MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                   FILED
regarded as precedent or cited before any                           Apr 21 2020, 6:01 am

court except for the purpose of establishing                            CLERK
the defense of res judicata, collateral                             Indiana Supreme Court
                                                                       Court of Appeals
                                                                         and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Ronald J. Moore                                           Curtis T. Hill, Jr.
The Moore Law Firm, LLC                                   Attorney General of Indiana
Richmond, Indiana
                                                          Samantha M. Sumcad
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Joseph D. Reed,                                           April 21, 2020
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          19A-CR-2187
        v.                                                Appeal from the Wayne Superior
                                                          Court
State of Indiana,                                         The Honorable Charles K. Todd,
Appellee-Plaintiff.                                       Jr., Judge
                                                          Trial Court Cause No.
                                                          89D01-1808-F5-62



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2187 | April 21, 2020              Page 1 of 9
[1]   Following his conviction for battery resulting in bodily injury to a public safety

      official1 as a Level 5 felony with a habitual offender enhancement2, Joseph D.

      Reed (“Reed”) was sentenced by the trial court to eight and one-half years

      executed. Contending that his sentence is inappropriate in light of the nature of

      his offense and his character, Reed now appeals.


[2]   We affirm.


                                       Facts and Procedural History

[3]   On August 1, 2018, Wayne County Sheriff’s Department Deputies Sonia

      Mitchell (“Deputy Mitchell”) and Jeff Lamberson (“Deputy Lamberson”)

      brought Reed to the Wayne County jail for processing on another charge. Tr.

      Vol. II. at 110, 118. During the book-in procedure, Reed informed officers at

      the Wayne County jail that he needed to use the restroom but was told he

      would first have to complete the book-in procedure before he could do so. Id. at

      110; Appellant’s. App. Vol. 2 at 11. Reed instead “bolted” towards the restroom

      and Sergeant Christopher Toby (“Sergeant Toby”) followed him into the

      restroom. Tr. Vol. II at 128, 138. Sergeant Toby grabbed Reed by the back of

      his jumpsuit in an attempt to bring him back to the book-in counter when Reed

      turned around and struck Sergeant Toby in the face and head with closed fists

      about “eight or ten” times. Id. at 138. Deputy Lamberson and Deputy Mitchell



      1
          See Ind. Code § 35-42-2-1.
      2
          See Ind. Code § 35-50-2-8.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2187 | April 21, 2020   Page 2 of 9
      assisted Sergeant Toby and were able to subdue Reed by tasing him, and Reed

      was eventually placed in handcuffs and taken into custody. Id. at 123, 139. As

      a result of the altercation, “the top of [Sergeant Toby’s] left ear was cut open[,]”

      and Sergeant Toby “had some scrapes on [his] arms” and the “sides of [his]

      head were throbbing.” Id. at 139.


[4]   On August 2, 2018, the State charged Reed with battery resulting in bodily

      injury to a public safety official as a Level 5 felony and also alleged that he was

      a habitual offender. Appellant’s App. Vol. 2 at 13, 14. On August 6, 2019, the

      trial court commenced a jury trial. Id. at 7.


[5]   At the conclusion of the trial, the jury found Reed guilty of battery resulting in

      bodily injury to a public safety official as a level 5 felony, and Reed admitted to

      being a habitual offender. Id. at 203, 207-219. On September 6, 2019, a

      sentencing hearing was held at which the trial court considered the presentence

      investigation report, which showed that Reed’s criminal history included

      sixteen cases as an adult and two juvenile delinquency petitions. Appellant’s

      Conf. App. Vol. 2. at 7, 98-102. The trial court also heard testimony from Reed’s

      mother, Kelly Gentry (“Gentry”), regarding his history of mental illness. Tr.

      Vol. III at 8-20. Gentry testified that Reed had suffered from rapid cycling

      bipolar one disorder since he was eight years of age, which caused cycles that

      “just keep coming and they’re hard for [Reed] to handle” and that she believed

      he had not taken his medication since “[m]aybe 2016.” Id. at 10-11. Gentry

      also stated that if Reed was receiving the appropriate medication for his

      conditions that he would be “less likely to be put in this situation again or prior

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2187 | April 21, 2020   Page 3 of 9
      situations,” and she expressed her belief that if Reed was taking his medication

      he would not have attacked Sergeant Toby. Id. at 13. However, she also

      acknowledged that throughout his life Reed was hostile towards his teachers

      and other individuals in authority, threatened law enforcement, teachers,

      administrators, and other adults, and had exhibited violent tendencies since he

      was young. Id. at 17. With respect to counseling for his mental health and

      substance abuse issues, Gentry indicated that Reed had not followed the advice

      of counseling providers. Id. at 19.


[6]   At sentencing, the trial court stated “what clearly is significant, and you could

      even underline the word significant, is the person has a history of criminal or

      delinquent behavior,” noting that when Reed was “given opportunities at

      suspended sentences, he’s been revoked on four different occasions,” and found

      Reed’s criminal history and previous record of probation violations as

      aggravators. Id. at 36, 38. The court also found as an aggravator that Reed

      committed the offense while he had pending criminal charges for battery by

      bodily waste on a public safety official and a habitual offender allegation at the

      time of the instant offense. Id. at 39; Appellant’s Conf. App. Vol. 2 at 101. The

      trial court found as a mitigator Reed’s admission to being a habitual offender,

      and gave “slight mitigation” to Reed’s history of mental illness. Tr. Vol. III. at

      40-41. The trial court sentenced Reed to five years for his Level 5 felony

      conviction for battery resulting in bodily injury to a public safety official with an

      additional three and one-half years for Reed’s adjudication as a habitual




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2187 | April 21, 2020   Page 4 of 9
      offender for an aggregate sentence of eight and one-half years executed.

      Appellant’s App. Vol. 2 at 120. Reed now appeals.


                                     Discussion and Decision

[7]   Reed argues that his sentence is inappropriate. Pursuant to Indiana Appellate

      Rule 7(B), this court “may revise a sentence authorized by statute if, after due

      consideration of the trial court’s decision, the [c]ourt finds that the sentence is

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

      offender.” Our Supreme Court has explained that the principal role of appellate

      review should be to attempt to leaven the outliers, “not to achieve a perceived

      ‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.

      2008). We independently examine the nature of Reed’s offense and his

      character under Appellate Rule 7(B) with substantial deference to the trial

      court’s sentence. Satterfield v. State, 33 N.E.3d 344, 355 (Ind. 2015). “In

      conducting our review, we do not look to see whether the defendant’s sentence

      is appropriate or if another sentence might be more appropriate; rather, the test

      is whether the sentence is ‘inappropriate.’” Barker v. State, 994 N.E.2d 306, 315

      (Ind. Ct. App. 2013), trans. denied. Whether a sentence is inappropriate

      ultimately depends upon “the culpability of the defendant, the severity of the

      crime, the damage done to others, and a myriad of other factors that come to

      light in a given case.” Cardwell, 895 N.E.2d at 1224. Reed bears the burden of

      persuading us that his sentence is inappropriate. Id.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2187 | April 21, 2020   Page 5 of 9
[8]   Reed argues that his mental health issues make his sentence inappropriate and

      that those issues warrant a reduction of his sentence to a five-year aggregate

      sentence comprised of three years for his Level 5 felony conviction with all

      three years suspended and two years on the habitual offender adjudication.

      Appellant’s Br. at 16-17.3


[9]   “As to the nature of the offense, the advisory sentence is the starting point the

      Legislature has selected as an appropriate sentence for the crime committed.”

      Abbott v. State, 961 N.E.2d 1016, 1019 (Ind. 2012). Here, Reed was convicted of

      Level 5 felony battery resulting in bodily injury to a public safety official with

      an enhancement for his adjudication as a habitual offender. The advisory

      sentence for a Level 5 felony is three years with a range of one to six years. Ind.

      Code § 35-50-2-6. For the adjudication as a habitual offender, the court may

      enhance the sentence on the underlying offense by an additional

      nonsuspendible term of between two years and six years. Ind. Code § 35-50-2-

      8(i). Therefore, the maximum sentence Reed could have received from the trial

      court is twelve years. The trial court imposed a sentence of five years for Reed’s

      Level 5 felony and a sentence of three and one-half years for the habitual

      offender adjudication for an aggregate sentence of eight and one-half years




      3
       Some of Reed’s arguments seem to contend that the trial court did not assign sufficient weight to his history
      of mental illness as a mitigating factor or somehow abused its discretion in sentencing him. We note that
      Reed did not frame his argument in this way or provide any cogent argument regarding the trial court
      abusing its discretion and has not cited to any authority for such an argument. Therefore, to the extent that
      he is arguing that the trial court abused its discretion in sentencing him, we conclude that he has waived any
      such argument. Lee v. State, 91 N.E.3d 978, 990-91 (Ind. Ct. App. 2017) (citing Ind. Appellate Rule
      46(A)(8)(a)).

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2187 | April 21, 2020                     Page 6 of 9
       executed. Reed’s aggregate, executed sentence was three and one-half years

       less than the trial court was authorized to impose.


[10]   As this court has recognized, the nature of the offense is found in the details

       and circumstances of the commission of the offense and the defendant’s

       participation. Perry v. State, 78 N.E.3d 1, 13 (Ind. Ct. App. 2017). The nature

       of the offense refers to a defendant’s actions in comparison with the elements of

       the offense. Cardwell, 895 N.E.2d at 1224. “When determining the

       appropriateness of a sentence that deviates from an advisory sentence, we

       consider whether there is anything more or less egregious about the offense as

       committed by the defendant that ‘makes it different from the typical offense

       accounted for by the legislature when it set the advisory sentence.’” Moyer v.

       State, 83 N.E.3d 136, 142 (Ind. Ct. App. 2017) (quoting Holloway v. State, 950

       N.E.2d 803, 807 (Ind. Ct. App. 2011)), trans. denied.


[11]   With respect to the nature of the offense, Reed struck Sergeant Toby with

       closed fists “eight or ten times” in the face and head, causing a cut to the top of

       Sergeant Toby’s left ear, some scrapes on his arms, and a throbbing pain on the

       sides of his head. Tr. Vol. II at 138-39. The efforts of multiple officers and the

       use of a taser were required to restrain and subdue Reed and complete the book-

       in procedure. Id. at 123, 139. In addition, at the time Reed committed the

       instant offense he had also been charged with battery by bodily waste on a

       public safety official and his actions were a violation of his probation in another

       case from Franklin County that involved theft. Appellant’s. Conf. App. Vol. 2. at



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2187 | April 21, 2020   Page 7 of 9
       101. We do not find his sentence to be inappropriate in light of the nature of

       the offense.


[12]   The character of the offender is found in what we learn of the offender’s life and

       conduct. Perry, 78 N.E.3d at 13. When considering the character of the

       offender, one relevant fact is the defendant’s criminal history. Johnson v. State,

       986 N.E.2d 852, 857 (Ind. Ct. App. 2013). Reed, who at the time of sentencing

       was twenty-nine years of age, had compiled an extensive criminal history,

       which beginning in 2007 included a total of sixteen cases with each resulting in

       a conviction. Appellant’s Conf. App. at 98-101. Of his sixteen criminal cases,

       Reed had his probation revoked on four separate occasions, and violated his

       probation in his Franklin County theft case by committing the offense in this

       case. Id. His felony history includes convictions for burglary, escape, theft,

       attempted theft, criminal trespass, possession of cocaine, maintaining a

       common nuisance, and battery by bodily waste on a public safety official. Id.

       His misdemeanor history includes convictions for leaving the scene of an

       accident, criminal trespass, theft, false informing, conversion, and operating a

       motor vehicle without a license. Id. Reed’s two most recent convictions both

       involved battery on a public safety official. Id. at 101. Moreover, the trial court

       heard testimony that Reed’s criminal history was sufficiently extensive that in

       his adulthood he had not been out of the criminal justice system long enough to

       maintain consistent employment. Tr. Vol. III at 18. Regarding Reed’s assertion

       that his history of mental illness informs our assessment of his character and

       warrants a downward reduction of his sentence, we note that the trial court

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2187 | April 21, 2020   Page 8 of 9
       heard testimony from Reed’s mother regarding his diagnosis of rapid cycling

       bipolar one disorder, the impact of medication to control the symptoms of the

       disorder and the effect of medication on Reed’s behavior, and the difficulties the

       diagnosis has caused for Reed. Id. at 10-17. However, the record shows that

       Reed consistently engaged in criminal activity, including four violations of

       probation, and that previous attempts at counseling or a suspended sentence

       had been unsuccessful. Appellant’s Conf. App. Vol. 2 at 98-102; Tr. Vol. III at 18-

       19. Moreover, the trial court expressly acknowledged Reed’s history of mental

       illness and its impact on his behavior in imposing his sentence. Id. at 41. We

       cannot say that Reed’s history of mental illness merits a downward reduction of

       his sentence and conclude that Reed’s sentence is not inappropriate in light of

       his character.


[13]   Reed has not shown that his sentence is inappropriate in light of the nature of

       his offense and character. We, therefore, affirm the sentence imposed by the

       trial court.


       Najam, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2187 | April 21, 2020   Page 9 of 9
