MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                        FILED
regarded as precedent or cited before any                                Feb 21 2019, 6:33 am
court except for the purpose of establishing
                                                                             CLERK
the defense of res judicata, collateral                                  Indiana Supreme Court
                                                                            Court of Appeals
estoppel, or the law of the case.                                             and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Michael P. DeArmitt                                      Curtis T. Hill, Jr.
Columbus, Indiana                                        Attorney General of Indiana

                                                         Evan Matthew Comer
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Nathan Edward Brown,                                     February 21, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-2126
        v.                                               Appeal from the Bartholomew
                                                         Superior Court
State of Indiana,                                        The Honorable James D. Worton,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         03D01-1708-F5-4523, 03D01-1503-
                                                         F6-1465



Altice, Judge.


                                          Case Summary


Court of Appeals of Indiana | Memorandum Decision 18A-CR-2126 | February 21, 2019                Page 1 of 9
[1]   Nathan E. Brown pled guilty to two counts of Level 6 felony battery on a public

      safety official and was sentenced to consecutive terms of two years, for a total

      sentence of four years executed. On appeal, Brown argues that the sentence

      imposed is inappropriate and that the trial court erred in calculating his credit

      time to be applied to his sentence.


[2]   We affirm and remand with instructions.


                                       Facts & Procedural History


[3]   Brown pled guilty to Level 6 felony theft under Cause No. 03D01-1503-F6-1465

      (F6-1465), and on October 25, 2016, he was sentenced to eighteen months and

      ninety-four days, with eighteen months suspended to probation. At Brown’s

      request, the trial court approved transfer of his probation to Florida, where

      Brown enrolled in an intensive outpatient treatment program in Palm Springs.

      Florida officials denied Brown’s request for transfer, and per the Interstate

      Compact for Adult Offender Supervision, Brown was required to return to

      Indiana. Brown, however, remained in Florida.


[4]   On January 18, 2017, the State filed a petition to revoke Brown’s probation,

      alleging that Brown failed to report a change of address within twenty-four

      hours, failed to return to the State of Indiana per probation’s request and per the

      Interstate Compact Rules, and failed to report to probation as directed. Brown

      was arrested in Florida and extradited back to Indiana on June 30, 2017.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2126 | February 21, 2019   Page 2 of 9
[5]   Within days of returning to Indiana, Brown violated jail rules. On July 5, 2017,

      he was cited for attempting to flood his jail cell and fleeing or physically

      resisting a staff member. Between July 31, 2017 and August 14, 2017, Brown

      received additional citations for jail rule violations, including multiple counts of

      disorderly conduct, intimidation, refusing to obey an order, interfering with a

      staff member in the performance of their duties, making unreasonable

      noise/disturbing the peace, fleeing or physically resisting a staff member, and

      lying.


[6]   On August 14, 2017, Jail Commander John Martoccia observed via a video

      monitor Brown standing on the sink in his cell attempting to damage the

      sprinkler system. Commander Martoccia and Jail Officer Haley Holdreith went

      to Brown’s cell and told him to sit down. After Brown complied, Commander

      Martoccia entered Brown’s cell and spoke with Brown about his prior action of

      flooding his jail cell. Brown jumped up and lunged at Commander Martoccia

      and tried to hit him with his right hand but missed. Officer Holdreith then

      entered the cell with her taser in her left hand. Brown grabbed her hand and

      twisted her arm, trying to break her grip on the taser, and he used his body

      weight to slam her into the cell wall. Brown then threw another punch at

      Commander Martoccia, who moved his head such that Brown made contact

      only with the tip of his nose. Brown was forced to the ground and subdued.


[7]   The following day, the State charged Brown under Cause No. 03D01-1708-F5-

      4523 (F5-4523) with Count I, disarming a police officer, a Level 5 felony;

      Counts II and III, battery against a public safety official, as Level 6 felonies;

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2126 | February 21, 2019   Page 3 of 9
      Count IV, resisting law enforcement, a Class A misdemeanor; and Count V,

      attempted criminal mischief, a Class B misdemeanor. On June 19, 2018,

      Brown pled guilty pursuant to an open plea agreement to Counts II and III, and

      the State agreed to dismiss the remaining charges.


[8]   On August 7, 2018, the trial court held a dispositional hearing for F6-1465 and

      a sentencing hearing for F5-4523. Brown admitted to his probation violations

      in F6-1465. The State informed the court as follows:


              Judge I would just note that he has by my calculations um served
              the entire 18 months after you take away the, there was 180 days
              of good time credit that was taken away um through 6 different
              rule violations um so I, State believes that there, he has over
              served that case by 40 days and those 40 days would go towards
              [the sentence to be imposed in F5-4523].


      Transcript Vol. I at 23. Based on this, the court sentenced Brown to “time

      served” for his suspended sentence and terminated his probation as

      unsuccessful. Id.


[9]   The court then conducted a sentencing hearing for F5-4523. At the conclusion

      of the hearing, the court found no mitigating circumstances and four

      aggravating circumstances, including: (1) Brown’s history of criminal and

      delinquent behavior; (2) the fact that Brown had received the benefit of

      probation in the past and had petitions to revoke filed against him; (3) the fact

      that Brown had the opportunity for treatment outside of a penal facility; and (4)

      the fact that Brown exhibited poor pretrial behavior while incarcerated. The


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2126 | February 21, 2019   Page 4 of 9
       court then sentenced Brown to consecutive two-year terms for the offenses to

       which he pled guilty. With regard to credit time, the court stated:


               Give him credit on I guess count 2 towards the 40 actual days of
               credit less the 20 days of good . . . that were taken away from
               him.


       Id. at 34. Brown now appeals. Additional facts will be provided as necessary.


                                           Discussion & Decision


                                         1. Inappropriate Sentence


[10]   The trial court sentenced Brown to the maximum aggregate term of four years.

       See Ind. Code § 35-50-1-2(c), (d) (“the total of the consecutive terms of

       imprisonment to which the defendant is sentenced for felony convictions arising

       out of an episode of criminal conduct may not exceed the following: (1) If the

       most serious crime for which the defendant is sentenced is a Level 6 felony, the

       total of the consecutive terms of imprisonment may not exceed four (4) years”).

       Brown argues that in light of the nature of the offense and his character, the

       imposition of the maximum sentence is inappropriate.


[11]   This court has the constitutional authority to revise a sentence authorized by

       statute if, “after due consideration of the trial court’s decision,” we find that the

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

       character of the offender. See Ind. Appellate Rule 7(B). The question under

       App. R. 7(B) is “not whether another sentence is more appropriate” but rather

       “whether the sentence imposed is inappropriate.” King v. State, 894 N.E.2d
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2126 | February 21, 2019   Page 5 of 9
       265, 268 (Ind. Ct. App. 2008). The burden is on the defendant to persuade the

       appellate court that his sentence is inappropriate. Childress v. State, 848 N.E.2d

       1073, 1080 (Ind. 2006). “Sentencing review under Appellate Rule 7(B) is very

       deferential to the trial court.” Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012).


[12]   With regard to the nature of the offense, Brown argues that the facts giving rise

       to his offenses are not particularly heinous or more aggravated than what is

       necessary to establish battery on a public safety official as defined by the

       legislature. Brown also asserts that his physical contact with Commander

       Martoccia was minimal and that neither Commander Martoccia nor Officer

       Holdreith were injured as a result of his actions.


[13]   Brown, however, ignores the setting in which the events occurred. Indeed,

       Brown was in jail, where “safety and order are paramount concerns.” Volkman

       v. Ryker, 736 F.3d 1084, 1092 (7th Cir. 2013). We note that Brown had been

       cited for several jail rule violations in the weeks prior to the incident at issue

       and had previously tried to flood his jail cell. It was Brown’s tampering with

       the sprinkler system that brought the officers to his cell prior to the altercation.

       When confronted, Brown lunged at Commander Martoccia and threw two

       punches at him—missing on his first attempt and making slight contact with

       Commander Martoccia’s nose on his second attempt because Commander

       Martoccia was able to move to avoid being hit more seriously. Brown also tried

       to disarm Officer Holdreith and used his body weight to slam her into the cell

       wall.



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2126 | February 21, 2019   Page 6 of 9
[14]   With regard to the character of the offender, Brown does not deny his criminal

       history or his many violations of jail rules. Rather, he points to his statement at

       sentencing in which he acknowledged the need to change his behavior and

       expressed his desire for treatment. Brown also notes that he accepted

       responsibility for his crimes by pleading guilty and offering no excuses for his

       behavior.


[15]   The State asserts that a defendant’s life and conduct are illustrative of his

       character. We agree. Here, Brown has accumulated multiple criminal

       convictions in both Indiana and Florida. As a juvenile, Brown was adjudicated

       a delinquent for criminal mischief and criminal recklessness. In total, he

       received seven juvenile delinquency adjudications between 2007 and 2009.

       Brown also has two prior felony convictions in Indiana—one for Class D felony

       intimidation and one for Level 6 felony theft—and several misdemeanor

       convictions. In 2015, Brown was charged in Florida with battery of an officer

       and two counts of obstruction of an officer without violence.


[16]   In addition to his criminal history, we note that almost immediately from the

       time Brown was extradited to Indiana, he began violating jail rules. During

       July and August 2017, Brown attempted to flood his jail cell multiple times,

       tried to flee from officers, and lied to jail staff. After he was transferred to the

       Department of Correction awaiting trial in this case, Brown participated in a

       fight. Brown’s criminal history and history of jail rule violations evidence his

       poor character and demonstrate his unwillingness to abide by rules of society or



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2126 | February 21, 2019   Page 7 of 9
       the rules of the facility where he is confined. Brown’s character is not deserving

       of a lesser sentence.


[17]   Having considered the nature of the offense and the character of the offender,

       we cannot say that Brown’s four-year aggregate sentence is inappropriate.


                                                 2. Credit Time


[18]   Brown argues, and the State agrees, that the trial court’s abstract of judgment

       contains an error regarding Brown’s credit time. The trial court’s sentencing

       order states:


               [Brown] had 402 actual days credit from (6/30/2017 –
               8/6/2018). The defendant lost 180 actual days of good time
               credit in [F6-1465] for Jail Rule Violations filed on (7/5/2015;
               7/31/2017; 8/1/2018 [sic]; 8/9/2017; 8/14/2017; and
               8/17/2017), which left 222 actual days credit. 182 actual days
               credit was applied to [F6-1465] which was applied to the
               sentence in that case, for time served in full. The remaining 40
               days, minus 20 days for a jail rule violation on June 19, 2018 has
               been applied to cause number [F5-4523].


       Appellant’s Appendix Vol. 2 at 214. The abstract of judgment, however, indicates

       that Brown earned twenty days of accrued time and twenty days of good time

       credit. Based on the court’s sentencing order, Brown should have been given

       credit for forty days of accrued time and twenty days of good time credit. There

       is thus a twenty-day discrepancy between the trial court’s sentencing order and

       abstract of judgment with regard to the number of accrued days for which

       Brown’s sentence in the instant case should be credited. We therefore remand


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2126 | February 21, 2019   Page 8 of 9
       this case to the trial court with instructions to correct the discrepancy between

       the sentencing order and the abstract of judgment concerning credit for accrued

       time.


[19]   Brown also claims that the trial court erred in calculating his accrued time by

       one day, claiming that he actually over served his sentence in F6-1465 by forty-

       one days. We note, however, that during the sentencing hearing, Brown’s

       defense counsel told the court that “he should now have 40 actual days credit.”

       Transcript Vol. I at 24. The State then argued that Brown’s good time credit

       associated with the forty days should be reduced by twenty days due to a jail

       rule violation. Defense counsel did not dispute this. Instead, Brown agreed

       that he was entitled to credit for forty days accrued time. Thus, any error in the

       court’s calculation of accrued days was invited by Brown. See Brewington v.

       State, 7 N.E.3d 946, 975 (Ind. 2014) (“the ‘doctrine of invited error is grounded

       in estoppel,’ and forbids a party to ‘take advantage of an error that [he]

       commits, invites, or which is the natural consequence of [his] own neglect or

       misconduct’”).


[20]   Judgment affirmed and remanded with instructions.


       Najam, J. and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2126 | February 21, 2019   Page 9 of 9
