession of marijuana, as a Class A misdemeanor; driving

       while suspended with a prior, as a Class A misdemeanor; two counts of theft, as

       Level 6 felonies; criminal recklessness with a deadly weapon, a Level 6 felony;

       and leaving the scene of an accident, as a Class B misdemeanor. In addition,

       charges of felony and misdemeanor domestic battery as well as misdemeanor

       battery were filed but dismissed, and charges of felony distributing

       hallucinogenic substance or marijuana, misdemeanor use/possession of drug

       paraphernalia, and a misdemeanor vehicular offense were apparently filed but

       resolved with an unknown disposition. Moreover, it was alleged that Howard

       violated his probation by failing to comply with community service and failing

       to pay his financial obligations.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1711-CR-2601 | August 13, 2018   Page 7 of 10
[16]   The significance of a criminal history in assessing a defendant’s character and

       an appropriate sentence varies based on the gravity, nature, and proximity of

       prior offenses in relation to the current offense, as well as the number of prior

       offenses. Sandleben v. State, 29 N.E.3d 126, 137 (Ind. Ct. App. 2015), trans.

       denied. Here, in addition to juvenile offenses, Harold has at least four felony

       convictions and at least five misdemeanor convictions, some of which involve

       violence. In addition, Howard was out on bond for another offense at the time

       he committed the current offenses, and, during his trial, he violated the no

       contact order that was in place with regard to Amber. Both of these

       circumstances may be considered by the court as aggravating factors. See Ind.

       Code § 35-38-1-7.1 (5), (6) (2015).


[17]   Furthermore, Howard made it clear he felt no remorse for his actions. Exhibit

       1 from his sentencing hearing is the recording of a phone call he made from jail

       to a female the night of his trial in which he spoke of Amber, referring to her as

       a “bitch” and making disparaging comments about her glasses and her weight.

       Ex. 1. He laughed about how he had been “mean mugging” Amber and her

       mother through the trial and was told to stop by his attorney, and he stated that

       he was disappointed that Amber’s mother was absent from the courtroom when

       the not guilty verdict was read for the attempted murder charge because he

       wanted to give her a big smile. Id. He also referred to his similarity to Charles

       Manson in his dealings with Amber and stated he did not care that the court

       revoked his bond because he had “smoked weed” and had sex all night the

       night before. Id.


       Court of Appeals of Indiana | Memorandum Decision 49A04-1711-CR-2601 | August 13, 2018   Page 8 of 10
[18]   The State read statements from both Amber and her mother, which told of

       Amber and Howard’s violent relationship. Amber described their relationship

       as a “very abusive, toxic relationship.” Tr. Vol. 3, p. 39. The women

       recounted instances of Howard taking Amber’s clothes and shoes, bleaching her

       clothes, and chasing her on a dirt bike.


[19]   After hearing the evidence, the trial court characterized Howard’s actions as

       driven by a desire to terrorize Amber. The court noted that by these acts

       Howard directly exposed his son to the toxicity and violence of his relationship

       with Amber, that he had another criminal case pending at the time of these acts,

       and that the phone call from jail showed a complete lack of remorse. In

       characterizing the phone call, the trial court stated, “there is a bravado about

       you in this conversation which to me is mind blowing just hours after you’re

       convicted of a Level 2 Burglary.” Id. at 57. The trial court also remarked,

       “You are something. I can characterize what you are. You’re a dangerous

       person whether that’s because of your emotional state, whether that’s because

       of your mental health, whether it’s because of a toxic relationship — and I can

       go on and on with the excuses that I’ve heard from you in your presentence

       investigation or from you today or from you on this phone call. It doesn’t

       matter. The fact is I stand by my first statement. You’re a terrible person.” Id.

       at 56-57.


[20]   On appeal, Howard argues for a reduced sentence, citing his limited criminal

       history and that he “likely suffers from mental illness.” Appellant’s Br. p. 14.

       As discussed above, Howard’s criminal history is not “limited” but, rather, is

       Court of Appeals of Indiana | Memorandum Decision 49A04-1711-CR-2601 | August 13, 2018   Page 9 of 10
       extensive. Additionally, no evidence links Howard’s crimes and a mental

       illness. See Corralez v. State, 815 N.E.2d 1023, 1026 (Ind. Ct. App. 2004) (stating

       there must be nexus between defendant’s mental health and crime in question

       in order for mental history to be considered mitigating factor). Nonetheless, the

       trial court ordered a mental health evaluation and treatment.


                                                Conclusion
[21]   For the reasons stated, we conclude that Howard’s sentence is not inappropriate

       given the nature of the offense and his character.


[22]   Affirmed.


       Mathias, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1711-CR-2601 | August 13, 2018   Page 10 of 10
