MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Oct 05 2018, 8:18 am
this Memorandum Decision shall not be CLERK
regarded as precedent or cited before any Indiana Supreme Court
Court of Appeals
court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Derick W. Steele Curtis T. Hill, Jr.
Deputy Public Defender Attorney General of Indiana
Kokomo, Indiana
Caryn N. Szyper
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Clayton Wright, October 5, 2018
Appellant-Defendant, Court of Appeals Case No.
18A-CR-369
v. Appeal from the Howard Superior
Court
State of Indiana, The Honorable George A.
Appellee-Plaintiff. Hopkins, Judge
Trial Court Cause No.
34D04-1610-F3-173
Sharpnack, Senior Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-369 | October 5, 2018 Page 1 of 8
Statement of the Case
[1] Clayton Wright appeals the sentence he received for his conviction of attempted
1
battery, a Level 5 felony. We affirm.
Issue
[2] Wright presents one issue for our review, which we restate as: whether
Wright’s sentence is inappropriate in light of the nature of the offense and his
character.
Facts and Procedural History
[3] The facts, as contained in the probable cause affidavit and stipulated to by the
parties, are that in October 2016, nineteen-year-old Wright was riding his bike
and passed seventeen-year-old Grant Roberts, who was also on a bike. After
passing Roberts, Wright turned around, rode up in front of Roberts, and
stopped, forcing Roberts to stop also. Wright reached his hand into Roberts’s
back pocket where Roberts had his wallet. When Roberts grabbed Wright’s
hand, Wright pulled out a knife. Wright repeatedly told Roberts, “run your
pockets bitch,” meaning for Roberts to empty his pockets. Appellant’s App.
Vol. 2, p. 16.
[4] During the incident, Roberts was able to stop a passing car. When the car
stopped, Roberts was able to use his cell phone to call his father and tell him
1
Ind. Code §§ 35-41-5-1 (2014), 35-42-2-1 (2016).
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what was happening. Wright began riding away, and Roberts followed him.
Eventually, Wright turned around to ride toward Roberts, and Roberts then
turned around so Wright was following him. At that point, Roberts’s father,
Christopher, arrived. Christopher exited his vehicle with a handgun and
confronted Wright. Wright lunged at Christopher, jabbed at him with a knife,
and stated he was going to kill him. When Wright continued to jab at
Christopher with the knife, Christopher fired one shot into the ground.
Christopher re-entered his car to escape from Wright, who continued to lunge
at him. When Wright lunged at Christopher again, Christopher used his car
door to push him away. Wright stumbled back and fell over his bike. The
police arrived and arrested Wright.
[5] Based upon this incident, Wright was charged with attempted robbery, as a
2 3
Level 3 felony, and criminal recklessness, as a Level 6 felony. A third charge
of attempted battery, as a Level 5 felony, was filed in September 2017, to which
Wright pleaded guilty. The State dismissed the attempted robbery and criminal
recklessness charges as well as charges pending in two additional cases, which
resulted from Wright’s misconduct in jail during his pretrial imprisonment for
the present offenses. The court sentenced Wright to an executed sentence of
2
Ind. Code §§ 35-41-5-1, 35-42-5-1 (2014).
3
Ind. Code § 35-42-2-2 (2014).
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three years in the Indiana Department of Correction (DOC). Wright now
appeals.
Discussion and Decision
[6] Although a trial court may have acted within its lawful discretion in imposing a
sentence, article VII, section 6 of the Indiana Constitution authorizes this Court
to review and revise sentences. This authority is implemented through Indiana
Appellate Rule 7(B), which provides that we may revise a sentence authorized
by statute if, after due consideration of the trial court’s decision, we determine
that the sentence is inappropriate in light of the nature of the offense and the
character of the offender. Thompson v. State, 5 N.E.3d 383, 391 (Ind. Ct. App.
2014). The defendant bears the burden of persuading the appellate court that
his or her sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080
(Ind. 2006).
[7] Particularly, Wright challenges the appropriateness of his placement in the
DOC for the full three years; he claims the appropriate sentence is the advisory
sentence of three years “with two (2) years executed with credit for time served
with the balance, if any, served through the Howard County Community
Corrections In-Home Detention, and one (1) year suspended to supervised
probation.” Appellant’s Br. p. 8.
[8] “The location where a sentence is to be served is an appropriate focus for
application of our review and revise authority.” King v. State, 894 N.E.2d 265,
267 (Ind. Ct. App. 2008). Nonetheless, we note that it will be difficult for a
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defendant to prevail on a claim that the placement of his or her sentence is
inappropriate. Fonner v. State, 876 N.E.2d 340, 343 (Ind. Ct. App. 2007). “This
is because the question under Appellate Rule 7(B) is not whether another
sentence is more appropriate; rather, the question is whether the sentence
imposed is inappropriate.” King, 894 N.E.2d at 268. Moreover, a defendant
challenging the placement of a sentence must convince us that the given
placement is itself inappropriate. Fonner, 876 N.E.2d at 344.
[9] To assess whether the sentence is inappropriate, we look first to the statutory
range established for the class of the offense. Here, the offense is a Level 5
felony, for which the advisory sentence is three years, with a minimum sentence
of one year and a maximum of six years. Ind. Code § 35-50-2-6 (2014). Wright
was sentenced to the advisory sentence of three years.
[10] Next, we look to the nature of the offense and the character of the offender. As
to the nature of the current offense, we note that Wright accosted Roberts, tried
to steal his wallet, and threatened him with a knife. When the juvenile’s father
arrived to rescue him, Wright confronted him with the knife and told him he
was going to kill him. Wright was not deterred by a warning gunshot, and he
only stopped when he was knocked to the ground and the police arrived.
Wright had ample opportunity to end his course of misconduct but chose to
persist.
[11] With regard to the character of the offender, we observe that Wright has
amassed an extensive juvenile history. His juvenile offenses include receiving
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stolen property, burglary, possession of paraphernalia, operating while
intoxicated endangering a person, reckless driving, criminal recklessness,
leaving the scene of an accident with serious bodily injury, and resisting law
enforcement. In addition, eleven other charges were disposed of by way of
dismissal or the State declining to prosecute. Through the juvenile court,
Wright was placed on supervised probation, tracker probation, in secure
detention, and he was committed to the Indiana Boys School.
[12] Upon passing into adulthood, Wright has continued his criminal behavior.
Prior to this incident, he had acquired one misdemeanor conviction for resisting
law enforcement. However, he committed the present offenses just a few
months later, and then committed several criminal offenses while in jail on the
present charges, in addition to accumulating a substantial number of
disciplinary violations. While in jail, Wright was charged with the felony
offenses of battery by bodily waste against a public safety officer, intimidation
by threat to commit forcible felony, and battery against a public safety officer,
as well as two counts of misdemeanor battery resulting in bodily injury. His
disciplinary violations include resisting/interfering with a staff member, abusive
language to staff, insolence, disobeying a direct order, assault on officer or staff
member, misuse and/or destruction of county property, tampering with a
locking or safety device, creating a minor disturbance, fighting, creating a major
disturbance, communicating with inmates of another classification and/or
gender, self mutilation or tattooing, malingering, threats/intimidation, posting
items and/or writing on walls or fixtures, attempted escape, out of place in the
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institution, sanitary violations, false informing, rioting, littering, assault, body
punching/horseplay, interfering with count procedures, and contraband.
[13] The significance of a criminal history in assessing a defendant’s character and
an appropriate sentence varies based on the gravity, nature, and proximity of
prior offenses in relation to the current offense, as well as the number of prior
offenses. Sandleben v. State, 29 N.E.3d 126, 137 (Ind. Ct. App. 2015), trans.
denied. Here, in addition to several juvenile offenses, Wright has an adult
misdemeanor conviction, several felony and misdemeanor charges that were
dismissed as part of the plea agreement in this case, and at least thirty incidents
that resulted in numerous disciplinary violations while in jail over a period of
fourteen months. The gravity, nature, proximity, and number of these offenses
in relation to Wright’s current offenses weigh heavily against his claim that his
placement in the DOC is inappropriate. Wright’s demonstration of disrespect
for authority and rules while in jail awaiting trial in this cause supports a
conclusion that a more lenient alternative sentence would not be effective for
him.
[14] Wright further argues for different placement in order to have an “opportunity
to receive community based services designed to prevent future criminal
behavior” because he struggles with anger management and mental health
issues. Appellant’s Br. p. 7. The record reveals that the trial court granted
Wright’s requests for psychiatric evaluation and referral to the county mental
health court; however, it does not contain any reports, conclusions, or any
other documents with regard to this issue. In his brief, Wright merely states
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that “[f]or reasons not outlined in the record, Wright was not able to complete
the Mental Health Court.” Id.
[15] Thus, there is neither evidence of a particular mental health condition nor
evidence that any such condition will be untreatable while he is in the DOC.
See, e.g., Henderson v. State, 848 N.E.2d 341, 344-45 (Ind. Ct. App. 2006) (finding
no error in trial court’s refusal to consider defendant’s poor health as mitigator
because she failed to present evidence that her multiple health conditions would
be untreatable during incarceration). Moreover, no evidence links Wright’s
crimes and a mental illness. See Corralez v. State, 815 N.E.2d 1023, 1026 (Ind.
Ct. App. 2004) (stating there must be nexus between defendant’s mental health
and crime in question in order for mental history to be considered mitigating
factor).
Conclusion
[16] For the reasons stated, we conclude that Wright’s sentence and placement in
the DOC is not inappropriate.
[17] Affirmed.
Crone, J., and Pyle, J., concur.
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