MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                              FILED
regarded as precedent or cited before any
court except for the purpose of establishing                  Jun 09 2017, 9:10 am

the defense of res judicata, collateral                            CLERK
                                                               Indiana Supreme Court
estoppel, or the law of the case.                                 Court of Appeals
                                                                    and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Donald C. Swanson, Jr.                                   Curtis T. Hill, Jr.
Fort Wayne, Indiana                                      Attorney General of Indiana

                                                         Michael Gene Worden
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Juma Haywood,                                            June 9, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         02A03-1701-CR-165
        v.                                               Appeal from the Allen Superior
                                                         Court
State of Indiana,                                        The Honorable Frances C. Gull,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         02D04-1610-F6-1147



Barnes, Judge.




Court of Appeals of Indiana | Memorandum Decision 02A03-1701-CR-165 | June 9, 2017     Page 1 of 6
                                               Case Summary

[1]   Juma Haywood pled guilty to four counts of Level 6 felony invasion of privacy

      and was sentenced to two years imprisonment on each count, to be served

      concurrently. Haywood now appeals his sentence. We affirm.


                                                      Issues

[2]   Haywood raises one issue on appeal, which we restate as whether the trial court

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

      Haywood’s character.


                                                      Facts

[3]   On October 14, 2016, Haywood was charged with four counts of Level 6 felony

      invasion of privacy. On October 18, 2016, a no contact order was issued,

      barring Haywood from contacting the victim, H. H. On October 24, 2016,

      H.H. wrote a letter to the court expressing her intentions to continue a

      relationship between herself and Haywood, further stating that Haywood was

      no longer a threat to her or her children. H.H. also requested that the no

      contact order be terminated. On December 14, 2016, without the benefit of a

      plea agreement, Haywood pled guilty to all four counts. During the sentencing

      hearing, on January 12, 2017, H.H. stated that she “made it possible for Mr.

      Haywood to call [her] and that, when all this is said and done, that [she] still

      [planned] on pursuing a relationship.” Tr. p. 5. Also during the hearing,

      Haywood apologized to the court for violating the no contact order and stated

      that “it’s kind of hard to not contact the person when you’re in love with the


      Court of Appeals of Indiana | Memorandum Decision 02A03-1701-CR-165 | June 9, 2017   Page 2 of 6
      person.” Id. at 6. Haywood also stated that “she [H.H.] helps me get myself

      together since my mother died and everything.” Id. After evidence and

      arguments were presented, the trial court concluded that Haywood’s criminal

      history, consisting of four juvenile adjudications, thirteen misdemeanors, and

      eight prior felony convictions, along with the fact that he was on probation

      when the current offenses were committed, were all aggravating circumstances.

      The court also stated that it found Haywood’s guilty plea, expression of

      remorse, and the victim’s statements to be mitigating circumstances. Given the

      aggravating circumstances, the trial court sentenced Haywood to two years

      imprisonment on each count, to be served concurrently. The trial court also

      ordered that the no contact order be terminated.


                                                    Analysis

[4]   Haywood contends that the trial court erred when it “handed down an

      aggravated sentence where the entirety of the [offensive] conduct was

      consensual telephone conversations.” Appellant’s Br. p. 5. We will assess

      whether Haywood’s sentence is inappropriate under Indiana Appellate Rule

      7(B) in light of his character and the nature of the offense. See Anglemyer v.

      State, 868 N.E.2d 482, 491 (Ind. 2007). Although Rule 7(B) does not require us

      to be “extremely” deferential to a trial court’s sentencing decision, we still must

      give due consideration to that decision. Rutherford v. State, 866 N.E.2d 867, 873

      (Ind. Ct. App. 2007). We also understand and recognize the unique perspective

      a trial court brings to its sentencing decisions. Id. “Additionally, a defendant



      Court of Appeals of Indiana | Memorandum Decision 02A03-1701-CR-165 | June 9, 2017   Page 3 of 6
      bears the burden of persuading the appellate court that his or her sentence is

      inappropriate.” Id.


[5]   The principal role of Rule 7(B) review “should be to attempt to leaven the

      outliers, and identify some guiding principles for trial courts and those charged

      with improvement of the sentencing statutes, but not to achieve a perceived

      ‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.

      2008). We “should focus on the forest—the aggregate sentence—rather than

      the trees—consecutive or concurrent, number of counts, or length of the

      sentence on any individual count.” Id. Whether a sentence is inappropriate

      ultimately turns on the culpability of the defendant, the severity of the crime,

      the damage done to others, and myriad other factors that come to light in a

      given case. Id. at 1224. When reviewing the appropriateness of a sentence

      under Rule 7(B), we may consider all aspects of the penal consequences

      imposed by the trial court in sentencing the defendant, including whether a

      portion of the sentence was suspended. Davidson v. State, 926 N.E.2d 1023,

      1025 (Ind. 2010).


[6]   Haywood argues that “the nature and circumstances surrounding the offense in

      this case shows that an enhanced and executed sentence of four years is

      inappropriate.” Appellant’s Br. p. 9. When considering the nature of the

      offense, the advisory sentence is the starting point to determine the

      appropriateness of a sentence. Johnson v. State, 986 N.E.2d 852, 856 (Ind. Ct.

      App. 2013). Haywood pled guilty to four counts of Level 6 felony invasion of

      privacy. The sentencing range for a Level 6 felony is between six months and

      Court of Appeals of Indiana | Memorandum Decision 02A03-1701-CR-165 | June 9, 2017   Page 4 of 6
      two-and-a-half years’ imprisonment, with one year being the advisory sentence.

      Indiana Code Section 35-50-2-7(b). The trial court sentenced Haywood to two

      years imprisonment for each count to be served concurrently, rather than

      consecutively. The trial court’s sentence was entirely within the range allowed

      by the statute.


[7]   Regarding the nature of Haywood’s offense, although contact with the victim

      may have been consensual, his arguments disregard the fact that he expressly

      violated a court order on multiple occasions. To the extent Haywood argues

      that H.H.’s actions invited his violation of the protective order, this court has

      held that an invitation by the victim does not waive or nullify an order for

      protection. Smith v. State, 999 N.E.2d 914, 918 (Ind. Ct. App. 2013) trans.

      denied.


[8]   When considering Haywood’s character, we cannot say that the sentence

      imposed by the trial court was inappropriate. Haywood has four adjudications

      as a juvenile, thirteen misdemeanor convictions, and eight prior felony

      convictions. He was also on probation at the time of these offenses. The

      significance of a criminal history in assessing a defendant’s character and an

      appropriate sentence varies based on the gravity, nature, and number of prior

      offenses in relation to the current offense. Rutherford, 866 N.E.2d at 874.

      Haywood contends that “the more recent convictions are far less severe than his

      early-life conduct; [and that] from 2007 on, Haywood has no conviction or

      charge above a Level 6 felony. Of those, all but two are either driving offenses

      or drug charges, which bear no similarity to the current conviction.”

      Court of Appeals of Indiana | Memorandum Decision 02A03-1701-CR-165 | June 9, 2017   Page 5 of 6
       Appellant’s Br. p. 11. Although it is true that Haywood has not received a

       conviction above a Level 6 felony since 2007, and that his recent offenses have

       been “less severe,” Haywood’s frequent contacts with the criminal justice

       system show that he has not been deterred or rehabilitated from breaking the

       law. See Garcia v. State, 47 N.E.3d 1249, 1251-1252 (Ind. Ct. App. 2015)

       (defendant’s sixty-six month sentence was not inappropriate in light of his

       character and his failure to reform himself). Haywood has not met his burden

       of persuading us that his sentence is inappropriate in light of the nature of the

       offenses and his character.


                                                   Conclusion

[9]    The sentence imposed by the trial court was not inappropriate in light of the

       nature of the offense and Haywood’s character. We affirm the decision of the

       trial court.


[10]   Affirmed.


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




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