MEMORANDUM DECISION
                                                                              FILED
Pursuant to Ind. Appellate Rule 65(D),                                   Oct 05 2018, 8:18 am
this Memorandum Decision shall not be                                         CLERK
regarded as precedent or cited before any                                 Indiana Supreme Court
                                                                             Court of Appeals
court except for the purpose of establishing                                   and Tax Court


the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Derick W. Steele                                         Curtis T. Hill, Jr.
Deputy Public Defender                                   Attorney General of Indiana
Kokomo, Indiana
                                                         Caryn N. Szyper
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Clayton Wright,                                          October 5, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-369
        v.                                               Appeal from the Howard Superior
                                                         Court
State of Indiana,                                        The Honorable George A.
Appellee-Plaintiff.                                      Hopkins, Judge
                                                         Trial Court Cause No.
                                                         34D04-1610-F3-173



Sharpnack, Senior Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-369 | October 5, 2018                    Page 1 of 8
                                          Statement of the Case
[1]   Clayton Wright appeals the sentence he received for his conviction of attempted
                                          1
      battery, a Level 5 felony. We affirm.


                                                             Issue
[2]   Wright presents one issue for our review, which we restate as: whether

      Wright’s sentence is inappropriate in light of the nature of the offense and his

      character.


                                   Facts and Procedural History
[3]   The facts, as contained in the probable cause affidavit and stipulated to by the

      parties, are that in October 2016, nineteen-year-old Wright was riding his bike

      and passed seventeen-year-old Grant Roberts, who was also on a bike. After

      passing Roberts, Wright turned around, rode up in front of Roberts, and

      stopped, forcing Roberts to stop also. Wright reached his hand into Roberts’s

      back pocket where Roberts had his wallet. When Roberts grabbed Wright’s

      hand, Wright pulled out a knife. Wright repeatedly told Roberts, “run your

      pockets bitch,” meaning for Roberts to empty his pockets. Appellant’s App.

      Vol. 2, p. 16.


[4]   During the incident, Roberts was able to stop a passing car. When the car

      stopped, Roberts was able to use his cell phone to call his father and tell him



      1
          Ind. Code §§ 35-41-5-1 (2014), 35-42-2-1 (2016).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-369 | October 5, 2018   Page 2 of 8
      what was happening. Wright began riding away, and Roberts followed him.

      Eventually, Wright turned around to ride toward Roberts, and Roberts then

      turned around so Wright was following him. At that point, Roberts’s father,

      Christopher, arrived. Christopher exited his vehicle with a handgun and

      confronted Wright. Wright lunged at Christopher, jabbed at him with a knife,

      and stated he was going to kill him. When Wright continued to jab at

      Christopher with the knife, Christopher fired one shot into the ground.

      Christopher re-entered his car to escape from Wright, who continued to lunge

      at him. When Wright lunged at Christopher again, Christopher used his car

      door to push him away. Wright stumbled back and fell over his bike. The

      police arrived and arrested Wright.


[5]   Based upon this incident, Wright was charged with attempted robbery, as a
                            2                                                          3
      Level 3 felony, and criminal recklessness, as a Level 6 felony. A third charge

      of attempted battery, as a Level 5 felony, was filed in September 2017, to which

      Wright pleaded guilty. The State dismissed the attempted robbery and criminal

      recklessness charges as well as charges pending in two additional cases, which

      resulted from Wright’s misconduct in jail during his pretrial imprisonment for

      the present offenses. The court sentenced Wright to an executed sentence of




      2
          Ind. Code §§ 35-41-5-1, 35-42-5-1 (2014).
      3
          Ind. Code § 35-42-2-2 (2014).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-369 | October 5, 2018       Page 3 of 8
      three years in the Indiana Department of Correction (DOC). Wright now

      appeals.


                                   Discussion and Decision
[6]   Although a trial court may have acted within its lawful discretion in imposing a

      sentence, article VII, section 6 of the Indiana Constitution authorizes this Court

      to review and revise sentences. This authority is implemented 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). 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).


[7]   Particularly, Wright challenges the appropriateness of his placement in the

      DOC for the full three years; he claims the appropriate sentence is the advisory

      sentence of three years “with two (2) years executed with credit for time served

      with the balance, if any, served through the Howard County Community

      Corrections In-Home Detention, and one (1) year suspended to supervised

      probation.” Appellant’s Br. p. 8.


[8]   “The location where a sentence is to be served is an appropriate focus for

      application of our review and revise authority.” King v. State, 894 N.E.2d 265,

      267 (Ind. Ct. App. 2008). Nonetheless, we note that it will be difficult for a

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-369 | October 5, 2018   Page 4 of 8
       defendant to prevail on a claim that the placement of his or her sentence is

       inappropriate. Fonner v. State, 876 N.E.2d 340, 343 (Ind. Ct. App. 2007). “This

       is because 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, 894 N.E.2d at 268. Moreover, a defendant

       challenging the placement of a sentence must convince us that the given

       placement is itself inappropriate. Fonner, 876 N.E.2d at 344.


[9]    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 5

       felony, for which the advisory sentence is three years, with a minimum sentence

       of one year and a maximum of six years. Ind. Code § 35-50-2-6 (2014). Wright

       was sentenced to the advisory sentence of three years.


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

       to the nature of the current offense, we note that Wright accosted Roberts, tried

       to steal his wallet, and threatened him with a knife. When the juvenile’s father

       arrived to rescue him, Wright confronted him with the knife and told him he

       was going to kill him. Wright was not deterred by a warning gunshot, and he

       only stopped when he was knocked to the ground and the police arrived.

       Wright had ample opportunity to end his course of misconduct but chose to

       persist.


[11]   With regard to the character of the offender, we observe that Wright has

       amassed an extensive juvenile history. His juvenile offenses include receiving


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-369 | October 5, 2018   Page 5 of 8
       stolen property, burglary, possession of paraphernalia, operating while

       intoxicated endangering a person, reckless driving, criminal recklessness,

       leaving the scene of an accident with serious bodily injury, and resisting law

       enforcement. In addition, eleven other charges were disposed of by way of

       dismissal or the State declining to prosecute. Through the juvenile court,

       Wright was placed on supervised probation, tracker probation, in secure

       detention, and he was committed to the Indiana Boys School.


[12]   Upon passing into adulthood, Wright has continued his criminal behavior.

       Prior to this incident, he had acquired one misdemeanor conviction for resisting

       law enforcement. However, he committed the present offenses just a few

       months later, and then committed several criminal offenses while in jail on the

       present charges, in addition to accumulating a substantial number of

       disciplinary violations. While in jail, Wright was charged with the felony

       offenses of battery by bodily waste against a public safety officer, intimidation

       by threat to commit forcible felony, and battery against a public safety officer,

       as well as two counts of misdemeanor battery resulting in bodily injury. His

       disciplinary violations include resisting/interfering with a staff member, abusive

       language to staff, insolence, disobeying a direct order, assault on officer or staff

       member, misuse and/or destruction of county property, tampering with a

       locking or safety device, creating a minor disturbance, fighting, creating a major

       disturbance, communicating with inmates of another classification and/or

       gender, self mutilation or tattooing, malingering, threats/intimidation, posting

       items and/or writing on walls or fixtures, attempted escape, out of place in the


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-369 | October 5, 2018   Page 6 of 8
       institution, sanitary violations, false informing, rioting, littering, assault, body

       punching/horseplay, interfering with count procedures, and contraband.


[13]   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 several juvenile offenses, Wright has an adult

       misdemeanor conviction, several felony and misdemeanor charges that were

       dismissed as part of the plea agreement in this case, and at least thirty incidents

       that resulted in numerous disciplinary violations while in jail over a period of

       fourteen months. The gravity, nature, proximity, and number of these offenses

       in relation to Wright’s current offenses weigh heavily against his claim that his

       placement in the DOC is inappropriate. Wright’s demonstration of disrespect

       for authority and rules while in jail awaiting trial in this cause supports a

       conclusion that a more lenient alternative sentence would not be effective for

       him.


[14]   Wright further argues for different placement in order to have an “opportunity

       to receive community based services designed to prevent future criminal

       behavior” because he struggles with anger management and mental health

       issues. Appellant’s Br. p. 7. The record reveals that the trial court granted

       Wright’s requests for psychiatric evaluation and referral to the county mental

       health court; however, it does not contain any reports, conclusions, or any

       other documents with regard to this issue. In his brief, Wright merely states

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-369 | October 5, 2018   Page 7 of 8
       that “[f]or reasons not outlined in the record, Wright was not able to complete

       the Mental Health Court.” Id.


[15]   Thus, there is neither evidence of a particular mental health condition nor

       evidence that any such condition will be untreatable while he is in the DOC.

       See, e.g., Henderson v. State, 848 N.E.2d 341, 344-45 (Ind. Ct. App. 2006) (finding

       no error in trial court’s refusal to consider defendant’s poor health as mitigator

       because she failed to present evidence that her multiple health conditions would

       be untreatable during incarceration). Moreover, no evidence links Wright’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).


                                                Conclusion
[16]   For the reasons stated, we conclude that Wright’s sentence and placement in

       the DOC is not inappropriate.


[17]   Affirmed.


       Crone, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-369 | October 5, 2018   Page 8 of 8
