MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                      FILED
this Memorandum Decision shall not be                                  Nov 20 2019, 6:23 am
regarded as precedent or cited before any
court except for the purpose of establishing                                CLERK
                                                                        Indiana Supreme Court
                                                                           Court of Appeals
the defense of res judicata, collateral                                      and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke                                   Curtis T. Hill, Jr.
Wieneke Law Office, LLC                                 Attorney General of Indiana
Brooklyn, Indiana
                                                        Angela N. Sanchez
                                                        Assistant Section Chief
                                                        Criminal Appeals
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Benjamin M. Daniels,                                    November 20, 2019
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        19A-CR-1534
        v.                                              Appeal from the Henry Circuit
                                                        Court
State of Indiana,                                       The Honorable Kit C. Dean Crane,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        33C02-1704-F6-177



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1534 | November 20, 2019               Page 1 of 7
                                       Statement of the Case
[1]   Benjamin M. Daniels appeals his sentence following his convictions for two

      counts of battery against a public safety official, as Level 6 felonies. Daniels

      raises one issue for our review, namely, whether his sentence is inappropriate in

      light of the nature of the offenses and his character. We affirm.


                                 Facts and Procedural History
[2]   In early 2017, Daniels was an inmate in the Henry County Jail. On January 17,

      Henry County Jail Correctional Officer Jeremy Brown entered Daniels’ cell

      block to speak with the assistant jail commander. While Officer Brown was

      talking with the assistant commander, Daniels, who was in the common area of

      the cell block, reached his arms through the bars and “grabbed at” Officer

      Brown. Tr. Vol. II at 25. Officer Brown asked Daniels to stop, but Daniel

      repeatedly grabbed at Officer Brown. Daniels also threatened to “stomp”

      Officer Brown’s “brains out.” Id. at 74. Officer Brown then told Daniels to

      return to his individual cell. Daniels refused and, instead, argued with Officer

      Brown.


[3]   At that point, Officer Brown entered the common area and again ordered

      Daniels to his cell. When Daniels did not comply, Officer Brown placed his

      hand on Daniels’ shoulder in order to direct Daniels toward his cell. Daniels

      then pulled away and struck Officer Brown in the face. Officer Brown

      responded “in kind,” and the two started “wrestling around.” Id. at 87. Other

      officers responded to assist Officer Brown. While the officers were attempting


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1534 | November 20, 2019   Page 2 of 7
      to subdue Daniels, Daniels bit Officer Brown on his left arm. The officers were

      eventually able to secure Daniels and place him in a holding cell. As a result of

      the altercation, Officer Brown’s shirt was bloodstained, and he was taken to the

      hospital, where he received x-rays and a tetanus shot.


[4]   Thereafter, on February 19, Henry County Jail Correctional Officer Amanda

      Thackery and another officer responded to Daniels’ cell block after they were

      informed that a blanket was covering one of the security cameras. When the

      two officers arrived, Officer Thackery noticed “a mess of wires” on a table

      inside the cell block. Id. at 102. Because Officer Thackery believed that the

      wires were “some type of . . . tattooing device” that the inmates were not

      allowed to possess, Officer Thackery entered the cell block and removed the

      wires from the table. Id. At that point, Daniels grabbed the wires from Officer

      Thackery’s hand and “wrapped” them around her wrists. Id. at 103. Officer

      Thackery told Daniels to stop “multiple times,” but Daniels did not stop.

      Instead, he “[t]ightened” the wires around Officer Thackery’s wrists and

      “lift[ed]” her off the ground with the wires. Id. Daniels then started “physically

      fighting” with Officer Thackery. Id. at 72. He “was pretty much tossing her

      around, due to her small size.” Id. Ultimately, the other officer was able to pull

      Daniels away from Officer Thackery. As a result of the altercation, Officer

      Thackery sustained a cut on her finger and some redness on her wrists from the

      wires.


[5]   The State charged Daniels with two counts of battery against a public safety

      official, as Level 6 felonies. At the conclusion of a jury trial on May 3, 2019,

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1534 | November 20, 2019   Page 3 of 7
      the jury found Daniels guilty as charged. The court entered judgment of

      conviction accordingly and sentenced Daniels to two years for each count. The

      court then ordered those sentences to be served consecutively, for an aggregate

      sentence of four years executed in the Department of Correction. This appeal

      ensued.


                                     Discussion and Decision
[6]   Daniels contends that his sentence is inappropriate in light of the nature of the

      offenses and his 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 recently held 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 recently explained that:


              The principal role of appellate review should be to attempt to
              leaven the outliers . . . but not achieve a perceived “correct”
              result in each case. Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.
              2008). Defendant has the burden to persuade us that the
              sentence imposed by the trial court is inappropriate. Anglemyer v.
              State, 868 N.E.2d 482, 494 (Ind.), as amended (July 10, 2007),
              decision clarified on reh’g, 875 N.E.2d 218 (Ind. 2007).


      Shoun v. State, 67 N.E.3d 635, 642 (Ind. 2017) (omission in original).



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1534 | November 20, 2019   Page 4 of 7
[7]   Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate

      sentence to the circumstances presented, and the trial court’s judgment “should

      receive considerable deference.” Cardwell, 895 N.E.2d at 1222. 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).


[8]   The sentencing range for a Level 6 felony is six months to two and one-half

      years, with an advisory sentence of one year. See Ind. Code § 35-50-2-7 (2019).

      Here, the trial court identified as an aggravating factor Daniels’ criminal

      history. And the court did not identify any mitigators. Accordingly, the court

      sentenced Daniels to two years executed in the Department of Correction on

      each count and ordered the sentences to run consecutively, for an aggregate

      sentence of four years.


[9]   On appeal, Daniels asserts that his sentence is inappropriate in light of the

      nature of the offenses because “there was nothing particularly remarkable about

      either incident[.]” Appellant’s Br. at 7. And Daniels contends that his sentence

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1534 | November 20, 2019   Page 5 of 7
       is inappropriate in light of his character because he “suffered a traumatic

       childhood” and because he “had taken advantage of rehabilitation programs” in

       the Department of Correction. Id. at 8.


[10]   However, Daniels has not met his burden on appeal to demonstrate that his

       sentence is inappropriate. With respect to the nature of the first offense,

       Daniels threatened and repeatedly grabbed at Officer Brown. Then, when

       Officer Brown attempted to get Daniels to return to his cell, Daniels struck

       Officer Brown in the face. Daniels then starting “wrestling around” with

       Officer Brown. Tr. Vol. II at 87. And Daniels bit Officer Brown on the arm

       when officers attempted to subdue him. As a result of the altercation, Officer

       Brown had to seek treatment at the hospital. And with respect to the nature of

       the second offense, Daniels wrapped wires around Officer Thackery’s wrists

       when she attempted to remove the contraband from the common area. When

       Officer Thacker asked Daniels to stop, he instead tightened the wires around

       her wrists, picked her up using the wires, and started “tossing her around.” Id.

       at 72. In essence, Daniels twice battered jail officers who were attempting to

       perform their duties. Accordingly, we cannot say that Daniels’ sentence is

       inappropriate in light of the nature of the offenses.


[11]   As to his character, Daniels has a lengthy criminal history that includes three

       juvenile delinquency adjudications, five felony convictions, and two

       misdemeanor convictions. Moreover, Daniels has been given numerous

       opportunities to avoid incarceration in the past through alternative sentences,

       but he continues to commit crimes. Further, Daniels was being held in jail for

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1534 | November 20, 2019   Page 6 of 7
       other drug-related charges at the time he committed the instant offenses, which

       reflects poorly on his character. We therefore cannot say that Daniels’ sentence

       is inappropriate in light of his character. We affirm Daniels’ sentence.


[12]   Affirmed.


       Bailey, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1534 | November 20, 2019   Page 7 of 7
