MEMORANDUM DECISION
ON REHEARING

Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be                              Aug 07 2015, 8:46 am
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
Alexander L. Hoover                                    Gregory F. Zoeller
Law Office of Christopher D. Walter                    Attorney General of Indiana
Nappanee, Indiana                                      Richard C. Webster
                                                       Christina D. Pace
                                                       Deputy Attorney General
                                                       Indianapolis, Indiana



                                         IN THE
    COURT OF APPEALS OF INDIANA

Jeffery J. Hunt,                                       August 7, 2015
Appellant-Defendant,                                   Court of Appeals Case No.
                                                       20A03-1408-CR-00300
        v.                                             Appeal from the Elkhart Circuit
                                                       Court
State of Indiana,                                      The Honorable Terry C.
Appellee-Plaintiff                                     Shewmaker, Judge
                                                       Trial Court Cause No.
                                                       20C01-1311-FA-064



Mathias, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A03-1408-CR-300 | August 7, 2015   Page 1 of 8
[1]!   Jeffery Hunt (“Hunt”) pleaded guilty in Elkhart Circuit Court to Count I, Class

       A felony robbery while armed with a deadly weapon causing seriously bodily

       injury; Count II, Class A felony burglary; Count III, Class B felony conspiracy

       to commit burglary; and Count IV, Class B felony criminal confinement. Hunt

       was sentenced to an aggregate term of 120 years executed in the Department of

       Correction. Hunt appeals and argues that the 120-year sentence imposed by the

       trial court is inappropriate in light of the nature of the offense and the character

       of the offender.


[2]!   We reverse and remand.


                                       Facts and Procedural History

[3]!   On November 4, 2013, around 9 p.m., Hunt and his father, Jeffrey Hill (“Hill”),

       knocked on the door of the New Paris residence of Don and Joan Neer. Eighty-

       two year old Don Neer came to the door but refused to open it. Hunt and Hill

       forced their way into the home, and Hunt struck Mr. Neer on the head with a

       tire iron, then struck him several more times with the tire iron and his fists as

       Mrs. Neer watched helplessly.1 As a result of the attack, Mr. Neer suffered

       lacerations on his head, three fractured vertebrae in his neck, and a bruised

       wrist. Hunt and Hill then forced Mr. Neer into the living room, restrained him

       in a chair, and went through the house, taking guns, a television, and cash.




       1
         Hunt claims that it was his father who struck Mr. Neer with the tire iron. However, both Mr. and Mrs. Neer
       stated that Hunt was the one who beat Mr. Neer.

       Court of Appeals of Indiana | Memorandum Decision 20A03-1408-CR-300 | August 7, 2015             Page 2 of 8
[4]!   The State charged Hunt with Count I, Class A felony robbery while armed

       with a deadly weapon causing seriously bodily injury; Count II, Class A felony

       burglary; Count III, Class B felony conspiracy to commit burglary; and Count

       IV, Class B felony criminal confinement. Hunt initially pleaded not guilty, but

       on June 19, 2014, he withdrew his plea of not guilty and pleaded guilty to all

       four charges.

[5]!   The trial court held a sentencing hearing on July 31, 2014. At the hearing, the

       trial court considered the fact that Hunt accepted responsibility by pleading

       guilty without the benefit of a plea agreement and Hunt’s age, twenty-six years,

       as mitigating circumstances. The trial court then found the following

       aggravating factors: Hunt’s criminal history and especially his two prior

       burglary convictions, the fact that he had multiple victims, the age of the

       victims, the extensive injuries suffered by Mr. Neer, the fact that Hunt failed to

       seek medical attention for Mr. Neer after beating him, the fact that Hunt would

       not allow Mr. Neer to take his heart medication when he needed it, and the fact

       that Hunt was determined to be at a high risk to reoffend. After finding that the

       aggravating factors outweighed the mitigating factors, the trial court sentenced

       Hunt to fifty years for Count I, fifty years for Count II, twenty years for Count

       III, and twenty years for Count IV. The sentences for Counts I, II, and IV were

       to be served consecutively, and the sentence for Count III was to be served

       concurrently with the sentence for Count IV, for an aggregate sentence of 120

       years.


[6]!   Hunt now appeals.

       Court of Appeals of Indiana | Memorandum Decision 20A03-1408-CR-300 | August 7, 2015   Page 3 of 8
                                       Discussion and Decision

[7]!   Hunt argues that his sentence is inappropriate in light of the nature of the

       offense and the character of the offender. Pursuant to Indiana Appellate Rule

       7(B), we may revise a sentence otherwise 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.” Although we have the power to review and revise sentences, the

       principal role of our review should be to attempt to level the outliers, and

       identify some guiding principles for trial courts and those charged with

       improvement of the sentencing statutes, but not to achieve what we perceive to

       be a “correct” result in each case. Fernbach v. State, 954 N.E.2d 1080, 1089 (Ind.

       Ct. App. 2011), trans. denied (citing Cardwell v. State, 895 N.E.2d 1219, 1225

       (Ind. 2008)).


[8]!   Also, “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 question under Appellate Rule 7(B) is not

       whether another sentence is more appropriate; rather, the question is whether

       the sentence imposed is inappropriate. Fonner v. State, 876 N.E.2d 340, 344

       (Ind. Ct. App. 2007). It is the defendant’s burden on appeal to persuade us that

       the sentence imposed by the trial court is inappropriate. Childress v. State, 848

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

       Court of Appeals of Indiana | Memorandum Decision 20A03-1408-CR-300 | August 7, 2015   Page 4 of 8
[9]!    In exercising our review power, we are not required to compare a defendant’s

        sentence with sentences received by other defendants in similar cases. Knight v.

        State, 930 N.E.2d 20, 22 (Ind. 2010). However, comparison of sentences among

        those convicted of the same or similar offenses can be a proper consideration

        when deciding whether a particular sentence is inappropriate. Id. Our supreme

        court has stated, “Of course, a respectable legal system attempts to impose

        similar sentences on perpetrators committing the same acts who have the same

        backgrounds.” Serino v. State, 798 N.E.2d 852, 854 (Ind. 2003).


[10]!   Hunt pleaded guilty to Count I, Class A felony robbery while armed with a

        deadly weapon resulting in serious bodily injury; Count II, Class A felony

        burglary; Count III, Class B felony conspiracy to commit burglary, and Count

        IV, Class B felony criminal confinement. On the date of Hunt’s offense,2 the

        sentencing range for a Class A felony was twenty to fifty years, with thirty years

        being the advisory sentence. See Ind. Code § 35-50-2-4. The sentencing range for

        a Class B felony was six to twenty years, with ten years being the advisory

        sentence. See Ind. Code § 35-50-2-5. The trial court imposed a sentence of fifty

        years for Count I, fifty years for Count II, twenty years for Count III, and

        twenty years for Count IV. The trial court ordered that the sentences for

        Counts I, II, and IV be served consecutively and that the sentence for Count III




        2
         The date of Hunt’s offense was November 4, 2013. Indiana’s revised sentencing statutes took effect on
        July 1, 2014.

        Court of Appeals of Indiana | Memorandum Decision 20A03-1408-CR-300 | August 7, 2015            Page 5 of 8
        be served concurrently with the sentence for Count IV, for an aggregate

        sentence of 120 years.

[11]!   The facts in this case are undisputedly heinous; Hunt admits as much in his

        brief. Hunt and his father forced their way into the residence of an elderly

        couple, who they knew were home at the time. Hunt struck Mr. Neer on the

        head, mouth, and arm with a tire iron and confined the Neers in their living

        room. Mr. Neer was unable to work following the break-in and had to postpone

        a scheduled surgery to remove a tumor on his lungs. Mrs. Neer stated that she

        has suffered emotional trauma from the attack and that, at night, she still has

        visions of a hooded Hunt standing in the hallway of her home.

[12]!   Hunt also has a criminal history that includes juvenile adjudications in Illinois

        for attempted theft and drug possession. He has previously been convicted of

        burglary, residential burglary, and battery in Illinois and for operating a vehicle

        never having been licensed and criminal conversion in Indiana. Hunt failed to

        appear for his criminal proceedings eight different times. Despite the fact that

        Hunt pleaded guilty to the crimes, he has continued to blame his father for

        involving him in the crimes and claims that it was his father who beat Mr.

        Neer, even though both Mr. Neer and Mrs. Neer insist that Hunt was the

        person who struck Mr. Neer.

[13]!   However, our review of reported cases decided since adoption of the

        “inappropriate” standard for reviewing sentences reveals that sentencing for

        similar cases has generally ranged from twenty-six years to ninety years. See


        Court of Appeals of Indiana | Memorandum Decision 20A03-1408-CR-300 | August 7, 2015   Page 6 of 8
        Campbell v. State, No. 13S05-1410-PC-682, 2014 WL 5490577 (Ind. Oct. 30,

        2014) (affirming ninety-year sentence for convictions for two counts of

        attempted murder, Class A felony burglary resulting in serious bodily injury,

        Class B felony aggravated battery, and Class C felony battery); Bushhorn v. State,

        971 N.E.2d 80, 81 (Ind. 2012) (forty-seven year aggregate sentence for Class A

        felony kidnapping, three counts of Class B felony criminal confinement, and

        Class B felony attempted escape); Joseph v. State, 975 N.E.2d 420, 424 (Ind. Ct.

        App. 2012) (twenty-six year aggregate sentence for Class A felony burglary

        resulting in bodily injury, Class B felony attempted armed robbery, and Class B

        felony criminal confinement); Kennedy v. State, 934 N.E.2d 779 (Ind. Ct. App.

        2010) (affirming twenty-seven year aggregate sentence with three years

        suspended for convictions for Class A felony robbery and Class A felony

        conspiracy to commit robbery); Upton v. State, 904 N.E.2d 700, 702 (Ind. Ct.

        App. 2009) (ninety-year sentence for two counts of Class A felony child

        molesting and three counts of Class B felony child molesting).


[14]!   After surveying sentences imposed in similar cases, we conclude that Hunt’s

        120-year sentence is an “outlier” that is in need of revision. To be clear, we

        need not ensure that all sentences for similar acts and defendants are precisely

        the same.


[15]!   We therefore direct that Hunt’s sentence be revised as follows: that his

        sentences for his two Class A felony convictions be reduced from fifty years to

        thirty years each, and his sentences for his two Class B felony convictions

        remain unchanged at twenty years each, all to be served consecutively, for an

        Court of Appeals of Indiana | Memorandum Decision 20A03-1408-CR-300 | August 7, 2015   Page 7 of 8
        aggregate sentence of 100 years. We remand with instructions that the trial

        court issue an amended sentencing order to carry out this revision.

                                                 Conclusion

[16]!   For all of these reasons, we conclude that Hunt’s sentence is inappropriate in

        light of the nature of the offense and the character of the offender and direct

        that it be revised to an aggregate term of 100 years.


[17]!   Reversed and remanded for proceedings consistent with this opinion.


        Baker, J., and Crone, J., concur.




        Court of Appeals of Indiana | Memorandum Decision 20A03-1408-CR-300 | August 7, 2015   Page 8 of 8
