MEMORANDUM DECISION FILED
Pursuant to Ind. Appellate Rule 65(D), Apr 27 2017, 10:41 am
this Memorandum Decision shall not be CLERK
Indiana Supreme Court
regarded as precedent or cited before any Court of Appeals
and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Brian A. Karle Curtis T. Hill, Jr.
Ball Eggleston, PC Attorney General of Indiana
Lafayette, Indiana
Lyubov Gore
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Sidney D. Greenleaf, April 27, 2017
Appellant-Defendant, Court of Appeals Case No.
79A02-1511-CR-1862
v. Appeal from the Tippecanoe
Circuit Court
State of Indiana, The Honorable Thomas H. Busch,
Appellee-Plaintiff. Judge
Trial Court Cause No.
79C01-1502-F1-01
Brown, Judge.
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[1] Sidney Greenleaf appeals his sentence for attempted murder. Greenleaf raises
two issues which we revise and restate as:
I. Whether the trial court abused its discretion in sentencing him;
and
II. Whether his sentence is inappropriate in light of the nature of
the offense and the character of the offender.
We affirm.
Facts and Procedural History
[2] On February 2, 2015, Greenleaf shot at Aaron Vance multiple times outside of
a gas station. Vance was struck twice in the left forearm, twice in the left
buttock, both feet, and his scrotum, causing Vance to lose a testicle. Police
found five or six shell casings. Law enforcement eventually located Greenleaf,
and he was detained and brought to Indiana in mid- to late-March.
[3] On February 6, 2015, the State charged Greenleaf with: Count I, attempted
murder as a level 1 felony; Count II, aggravated battery as a level 3 felony;
Count III, battery as a level 5 felony; Count IV, battery as a level 5 felony;
Count V, carrying a handgun without a license as a class A misdemeanor; and
Count VI, carrying a handgun by a convicted felon as a level 5 felony. The
State also alleged a sentencing enhancement for the unlawful use of a firearm in
the commission of a felony that resulted in death or serious bodily injury as
Count VII.
[4] On August 17, 2015, Greenleaf and the State entered a plea agreement pursuant
to which Greenleaf agreed to plead guilty to Count I, attempted murder as a
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level 1 felony, and Count VII, unlawful use of a firearm as a sentencing
enhancement, and the State agreed to dismiss the remaining counts.
[5] On October 9, 2015, the court held a sentencing hearing. Lafayette Police
Detective Patrick Dempster testified that surveillance video appeared to show
that Vance was shot while he was facing Greenleaf, while he was turned around
walking away from Greenleaf, and while he was on the ground. When asked
how Vance was doing in his recovery at the time he met with him a couple of
weeks after the offense, Detective Dempster stated: “It’s slow and the feet are—
he was having problems walking. Used a cane or was told to use a cane.”
Transcript II at 22. Detective Jennifer Keifer testified that she interviewed
Greenleaf and he was not initially forthcoming, but at some point admitted to
shooting Vance. Detective Keifer also testified that Greenleaf said that he had
taken the gun to his house and called somebody to retrieve the gun after
someone called Greenleaf and notified him that the police were looking for
him. Greenleaf stated: “I just want to say sorry for what I did.” Id. at 28. The
probation officer completing the presentence investigation report (“PSI”)
recommended that the court sentence Greenleaf to thirty-five years for
attempted murder enhanced by ten years.
[6] The court found the following aggravating factors: the harm, injury, loss, or
damage suffered by the victim was significant and greater than the elements
necessary to prove the commission of the offense, Greenleaf’s history of
criminal or delinquent behavior, and Greenleaf had recently violated a
condition of probation and attempted to avoid detection. The court found his
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guilty plea, acceptance of responsibility, mental illness, and difficult childhood
to be mitigating factors. With respect to his guilty plea, the court stated: “The
defendant did plead guilty and take responsibility and as far as I can tell there
was minimum if any benefit to doing that so that is a certainly a mitigating
factor . . . .” Id. at 39. The court found that the aggravating factors outweighed
the mitigating factors and sentenced Greenleaf to the Department of Correction
for thirty-five years for attempted murder, enhanced by ten years for an
aggregate sentence of forty-five years.
Discussion
I.
[7] The first issue is whether the trial court abused its discretion in sentencing. We
review the sentence for an abuse of discretion. Anglemyer v. State, 868 N.E.2d
482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218. 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.” Id. A trial 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
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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.
The relative weight or value assignable to reasons properly found, or those
which should have been found, is not subject to review for abuse of discretion.
Id.
[8] Greenleaf argues that the court abused its discretion by considering a material
element of his offense as an aggravating circumstance. Specifically, he asserts
that “serious bodily injury” is a material element of the sentencing
enhancement and points to the court’s statement that “the harm, injury, loss, or
damage suffered by the victim of an offense was significant and greater than the
elements necessary to prove the commission of the offense . . . .” Appellant’s
Appendix II at 40. The State argues that the trial court was not prohibited from
considering the significant injuries the victim suffered as an aggravating
circumstance and that even if the court erred, the remaining aggravating
circumstances were sufficient on their own to support his sentence.
[9] A material element of a crime may not be used as an aggravating factor to
support an enhanced sentence. McElroy v. State, 865 N.E.2d 584, 589 (Ind.
2007). However, when evaluating the nature of the offense, the trial court may
properly consider the particularized circumstances of the factual elements as
aggravating factors. Id. See also Ind. Code § 35-38-1-7.1 (“In determining what
sentence to impose for a crime, the court may consider the following
aggravating circumstances . . . the harm, injury, loss, or damage suffered by the
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victim of an offense was . . . significant; and . . . greater than the elements
necessary to prove the commission of the offense.”).
[10] At the sentencing hearing, the court stated:
The—it’s a wonder based upon the facts as presented and the
injuries that the defendant received—excuse me that the victim
received that he isn’t dead. And it looks like the injuries inflicted
were intended to inflict suffering and not only to cause death.
And the extent of the injuries, well this is an interesting question.
Because the injuries were certainly more severe than the elements
necessary to prove the commission of the attempted murder.
You can shoot and miss and cause attempted murder. The
serious injury is the element—is part of the gun element which is
an aggravator but that’s not I don’t think intended by the
legislature to be the only way in which the extent of the injury
can be considered in the—in considering the appropriate
sentence so I will find that the harm, injury, loss and damage,
suffering from the victim was significant and greater than the
elements necessary to prove the commission of the offense, that’s
an aggravating factor.
Transcript II at 37-38.
[11] We conclude that the court considered the injuries not as material elements of
the crime or sentencing enhancement but as the nature and circumstances of the
offense. Consequently, we cannot say that the trial court abused its discretion.
See Caraway v. State, 959 N.E.2d 847, 850 (Ind. Ct. App. 2011) (holding that the
trial court did not abuse its discretion by considering the nature and
circumstances of the offense as an aggravator under Ind. Code § 35-38-1-7.1
where the victim was shot seven times), trans. denied; Settles v. State, 791 N.E.2d
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812, 814-815 (Ind. Ct. App. 2003) (holding that facts evidencing the particular
brutality of an attack may be considered as an aggravating circumstance when
sentencing a defendant for aggravated battery and concluding that the trial
court did not improperly consider the severity of the victim’s injuries as an
aggravator).
II.
[12] The next issue is whether Greenleaf’s sentence is inappropriate in light of the
nature of the offense and his character. 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).
[13] Greenleaf argues that his actions and the injuries sustained by Vance are not
more egregious than the typical offense envisioned by the legislature when it set
an advisory sentence for such conduct. He asserts that he pled guilty without
the benefit of a plea agreement, took responsibility for his actions, cooperated
with law enforcement and admitted to shooting Vance when confronted by law
enforcement, endured a very difficult childhood, suffers from a learning
disability, and was only twenty-five years old when he committed the offense.
He also notes that all four of his previous felony convictions are non-violent
offenses of criminal trespass.
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[14] Ind. Code § 35-50-2-4 provides that a person who commits a level 1 felony shall
be imprisoned for a fixed term of between twenty and forty years with the
advisory sentence being thirty years. At the time of the offense, Ind. Code § 35-
50-2-11, which governs the sentence enhancement, provided “[i]f . . . the court
(if the hearing is to the court alone) finds that the state has proved beyond a
reasonable doubt that the person knowingly or intentionally used a firearm in
the commission of the offense, the court may sentence the person to an
additional fixed term of imprisonment of between five (5) years and twenty (20)
years.” 1
[15] Our review of the nature of the offense reveals that Greenleaf, who was born in
1989, shot at Vance multiple times on February 2, 2015, and some of the shots
occurred while Vance was turned around walking away from Greenleaf and
while Vance was on the ground. Vance was struck twice in the left forearm,
twice in the left buttock, both feet, and his scrotum. Vance lost a testicle.
When asked what role drugs or alcohol played in the offense, Greenleaf stated:
“I had been smoking weed and was drunk when it happened.” Appellant’s
Appendix II at 66.
[16] Our review of the character of the offender reveals that Greenleaf went to
Chicago after the offense and told somebody to retrieve the gun after he was
notified that police were looking for him. Law enforcement eventually located
1
Subsequently amended by Pub. L. No. 238-2015, § 18 (eff. July 1, 2015); Pub. L. No. 157-2016, § 1 (eff.
July 1, 2016).
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him, he was detained and brought to Indiana in mid- to late-March, and he was
not initially forthcoming, but at some point admitted to shooting Vance. He
pled guilty, and the State dismissed the other charges. At the sentencing
hearing, Greenleaf stated: “I just want to say sorry for what I did.” Transcript
II at 28.
[17] Greenleaf reported that he was raised by his mother and experienced problems
during his childhood relating to his mother’s substance abuse problems. Two of
Greenleaf’s three children were found to be children in need of services
(“CHINS”) in 2009 due to Greenleaf and the children’s mother using marijuana
in the home with the children present. He reported being ordered to pay $256
per month in child support for two of his children and that he is approximately
$20,000 in arrears, and that he was diagnosed with a learning disability in the
third grade.
[18] He reported consuming a bottle of cognac per day between the ages of thirteen
and fourteen, two bottles of cognac per day between the ages of fifteen and
eighteen, and a bottle of cognac per day between the ages of eighteen and
nineteen and between ages twenty-one and twenty-five. He reported using
marijuana every day between the ages of twelve and nineteen and between the
ages of twenty-one and twenty-five, synthetic marijuana every other day
between the ages of twenty-four and twenty-five, “sherms/Wet/Wikki Stix”
every three days between the ages of twenty-one and twenty-three, cocaine once
when he was eighteen, ecstasy every day between the ages of nineteen and
twenty-five, and Vicodin four times when he was twenty-five. Appellant’s
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Appendix II at 66. He received substance abuse treatment in 2003 and 2010,
but failed to participate in substance abuse treatment as ordered in the CHINS
case in 2010.
[19] As a juvenile, Greenleaf was adjudicated a delinquent for possession of a stolen
motor vehicle in 2003, and his probation was terminated unsatisfactorily. He
was alleged to have committed possession of a stolen motor vehicle, criminal
trespass to a vehicle, and aggravated battery on a school employee in 2003, but
these cases were dismissed. In 2004, he was adjudicated a delinquent for
battery and his probation was terminated unsatisfactorily. That same year, he
was alleged to have committed battery and possession of cannabis, but these
cases were dismissed. In March 2007, a disposition was entered following
allegations that he committed criminal mischief, battery, and criminal trespass,
and the narrative in the PSI states that the case was transferred to Cook,
County, Illinois, that he was ordered not to return to Tippecanoe County, that
he was arrested again in Tippecanoe County in July, and that all charges were
filed under cause number 79D03-0707-JD-370 (“Cause No. 370”). Under
Cause No. 370, he was alleged to have committed possession of marijuana as a
class A misdemeanor, delinquency alcohol violation, criminal trespass as a
class A misdemeanor, battery resulting in bodily injury as a class A
misdemeanor, criminal mischief as a class B misdemeanor, disorderly conduct
as a class A misdemeanor, and false informing as a class B misdemeanor. He
was waived from juvenile jurisdiction and convicted of battery resulting in
bodily injury as a class A misdemeanor.
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[20] As an adult, he was convicted of operating a motor vehicle without ever
receiving a license in 2008, and his probation in that case was revoked in 2009.
Meanwhile, in 2008, he was convicted of resisting law enforcement as a class A
misdemeanor. He was also charged with false informing and two counts of
criminal trespass in 2008, but these cases were dismissed pursuant to a plea
agreement in another cause. That same year, he was convicted of criminal
trespass as a class A misdemeanor. In July 2009, he was convicted of operating
a motor vehicle without ever receiving a license, criminal trespass, and false
informing. In October 2009, he was convicted of criminal trespass as a class D
felony. That same month, he was also charged with “Possession of Knife w/
Blade That Opens Automatically/May be Propelled,” and the case was
dismissed. Id. at 60.
[21] In May 2010, he was convicted of criminal trespass as a class D felony and false
informing as a class A misdemeanor. In October 2010, he was convicted of
operating a vehicle with a schedule I or II controlled substance or its metabolite
as a class C misdemeanor, and he was later unsatisfactorily discharged from
probation.
[22] In May 2012, he was convicted of battery resulting in bodily injury as a class A
misdemeanor. In November 2012, he was convicted of criminal trespass as a
class D felony. In September 2013, he was convicted of criminal trespass as a
class D felony and resisting law enforcement as a class A misdemeanor. In
October 2013, he was convicted of operating a motor vehicle without ever
receiving a license as a class C misdemeanor. With respect to his criminal
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history, the trial court stated: “it’s as long and as intense history as one could
have without having prior murder convictions and there is a repeated assaults
causing injury and batteries, causing injury throughout the—I should say
batteries causing injury throughout the defendant’s criminal record.”
Transcript II at 38.
[23] The PSI indicates that Greenleaf has failed to appear for hearings over twenty
times and that he has had fourteen petitions to revoke probation filed against
him with two having been found true. The PSI also states that he was on
unsupervised probation at the time of the instant offense, he reported having a
past gang affiliation as a juvenile, and his overall risk assessment score places
him in the very high risk category to reoffend.
[24] After due consideration, we conclude that Greenleaf has not sustained his
burden of establishing that his sentence of forty-five years is inappropriate in
light of the nature of the offense and his character.
Conclusion
[25] For the foregoing reasons, we affirm Greenleaf’s sentence.
[26] Affirmed.
May, J., and Pyle, J., concur.
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Sidney Greenleaf v. State of Indiana (mem. dec.)
Combined Opinion