Opinion
24A-CR-1769
11-19-2024
Xavier Valencio Breland, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT JAMES D. CRUM COOTS HENKE & WHEELER, P.C. CARMEL, INDIANA ATTORNEYS FOR APPELLEE THEODORE E. ROKITA ATTORNEY GENERAL OF INDIANA CATHERINE E. BRIZZI DEPUTY ATTORNEY GENERAL INDIANAPOLIS, INDIANA
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Hamilton Superior Court The Honorable Michael A. Casati, Judge Trial Court Cause No. 29D01-2211-F4-7914
ATTORNEY FOR APPELLANT JAMES D. CRUM COOTS HENKE & WHEELER, P.C. CARMEL, INDIANA
ATTORNEYS FOR APPELLEE THEODORE E. ROKITA ATTORNEY GENERAL OF INDIANA CATHERINE E. BRIZZI DEPUTY ATTORNEY GENERAL INDIANAPOLIS, INDIANA
MEMORANDUM DECISION
Brown, Judge
[¶1] Xavier Valencio Breland appeals the sentence imposed by the trial court following his conviction for unlawful possession of a firearm by a serious violent felon ("SVF") as a level 4 felony. We affirm.
Facts and Procedural History
[¶2] On February 27, 2022, officers with the Carmel Police Department conducted a "lawful" search of Breland's residence. Transcript Volume II at 117. During the search, Sergeant Trevor Renforth and Major Ryan Meyer moved items around in the garage, including a Christmas tree, so that they could look behind boxes that were up against the wall. Nothing fell from the Christmas tree when the officers moved it at least twice.
The record reveals that Breland filed a pretrial motion in limine, which the trial court granted, to preclude the State from presenting any testimony or evidence regarding the specifics of the search warrant executed at the residence on February 27, 2022.
[¶3] The next day, one of Breland's neighbors was walking his dog when he saw a car pull into Breland's driveway and into the garage, and then he heard a "gunshot." Id. at 37. The neighbor walked away quickly and called 911 to report "there had been a gunshot fired" at Breland's address. Id. at 38.
[¶4] Carmel Police Department officers were dispatched to Breland's home on the report of "shots fired." Id. at 68. Patrol Sergeant Timothy Zellers responded to the scene and encountered Breland in his driveway. Breland informed Patrol Sergeant Zellers that he "was moving" a Christmas tree "in his garage and when he went to pick it up, a gun went off and so he ran from that location." Id. at 71. He stated that "he picked up the Christmas tree, ran, came back and then made the gun safe by removing the magazine." Id. Patrol Sergeant Zellers and Lieutenant Shane Collins entered the garage and observed a handgun on the ground, and "what appeared to be the magazine for the gun" and a "spent shell casing next to the firearm." Id. at 72.
[¶5] On November 10, 2022, the State charged Breland with unlawful possession of a firearm by an SVF as a level 4 felony. Specifically, the State alleged that Breland, having previously been convicted of burglary as a class B felony, did knowingly or intentionally possess a firearm. A jury trial began on June 10, 2024. The State presented testimony from multiple police officers and forensic experts. Ashley Luther, a forensic biologist with the Indiana State Police Laboratory testified that investigators took "six swabs" of the handgun which revealed a "DNA profile" that was "930 billion times more likely" to have "originated from [Breland] and an unknown individual than if it originated from two, unknown unrelated individuals . . . this statistical analysis provides very strong support for the inclusion of [Breland]." Id. at 101, 103. Forensic firearms examiner Melissa Oberg testified that she examined the handgun, a Sig Sauer P365, and considered it to be a "drop safe" weapon which would not fire without the trigger being pulled. Id. at 111.
[¶6] After the evidence was submitted to the jury for deliberations, and outside the presence of the jury, the court heard the brief testimony of a courtroom observer. The observer stated that, while exiting the courtroom during a recess, Breland made eye contact with him and stated, "Better hope you see me before I see you." Id. at 184. This made the observer feel "threatened." Id. Breland also saw a picture of a child on the observer's phone and commented, "Nice kid. Cute kid." Id. at 185.
[¶7] The jury found Breland guilty as charged. The court held a sentencing hearing on July 18, 2024. The court found no mitigating circumstances and found Breland's criminal history, failure to take accountability for his prior or current crimes, his "threat to an observer in the courtroom" which was "outrageous" and resulted in pending criminal charges, and "conduct issues in the Hamilton County Jail" which resulted in additional pending criminal charges, as aggravating circumstances. Id. at 207. The court sentenced Breland to an executed term of twelve years in the Department of Correction.
Discussion
I.
[¶8] Breland first asserts that the trial court abused its discretion during sentencing. An abuse of discretion occurs if the decision is "clearly against the logic and effect of the facts and circumstances before the court, or the reasonable, probable, and actual deductions to be drawn therefrom." Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh'g, 875 N.E.2d 218. A court abuses its discretion if it: (1) fails "to enter a sentencing statement at all;" (2) enters "a sentencing statement that explains reasons for imposing a sentence-including a finding of aggravating and mitigating factors if any-but the record does not support the reasons;" (3) enters a sentencing statement that "omits reasons that are clearly supported by the record and advanced for consideration;" or (4) considers reasons that "are improper as a matter of law." Id. at 490-491. If the trial court has abused its discretion, we will remand for resentencing "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." Id. at 491
[¶9] Breland argues that the trial court improperly found his criminal history to be an aggravating factor because, in doing so, the trial court considered his burglary conviction which "was improper as a matter of law in that it served as an element of the charge for Unlawful Possession of a Firearm by [an SVF]." Appellant's Brief at 7. He further argues that the court "[a]dditionally cited as 'a very aggravating circumstance' [his] alleged threat to a courtroom observer" but that "[w]ithout further context it is . . . difficult to determine where this event fits in as an aggravating circumstance." Id.
[¶10] Breland is correct that material elements of an offense may not be used to "justify deviating from the advisory sentence." Gomillia v. State, 13 N.E.3d 846, 853-853 (Ind. 2014). Here, the trial court stated generally that "one of the aggravating circumstances" was Breland's "criminal history." Transcript Volume II at 207. Although the trial court referenced Breland's burglary conviction when reviewing his criminal history, the trial court did not single out that particular conviction but instead referenced his criminal history as a whole which also included a reference to a conviction for felony residential entry, numerous arrests in Georgia, and that he committed the current offense while on pretrial release. We cannot say the trial court improperly used his burglary conviction as justification for deviating from the advisory sentence. Moreover, the trial court was well within its discretion to find Breland's courtroom behavior to be an aggravating circumstance. Indeed, his outrageous behavior in the courtroom and his conduct in jail resulted in additional criminal charges that were pending at the time of sentencing. Id. Breland has not demonstrated that the trial court abused its discretion.
II.
[¶11] Breland further contends his sentence is inappropriate. He argues that "the circumstances of this unlawful possession of a firearm by [an SVF] are less egregious than the typical offense of a similar nature." Appellant's Reply Brief at 4. He requests that his "maximum" sentence be "reduced and revised to the advisory sentence." Appellant's Brief at 8, 10.
[¶12] Ind. 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] that the sentence is inappropriate in light of the nature of the offense and the character of the offender." Under this rule, the burden is on the defendant to persuade the appellate court that his or her sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). Ind. Code § 35-50-2-5.5 provides that a person who commits a level 4 felony shall be imprisoned for a fixed term of between two and twelve years with the advisory sentence being six years.
[¶13] According to Breland, he is not one of the worst offenders, and the maximum sentence of twelve years he received should be reserved for the very worst offenses and offenders. The Indiana Supreme Court has observed that "the maximum possible sentences are generally most appropriate for the worst offenders." Buchanan v. State, 767 N.E.2d 967, 973 (Ind. 2002).
This is not, however, a guideline to determine whether a worse offender could be imagined. Despite the nature of any particular offense and offender, it will always be possible to identify or hypothesize a significantly more despicable scenario. Although maximum sentences are ordinarily appropriate for the worst offenders, we refer generally to the class of offenses and offenders that warrant the maximum punishment. But such class encompasses a considerable variety of offenses and offenders.Id.
[¶14] Our review of the nature of the offense reveals that Breland, a serious violent felon, was prohibited from possessing a firearm due to his 2005 conviction for burglary as a class B felony. On February 28, 2022, police officers were dispatched to his home following a report of shots fired. He claimed that a gun fell out of a discarded Christmas tree and misfired even though officers had moved the tree the prior day without incident, and the gun was tested and revealed to have safety features to prevent it from firing without the trigger being pulled. Even assuming his story was believable, he was not merely found in possession of a firearm as required for a charge of unlawful possession by an SVF. At the very least, the prohibited firearm was stored inappropriately and/or mishandled resulting in discharge. Contrary to Breland's suggestion, nothing in the record reveals that his offense was accompanied by "regard and restraint." Appellant's Brief at 9 (citing Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015) (noting that reviewing court should defer to trial court's sentencing discretion 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)").
[¶15] Our review of the character of the offender reveals that Breland has a criminal history consisting of prior convictions for residential entry as a class D felony and burglary as a class B felony, and numerous arrests in Georgia. The presentence investigation report ("PSI") indicates that he was released on bond under another cause number when he committed the current offense and, at the time of sentencing, he had a pending charge of intimidation as a class A misdemeanor based upon his behavior in the courtroom as well as a charge of disorderly conduct as a class B misdemeanor due to his violent and aggressive behavior while in jail. The PSI also indicates that Breland "expressed significant criminal attitudes during the presentence interview" and he "did not take accountability for any of his convictions and blamed others for all of them." Appendix Volume III at 78. After due consideration, we conclude that Breland has not met his burden of establishing that his sentence is inappropriate in light of the nature of the offense and his character.
[¶16] For the foregoing reasons, we affirm Breland's sentence.
[¶17] Affirmed.
Mathias, J., and Kenworthy, J., concur.