MEMORANDUM DECISION
                                                                          FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                Oct 13 2017, 10:57 am

regarded as precedent or cited before any                                 CLERK
                                                                      Indiana Supreme Court
court except for the purpose of establishing                             Court of Appeals
                                                                           and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Kay A. Beehler                                           Curtis T. Hill, Jr.
Terre Haute, Indiana                                     Attorney General of Indiana
                                                         Jesse R. Drum
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jordan L. Gosnell,                                       October 13, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         84A01-1702-CR-365
        v.                                               Appeal from the Vigo Superior
                                                         Court
State of Indiana,                                        The Honorable John T. Roach,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         84D01-1602-F1-414



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 84A01-1702-CR-365 | October 13, 2017        Page 1 of 11
[1]   Jordan Gosnell appeals his conviction for one count of Level 3 Felony

      Aggravated Battery.1 Gosnell argues that the sentence imposed by the trial

      court was erroneous and inappropriate in light of the nature of the offense and

      his character. Finding no error and that the sentence is not inappropriate, we

      affirm.


                                                     Facts
[2]   Gosnell was seventeen years old on the night in question. Early in the morning

      of February 6, 2016, Gosnell and two friends were breaking into cars in Terre

      Haute. Before the break-ins, he had consumed a half-gallon of vodka and taken

      ten to fifteen Klonopin pills for which he had no prescription. Gosnell was

      armed with a knife that he was using to break into cars.


[3]   Lester Hamilton and his wife, Ciara, were alerted by their dog’s barks. While

      checking on the dog, Lester discovered Gosnell in the process of breaking into a

      neighbor’s car. Gosnell and his friends ran away, but Lester followed them

      while Ciara called 911. After Lester caught up to Gosnell, Gosnell yelled for

      help from his friends and one of them punched Lester. Gosnell then jumped on

      Lester’s back and stabbed Lester several times with the knife. By this point,

      Ciara had caught up with Lester and she pulled Gosnell off her husband’s back.




      1
          Ind. Code § 35-42-2-1.5.


      Court of Appeals of Indiana | Memorandum Decision 84A01-1702-CR-365 | October 13, 2017   Page 2 of 11
      Gosnell got back up and continued to stab Lester. Shortly thereafter, Gosnell

      and his friends “disappeared.” Appellant’s App. Vol. III p. 58.


[4]   The Hamiltons returned home and Ciara attended to Lester’s wounds. Before

      the police arrived, Gosnell, his friends, and three other individuals—including a

      fourteen-year-old girl—went to the Hamiltons’ house and began to kick the

      back door. In response, Lester confronted the group, resulting in Gosnell

      stabbing Lester two more times. The group fled after they heard police sirens.

      Lester was taken to the hospital to receive treatment for a punctured liver and

      lung.


[5]   Gosnell was arrested later that morning. While in police custody, Gosnell

      began to “yell and cuss” and continually hit “his head off the cage and bars in

      the car.” Id. at 52. He threatened to batter/kill several officers, and officers

      were compelled to place a “spit shield” on Gosnell “for the protection of

      Officers.” Id. Gosnell claimed to be part of a gang and referred to officers and

      Lester as “Bitch ass n***as” and “that n***a,” respectively. Id. at 8, 52.

      Officers also noted that Gosnell’s breath smelled like alcohol, he slurred his

      speech, he had bloodshot eyes, and he urinated on himself while speaking to

      officers at police headquarters.


[6]   On February 10, 2016, the State charged Gosnell with one count of attempted

      murder, one count of battery by means of a deadly weapon, and five counts of

      intimidation. On November 3, 2016, the parties entered into a plea agreement

      and on December 14, 2016, Gosnell pleaded guilty to an amended count of


      Court of Appeals of Indiana | Memorandum Decision 84A01-1702-CR-365 | October 13, 2017   Page 3 of 11
      Level 3 felony aggravated battery. Under the plea agreement, the State agreed

      to dismiss all remaining charges and to cap the sentence at twelve years. On

      January 4, 2017, the trial court imposed an eleven-year sentence, with five years

      suspended to probation. The trial court also ordered “purposeful incarceration

      in the CLIFF program,” and was open to modification under certain

      circumstances. Appellant’s App. Vol. II p. 15. Gosnell now appeals.


                                   Discussion and Decision
                                     I. Aggravating Factors
[7]   First, Gosnell argues that the trial court erred in its consideration of

      aggravators. A trial court may err in the sentencing process if it finds

      “aggravating or mitigating circumstances unsupported by the record, omitting

      aggravating or mitigating circumstances clearly supported by the record, or

      noting reasons for imposing a given sentence that are improper considerations

      as a matter of law.” Blair v. State, 62 N.E.3d 424, 429 (Ind. Ct. App. 2016).


[8]   In the present case, the trial court found four aggravating factors: (1) Gosnell’s

      history of criminal/delinquent behavior; (2) Gosnell committed a crime of

      violence in the presence of a person under the age of eighteen; (3) Gosnell was

      on probation when he committed the crime; and (4) the nature and

      circumstances of the crime. The trial court found no mitigating factors.

      Gosnell contends that the trial court erred in its consideration of all the

      aggravators and in allegedly finding other improper aggravators.




      Court of Appeals of Indiana | Memorandum Decision 84A01-1702-CR-365 | October 13, 2017   Page 4 of 11
[9]    With respect to his criminal history, since 2014, Gosnell has been adjudicated

       delinquent twice for theft, once for resisting law enforcement, and once for

       being a runaway. Gosnell’s argument here amounts to an invitation to reweigh

       this factor, which we may not do. See Anglemyer v. State, 868 N.E.2d 482, 491

       (Ind. 2007) (noting that trial courts are no longer under an obligation to “weigh

       aggravating and mitigating factors against each other” and a trial court cannot

       be found to err for failing to “properly weigh” these factors). The trial court did

       not err by finding Gosnell’s criminal history to be an aggravator.


[10]   With respect to the commission of a crime of violence in the presence of a non-

       victim under the age of eighteen, Gosnell argues that this statutory factor

       should be limited to crimes where children might be emotionally impacted,

       such as sexual assault and child abuse; however, he cites no controlling

       authority, nor do we find any. Aggravated battery is a statutory “crime of

       violence,” Ind. Code § 35-50-1-2, and Gosnell concedes that he committed the

       crime in the presence of a fourteen-year-old; therefore, we find no error.


[11]   Gosnell next argues that the trial court erred in finding that he committed the

       instant offense while on probation. The presentence investigation report (PSI)

       indicates that Gosnell was arrested on December 7, 2014, for being a runaway

       and on August 25, 2015, for pushing a stolen moped down the road.

       Appellant’s App. Vol. III p. 20. The PSI states that Gosnell was “[c]urrently on

       probation” when he was arrested with the moped, but there is no adjudication

       date or disposition date for either offense and it is unclear how long his

       probation for either offense lasted. Further, the PSI listed “No” under the

       Court of Appeals of Indiana | Memorandum Decision 84A01-1702-CR-365 | October 13, 2017   Page 5 of 11
       section of the instant offense where it states “On Probation/Parole at Offense.”

       Id. at 18.


[12]   Assuming solely for argument’s sake that the trial court erred in the

       consideration of this factor, we cannot say that Gosnell would be entitled to

       resentencing. See, e.g., Sargent v. State, 875 N.E.2d 762, 769 (Ind. Ct. App.

       2007) (“If the factors are not supported by the record . . . then remand for

       resentencing may be the appropriate remedy if we cannot say with confidence

       that the trial court would have imposed the same sentence had it properly

       considered reasons that enjoy support in the record.”). The other aggravating

       factors were properly considered and any one of those factors could have been

       used to support Gosnell’s sentence. E.g., Baumholser v. State, 62 N.E.3d 411,

       417 (Ind. Ct. App. 2016) (affirming sentence, despite consideration of an

       improper aggravator, when other aggravators were properly considered). We

       decline to reverse on this basis.


[13]   Next, Gosnell argues that the trial court improperly considered the nature and

       circumstances of the crime as an aggravating factor because they were elements

       of the offense of aggravated battery. See McElroy v. State, 865 N.E.2d 584, 589-

       90 (Ind. 2007) (noting that a material element of a crime may not constitute an

       aggravating factor to support a sentence though “‘the trial court may properly

       consider the particularized circumstances of the factual elements as aggravating

       factors’” (quoting McCarthy v. State, 749 N.E.2d 528, 539 (Ind. 2001))).

       Specifically, the trial court described the offense as “horrendous,” “vicious,”

       “savage,” and “brutal.” Tr. Vol. III p. 5-6. To convict Gosnell of Level 3

       Court of Appeals of Indiana | Memorandum Decision 84A01-1702-CR-365 | October 13, 2017   Page 6 of 11
       felony aggravated battery, the State was required to prove beyond a reasonable

       doubt that Gosnell knowingly or intentionally inflicted an injury on Lester that

       created a substantial risk of death. I.C. § 35-42-2-1.5. The trial court detailed

       the reasons why it found the nature and circumstances of this crime to be

       egregious, including: (1) Gosnell attacked Lester twice, stabbing him several

       times during each incident; (2) Gosnell was under the influence of significant

       quantities of drugs and alcohol; and (3) the offense occurred in the context of an

       “escalating pattern” of automotive-related thefts. Tr. Vol. III p. 5. The

       circumstances were clearly distinct from the material elements; therefore, the

       trial court did not err in this regard. See, e.g., Wooley v. State, 716 N.E.2d 919,

       930 (Ind. 1999) (holding that defendant’s repeated blows to victim, prior to

       stabbing him, properly supported the trial court using the nature and

       circumstances aggravator).


[14]   Finally, Gosnell contends that the trial court erred in several other respects.

       First, Gosnell contends that the trial court found his drug and alcohol use to be

       an aggravator. At the sentencing hearing, the trial court stated:


               [I]n addition, the Court finds, as non-statutory aggravating
               factors, the nature and circumstances of this crime. This was a
               horrendous and vicious and savage attack that took place not
               only once, but a second time . . . . Um, this is an escalating
               pattern with you. [I am] not sure how many other times you
               were car-hopping before this incident, but you have, at least, two
               (2) other prior convictions for auto theft and stealing a moped
               . . . . Um, the amount of drugs and alcohol you had in your
               system . . . I don’t know how you were up right [sic], quite
               frankly.

       Court of Appeals of Indiana | Memorandum Decision 84A01-1702-CR-365 | October 13, 2017   Page 7 of 11
       Tr. Vol. III p. 5. It is apparent that the trial court only considered his drug and

       alcohol use when it was discussing the nature and the circumstances of the

       crime—not as an independent aggravator. Therefore, we find no error.


[15]   Next, Gosnell argues that the trial court erroneously found two additional

       aggravators: (1) the imposition of a reduced sentence would depreciate the

       severity of the crime, and (2) his parents’ behavior. Gosnell requested a fully

       suspended sentence. Tr. Vol. II p. 50-51. At the sentencing hearing, the trial

       court stated:


               [A] placement in your parent’s [sic] home is not viable. I mean,
               your dad pulls you out of school because you’re falling asleep.
               That, to me, seems pretty extreme . . . . It doesn’t appear to me,
               from the records, that there was a whole lot of time spent with
               mom’s supervision in any event, who didn’t have a whole lot of
               control over your alcohol and drug use . . . . Um, I think to give
               you anything less than I’m going to give you today would
               diminish the seriousness of this offense, quite frankly.


       Tr. Vol. III p. 5-6. It is clear that the trial court only made these statements to

       explain why the court considered it inappropriate to release him into his

       parents’ custody on a fully suspended sentence. Therefore, we find no error.


[16]   Lastly, Gosnell contends that his apology and plea were used as independent

       aggravators. During the sentencing hearing, when explaining why it found no

       mitigating factors, the trial court stated:


               I think your remorse in this case is that you got caught, and . . .
               [while] you entered a plea; I think you got significant benefit [sic]
               from entering that plea, including the modification of the, the
       Court of Appeals of Indiana | Memorandum Decision 84A01-1702-CR-365 | October 13, 2017   Page 8 of 11
               most serious charge in this case, and the dismissal of the other
               . . . cases.


       Id. at 7. It is apparent that the trial court was not utilizing its disbelief in the

       sincerity of Gosnell’s remorse or his guilty plea as aggravators—only as reasons

       to decline to find them to be mitigators. We decline to reverse for this reason.


                                         II. Appropriateness
[17]   Finally, Gosnell argues that the sentence is inappropriate in light of the nature

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

       Court may revise a sentence if it is inappropriate in light of the nature of the

       offense and the character of the offender. We must “conduct [this] review with

       substantial deference and give ‘due consideration’ to the trial court’s decision—

       since the ‘principal role of [our] review is to attempt to leaven the outliers,’ and

       not to achieve a perceived ‘correct’ sentence . . . .” Knapp v. State, 9 N.E.3d

       1274, 1292 (Ind. 2014) (quoting Chambers v. State, 989 N.E.2d 1257, 1259 (Ind.

       2013)) (internal citations omitted). Our Supreme Court has cautioned that “[a]

       defendant’s conscious choice to enter a plea agreement that limits the trial

       court’s discretion to a sentence less than the statutory maximum should usually

       be understood as strong and persuasive evidence of sentence reasonableness

       and appropriateness,” and that following such an agreement, we should grant

       relief “only in the most rare, exceptional cases.” Childress v. State, 848 N.E.2d

       1073, 1081 (Ind. 2006) (Dickson, J., concurring).




       Court of Appeals of Indiana | Memorandum Decision 84A01-1702-CR-365 | October 13, 2017   Page 9 of 11
[18]   Here, Gosnell pleaded guilty to a Level 3 felony. A Level 3 felony is eligible for

       a sentence between three and sixteen years, with an advisory term of nine years.

       I.C. § 35-50-2-5. The plea agreement capped the executed portion of Gosnell’s

       term at twelve years. He received an eleven-year term, with five years

       suspended to probation.


[19]   As to the nature of the offense, Gosnell committed this offense in the midst of a

       crime spree. He willingly acted in concert with a group of at least five other

       individuals—including a fourteen-year-old. We observe that he had at least

       three chances to retreat: (1) when he called his friends for help; (2) after Ciara

       pulled him off Lester’s back; and (3) when he and his friends returned to the

       Hamiltons’ residence. Instead of safely retreating, Gosnell repeatedly and

       viciously stabbed Lester, whose injuries were so severe that he required

       treatment at a hospital.


[20]   As to Gosnell’s character, we note, as did the trial court, his young age at the

       time he committed this offense. But we also note that at the time of this

       offense, Gosnell had been adjudicated delinquent twice for theft, once for

       resisting law enforcement, and once for being a runaway; two of these

       adjudications would have been felonies had he been convicted as an adult. All

       adjudications and arrests occurred within a relatively compressed period—two

       years—immediately prior to the instant offense. While this is Gosnell’s first

       violent offense, the offense was committed while breaking into cars,

       demonstrating that he has not learned anything from his prior adjudications for

       theft. Gosnell was also hostile while in custody: he needed to be restrained

       Court of Appeals of Indiana | Memorandum Decision 84A01-1702-CR-365 | October 13, 2017   Page 10 of 11
       with a spit shield, he used racial epithets toward the victim and officers, and he

       threatened to batter and kill several officers.


[21]   Although he pleaded guilty, he received a substantial benefit—the dismissal of

       six charges, including Level 1 felony attempted murder. See, e.g., Payne v. State,

       838 N.E.2d 503, 509 (Ind. Ct. App. 2005) (noting that a guilty plea can

       demonstrate a defendant’s acceptance of responsibility but that pleading guilty

       in exchange for the dismissal of several serious charges can lessen its mitigating

       weight). In addition, although he did apologize, Gosnell largely blamed his

       behavior on his drug and alcohol use and did not appear to take any real

       responsibility for his actions. While some of his behavior may be attributable to

       his substance use, he voluntarily ingested those substances. See Smith v. State,

       929 N.E.2d 255, 260 (Ind. Ct. App. 2010) (affirming defendant’s sentence after

       observing that defendant’s “poor decision-making” during offenses was due to

       “voluntary intoxication on drugs”). Gosnell’s age, his voluntary intoxication,

       and his self-serving apology have not diminished the senselessness of this crime,

       nor do they justify a reduction to his sentence, of which only six years are

       executed—five years less than the executed sentence cap to which he agreed.


[22]   In sum, we do not find the sentence imposed by the trial court to be

       inappropriate in light of the nature of the offense or Gosnell’s character.


[23]   The judgment of the trial court is affirmed.


       Bailey, J., and Altice, J., concur.



       Court of Appeals of Indiana | Memorandum Decision 84A01-1702-CR-365 | October 13, 2017   Page 11 of 11
