Opinion
20A-CR-1693
04-20-2021
Billy Robinson, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff
Attorney for Appellant Andrew Bernlohr Attorneys for Appellee Theodore E. Rokita Attorney General of Indiana Jodi Kathryn Stein Supervising Deputy Attorney General
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
Appeal from the Marion Superior Court Trial Court Cause No. 49G04-1901-F1-002183 The Honorable Lisa Borges, Judge.
Attorney for Appellant
Andrew Bernlohr
Attorneys for Appellee
Theodore E. Rokita
Attorney General of Indiana
Jodi Kathryn
Stein Supervising Deputy Attorney General
MEMORANDUM DECISION
MAY, JUDGE.
[¶1] Billy Robinson appeals the sentence imposed following his convictions of Level 5 felony criminal recklessness and Level 6 felony pointing a firearm.Robinson asserts his three-year sentence is inappropriate. We affirm.
Ind. Code § 35-44-2-2.
Facts and Procedural History
[¶2] On the afternoon of December 27, 2018, Shanel Byrom left her job at the post office on the south side of Indianapolis and was driving toward her second job in Fishers. It was cold outside and raining, so Byrom was driving slowly in the middle lane of I-465 North. For approximately two miles, a maroon Cadillac followed Byrom so closely that she could not see the front bumper of the Cadillac, so she was relieved when the Cadillac began to pass her on her left. However, as the car pulled up beside her, its front passenger window was down and its driver, a black man, was pointing a handgun at Byrom. Byrom held onto the wheel and laid down into the passenger seat as two shots were fired at her car. She managed to pull her car over, and she looked up in time to see the Cadillac's license plate read "FALLOUT". (Ex. Vol. at 38.)
[¶3] Byrom called the police, and Indiana State Troopers met her at a gas station at the next exit. Trooper Taylor McCluskey took Byrom's report and noted the two bullet holes on the driver's side of her car. A second Trooper extracted a bullet from the front passenger seat of Byrom's car. Trooper McCluskey searched the State's database for the vanity plate Byrom reported, and he found it was registered to a maroon Cadillac belonging to Robinson. Police then obtained a search warrant for Robinson's house and car. When they executed the search warrant, they found a 9mm semi-automatic handgun next to the bed in the master bedroom and a spent shell casing from the 9mm gun between the driver's seat and center console in Robinson's Cadillac. Forensic firearm testing revealed the bullet retrieved from Byrom's car was shot from Robinson's gun.
[¶4] The State charged Robinson with Level 1 felony attempted murder, Level 5 felony criminal recklessness, and Level 6 pointing a firearm. A jury found Robinson not guilty of attempted murder, but guilty of the two remaining charges. The trial court entered judgments of conviction on the two guilty findings. Following a sentencing hearing at which Robinson and his wife testified, the court found mitigators in Robinson's lack of criminal history, his willingness to pay restitution, and his acceptance of responsibility, and an aggravator in the devastating impact the crime had on Byrom. The court imposed a three-year sentence for criminal recklessness, and it ordered half the sentence suspended and one year of probation. For pointing a firearm, the court ordered a one-year suspended sentence to be served concurrent with Robinson's three-year sentence.
Ind. Code § 35-42-1-1 (murder) & § 35-41-5-1(a) (attempt).
Discussion and Decision
[¶5] Robinson appeals as inappropriate the three-year aggregate sentence imposed for his convictions. We may revise a sentence if it "is inappropriate in light of the nature of the offense and the character of the offender." Williams v. State, 891 N.E.2d 621, 633 (Ind.Ct.App. 2008) (citing Ind. Appellate Rule 7(B)). We consider the aggravators and mitigators found by the trial court and also any other factors appearing in the record. Baumholser v. State, 62 N.E.3d 411, 417 (Ind.Ct.App. 2016), trans. denied. Our determination of appropriateness "turns on our sense of 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." Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). The appellant must demonstrate the sentence is inappropriate. Baumholser, 62 N.E.3d at 418.
In support of his inappropriateness argument, Robinson asserts "the mitigating circumstances significantly outweigh the aggravating factors, to such an extent that a sentence executed with the IDOC is inappropriate." (Appellant's Br. at 8.) However, our review of a trial court's imposition of a sentence no longer permits our review of the "weight" of aggravators and mitigators or of the balancing of those weights against one another. Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007), clarified on reh'g 875 N.E.2d 218 (Ind. 2007). Instead, we consider the aggravators and mitigators in relation to Robinson's character and offense, as is required by the inappropriateness analysis provided by Appellate Rule 7(B). See Baumholser v. State, 62 N.E.3d 411, 417 (Ind.Ct.App. 2016) (Appellate Rule 7(B) analysis includes consideration of aggravators, mitigators, and other factors found in the record), trans. denied.
[¶6] When considering the nature of the offense, the advisory sentence is the starting point to determine the appropriateness of a sentence. Anglemyer v. State, 868 N.E.2d 482, 494 (Ind. 2007), clarified on reh'g 875 N.E.2d 218 (Ind. 2007). Robinson received a three-year sentence for his Level 5 felony, which is the advisory sentence for a Level 5 felony. See Ind. Code § 35-50-2-6(b) ("A person who commits a Level 5 felony (for a crime committed after June 30, 2014) shall be imprisoned for a fixed term of between one (1) and six (6) years, with the advisory sentence being three (3) years."). Robinson received a one-year sentence for his Level 6 felony conviction, which also is the advisory sentence. See Ind. Code § 35-50-2-7 ("A person who commits a Level 6 felony . . . shall be imprisoned for a fixed term of between six (6) months and two and one-half (2 ½) years, with the advisory sentence being (1) one year."). The court ordered the two sentences served concurrently, such that Robinson's aggregate sentence is three years.
[¶7] Robinson's crimes occurred when he pointed a loaded handgun out the window of his car at another car on the interstate and fired two 9mm hollow point rounds. One of those rounds passed through the back door, driver's seat, and console, missing Byrom by two inches. The other round had a trajectory that would have hit Byrom had it not been stopped by a steel crossbar in the car's frame. The terror this experience induced in Byrom has rendered her unable to drive on highways and forced her family to move out of state because she no longer felt safe living in Indianapolis. As Robinson acknowledges, "his actions were reckless, unsafe and wholly inappropriate." (Appellant's Br. at 9.)
[¶8] When considering the character of the offender, one relevant fact is the defendant's criminal history. Rutherford v. State, 866 N.E.2d 867, 874 (Ind.Ct.App. 2007). As acknowledged by the trial court, Robinson has no criminal history, and his only interaction with the justice system was for truancy as a juvenile. Robinson's wife and his best friend testified at trial about this shooting being out of character for Robinson, and Robinson himself testified about his remorse for the shooting and its impact on Byrom. We have no reason to doubt the veracity of those witnesses, including Robinson. However, as the trial court noted, the fact remains that, when faced with the relatively common occurrence of another driver being annoying on the highway, Robinson chose to brandish and fire a semi-automatic handgun at a moving vehicle from a moving vehicle. While Robinson may have intended to damage only the car, the possibility of an inaccurate shot, deflected bullet, or other unintended consequence was high given that the cars were traveling on the interstate. While we regret the impact Robinson's imprisonment may have on his family, the responsibility for that impact belongs to Robinson, because he intentionally engaged in incredibly reckless behavior. We cannot hold that an advisory three-year sentence is inappropriate for Robinson's character and offenses. See Clara v. State, 899 N.E.2d 733, 736 (Ind.Ct.App. 2009) (nature of offense makes advisory sentence not inappropriate, even when defendant has minimal criminal history, crime is unlikely to recur, and defendant may respond well to probation).
Conclusion
[¶9] We find nothing inappropriate about the trial court's imposition of a three-year sentence, half of which the court suspended, for Robinson's commission of criminal recklessness and pointing a firearm. Accordingly, we affirm.
[¶10] Affirmed.
Kirsch, J., and Bradford, C.J., concur.