ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
John Kindley                                               Curtis T. Hill, Jr.
South Bend, Indiana                                        Attorney General
                                                           Catherine Brizzi
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Jerry Wayne Smith,                                         August 28, 2020
                                                                                                FILED
Appellant-Defendant,                                       Court of Appeals Case No.
                                                                                           Aug 28 2020, 9:03 am
                                                           20A-CR-672
                                                                                                CLERK
        v.                                                 Appeal from the                  Indiana Supreme Court
                                                                                               Court of Appeals
                                                           Vermillion Circuit Court              and Tax Court


State of Indiana,                                          The Honorable
Appellee-Plaintiff                                         Jill D. Wesch, Judge
                                                           Trial Court Cause Nos.
                                                           83C01-1806-CM-177
                                                           83C01-1908-CM-140



Vaidik, Judge.




Court of Appeals of Indiana | Opinion 20A-CR-672 | August 28, 2020                     Page 1 of 7
                                           Case Summary
[1]   Jerry Wayne Smith appeals his sentence for Class A misdemeanor resisting law

      enforcement, arguing that it is inappropriate in light of the nature of the offense

      and his character. We agree and remand this matter to the trial court for the

      imposition of a reduced sentence.



                             Facts and Procedural History
[2]   In June 2018, when Smith was sixty-four years old and had no criminal record,

      the State charged him with three counts of Class A misdemeanor criminal

      trespass, alleging that he had trespassed at an IGA grocery store in Clinton. See

      Case No. 83C01-1806-CM-177 (“CM-177”). The trial court issued a no-contact

      order prohibiting Smith from contacting a juvenile female who worked at the

      store. In September 2018, while CM-177 was still pending, the State charged

      Smith with Class A misdemeanor invasion of privacy for violating the no-

      contact order. See Case No. 83C01-1809-CM-296 (“CM-296”). In October

      2018, Smith pled guilty to the three counts of trespass in CM-177. The trial

      court sentenced Smith to 365 days, with 34 days to serve and 331 days

      suspended to probation. CM-296 remained pending.


[3]   In August 2019, while Smith was still on probation in CM-177 and on pretrial

      release in CM-296, there was a report that he drove into the side of a Dollar

      General store and then drove away. The next evening, officers located Smith

      walking. After a short conversation regarding the Dollar General incident,


      Court of Appeals of Indiana | Opinion 20A-CR-672 | August 28, 2020         Page 2 of 7
      officers attempted to arrest Smith for leaving the scene. He led them on a short

      foot pursuit before being apprehended. As a result of this incident, the State

      charged Smith with Class A misdemeanor resisting law enforcement and Class

      B misdemeanor leaving the scene of an accident. See Case No. 83C01-1908-

      CM-140 (“CM-140”). Based on these charges, the State also filed a motion to

      revoke his probation in CM-177.


[4]   In February of this year, Smith pled guilty to resisting law enforcement in CM-

      140 and invasion of privacy in CM-296 and admitted to violating his probation

      in CM-177. The State dismissed the charge of leaving the scene of an accident

      in CM-140. Sentencing was left to the discretion of the trial court.1

[5]
      At sentencing, Smith’s attorney highlighted his age and declining physical and

      mental health. Smith suffers from “severe” prostate cancer, which causes “a lot

      of pain” and for which he says he requires “essential surgery.” Tr. p. 80.

      Furthermore, Smith’s attorney noted that although Smith had not been

      formally diagnosed with any mental illness, his actions in the community and

      his in-court testimony suggested mental-health issues. Smith testified to some

      strange beliefs, including that he possessed pictures of extraterrestrial sites and

      knew “wild codes” to a house with a “white limestone moon door.” Id. at 97.




      1
       In December 2019, the State charged Smith with Level 6 felony criminal trespass, Case No. 83C01-1912-
      F6-196, and two counts of Level 6 felony intimidation, Case No. 83C01-1912-F6-200. These cases are still
      pending and are currently set for jury trial next month.




      Court of Appeals of Indiana | Opinion 20A-CR-672 | August 28, 2020                              Page 3 of 7
      Smith also reported seeing red laser beams and that he believed his neighbor

      was attempting to kill him with a “gun laser beam.” Id. at 90. Deputy James

      Miller of the Vermillion County Sheriff’s Department testified that, in

      November 2019, Smith called law enforcement and rambled incoherently,

      claiming to be “the next prophet” and finishing the call by saying “happy

      hunting.” Id. at 67. Deputy Miller also detailed that Smith was prohibited from

      going onto a local resident’s property, which Smith stated he believed contained

      an “archeological find.” Id. at 76, 87. Finally, both Deputy Miller and Smith

      testified about an incident in December 2019, in which Smith and his wife fled

      their home and erratically drove through multiple counties, believing they were

      being chased by the aforementioned neighbor with the laser-beam gun. Despite

      these alarming signs and admissions from both Smith’s attorney and the State

      that Smith’s behavior was indicative of some mental-health problem, Smith has

      never undergone a mental-health evaluation during his criminal proceedings.2


[6]   In CM-296 (the invasion-of-privacy case), the trial court sentenced Smith to

      time served, 44 days. Based on his probation violation in CM-177, the trial

      court ordered Smith to serve all his remaining suspended time, 277 days. In

      CM-140 (the resisting-law-enforcement case), the trial court sentenced Smith to

      365 days, with 180 days to serve and 185 days suspended to probation,




      2
       While Smith was ordered to receive a mental-health evaluation while on pretrial release in CM-296 in
      October 2018, Tr. p. 30, it appears from the record that no evaluation or counseling ever occurred, id. at 83.

      Court of Appeals of Indiana | Opinion 20A-CR-672 | August 28, 2020                                  Page 4 of 7
      consecutive to the 277 days in CM-177. As a condition of probation, Smith was

      ordered to have a mental-health evaluation and follow all recommendations.


[7]   Smith now appeals his sentence for the resisting-law-enforcement conviction.3



                                  Discussion and Decision
[8]   Smith contends that his sentence of 365 days, with 180 days to serve, for

      resisting law enforcement is inappropriate given that he was also ordered to

      serve all 277 days of suspended time in CM-177. He asks us to revise his

      sentence to 365 days fully suspended to probation pursuant to Indiana

      Appellate Rule 7(B), which provides that an appellate 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.” “Whether a sentence is

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

      of the crime, the damage done to others, and a myriad of other factors that

      come to light in a given case.” Thompson v. State, 5 N.E.3d 383, 391 (Ind. Ct.

      App. 2014) (citing Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008)).

      Because we generally defer to the judgment of trial courts in sentencing matters,




      3
       Although Smith included the cause number for the probation-revocation case, CM-177, in his notice of
      appeal, he is not challenging his probation sanction of 277 days.

      Court of Appeals of Indiana | Opinion 20A-CR-672 | August 28, 2020                             Page 5 of 7
       defendants have the burden of persuading us that their sentences are

       inappropriate. Schaaf v. State, 54 N.E.3d 1041, 1044-45 (Ind. Ct. App. 2016).


[9]    Smith pled guilty to resisting law enforcement as a Class A misdemeanor. “A

       person who commits a Class A misdemeanor shall be imprisoned for a fixed

       term of not more than one (1) year . . . .” Ind. Code § 35-50-3-2. Here, the trial

       court sentenced Smith to 365 days, with 185 days suspended to probation,

       leaving him to serve 180 days.


[10]   Smith’s offense was relatively minor on the spectrum of resisting law

       enforcement. Smith, a sixty-five-year-old man in poor physical health, led

       officers on a short foot pursuit and was quickly apprehended. There is no

       evidence in the record that Smith’s act of resisting injured anyone else or

       damaged any property.


[11]   Furthermore, the record does not suggest that Smith is a person of poor

       character. To be sure, his behavior over the past two years has been troubling.

       But by all accounts, Smith was a law-abiding citizen until age sixty-four, when

       he began committing a series of misdemeanor offenses. These offenses,

       combined with Smith’s actions in the community and testimony in court,

       strongly suggest declining mental health. Smith has repeatedly demonstrated

       odd behavior, including his incoherent call to Deputy Miller, his erratic driving

       to avoid being chased by his neighbor, and his repeated trespass onto a property

       he believed to be an archeological site. Smith’s in-court testimony is similarly

       concerning. His lengthy sentencing testimony included ramblings on aliens, the


       Court of Appeals of Indiana | Opinion 20A-CR-672 | August 28, 2020         Page 6 of 7
       Bible, Revelations, and other irrelevant and sometimes incoherent thoughts.

       This evidence leads us to believe Smith’s recent criminal acts are just as much

       the result of deteriorating mental health as they are of genuine criminal intent.

       Smith is also in poor physical health, having been diagnosed with prostate

       cancer. Moreover, Smith’s wife is physically disabled and relies on him as her

       primary caretaker.


[12]   For these reasons, Smith has convinced us that a 365-day sentence, with 185

       suspended to probation and 180 days to serve consecutive to the 277 days for

       the probation violation, is inappropriate. We therefore reverse and remand to

       the trial court to impose a sentence of 365 days, with 20 days to serve and 345

       days suspended to probation. Smith will be on probation for 345 days and, as

       already ordered by the trial court, will be required to undergo a mental-health

       evaluation and follow all recommendations.


[13]   Reversed and remanded.


       Bailey, J., and Baker, Sr.J., concur.




       Court of Appeals of Indiana | Opinion 20A-CR-672 | August 28, 2020        Page 7 of 7
