MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                              FILED
this Memorandum Decision shall not be                                           Jul 15 2019, 8:18 am
regarded as precedent or cited before any
court except for the purpose of establishing                                        CLERK
                                                                                Indiana Supreme Court
                                                                                   Court of Appeals
the defense of res judicata, collateral                                              and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Brian A. Karle                                            Curtis T. Hill, Jr.
Ball Eggleston, PC                                        Attorney General of Indiana
Lafayette, Indiana
                                                          Benjamin J. Shoptaw
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jaylen N. Thomas,                                         July 15, 2019
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          18A-CR-3018
        v.                                                Appeal from the Marion Superior
                                                          Court
State of Indiana,                                         The Honorable Mark D. Stoner,
Appellee-Plaintiff.                                       Judge
                                                          Trial Court Cause No.
                                                          49G06-1710-MR-41391



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-3018 | July 15, 2019                  Page 1 of 11
                                        Statement of the Case
[1]   Jaylen N. Thomas appeals his fifty-five year sentence, with seven years

      suspended and three of those seven years suspended to probation, following his

      conviction for murder, a felony, which Thomas committed at the age of fifteen.

      Thomas raises a single issue for our review, namely, whether his sentence is

      inappropriate in light of the nature of the offense and his character.


[2]   We affirm.


                                  Facts and Procedural History
[3]   On February 2, 2017, Thomas, who was fifteen years old at the time, “brought

      up” to two of his juvenile acquaintances that they “should . . . steal” some

      marijuana from a dealer they knew. Tr. Vol. 3 at 112. The three juveniles

      agreed, and one of them then contacted Jacob Arnett, who agreed to sell them

      marijuana. The three juveniles then arranged for transportation to meet with

      Arnett.


[4]   At the designated buy location, Arnett approached the vehicle in which the

      three juveniles were sitting and gave them the marijuana they had requested in

      expectation of payment. However, upon receiving the marijuana through the

      car window, Thomas yelled for the driver to “go,” and the driver immediately

      “spe[d] off.” Id. at 116. Arnett grabbed onto the window through which he

      had handed the juveniles the marijuana and hung onto the window even

      though the vehicle was moving. One of the juveniles then handed Thomas a



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-3018 | July 15, 2019   Page 2 of 11
      firearm and told Thomas to “hit” Arnett. Id. at 117. Thomas then shot Arnett

      in the face and killed him.


[5]   Immediately after shooting Arnett, Thomas acted like “it didn’t matter.” Id. at

      118. When they returned to one of the juvenile’s residences, Thomas and the

      other juveniles smoked the marijuana they had purchased. Thomas also

      “smashed” all of their cell phones “with a hammer.” Id. at 119. Thomas

      appeared to dispose of the firearm in a “body of water near [the] house.” Id.

      Thomas told the other juveniles that, if any of them “sa[id] anything,” he would

      “shoot everybody.” Id. at 78. After the State charged Thomas with murder, a

      felony, and the juvenile court waived him into adult court, a jury found him

      guilty.


[6]   At the conclusion of the ensuing sentencing hearing, the trial court pronounced

      Thomas’s sentence as follows:


                The Court notes [Thomas] may have been sexually abused, but I
                cannot give it significant mitigation[] because [Thomas] has not
                been forthcoming as to who abused him. It’s an easy thing to
                make up. It’s an easy thing to say. I am very sympathetic and
                will act on it, but I cannot act upon it if . . . the probation
                department and the State [are] not given an opportunity to
                corroborate it . . . .


                                                      ***


                I also have a hard time . . . finding it to be a significant mitigator
                about being remorseful or taking responsibility for what you’re
                doing[] if you’re not willing to hold [the juvenile who handed

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-3018 | July 15, 2019      Page 3 of 11
        you the firearm ac]countable for his role in this as well. . . . And
        if they’re not prosecuted, they’re going to understand that they’re
        above the law . . . [and] do it again, because no one holds them
        accountable for it.


                                                ***


        In terms of aggravating circumstances the Court does find that
        [Thomas] is—first off, because of his mental health issues, that he
        is going to need substantial counseling. The . . . limit[ed]
        criminal history he does have is related to [a] gun offense, in
        terms of possession of a firearm[ and having been] shot. He
        managed to associate himself . . . with people [who] have anti-
        social behavior. I think the thing that most stunned me . . . is
        how you all can be involved in shooting [Arnett], bad enough
        that you didn’t give him help, but then you just went and you all
        just smoked the stuff afterwards, as if it [were] just another day.
        Absolutely incomprehensible to me that you can have no moral
        center, to do that.


        . . . [T]o just go out and smoke the dope is absolutely
        reprehensible. . . . The Court notes that the evidence did show
        [Thomas] . . . did destroy evidence, concealed it. I’m not going
        to find a significant aggravator of [Thomas] bragging about
        having no remorse. That strikes me as the mind of a 15-year-old.
        Threatening other people, that probably is an aggravator . . . .


        All told, in balancing all of these, and the Court’s mindful that
        [Thomas] has to do 80 percent of his time so a 45[-]year sentence
        is 36 actual years, the maximum sentence of 65 is 52 actual years.
        And looking at all of these things, the Court sentences [Thomas]
        to a period of 55 years. The Court suspends seven of those years,
        imposes 48 years executed, seven years suspended[ with] three
        years’ probation. The three years’ probation is to help
        [Thomas] . . . to reintegrate into society, to get any mental health

Court of Appeals of Indiana | Memorandum Decision 18A-CR-3018 | July 15, 2019   Page 4 of 11
              counseling and/or sexual abuse counseling that he didn’t get in
              the Department of Correction.


      Id. at 214-18. This appeal ensued.


                                     Discussion and Decision
[7]   Thomas asserts on appeal that his sentence is inappropriate in light of the

      nature of the offense and his character. Indiana Appellate Rule 7(B) provides

      that “[t]he 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.” This Court has often recognized that “[t]he advisory sentence is the

      starting point the legislature has selected as an appropriate sentence for the

      crime committed.” Sanders v. State, 71 N.E.3d 839, 844 (Ind. Ct. App. 2017).

      And the Indiana Supreme Court has explained that “[t]he principal role of

      appellate review should be to attempt to leaven the outliers . . . but not achieve

      a perceived ‘correct’ result in each case. Defendant has the burden to persuade

      us that the sentence imposed by the trial court is inappropriate.” Shoun v. State,

      67 N.E.3d 635, 642 (Ind. 2017) (citations omitted; omission in original).


[8]   Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate

      sentence to the circumstances presented, and the trial court’s judgment “should

      receive considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind.

      2008). Whether we regard a sentence as inappropriate at the end of the day

      turns on “our sense of the culpability of the defendant, the severity of the crime,


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-3018 | July 15, 2019   Page 5 of 11
       the damage done to others, and myriad other facts that come to light in a given

       case.” Id. at 1224. The question is not whether another sentence is more

       appropriate, but rather whether the sentence imposed is inappropriate. King v.

       State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008). Deference to the trial court

       “prevail[s] unless overcome by compelling evidence portraying in a positive

       light the nature of the offense (such as accompanied by restraint, regard, and

       lack of brutality) and the defendant’s character (such as substantial virtuous

       traits or persistent examples of good character).” Stephenson v. State, 29 N.E.3d

       111, 122 (Ind. 2015).


[9]    Here, the trial court sentenced Thomas to a fifty-five years, with seven years

       suspended and three of those seven years suspended to probation. The advisory

       sentence for murder is fifty-five years executed. Ind. Code § 35-50-2-3(a)

       (2018). However, a trial court may sentence a defendant convicted of murder

       between forty-five years and sixty-five years. Id.


[10]   Thomas asserts that his sentence is inappropriate in light of the nature of the

       offense because his murder of Arnett “cannot be termed ‘brutal’ in relation to

       other murders,” and because the firearm in question was not Thomas’s and was

       not brought to the scene by Thomas or with Thomas’s knowledge. Appellant’s

       Br. at 10. Instead, Thomas asserts that he took the firearm from the other

       juvenile and shot Arnett “[i]n the heat of the moment” because his age made

       him particularly susceptible “to make poor decisions when in the presence of a

       group of peers.” Id. Thomas also asserts that his sentence is inappropriate in

       light of his character because he had a good employment history for his age;

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-3018 | July 15, 2019   Page 6 of 11
       that he had no prior adult criminal history and no prior felony-level offenses;

       that he had a “difficult childhood and lack of family support,” including prior

       physical and sexual abuse and a lack of care after having suffered a gunshot

       wound at fourteen years old, id. at 12; that he has related “untreated mental

       health issues,” id. at 13; and that his young age demonstrates that he is capable

       of rehabilitation.


[11]   We begin our analysis by recognizing that Thomas’s age at the time of the

       murder here is relevant. As our Supreme Court has explained:


               We take this opportunity to reiterate what the United States
               Supreme Court has expressed: Sentencing considerations for
               youthful offenders—particularly for juveniles—are not
               coextensive with those for adults. See Miller v. Alabama, 567 U.S.
               460, 478-79, 132 S. Ct. 2455, 2469, 183 L. Ed. 2d 407 (2012)
               (requiring the sentencing judge to “take into account how
               children are different, and how those differences counsel against
               irrevocably sentencing them to a lifetime in prison” (footnote
               omitted)). Thus, both at initial sentencing and on appellate
               review it is necessary to consider an offender’s youth and its
               attendant characteristics.


               In holding death sentences and mandatory life without parole
               sentences for those under the age of eighteen to be
               unconstitutional, the United States Supreme Court has
               underpinned its reasoning with a general recognition that
               juveniles are less culpable than adults and therefore are less
               deserving of the most severe punishments. See Graham[ v.
               Florida], 560 U.S. [48, 68 (2010)]. This presumption that
               juveniles are generally less culpable than adults is based on
               previous and ongoing “‘developments in psychology and brain
               science’” which “‘continue to show fundamental differences

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-3018 | July 15, 2019   Page 7 of 11
        between juvenile and adult minds’” in, for instance, “‘parts of the
        brain involved in behavior control.’” Miller, 132 S. Ct. at 2464
        (quoting Graham, 560 U.S. at 68, 130 S. Ct. 2011). The Supreme
        Court has discerned “three significant gaps between juveniles and
        adults.” Id. First, “[a]s compared to adults, juveniles have a
        ‘lack of maturity and an underdeveloped sense of responsibility.’”
        Graham, 560 U.S. at 68, 130 S. Ct. 2011 (quoting Roper v.
        Simmons, 543 U.S. 551, 569, 125 S. Ct. 1183, 161 L. Ed. 2d 1
        (2005) (quotation omitted)). Second, “they ‘are more vulnerable
        or susceptible to negative influences and outside pressures,
        including peer pressure,’” Id. (quoting Roper, 543 U.S. at 569, 125
        S. Ct. 1183), and “they have limited ‘contro[l] over their own
        environment’ and lack the ability to extricate themselves from
        horrific, crime-producing settings.” Miller, 132 S. Ct. at 2464
        (alteration in original) (quoting Roper, 543 U.S. at 569, 125 S. Ct.
        1183). Finally, “a child’s character is not as ‘well formed’ as an
        adult’s . . . and his actions [are] less likely to be ‘evidence of
        irretrievabl[e] deprav[ity].’” Id. (alteration in original) (quoting
        Roper, 543 U.S. at 570, 125 S. Ct. 1183). “These salient
        characteristics mean that ‘[i]t is difficult even for expert
        psychologists to differentiate between the juvenile offender whose
        crime reflects unfortunate yet transient immaturity, and the rare
        juvenile offender whose crime reflects irreparable corruption.’”
        Graham, 560 U.S. at 68, 130 S. Ct. 2011 (alteration in original)
        (quoting Roper, 543 U.S. at 573, 125 S. Ct. 1183). Even justices
        not finding categorical Constitutional violations in these juvenile
        cases agree with this precept. See Graham, 560 U.S. at 90, 130 S.
        Ct. 2011 (Roberts, C.J., concurring in the judgment) (“Roper’s
        conclusion that juveniles are typically less culpable than adults
        has pertinence beyond capital cases.”); Roper, 543 U.S. at 599,
        125 S. Ct. 1183 (O’Connor, J., dissenting) (“It is beyond cavil
        that juveniles as a class are generally less mature, less
        responsible, and less fully formed than adults, and that these
        differences bear on juveniles’ comparative moral culpability.”).




Court of Appeals of Indiana | Memorandum Decision 18A-CR-3018 | July 15, 2019   Page 8 of 11
               Consistent with the Supreme Court’s reasoning this Court has
               not been hesitant to reduce maximum sentences for juveniles
               convicted of murder. In Carter v. State, we reduced to fifty years a
               fourteen-year-old’s maximum sixty-year sentence for the brutal
               murder of a seven-year-old girl, recognizing among other things
               his young age. 711 N.E.2d 835, 836-37 (Ind. 1999). In the case
               of a sixteen-year-old who brutally beat his adoptive parents to
               death while they slept, we reduced a maximum 120-year sentence
               to eighty years. Walton v. State, 650 N.E.2d 1134, 1135, 1137
               (Ind. 1995). And in Widener v. State, 659 N.E.2d 529, 530 (Ind.
               1995), the seventeen-year-old defendant and his two eighteen-
               year-old cohorts planned to rob a woman as she made a night
               deposit after work. In executing the crime, the defendant fired
               multiple shots at the victim, killing her. In the days after the
               robbery the perpetrators spent the proceeds of their crime at the
               mall, going to the movies and out to eat. Finding additional
               mitigating circumstances not recognized by the trial court, we
               concluded the defendant’s seventy-year sentence was manifestly
               unreasonable and reduced it to an aggregate term of fifty years.
               Id. at 530-31, 534.


       Brown v. State, 10 N.E.3d 1, 6-8 (Ind. 2014) (reducing a 150-year sentence for a

       sixteen-year-old defendant to an aggregate term of eighty years on two murder

       convictions and one robbery conviction); see also Legg v. State, 22 N.E.3d 763,

       767 (Ind. Ct. App. 2014) (affirming the trial court’s imposition of the advisory

       term of fifty-five years for a sixteen-year-old defendant convicted of one count

       of murder).


[12]   We cannot say that the trial court’s imposition of the advisory term of fifty-five

       years for murder, with seven years suspended and three of those seven years

       suspended to probation, is such an outlier in light of the nature of Thomas’s


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-3018 | July 15, 2019   Page 9 of 11
       offense and his character that our revision of his sentence is required. Indeed,

       “[w]e are unlikely to consider an advisory sentence inappropriate.” Shelby v.

       State, 986 N.E.2d 345, 371 (Ind. Ct. App. 2013), trans. denied. A defendant

       “bears a particularly heavy burden in persuading us that his sentence is

       inappropriate when the trial court imposes the advisory sentence,” Fernbach v.

       State, 954 N.E.2d 1080, 1089 (Ind. Ct. App. 2011), trans. denied, to say nothing

       of an advisory sentence with a portion suspended. And in considering the

       appropriateness of a sentence, we consider “all aspects of the penal

       consequences imposed by the trial judge in sentencing,” including “whether a

       portion of the sentence is ordered suspended.” Davidson v. State, 926 N.E.2d

       1023, 1025 (Ind. 2010). Thomas has not met the heavy burden he faces in this

       appeal.


[13]   Regarding the nature of the offense, Thomas had the initial idea to rob a third-

       party marijuana dealer; in the commission of that offense, he shot Arnett in the

       face, killing him; and afterward, Thomas destroyed evidence of the robbery and

       murder. There is no “compelling evidence portraying in a positive light the

       nature of the offense” such that the advisory sentence, with a significant

       suspended term, is inappropriate. Stephenson, 29 N.E.3d at 122.


[14]   Neither is Thomas’s sentence inappropriate in light of his character. Again, we

       acknowledge Thomas’s youth at the time of the offense. And we acknowledge,

       as the trial court did, Thomas’s claims of prior abuse, his mental-health issues,

       and his minor criminal history. But we also acknowledge that Thomas shot

       Arnett in the face and, immediately afterward, presented himself as if that act

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-3018 | July 15, 2019   Page 10 of 11
       “didn’t matter.” Tr. Vol. 3 at 118. Thomas then went back to one of his

       acquaintance’s residences and smoked the marijuana they had just stolen;

       destroyed evidence of the offenses; and threatened to murder others if they

       reported the incident to authorities. We cannot say that Thomas’s character,

       including his youth, demonstrates “substantial virtuous traits or persistent

       examples of good character” such that the advisory sentence, with seven years

       suspended, is an outlier requiring our revision of his sentence. Stephenson, 29

       N.E.3d at 122; see Legg, 22 N.E.3d at 767. Accordingly, we affirm Thomas’s

       sentence.


[15]   Affirmed.


       Baker, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-3018 | July 15, 2019   Page 11 of 11
