                                                                         FILED
                                                                     Apr 15 2020, 6:43 am

                                                                         CLERK
                                                                     Indiana Supreme Court
                                                                        Court of Appeals
                                                                          and Tax Court




ATTORNEY FOR APPELLANT                                      ATTORNEYS FOR APPELLEE
Mark A. Kiesler                                             Curtis T. Hill, Jr.
Kiesler Law Office                                          Attorney General of Indiana
New Albany, Indiana
                                                            Josiah Swinney
                                                            Deputy Attorney General
                                                            Indianapolis, Indiana


                                             IN THE
    COURT OF APPEALS OF INDIANA

Derek J. Tanksley,                                          April 15, 2020
Appellant-Defendant,                                        Court of Appeals Case No.
                                                            19A-CR-2411
        v.                                                  Appeal from the Washington
                                                            Circuit Court
State of Indiana,                                           The Honorable Larry W. Medlock,
Appellee-Plaintiff.                                         Judge
                                                            Trial Court Cause No.
                                                            88C01-1906-F6-495



Sharpnack, Senior Judge.




Court of Appeals of Indiana | Opinion 19A-CR-2411 | April 15, 2020                           Page 1 of 11
                                            Statement of the Case
[1]   Derek J. Tanksley appeals his conviction by jury of failure to appear, a Level 6
                 1
      felony. He also appeals the sentence the trial court imposed for his conviction

      and for an habitual offender enhancement. We affirm.


                                                      Issues
[2]   Tanksley raises two issues, which we restate as:


                 I.       Whether the evidence is sufficient to sustain Tanksley’s
                          conviction.


                 II.      Whether Tanksley’s sentence is appropriate in light of the
                          nature of the offense and his character.


                                   Facts and Procedural History
[3]   The State had filed charges, including a Level 6 felony, against Tanksley in a

      prior case. Tanksley, by counsel, filed a motion in that case to be released from

      pretrial incarceration. The trial court granted his request. On April 2, 2019,

      Tanksley was released from jail after he signed a “Release on Personal

      Recognizance.” Tr. Vol. 3, p. 10. The Release stated that Tanksley promised

      to appear in the Washington County Superior Court on May 29, 2019, at 9

      a.m., to answer for the pending charges. The Release further stated, “I

      UNDERSTAND THAT FAILURE TO APPEAR AT THE ABOVE




      1
          Ind. Code § 35-44.1-2-9 (2014).

      Court of Appeals of Indiana | Opinion 19A-CR-2411 | April 15, 2020               Page 2 of 11
      STATED TIME OR TIMES AS REQUIRED WILL RESULT IN THE

      IMMEDIATE ISSUANCE OF A WARRANT FOR MY ARREST.” Id. The

      Release also stated, “I HAVE READ ALL OF THIS DOCUMENT AND

      FULLY UNDERSTAND ALL TERMS AND CONDITIONS OF IT.” Id.


[4]   Tanksley did not appear in court on May 29, 2019 at the required time. That

      same day, the court ordered the trial court clerk to issue a warrant for

      Tanksley’s arrest. Also, on May 29, Tanksley’s attorney moved to withdraw

      her appearance, citing Tanksley’s failure to appear. In the motion, Tanksley’s

      attorney apologized “for any inconvenience” caused by Tanksley’s absence. Id.

      at 11.


[5]   On June 7, 2019, the State began the current case by charging Tanksley with

      failure to appear, a Level 6 felony. The State also filed a notice of intent to seek

      habitual offender status. On June 20, 2019, the trial court issued an order

      finding probable cause for Tanksley’s arrest and ordering the trial court clerk to

      issue an arrest warrant. Tanksley was subsequently arrested on a date not

      provided in the record.


[6]   The trial court presided over a bifurcated jury trial on August 21, 2019. We

      discuss the proceedings in more detail below. The jury determined Tanksley

      was guilty of failure to appear. Next, Tanksley admitted he was an habitual

      offender, waiving his right to a jury trial on the sentencing enhancement.




      Court of Appeals of Indiana | Opinion 19A-CR-2411 | April 15, 2020         Page 3 of 11
[7]   On September 11, 2019, the trial court held a sentencing hearing. The court

      sentenced Tanksley to two years for the Level 6 felony, plus four years for the

      habitual offender sentencing enhancement. This appeal followed.


                                    Discussion and Decision
                                  I. Sufficiency of the Evidence
[8]   Tanksley argues the State failed to present sufficient evidence of his guilt.

      When a defendant challenges the sufficiency of the evidence, we neither

      reweigh evidence nor judge witness credibility. McCallister v. State, 91 N.E.3d

      554, 558 (Ind. 2018). We instead consider only the probative evidence and the

      reasonable inferences that support the verdict. Phipps v. State, 90 N.E.3d 1190,

      1195 (Ind. 2018). We will affirm the conviction if probative evidence supports

      each element of the crime beyond a reasonable doubt. Brantley v. State, 91

      N.E.3d 566, 570 (Ind. 2018), reh’g denied, cert. denied, 139 S. Ct. 839, 202 L. Ed.

      2d 609 (2019).


[9]   To obtain a conviction of failure to appear as a Level 6 felony, the State was

      required to prove beyond a reasonable doubt that Tanksley: (1) had been

      released from lawful detention; (2) on condition that he appear at a specified

      time and place; (3) in connection with a felony charge; but (4) intentionally (5)

      failed to appear at the specified time and place. Ind. Code § 35-44.1-2-9.

      Tanksley claims the State failed to prove beyond a reasonable doubt that he was

      the person who had been released from lawful detention in the prior case with




      Court of Appeals of Indiana | Opinion 19A-CR-2411 | April 15, 2020         Page 4 of 11
       instructions to appear. In other words, he challenges the State’s proof of

       identity.


[10]   The State argues we should not address Tanksley’s claim because he admitted

       during trial, through counsel, that he was the person who had been released in

       the prior case. We agree with the State. An attorney’s remarks during opening

       statement or closing argument may constitute judicial admissions that are

       binding on the client. Saylor v. State, 55 N.E.3d 354, 363 (Ind. Ct. App. 2016),

       trans. denied. To qualify as a judicial admission, an attorney’s remarks must be

       a “clear and unequivocal admission of fact.” Parker v. State, 676 N.E.2d 1083,

       1086 (Ind. Ct. App. 1997). Stated differently, the attorney’s remarks “must be

       an intentional act of waiver[,] not merely assertion or concession made for

       some independent purpose.” Collins v. State, 174 Ind. App. 116, 120-21, 366

       N.E.2d 229, 232 (1977).


[11]   In the current case, during the State’s opening statement, the deputy prosecutor

       told the jury:


               And the States [sic] burden is to prove ah, that Derek Tanksley
               failed to appear beyond a reasonable doubt. . . . [Y]ou’re going
               to see documents that prove that defendant Derek Tanksley was
               in jail on a felony charge in Superior Court and then on April 2,
               2019, Derek Tanksley was released from that detention on the
               condition that he appear in Superior Court on a specific date at
               specific time and that was May 29, 2019 at 9 a.m.


       Amended Tr. Vol. 2, p. 67.



       Court of Appeals of Indiana | Opinion 19A-CR-2411 | April 15, 2020          Page 5 of 11
[12]   Tanksley’s opening statement, in its entirety, was as follows:


               Thank you very much Your Honor. The Judge has already read
               to you, preliminary instruction number 4. As, as [the deputy
               prosecutor] has said, the elements of this case are that Mr.
               Tanksley was released from a felony charge. He was given notice
               to appear on May 29, 2019 at 9 am.[sic] He failed to appear. We
               agree. We disagree that he intentionally failed to appear. Please pay
               attention to the evidence. Thank you.


       Id. at 67-68 (emphasis added).


[13]   During the State’s presentation of its case in chief, Tanksley objected to the

       admission of bench warrants that had been issued against Tanksley in prior

       cases. Tanksley argued the documents were “not relevant to the intent of my

       client with respect to failure to appear on May 29th of 2019 at 9 am.[sic]. Tr.

       Vol. 2, p. 78. In response, the prosecutor claimed the documents were relevant

       to the question of intent, and intent was “the only issue they raised when they

       were talking to the jury.” Id.


[14]   During closing arguments, the State told the jury that it had met its burden of

       proving beyond a reasonable doubt that Tanksley had failed to appear in

       connection with a prior felony charge. In response, Tanksley’s closing

       argument, in its entirety, was as follows:


               The instruction that that [sic] I think the Judge will read to you as
               final instruction number five ah, says that a person engages in
               conduct intentionally if when he or she engages in that contact
               [sic], it is his or her conscious objective to do so. In order for the
               State to prove its case they have to prove that it was this mans

       Court of Appeals of Indiana | Opinion 19A-CR-2411 | April 15, 2020          Page 6 of 11
               [sic] conscious objection, conscious objective to do so. The State
               has proven that Mr. Tanksley was released from jail on the condition
               that he return which means that missing a court date, would return him
               to jail. If, it doesn’t make sense to expect he would form a
               conscious objective to go back to jail. The State would have you
               be persuaded by an instruction that says absent extenuating
               circumstances or lack of adequate notice an intent to fail to
               appear, may be presumed. Please look at, that’s instruction
               number six. Please look at that and, and note that it may be
               presumed. It doesn’t have to be presumed. It doesn’t make any
               sense for this man to have decided not to go back to jail on that
               date and that is based upon the prove [sic] made by the State in
               its Case in Chief. In order to find my client guilty, you have to
               find that he intended not to appear. There is no such evidence.
               Thanks for your time.


       Id. at 98-99 (emphasis added).


[15]   We conclude from Tanksley’s opening statement and closing argument that he,

       as a matter of strategy, made a judicial admission on the question of identity.

       Counsel’s statements were more than casual or mistaken remarks. Instead,

       Tanksley unequivocally and repeatedly conceded to the jury and the trial court

       that he was the person who the State alleged had been released from

       incarceration and ordered to appear at a specific time and place in connection

       with a felony case, but he did not appear. Tanksley disputed only whether his

       failure to appear was intentional. Under these circumstances, Tanksley is

       bound by his judicial admission and may not raise on appeal the issue of

       identity. See Lee v. State, 43 N.E.3d 1271, 1274-75 (Ind. 2015) (defendant made

       binding judicial admission during trial, conceding as a matter of strategy that

       she struck the victim).

       Court of Appeals of Indiana | Opinion 19A-CR-2411 | April 15, 2020           Page 7 of 11
                                 II. Appropriateness of Sentence
[16]   Tanksley argues his six-year sentence is too severe and asks the Court to reduce

       it to three years, with one year suspended to probation. Indiana Appellate Rule

       7(B) provides that we may revise a sentence authorized by statute if, after due

       consideration of the trial court’s decision, we find the sentence is inappropriate

       in light of the nature of the offense and the character of the offender.


[17]   The principal role of appellate review of sentences under Appellate Rule 7(B) is

       “to attempt to leaven the outliers,” rather than achieving a perceived “correct”

       result in each case. Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). “In

       assessing the nature of the offense and character of the offender, we may look to

       any factors appearing in the record.” Boling v. State, 982 N.E.2d 1055, 1060

       (Ind. Ct. App. 2013). Tanksley bears the burden of demonstrating that his

       sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).


[18]   The advisory sentence is the starting point in determining the appropriateness of

       a sentence. Johnson v. State, 986 N.E.2d 852, 856 (Ind. Ct. App. 2013). At the

       time Tanksley committed the offense of failing to appear, the advisory sentence

       for a Level 6 felony was one year, the maximum sentence was two and one-half

       years, and the minimum sentence was six months. Ind. Code § 35-50-2-7

       (2016). In addition, a trial court shall sentence a person who is convicted of a

       Level 6 felony and found to be an habitual offender, to an additional fixed term

       between two and six years. Ind. Code § 35-50-2-8 (2017)(i). In Tanksley’s case,

       the trial court imposed a sentence of two years for the Level 6 felony, enhanced


       Court of Appeals of Indiana | Opinion 19A-CR-2411 | April 15, 2020         Page 8 of 11
       by four years for the habitual offender determination. His six-year sentence is

       above the advisory sentence but short of the maximum possible sentence of

       eight and one-half years.


[19]   Turning to the nature of the offense, Tanksley argues he did not commit “an

       excessively heinous crime.” Appellant’s Br. p. 15. Although the offense of

       failure to appear is not inherently violent, the circumstances of his commission

       of the offense do not weigh in favor of sentence revision. Tanksley’s failure to

       appear was no mere accident or the result of a short delay. Instead, Tanksley

       absented himself from court for almost two weeks, until the police took him

       into custody and he had no choice but to appear. Further, Tanksley placed his

       attorney in a difficult position. She advocated for him to be released on his own

       recognizance to assist in his defense, and when he failed to appear in court at

       the required time and date, she had to apologize to the trial court.


[20]   Turning to the character of the offender, Tanksley was thirty-two years old at

       sentencing, and he has a lengthy criminal history. As a juvenile, he was

       adjudicated a delinquent for acts that, had they been committed by an adult,

       would have constituted Class B felony burglary and three counts of Class D

       felony theft. As an adult, Tanksley accrued felony convictions for receiving

       stolen property, possession of a controlled substance, possessing marijuana with

       intent to deliver, possession of a synthetic drug or lookalike substance, and

       possession of methamphetamine. He also accrued misdemeanor convictions of

       public intoxication, operating a vehicle while intoxicated, possession of a

       synthetic drug or lookalike substance, resisting law enforcement, invasion of

       Court of Appeals of Indiana | Opinion 19A-CR-2411 | April 15, 2020       Page 9 of 11
       privacy, and possession of paraphernalia. Tanksley accrued these convictions

       at a steady pace, demonstrating a refusal to comply with the law for more than

       one or two years at a time.


[21]   In addition, it is relevant that when Tanksley was released to probation in prior

       cases, he regularly failed to appear for court hearings, resulting in courts issuing

       several warrants for his arrest. In addition, he repeatedly violated the terms of

       his probationary placements. His refusals to appear in court, and his refusals to

       comply with court-ordered terms of probation, demonstrate that he would be

       unlikely to successfully complete probation in this case.


[22]   During the sentencing process, Tanksley admitted he has used marijuana

       consistently since his teenage years, and he has regularly used

       methamphetamine since age twenty. Tanksley argues that his extensive

       criminal history is related to his lengthy history of addiction to controlled

       substances, and that he should receive court-ordered treatment rather than

       incarceration. His argument is undercut by his admission that he has never

       “sought any meaningful treatment to combat his substance abuse issues.”

       Appellant’s Br. p. 18. Tanksley has failed to demonstrate that his sentence is

       inappropriate.


                                                  Conclusion
[23]   For the reasons stated above, we affirm the judgment of the trial court.


[24]   Affirmed.


       Court of Appeals of Indiana | Opinion 19A-CR-2411 | April 15, 2020        Page 10 of 11
Baker, J., and Altice, J., concur.




Court of Appeals of Indiana | Opinion 19A-CR-2411 | April 15, 2020   Page 11 of 11
