MEMORANDUM DECISION FILED
May 21 2018, 6:25 am
Pursuant to Ind. Appellate Rule 65(D),
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
Sally Skodinski Curtis T. Hill, Jr.
South Bend, Indiana Attorney General of Indiana
Evan Matthew Comer
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Julian Byrd, May 21, 2018
Appellant-Defendant, Court of Appeals Case No.
71A04-1709-CR-2209
v. Appeal from the St. Joseph
Superior Court
State of Indiana, The Honorable John M.
Appellee-Plaintiff. Marnocha, Judge
Trial Court Cause No.
71D02-1704-F1-5
Bradford, Judge.
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Case Summary
[1] Following a jury trial, Julian Byrd was convicted of Level 3 felony armed
robbery and Level 5 felony battery with a deadly weapon. The trial court
sentence Byrd to concurrent sentences of sixteen years for armed robbery and
six years for battery. On appeal, Byrd argues that the trial court abused its
discretion in lending considerable weight to his prior criminal history, which
included more than twenty misdemeanors and five juvenile adjudications.
Because the trial court did not abuse its discretion when it considered Byrd’s
criminal history during sentencing, we affirm.
Facts and Procedural History
[2] On April 15, 2017, Byrd arrived at the home of Daniyell Franklin in South
Bend armed with a gun. Byrd was looking for Darcy Neilly. After knocking,
someone cracked the door to see who was there. Byrd pushed the door open
and entered the home. Byrd went to the bedroom where Franklin and Neilly
were sleeping and fired his gun into the air. Byrd pointed his gun at Neilly and
fired it, hitting him in the upper-left side of his chest. After shooting Neilly,
Byrd took $30 from Neilly’s pocket and fled the scene.
[3] On April 18, 2017, Byrd was charged with Level 1 felony burglary, Level 3
felony armed robbery, and Level 5 felony battery with a deadly weapon. A jury
trial was held on August 1 and 2, 2017. On August 2, 2017, the jury found
Byrd guilty of armed robbery and battery and acquitted him of the burglary
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charge. A sentencing hearing was held on August 30, 2017. During the
hearing, the trial court was presented with evidence of Byrd’s extensive criminal
history. In total, Byrd had been convicted of twenty-five misdemeanors and
had received five juvenile adjudications. The trial court sentenced Byrd to
sixteen years for Count II with a concurrent six-year sentence for Count III.
Discussion and Decision
[4] We begin by noting that sentencing decisions rest within the sound discretion of
the trial court and are reviewed on appeal only for an abuse of discretion.
Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), modified on other grounds on
reh’g, 875 N.E.2d 218 (Ind. 2007). “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.
One way in which a trial court may abuse its discretion is failing
to enter a sentencing statement at all. Other examples include
entering 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, or the sentencing statement omits reasons that are
clearly supported by the record and advanced for consideration,
or the reasons given are improper as a matter of law. Under
those circumstances, remand for resentencing may be the
appropriate remedy 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.
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Id. at 490–91. In claiming that the trial court abused its discretion in sentencing
him, Byrd argues that the trial court improperly balanced the aggravating and
mitigating circumstances. However, “[a] trial court cannot […] be said to have
abused its discretion in failing to ‘properly weigh’ such factors.” Anglemyer, at
491. This is a request for us to reweigh the aggravators and mitigators which
we will not do. See id. Based upon a review of the record, there was ample
evidence to support Byrd’s sentence.
[5] The trial court found that Byrd’s extensive criminal history was an aggravating
circumstance, which justified giving him the maximum possible sentences for
armed robbery and battery. Specifically, the trial court said that Byrd’s “25
adult criminal convictions and 5 juvenile adjudications … say it all.” Tr. Vol.
IV, p. 4. The trial court also characterized his most recent offense as “by far the
most serious [thing] that you’ve been involved with.” Tr. Vol. IV, p. 4.
[6] Byrd’s only argument is that the trial court gave too much weight to his
criminal history during sentencing. He does not claim that his sentence is
inappropriate in light of the nature of his offense or character. Because the trial
court did not abuse its discretion considering Byrd’s criminal history during
sentencing and Byrd has failed to raise a cognizable claim for relief, we affirm
the trial court’s sentence.
[7] The judgment of the trial court is affirmed.
Baker, J., and Kirsch, J., concur.
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