MEMORANDUM DECISION                                                Sep 28 2015, 9:16 am

Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Leanna Weissmann                                         Gregory F. Zoeller
Lawrenceburg, Indiana                                    Attorney General of Indiana

                                                         Richard C. Webster
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                             IN THE
    COURT OF APPEALS OF INDIANA

Brandon Eubank,                                          September 28, 2015

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         15A01-1502-CR-69
        v.                                               Appeal from the Dearborn Superior
                                                         Court.
                                                         The Honorable Sally A.
State of Indiana,                                        McLaughlin, Judge.
Appellee-Plaintiff.                                      Cause No. 15D02-1407-F6-325




Sharpnack, Senior Judge




Court of Appeals of Indiana | Memorandum Decision 15A01-1502-CR-69 | September 28, 2015   Page 1 of 8
                                             Statement of the Case
[1]   Brandon Eubank appeals from the trial court’s sentencing order entered after he
                                                                                     1
      pleaded guilty to one count of Level 6 neglect of a dependent and one count of
                                             2
      resisting law enforcement as a Class A misdemeanor. We affirm in part,

      reverse in part, and remand with instructions.


                                                    Issues
[2]   Eubank presents the following issues for our review:

                 I.       Whether the trial court erred by imposing a sentence in
                          violation of the terms of the plea agreement.
                 II.      Whether Eubank’s sentence is inappropriate in light of the
                          nature of the offense and the character of the offender.

                                   Facts and Procedural History
[3]   According to the probable cause affidavit, which was used to establish the

      factual basis for Eubank’s plea, on July 18, 2014, Eubank had the care and

      custody of his son, B.L.E., Jr., who was sixteen months old. On that date,

      Deputy Brad Schwing of the Dearborn County Sheriff’s Department spoke with

      B.L.E.’s mother, Melissa Green, who had a court order giving her interim

      custody of the child. Deputy Schwing and Green went to Eubank’s residence

      to enforce that court order and they observed him pushing a baby stroller




      1
          Ind. Code § 35-46-1-4(a) (2014).
      2
          Ind. Code § 35-44.1-3-1(a) (2014).


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      outside of his apartment. When Deputy Schwing exited his vehicle Eubank

      began yelling obscenities at him, telling him to re-enter his vehicle and leave,

      and that he was not going to take Eubank’s son from him. Deputy Schwing

      advised Eubank that he had a court order for Green to take custody of B.L.E.

      As Deputy Schwing approached Eubank, Eubank continued cursing at the

      officer, told him that he was not going to take B.L.E., picked up B.L.E., and

      started to walk away from Deputy Schwing.


[4]   Deputy Schwing warned Eubank to calm down and not to make matters worse

      by forcing the officer to arrest him for disorderly conduct. Eubank continued to

      swear at the officer threatening that he would not let the officer take away his

      son. Deputy Schwing grabbed Eubank’s wrist and told him that he was being

      arrested for disorderly conduct. Eubank pulled away and continued to threaten

      and curse at the officer. Deputy Schwing was unable to handcuff Eubank

      because of the potential harm that might come to B.L.E., who remained in

      Eubank’s arms.


[5]   Ultimately, Eubank handed B.L.E. to Green. The officer grabbed Eubank’s

      wrist in an attempt to handcuff him, but Eubank was able to pull away.

      Eubank continued to scream at the officer and ran into the street, narrowly

      missing being struck by a car that was passing by.


[6]   The State charged Eubank with one count of neglect of a dependent, one count

      of disorderly conduct, and one count of resisting law enforcement. Eubank and

      the State entered into a joint motion tendering a conditional negotiated plea


      Court of Appeals of Indiana | Memorandum Decision 15A01-1502-CR-69 | September 28, 2015   Page 3 of 8
      agreement, which called for Eubank to plead guilty to neglect of a dependent

      and resisting law enforcement. In exchange for the plea, the State agreed to

      dismiss the count alleging disorderly conduct. The parties agreed that the

      length of Eubank’s sentences for the two counts would be left to the trial court’s

      discretion but would be served concurrently.


[7]   The trial court accepted Eubank’s guilty plea. The trial court sentenced Eubank

      to a term of 910 days executed for his conviction of neglect of a dependent with

      365 days suspended to supervised probation and sentenced Eubanks to ninety

      days executed for resisting law enforcement but ordered the sentences to be

      served consecutively. Eubanks now appeals.


                                   Discussion and Decision
                                         I. Sentencing Error
[8]   Eubank alleges and the State concedes that the trial erred by imposing

      consecutive sentences when the plea agreement explicitly provided for

      concurrent sentences. Eubank, however, has already served the executed

      portion of his sentence.


[9]   Plea agreements are in the nature of contracts entered into between the

      defendant and the State, and, upon acceptance by the trial court, bind the trial

      court. Lee v. State, 816 N.E.2d 35, 38 (Ind. 2004). In general, once an

      appellant’s sentence has been served, a challenge to the validity of his sentence

      is rendered moot. Irwin v. State, 744 N.E.2d 565, 568 (Ind. Ct. App. 2001). In

      cases where the appeal is rendered moot because the defendant has served his

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       sentence and none of the issues raised on appeal justify review under the public

       interest exception, we have dismissed the appeal. See, e.g., Bell v. State, 1 N.E.3d

       190, 193 (Ind. Ct. App. 2013) (dismissing appeal as moot).


[10]   Eubank’s appeal, however, is different and we do not dismiss it. We will

       address the issues presented in an appeal which might otherwise be dismissed as

       moot where leaving the judgment undisturbed might lead to negative collateral

       consequences. Hamed v. State, 852 N.E.2d 619, 622 (Ind. Ct. App. 2006). In

       this case there are potential negative collateral consequences. Although Eubank

       was released from the Department of Correction after serving the executed

       portion of his sentence, the trial court ordered a portion of his sentence to be

       suspended to supervised probation. Because of the potential sentencing

       consequences Eubank might face in the event he violates his probation, we will

       address the merits of his appeal.


[11]   Paragraph 13 of Eubank’s plea agreement states that the parties agreed that the

       sentences imposed by the trial court would be served concurrently. Appellant’s

       Appendix p. 26. Because of this sentencing error, we reverse the trial court’s

       sentencing order and remand with instructions to issue an order reflecting

       concurrent sentencing.


                                    II. Inappropriate Sentence
[12]   Likewise, we consider Eubank’s challenge to the appropriateness of his

       sentence. In the event that Eubank were to violate the conditions of his

       probation, the trial court has options for the sanctions to be imposed for the

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       probation violation. See Ind. Code § 35-38-2-3 (2012). The choice of sanction

       depends on the terms of the probationer’s sentence. Id.


[13]   A sentence authorized by statute will not be revised unless the sentence is

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

       offender. Indiana Appellate Rule 7(B). We must not merely substitute our

       opinion for that of the trial court. Sallee v. State, 777 N.E.2d 1204, 1216 (Ind.

       Ct. App. 2002), trans. denied. In determining the appropriateness of a sentence,

       a court of review may consider any factors appearing in the record. Clara v.

       State, 899 N.E.2d 733, 736 (Ind. Ct. App. 2009). The question for our review is

       not whether another sentence is more appropriate, but rather, whether the

       sentence imposed is inappropriate. Conley v. State, 972 N.E.2d 864, 876 (Ind.

       2012).


[14]   Indiana Code section 35-46-1-4 (2014) provides in pertinent part that a person

       having the care of a dependent, whether assumed voluntarily or because of a

       legal obligation, who knowingly or intentionally places the dependent in a

       situation that endangers the dependent’s life or health commits neglect of a

       dependent, a Level 6 felony. Indiana Code section 35-44.1-3-1 (2014) provides

       in pertinent part that a person who knowingly or intentionally flees from a law

       enforcement officer after the officer has by visible or audible means identified

       himself and ordered the person to stop has committed resisting law

       enforcement, a Class A misdemeanor. The sentencing range for a Class A

       misdemeanor is a fixed term of not more than one year. Ind. Code § 35-50-3-2

       (1977). The sentencing range for a Level 6 felony is a fixed term of between six

       Court of Appeals of Indiana | Memorandum Decision 15A01-1502-CR-69 | September 28, 2015   Page 6 of 8
       months and two and a half years, with the advisory sentence being one year.

       Ind. Code § 35-50-2-7(b) (2014). The trial court sentenced Eubank to 910 days

       for his conviction of neglect of a dependent, with 365 days suspended to

       supervised probation and to ninety days for his conviction of resisting law

       enforcement.


[15]   With respect to the nature of the offenses, Eubank, when confronted by Deputy

       Schwing who was enforcing a valid custody order, placed his son, who was

       sixteen months old at the time, in a position where he might have been injured.

       Eubank refused to surrender B.L.E. to the officer who was assisting B.L.E.’s

       mother in gaining custody of her son. Eubank, who was in a position of trust,

       used B.L.E. as a shield to prevent Deputy Schwing from arresting Eubank for

       disorderly conduct. Eubank pulled away from the officer and cursed at him.

       Eubank fled from Deputy Schwing once Eubank surrendered B.L.E. to the

       child’s mother and in the process Eubank was nearly struck by a passing

       vehicle.


[16]   With respect to the character of the offender, Eubank’s criminal history reveals

       his inability to abide by the law. Eubank, who was twenty-six years old at the

       time of sentencing, has violated the terms of his probation at least once every

       time he has been placed on probation. His criminal history began with a

       juvenile charge of operating a motor vehicle without ever receiving a license

       and adjudications for criminal mischief and conversion. As an adult, he has a

       felony conviction for tampering with evidence, or obstruction of justice, and has

       misdemeanor convictions for operating a vehicle with a BAC of .08 or more,

       Court of Appeals of Indiana | Memorandum Decision 15A01-1502-CR-69 | September 28, 2015   Page 7 of 8
       violating a protective order, and invasion of privacy. This history establishes

       that Eubank has been undeterred from criminal activity despite his numerous

       contacts with the criminal justice system and leniency given to him by the

       opportunity to serve portions of his sentences on probation.


[17]   In order to receive sentence revision under Indiana Appellate Rule 7(B), an

       appellant must demonstrate that his sentence is inappropriate in light of “both

       the nature of his offenses and his character.” Williams v. State, 891 N.E.2d 621,

       633 (Ind. Ct. App. 2008). Eubank has not demonstrated that his sentence is

       inappropriate in light of either the nature of his offenses or his character.


                                                Conclusion
[18]   In light of the foregoing, we affirm the trial court’s sentence for each of

       Eubank’s convictions. However, we reverse and remand the trial court’s

       sentencing order with instructions to enter an order that complies with the

       terms of the plea agreement and reflects that the sentences were to be served

       concurrently.


[19]   Affirmed in part, reversed in part and remanded with instructions.


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




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