Opinion
23A-CR-3063
06-19-2024
Drake A. Duncan, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT R. PATRICK MAGRATH ALCORN SAGE SCHWARTZ & MAGRATH, LLP MADISON, INDIANA ATTORNEY FOR APPELLEE THEODORE E. ROKITA ATTORNEY GENERAL OF INDIANA JODI KATHRYN STEIN 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Decatur Superior Court The Honorable Matthew D. Bailey, Judge Trial Court Cause No. 16D01-2206-F3-612
ATTORNEY FOR APPELLANT R. PATRICK MAGRATH ALCORN SAGE SCHWARTZ & MAGRATH, LLP MADISON, INDIANA
ATTORNEY FOR APPELLEE THEODORE E. ROKITA ATTORNEY GENERAL OF INDIANA JODI KATHRYN STEIN DEPUTY ATTORNEY GENERAL INDIANAPOLIS, INDIANA
MEMORANDUM DECISION
Weissmann, Judge
[¶1] Drake Duncan pleaded guilty to Level 6 felony battery for choking and restraining Shane Comstock while his brother repeatedly stomped on Comstock's head. As a result of the attack, Comstock suffered long-term injuries and the related loss of his job. The trial court sentenced Duncan to 900 days in prison, which Duncan appeals as inappropriate in light of the nature of his offense and his character. We affirm.
Facts
[¶2] Duncan, his father, and his two brothers (Brother 1 and Brother 2) went to a local campground to drink alcohol, play games, and listen to music with friends. Duncan became very intoxicated and nearly fell into a campfire twice. When a campground manager eventually told Duncan to leave, Duncan became angry and belligerent. The manager soon ordered the entire group to leave. But before they could comply, a fight broke out between Duncan and his brothers.
[¶3] Brother 2 suffered a bloody nose in the fight, and Comstock-a neighboring camper and paramedic-came to Brother 2's aid. Meanwhile, a second campground manager joined Comstock at the scene and also instructed the group to leave the campground. When Comstock echoed the manager's instruction, Brother 1 protested, "You're not going to tell me what to do." Tr. Vol. III, p. 205. He then punched Comstock in the face.
[¶4] The second manager quickly intervened and separated Comstock from Brother 1. But as the second manager and Comstock were walking away, Brother 1 pursued them and "karate dropkick[ed]" Comstock from behind. Id. at 144. Comstock fell to the ground, and Duncan joined Brother 1 in the attack. While Brother 1 hit and kicked Comstock, Duncan restrained Comstock by wrapping one leg around Comstock's waist and one arm around his neck. With Comstock unable to move, Brother 1 repeatedly stomped on Comstock's head. Eventually, Comstock's legs curled up against his chest, his eyes rolled back into his head, and he began making a choking sound before briefly losing consciousness.
[¶5] As a result of the attack, Comstock sustained a broken nose, unspecified injuries to his wrist and larynx, two kinds of concussions, and multiple abrasions and bruises. He had difficulty eating and talking for days. He was unable to work for two months and ultimately lost his job due to his injuries. Now Comstock suffers from severe, nausea-inducing migraine headaches; memory loss; and, by his account, post-traumatic stress disorder.
[¶6] The State charged Duncan with Level 3 felony aggravated battery and Level 5 felony battery for his role in Comstock's attack. During Duncan's jury trial, he and the State reached a plea agreement by which Duncan pleaded guilty to Level 6 felony battery as a lesser included offense of the Level 3 felony charge. The Level 5 felony charge was dismissed. The trial court ultimately entered judgment of conviction on the Level 6 felony and sentenced Duncan to 900 days in prison, all executed.
Discussion and Decision
[¶7] Duncan appeals his sentence under Indiana Appellate Rule 7(B), which permits an appellate court to revise a sentence if, "after due consideration of the trial court's decision, the sentence is found to be inappropriate in light of the nature of the offense and the character of the offender." Ind. Appellate Rule 7(B). In reviewing the appropriateness of a sentence, our principal role is to attempt to leaven the outliers, not to achieve a perceived "correct" sentence. Knapp v. State, 9 N.E.3d 1274, 1292 (Ind. 2014).
[¶8] When evaluating the appropriateness of a sentence, we first consider the statutory range established for that class of offense. Anglemyer v. State, 868 N.E.2d 482, 494 (Ind. 2007), clarified on reh'g, 875 N.E.2d 218. Duncan was convicted of a Level 6 felony, which carries a statutory penalty ranging from 6 months to 2% years imprisonment, with an advisory sentence of 1 year. Ind. Code § 35-50-2-7(b). Duncan received a near maximum sentence of 900 days imprisonment.
[¶9] As to the nature of the offense, Duncan restrained Comstock in a chokehold and leg wrap while Brother 1 repeatedly stomped on Comstock's head. Comstock not only sustained a broken nose and two concussions in the attack, but he also now suffers from severe migraine headaches and memory loss. Additionally, Comstock lost his job while recovering from the injuries Duncan helped inflict upon him, which brought financial stress onto Comstock's family.
[¶10] Duncan argues that his near maximum sentence is inappropriate because Comstock's most severe injuries were caused by Brother 1. However, it was Duncan's restraint of Comstock that prevented Comstock from defending against or escaping Brother 1's blows. Duncan also asserts that his offense was not among the worst of the worst and, therefore, did not justify a near maximum sentence. But the charge to which Duncan pleaded guilty was not the worst offense for which he could have been convicted; it was reduced from a Level 3 to a Level 6 felony pursuant to a plea agreement with the State. Thus, we are not persuaded that Duncan's 900-day sentence is inappropriate in light of the nature of the offense.
[¶11] On the issue of character, we observe that Duncan did not plead guilty until the third day of his jury trial and that he obtained a significant reduction in the charge in exchange for his plea. These facts indicate that Duncan's plea was more a pragmatic decision than a showing that he accepted responsibility for his actions. We further note that Duncan's criminal history consists of three prior felony and five prior misdemeanor convictions, including a prior conviction for battery. Duncan was also on pre-trial release in an unrelated criminal case when he committed the instant offense.
[¶12] Acknowledging his history of drug and alcohol problems, Duncan highlights that he fully engaged in substance abuse rehabilitation following his arrest and asserts that he has turned his life around. Although this recent sobriety is commendable, standing alone, it does not persuade us that Duncan's 900-day sentence is inappropriate in light of his character.
[¶13] Affirmed.
Vaidik, J., and Foley, J., concur.