Opinion
20A-CR-2124
04-13-2021
Richard Tyson, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Kristin A. Mulholland Appellate Public Defender Crown Point, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General Steven Hosler Deputy Attorney General Indianapolis, Indiana
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 Lake Superior Court The Honorable Samuel L. Cappas, Judge Trial Court Cause Nos. 45G04-1611-F3-33, 45G04-2002-F6-413
ATTORNEY FOR APPELLANT
Kristin A. Mulholland Appellate Public Defender Crown Point, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita Attorney General
Steven Hosler Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
CRONE, JUDGE.
[¶1] Richard Tyson pled guilty by plea agreement to level 5 felony attempted robbery under cause number 45G04-1611-F3-33 (Cause 33) and level 6 felony failure to return to lawful detention under cause number 45G04-2022-F6-413 (Cause 413). The trial court sentenced him to consecutive terms of four years in Cause 33 and one-half year in Cause 413. Tyson now appeals his aggregate sentence, claiming that it is inappropriate in light of the nature of the offenses and his character. Concluding that he has failed to satisfy his burden of demonstrating that his sentence is inappropriate, we affirm.
Case Summary
Facts and Procedural History
[¶2] In October 2016, loss prevention officer Anthony Perez saw Tyson take two air-powered nail guns and exit a home improvement store without paying for them. Perez approached Tyson and identified himself as the store's loss prevention officer. Tyson took an "aggressive stance" toward Perez and spoke to him in an "aggressive tone," which placed Perez in fear. Appellant's App. Vol. 3 at 43. Tyson put the stolen nail guns on the ground and told Perez that "he better back up or he would shoot him." Appellant's App. Vol. 2 at 18. Tyson lifted his shirt, and Perez saw what appeared to be a firearm. Perez backed up, and Tyson fled the scene in his vehicle. Tyson was apprehended by law enforcement officers after leading them on a chase that ended in Illinois.
[¶3] In November 2016, the State charged Tyson in Cause 33 with one count of level 3 felony attempted armed robbery, two counts of level 5 felony intimidation, one count of level 6 felony intimidation, four counts of level 6 felony theft, one count of level 6 felony attempted theft, and one count of level 6 felony resisting arrest. During the three years that followed, Tyson was detained/incarcerated in Illinois for offenses committed there. In December 2019, he was transported to Lake County and placed at a nearby work release center as a pretrial detainee in Cause 33. On February 17, 2020, he was granted a temporary pass to attend a mental health appointment and was required to return to detention by 3:00 p.m. He failed to return as required and was "absent without leave" for nine days. Id. at 36. As a result, the State charged him in Cause 413 with level 6 felony failure to return to lawful detention.
[¶4] Tyson entered a plea agreement pursuant to which he would plead guilty to level 6 felony failure to return in Cause 413 and to level 5 felony attempted robbery, which the State would add as Count XI in Cause 33. In exchange, the State agreed to dismiss the ten remaining counts in Cause 33. The plea agreement included a four-year sentence cap for the level 5 felony conviction, to run consecutive to a six-month sentence for the level 6 felony conviction. During sentencing, the trial court found Tyson's extensive criminal record to be an aggravating factor and his decision to plead guilty to be a mitigating factor, albeit one that was offset by the dismissal of ten counts in Cause 33. The court ultimately sentenced Tyson to a four-year term in Cause 33, to be executed in the Indiana Department of Correction (DOC) and to run consecutive to the half-year sentence imposed in Cause 413. Tyson sought and was granted a consolidation of the two causes for the purpose of appealing his sentence. Additional facts will be provided as necessary.
Discussion and Decision
[¶5] Tyson asks that we review and revise his sentence pursuant to Indiana Appellate Rule 7(B), which states that we "may revise a sentence authorized by statute if, after due consideration of the trial court's decision, [this] Court finds that the sentence is inappropriate in light of the nature of the offense and the character of the offender." "Sentencing is principally a discretionary function in which the trial court's judgment should receive considerable deference." Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008). When a defendant requests appellate review and revision of her sentence, we have the power to affirm or reduce the sentence. Akard v. State, 937 N.E.2d 811, 813 (Ind. 2010).
[¶6] Tyson asks not only that we reduce his sentence but also that we revise its manner of service from executed to probation or community corrections. In conducting our Rule 7(B) review, our principal role is to leaven the outliers, focusing on the length of the sentence and how it is to be served. Bess v. State, 58 N.E.3d 174, 175 (Ind. 2016); Foutch v. State, 53 N.E.3d 577, 580 (Ind.Ct.App. 2016). This allows for consideration of all aspects of the penal consequences imposed by the trial court in sentencing, i.e., whether it consists of executed time, probation, suspension, home detention, or placement in community corrections and whether the sentences run concurrently or consecutively. Davidson v. State, 926 N.E.2d 1023, 1025 (Ind. 2010). We do "not look to see whether the defendant's sentence is appropriate or if another sentence might be more appropriate; rather, the test is whether the sentence is 'inappropriate.'" Foutch, 53 N.E.3d at 581 (quoting Barker v. State, 994 N.E.2d 306, 315 (Ind.Ct.App. 2013), trans. denied (2014)). Our determination of inappropriateness ultimately turns on myriad factors, including "the culpability of the defendant, the seriousness of the crime, [and] the damage done to others." McFall v. State, 71 N.E.3d 383, 390 (Ind.Ct.App. 2017). The defendant bears the burden of persuading this Court that his sentence meets the inappropriateness standard. Bowman v. State, 51 N.E.3d 1174, 1181 (Ind. 2016).
[¶7] Tyson pled guilty by plea agreement to a level 5 felony in Cause 33 and a level 6 felony in Cause 413. A level 5 felony carries a sentencing range of one to six years, with a three-year advisory term. Ind. Code § 35-50-2-6. A level 6 felony carries a sentencing range of six months to two and one-half years, with a one-year advisory term. Ind. Code § 35-50-2-7. Tyson's plea agreement included a definite term of one-half year for his level 6 felony, a sentence cap of four years for his level 5 felony, and a provision directing the terms to be served consecutively. "'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 appellate relief should be granted 'only in the most rare, exceptional cases.'" Merriweather v. State, 151 N.E.3d 1281, 1286 n.2 (Ind.Ct.App. 2020) (quoting Childress v. State, 848 N.E.2d 1073, 1081 (Ind. 2006) (Dickson, J., concurring)).
[¶8] Per the plea agreement, the only discretion left to the trial court during Tyson's sentencing pertained to the length and manner of service of the term for his level 5 felony, for which he was sentenced to an executed four years on a four-year cap. Because the advisory term is the starting point that the legislature has selected as an appropriate sentence, Fuller v. State, 9 N.E.3d 653, 657 (Ind. 2014), we conduct our analysis of the nature of Tyson's level 5 felony attempted robbery offense by examining whether there is anything more egregious about his offense that accounts for his having received one year above the advisory sentence. Holloway v. State, 950 N.E.2d 803, 807 (Ind.Ct.App. 2011).
[¶9] During his attempted robbery, Tyson was aggressive in his stance and issued verbal threats that placed loss prevention officer Perez in fear. Perez reported that Tyson set down the stolen merchandise, threatened to shoot him, and lifted his shirt to show him a firearm. Tyson fled the scene in his vehicle and led law enforcement officers on a protracted chase that extended across the state line. As such, he endangered not only Perez's life but also the lives of the pursuing officers and other motorists. The nature of Tyson's attempted robbery simply does not militate toward a reduced sentence.
[¶10] We review Tyson's character by engaging in a broad consideration of his qualities. Aslinger v. State, 2 N.E.3d 84, 95 (Ind.Ct.App. 2014), clarified on other grounds on reh'g, 11 N.E.3d 571. An offender's character is shown by his "life and conduct." Adams v. State, 120 N.E.3d 1058, 1065 (Ind.Ct.App. 2019). "When considering the character of the offender, one relevant fact is the defendant's criminal history." Garcia v. State, 47 N.E.3d 1249, 1251 (Ind.Ct.App. 2015), trans. denied (2016).
[¶11] The fifty-five-year-old Tyson has an extensive criminal record, mostly from Cook County, Illinois, which includes twenty-two felony convictions, nine misdemeanor convictions, and more than sixty adult contacts with the system. Many of his convictions are similar in character to the current attempted robbery offense in that they involve theft, retail theft, receiving stolen property, burglary, and aggravated fleeing. His record also includes crimes of dishonesty such as forgery, bribery, and attempted obstruction of justice/destruction of evidence. He asks that we consider the remoteness of some of his convictions, i.e., from his young adulthood in the 1980s, but the PSI reflects a rather steady stream of criminal behavior since then, with breaks here and there due to some of his longer stints of incarceration. See Appellant's App. Vol. 3 at 56-69; see also Tr. Vol. 2 at 41 (trial court's assessment of Tyson's criminal history: "I don't know that there's one day of your adult life where you didn't have a charge pending, weren't in prison or weren't on probation."). Additionally, Tyson has at least one probation violation, and his current conviction for failure to return to lawful detention involved circumstances where the work release center granted him a temporary pass to attend a mental health appointment, but he instead chose not to return for nine days. This does not bode well for his future prospects on probation or in the less restrictive community corrections placement that he now seeks.
Tyson said he did not return to detention as required because his father was ill and needed attention. While his concern for his father is laudable, he willfully chose to violate the terms of his temporary pass.
[¶12] Moreover, we agree with the trial court that Tyson's guilty plea appears to have been pragmatic, as it involved the dismissal of ten counts, some of which included exposure to consecutive sentencing and one of which was a level 3 felony count. Thus, absent the plea agreement, his overall sentence exposure would have increased significantly. Finally, we are mindful of Tyson's mental health issues and his expressed desire to address his alcohol and drug abuse. However, we believe that his treatment needs will be met inside the DOC, which will provide the necessary structure to protect him from another episode of absconding and being away from any treatment regimen or medication. In sum, Tyson has failed to carry his burden of demonstrating that his aggregate executed sentence is inappropriate in light of the nature of his offenses and his character. Accordingly, we affirm.
Tyson asserts that he suffers from mental illness, which must be considered as part of our Rule 7(B) review. We take this assertion seriously but find it curious that during the guilty plea hearing, when the trial court asked him if he had ever been treated for mental illness or currently suffered from a mental disability, he responded in the negative. Tr. Vol. 2 at 7.
[¶13] Affirmed.
Riley, J., and Mathias, J., concur.