MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                             FILED
regarded as precedent or cited before any                               Jun 17 2019, 9:21 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
R. Patrick Magrath                                       Curtis T. Hill, Jr.
Alcorn Sage Schwartz & Magrath, LLP                      Attorney General
Madison, Indiana
                                                         Lauren A. Jacobsen
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Jeffrey Henderson,                                       June 17, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-3115
        v.                                               Appeal from the Dearborn Circuit
                                                         Court
State of Indiana,                                        The Honorable James D.
Appellee-Plaintiff                                       Humphrey, Judge
                                                         Trial Court Cause No.
                                                         15C01-1711-F4-32



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-3115 | June 17, 2019                    Page 1 of 11
                                             Case Summary
[1]   Jeffrey Henderson pled guilty by open plea agreement to seventeen counts of

      level 4 felony burglary. The trial court sentenced him to an aggregate eighty-

      eight-year executed term. Henderson now claims that his sentence is

      inappropriate in light of the nature of the offenses and his character. Finding

      that he has failed to meet his burden of demonstrating that his sentence is

      inappropriate, we affirm.


                                 Facts and Procedural History
[2]   During a two-month period between August and October 2017, deputies from

      the Dearborn County Sheriff’s Department responded to reports of seventeen

      home burglaries. The burglar’s pattern of conduct included prying open a door

      or window and stealing cash, power tools, weapons, jewelry, and various

      electronics. Investigating officers used physical evidence to trace the burglaries

      to forty-three-year-old Henderson, who was on probation and had a criminal

      record that included seventeen prior burglary convictions. Meanwhile,

      Henderson had been arrested and was in the county jail on an unrelated drug

      dealing charge. Detectives Carl Pieczonka and Norman Rimstidt interviewed

      Henderson at the jail, and Henderson admitted to committing the burglaries by

      using a screwdriver to pry open the doors and windows. He agreed to

      accompany the officers to the various homes, describing how he entered each

      home and the items he stole.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-3115 | June 17, 2019   Page 2 of 11
[3]   The State charged Henderson with seventeen counts of level 4 felony burglary,

      plus a habitual offender count. Henderson entered an open plea agreement

      whereby he would plead guilty to the seventeen burglary counts. In exchange,

      the State dismissed the habitual offender count, a level 2 felony drug dealing

      charge in another cause, and probation revocation petitions pending in two

      counties. After his guilty plea hearing, Henderson phoned his wife from the

      jail. He told her that based on the trial court’s apparent concern over his mental

      health history, he believed that his mental health issues could be his “loophole.”

      State’s Ex. 2.


[4]   Three days later, Henderson filed correspondence with the trial court claiming

      that he had been confused, did not know what was real, and was unsure about

      his plea. The trial court appointed two psychologists to evaluate Henderson’s

      mental competency. Dr. Ed Connor examined Henderson and initially found

      him mentally incompetent. After reviewing several jailhouse recordings,

      including phone calls between Henderson and his wife and Henderson’s

      interview with Detectives Pieczonka and Rimstidt, Dr. Connor concluded that

      Henderson had been exaggerating his symptoms and malingering during his

      initial interview. As a result, he submitted a letter to the trial court withdrawing

      his initial finding of incompetency and concluding instead that Henderson was

      mentally competent. Psychologist Don Olive examined Henderson and also

      found him to be mentally competent. Based on these findings, the trial court

      found Henderson competent and accepted the plea agreement.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-3115 | June 17, 2019   Page 3 of 11
[5]   The trial court conducted a sentencing hearing, took matters under advisement,

      and sentenced Henderson to an aggregate eighty-eight-year executed term,

      comprising seventeen eight-year terms, eleven of which were to run

      consecutively. The court identified as aggravators Henderson’s lengthy

      criminal history, which includes nineteen felony convictions, seventeen of

      which are for burglary, his probation status at the time of the offenses, his deceit

      upon the court concerning his mental health, and the advanced age of three of

      the victim homeowners. The court identified as slightly mitigating Henderson’s

      decision to plead guilty, his physical and mental health issues, and potential

      hardship on his family. Henderson appeals his sentence. Additional facts will

      be provided as necessary.


                                     Discussion and Decision
[6]   Henderson asks that we review and revise his sentence pursuant to Indiana

      Appellate Rule 7(B), which states that we “may revise a sentence authorized by

      statute if, after due consideration of the trial court’s decision, [this] Court finds

      that the sentence is inappropriate in light of the nature of the offense and the

      character of the offender.” “[S]entencing is principally a discretionary function

      in which the trial court’s judgment should receive considerable deference.”

      Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008). When a defendant

      requests appellate review and revision of his sentence, we have the power to

      affirm or reduce the sentence. Akard v. State, 937 N.E.2d 811, 813 (Ind. 2010).

      In conducting our review, our principal role is to leaven the outliers, focusing

      on the length of the aggregate sentence and how it is to be served. Bess v. State,

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-3115 | June 17, 2019   Page 4 of 11
      58 N.E.3d 174, 175 (Ind. 2016); Foutch v. State, 53 N.E.3d 577, 580 (Ind. Ct.

      App. 2016). This allows for consideration of all aspects of the penal

      consequences imposed by the trial court in sentencing, i.e., whether it consists

      of executed time, probation, suspension, home detention, or placement in

      community corrections, and whether the sentences run concurrently or

      consecutively. Davidson v. State, 926 N.E.2d 1023, 1025 (Ind. 2010). 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.’” Foutch, 53 N.E.3d at 581 (quoting Barker v. State, 994 N.E.2d

      306, 315 (Ind. Ct. App. 2013), trans. denied (2014)). The defendant bears the

      burden of persuading this Court that his sentence meets the inappropriateness

      standard. Bowman v. State, 51 N.E.3d 1174, 1181 (Ind. 2016).


[7]   In considering the nature of Henderson’s offenses, “the advisory sentence is the

      starting point the Legislature has selected as an appropriate sentence.” Green v.

      State, 65 N.E.3d 620, 637-38 (Ind. Ct. App. 2016), trans. denied (2017). 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.” Holloway v. State, 950 N.E.2d 803, 807 (Ind. Ct. App. 2011).


[8]   The trial court sentenced Henderson to an aggregate eighty-eight years for

      seventeen level 4 felonies, each of which carries a sentencing range of two to

      twelve years, with a six-year advisory term. Ind. Code § 35-50-2-5.5. Indiana

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-3115 | June 17, 2019   Page 5 of 11
      Code Section 35-50-1-2(c) affords the trial court the discretion to impose

      sentences for multiple counts either consecutively or concurrently, after

      considering the aggravating and mitigating circumstances. Because our

      legislature has included level 4 felony burglary on the list of “crimes of

      violence,” the trial court is not limited in the total consecutive terms of

      imprisonment it may impose. Id.; Ind. Code § 35-50-1-2(a). Here, the court

      imposed eight-year executed sentences on each of the seventeen counts and ran

      only eleven of them consecutively.


[9]   Henderson correctly asserts that his burglaries did not involve violence. He

      claims that he specifically chose to burglarize homes where he knew the owners

      would not be present. That said, he appears to have surveilled his victims,

      which indicates premeditation. His numerous break-ins produced a large cache

      of contraband, including jewelry, firearms, alcohol, cash, electronics, and

      power tools. Moreover, he attempted to eliminate incriminating evidence by

      repeatedly filing down the screwdriver that he used to pry open his victims’

      doors and windows to remove trace amounts of paint that could be tied to each

      crime scene. By all accounts, Henderson’s current crime spree was fine-tuned

      and vast in scope, with seventeen home burglaries in just over two months’

      time. Three of the homeowners were elderly. Victim impact letters introduced

      during sentencing indicate that although the victims were not home during

      Henderson’s burglaries, they nevertheless experienced fear, financial loss, and a

      sense of violation. In short, the nature of Henderson’s offenses does not

      militate toward a shorter sentence.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-3115 | June 17, 2019   Page 6 of 11
[10]   Likewise, Henderson’s character does not militate toward a shorter sentence.

       We conduct our review of his character by engaging in a broad consideration of

       his qualities. Aslinger v. State, 2 N.E.3d 84, 95 (Ind. Ct. App. 2014), clarified on

       other grounds on reh’g, 11 N.E.3d 571. “When considering the character of the

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

       47 N.E.3d 1249, 1251 (Ind. Ct. App. 2015), trans. denied (2016). Henderson’s

       juvenile record includes robbery involving the placement of a metal object to a

       female victim’s throat. As a seventeen-year-old, he was waived to adult court

       for theft of firearms. His extensive adult criminal record includes nineteen prior

       felony convictions, seventeen of them for burglary. In all, Henderson has

       amassed thirty-four burglary convictions. He has failed to respond to lenient

       sentencing options, as is evidenced by his previous probation revocation and the

       fact that he was serving probation at the time he committed the current

       offenses. During his previous stints of incarceration, he accumulated twenty-

       nine reports for misconduct, including intimidation, battery, and throwing

       bodily waste on a nurse.


[11]   Henderson touts his guilty plea and cooperation with law enforcement as

       reflections of a positive character. While a guilty plea may be mitigating where

       the defendant accepts full responsibility and saves the State the expense of

       preparing for and conducting a trial, “a guilty plea may not be significantly

       mitigating when it does not demonstrate the defendant’s acceptance of

       responsibility or when the defendant receives a substantial benefit in return for

       the plea.” McCoy v. State, 96 N.E.3d 95, 98 (Ind. Ct. App. 2018) (quoting


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-3115 | June 17, 2019   Page 7 of 11
       Anglemyer v. State, 875 N.E.2d 281, 221 (Ind. 2007), opinion on reh’g). With

       respect to Henderson’s guilty plea, we observe that soon after he entered the

       plea, he attempted to cast doubt on it and notified the trial court that he was

       confused and unsure what was real, essentially claiming mental incompetence.

       Additionally, he received a substantial benefit in the dismissal of a habitual

       offender count, a level 2 felony narcotics dealing charge in another cause, and

       two probation revocation petitions. Thus, by pleading guilty, he reduced his

       overall sentence exposure by about fifty years. See Ind. Code § 35-50-2-8(i)(1)

       (court shall impose additional fixed term of six to twenty years for habitual

       offender convicted of level 1 through level 4 felony); see also Ind. Code § 35-50-

       2-4.5 (level 2 felony carries sentencing range of ten to thirty years with

       seventeen and one-half-year advisory). We find Henderson’s cooperation with

       law enforcement to be linked to the State’s favorable plea offer and similarly

       beneficial to him. At the time that Henderson gave the jailhouse interview in

       which he admitted to committing the seventeen burglaries, he was in pretrial

       custody facing a level 2 felony drug dealing charge in another cause. He

       accompanied law enforcement officers to those crime scenes and also showed

       them the locations of some previously unreported burglaries. His cooperation

       with law enforcement paid dividends in the form of dismissal by plea agreement

       of his most serious charge.


[12]   Henderson also suggests that we take into account his drug addiction and

       mental and physical health issues because they have resulted in “a reduced

       capacity to appreciate the wrongfulness of his actions and control his impulses.”


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-3115 | June 17, 2019   Page 8 of 11
       Appellant’s Br. at 12. Henderson’s history of drug and alcohol abuse dates back

       to his teen years and includes regular use of marijuana, cocaine, and crack, and

       most recently, an addiction to opiates. Although he has intermittently

       participated in treatment programs, he has not sustained any prolonged success.

       Henderson’s approach to funding his drug problem through serial burglary

       appears more methodical than impulsive and reflects negatively on his

       character. As for his physical health, the record indicates that he has bad knees,

       gall bladder issues, and some level of kidney failure. However, he has failed to

       make a compelling argument that he would receive inadequate care for these

       ailments while serving time in the Department of Correction.


[13]   When it comes to Henderson’s mental health, the record is less than clear.

       Henderson testified that he had been diagnosed with post-traumatic stress

       disorder and paranoid schizophrenia. A report from the Department of

       Correction/Miami Correctional Facility indicates that Henderson’s diagnosis

       was “Antisocial Personality Disorder.” Appellant’s App. Vol. 4 at 25. Based

       on Henderson’s apparent lucidity during recorded jailhouse conversations and

       the final reports from two psychologists, the trial court found Henderson to be

       exaggerating and embellishing his mental health issues and concluded that his

       “malingering raises questions as to the existence or severity of any mental

       health issues.” Tr. Vol. 2 at 147.


[14]   While we in no way wish to intimate that Henderson’s mental health issues are

       entirely feigned, we, like the trial court, find it difficult to determine the actual

       extent of those issues. The record does indicate that Henderson has

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-3115 | June 17, 2019   Page 9 of 11
       embellished and exaggerated them to manipulate the system. For example, Dr.

       Connor, who conducted Henderson’s mental competency evaluation, reversed

       his initial opinion that Henderson lacked mental competency after reviewing

       the jailhouse recordings. In his letter to the court explaining his change of

       opinion, Dr. Connor wrote, in pertinent part, that the recordings show that

       Henderson “was clearly coherent and was very well aware of his legal

       circumstances and potential options.” State’s Ex. 2. The doctor also wrote that

       Henderson’s reference to his mental health history as “his ‘loophole’ … strongly

       suggests deceitfulness.” Id. He described Henderson as “able to intellectually

       and insightfully discuss his legal competency” during the recorded

       conversations, and as being “coherent, talkative, and display[ing] a very

       different intellectual and verbal demeanor than he did in his [mental]

       evaluation.” Id. Dr. Connor also noted how “clearly coherent” Henderson was

       in his recorded interview with the detectives, providing them information that

       was relevant and specific. Id. The doctor concluded his letter to the court by

       stating, “I must respectfully change my opinion that [Henderson’s] ‘deficient

       mental capacity compromises his ability to rationally assist his attorney in

       preparing his defense at this time.’ I now believe that [he] was malingering

       during my evaluation of him…. it appears from the audio recordings that Mr.

       Henderson was quite astute at malingering.” Id.


[15]   At Henderson’s competency hearing, Dr. Connor again described Henderson as

       “sound[ing] very legally intelligent” in the jailhouse recordings and reported

       that during one phone call, Henderson had talked to his wife about doing legal


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-3115 | June 17, 2019   Page 10 of 11
       research and referred to his mental issues as a “loophole” for getting an open

       plea and probation. Tr. Vol. 2 at 40. During that same call, Henderson also

       said, “I ain’t no dummy.” Id. The trial court agreed, noting Henderson’s

       lucidity and attention to detail during his recorded interview with the

       detectives, and found that Henderson had committed deceit toward the court.

       Based on our review of the record, we, too, believe that Henderson is “no

       dummy” but instead is an opportunist and manipulator of the system with

       which he has become so familiar. His character simply does not merit a shorter

       sentence.


[16]   Finally, while we are mindful that Henderson’s sentence effectively amounts to

       a life sentence, given his age, it reflects a lifetime of criminal activity that

       includes not only the current seventeen home burglary convictions but also

       seventeen prior burglary convictions, as well as felony convictions for

       intimidation and theft of firearms and failure to respond to lenient sentencing

       options. Applying our Rule 7(B) legal criteria, which includes the deference we

       must afford the trial court, we conclude that Henderson has failed to meet his

       burden of demonstrating that his sentence is inappropriate in light of the nature

       of his offenses and his character. Consequently, we affirm.


[17]   Affirmed.


       Bradford, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-3115 | June 17, 2019   Page 11 of 11
