MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Oct 25 2018, 9:25 am
regarded as precedent or cited before any
CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Mark A. Thoma Curtis T. Hill, Jr.
Deputy Public Defender Attorney General of Indiana
Leonard, Hammond, Thoma & Terrill
Caryn N. Szyper
Fort Wayne, Indiana Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Harold W. Jackson, October 25, 2018
Appellant-Defendant, Court of Appeals Case No.
18A-CR-1556
v. Appeal from the Allen Superior
Court
State of Indiana, The Honorable Frances C. Gull,
Appellee-Plaintiff. Judge
Trial Court Cause No.
02D05-1709-F3-53
Brown, Judge.
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[1] Harold W. Jackson appeals his sentence for robbery as a level 3 felony. We
affirm.
Facts and Procedural History
[2] On September 20, 2017, Jackson entered a Family Dollar store in Allen County
wearing black clothing and a black mask on his face, displayed a “CO2
powered Airsoft gun” which appeared to be a Colt firearm, and said “[t]his is a
hold-up . . . give me all your money.” Transcript Volume 2 at 7, 64. The store
manager was near a safe where she had retrieved a bundle of fifty one-dollar
bills for a cashier. Jackson walked towards the manager and cashier, pointed
the gun at the manager’s head, and “kept yelling for the money.” Id. at 12.
The manager was “[s]cared, like [she] was gonna die or something.” Id. The
cashier was terrified and “kept saying ‘I got a daughter. Please don’t do this.’”
Id. at 25. One of the employees told Jackson that the safe was locked and that
there was a five-minute delay to open it. Jackson kept yelling and told the
manager that “if the safe didn’t open in a certain amount of time, he was gonna
blow her head off.” Id. at 26. The manager gave Jackson the bundle of fifty $1
bills, and the cashier gave him a $100 bill and a $50 bill from a lockbox.
Jackson placed several packs of Newport 100 cigarettes and the cash in a
Family Dollar bag and exited the store. The manager called the police and felt
“[s]cared to death.” Id. at 16.
[3] A man observed Jackson run out of the store with a plastic bag and around the
corner, and the man waved down a police officer. Another man who was
outside of his house observed two police vehicles drive at a high speed on a
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nearby street with their lights and sirens activated and afterwards observed
Jackson in black pants and a black hoodie in the bushes. The man saw Jackson
walk down the street and behind another bush, and then the man waved down
an officer and told them where he had last seen Jackson. As the man was
walking back to his house and across his lawn, he again saw Jackson, who was
no longer wearing the black clothing and was carrying a plastic bag, and
Jackson asked the man to hide him. Jackson lifted up his shirt to show the gun.
The man told Jackson that he would be in a lot of trouble for the gun and told
him that he should throw it on the front porch. Jackson initially placed the gun
on the porch and then immediately walked up the steps, picked up the gun
again, tried to open the front door of the house but found it was locked, walked
down the steps, and placed the gun into his plastic bag. At that point, the man
pulled out his gun and demanded that Jackson lay down, and Jackson
complied. The man yelled for officers, who came running and arrested
Jackson. The officers retrieved the plastic bag on the porch near Jackson and
found it contained four packs of unopened Newport cigarettes and “a black, it
said Colt on the side, which . . . ended up being an Airsoft gun or BB gun”
which was “a CO2 powered Airsoft gun . . . that’s supposed to mimic a Colt
firearm.” Id. at 56, 64. The officers found money on Jackson which included a
$100 bill, a $50 bill, fifty $1 bills, and three $20 bills. The officers also removed
clothes from the bushes which included black work pants and two black shirts.
[4] On September 26, 2017, the State charged Jackson with robbery as a level 3
felony. In April 2018, the court held a bench trial. Jackson testified that he had
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found the bag containing the cigarettes and gun on the ground, that he had
earned the money working for a temporary service, and that he was just
walking down the street and was in the wrong place at the wrong time. The
court found him guilty of robbery as a level 3 felony.
[5] On May 25, 2018, the court held a sentencing hearing. Jackson’s counsel stated
that one of Jackson’s sisters had indicated that Jackson had been shot in the
head approximately twenty years earlier and that the family was concerned that
it had an impact on his cognitive abilities. Counsel also stated that he had met
with Jackson multiple times and always found that Jackson understood the case
and was able to talk about his defense. Jackson’s counsel stated, “if I were to
meet [Jackson] without any history, I’d probably think he had a learning
disability, and perhaps that’s related to the head wound, which is consistent
with what his sister tells me,” and “[i]f he’s not gonna self-disclose that to them
when he gets to R.D.C., it may be a good idea to have some record of that in
the pre-sentence report, just so they can better help him.” Id. at 98. Jackson’s
counsel stated that he believed there were some mental health issues and “I
don’t know how to exactly quantify those, but to the extent that those are
mitigating, we’d ask the Court to give that some weight. He does have some
health issues, has seizures and the like.” Id. at 99. He also argued that not a lot
of property was taken and nobody was harmed, and asked the court to impose
no more than the advisory sentence of nine years. The State argued that
Jackson had an extensive and extremely serious criminal history, has had his
probation revoked and an opportunity to address any substance abuse issues,
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committed the instant armed robbery not long after his discharge from parole in
2015, and in committing the robbery pointed a gun at the store clerks who were
clearly extremely fearful. The State requested an aggravated sentence. The
court found Jackson’s criminal record “with failed efforts at rehabilitation
covering a period of time from 1999 to 2017, with four prior felony convictions”
to be an aggravating circumstance. Id. at 101. It stated that Jackson was a
multi-state offender, had been given the benefit of probation a couple of times,
time in the Department of Correction, and parole, and sentenced Jackson to
twelve years.
Discussion
[6] Jackson claims that his sentence is inappropriate in light of the nature of the
offense and his character. He argues that he remained polite and composed
even when the trial judge announced the guilty verdict, that he expressed a
desire to further his education and continue working and contributing to
society, that the fact he reported he plans to abstain from getting into trouble by
working shows that he is a hard worker who values personal growth, and that
his strong familial relationships show that he has some redeeming qualities.
The State responds that nothing about the nature of Jackson’s offense, which
caused multiple people to fear for their lives and involved attempted residential
entry after the fact, warrants downward revision of his sentence. The State also
points to Jackson’s criminal history and argues that he has consistently
demonstrated over the last two decades that he will not respect the authority of
the courts, the law, or the rights of others.
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[7] 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. See Childress v.
State, 848 N.E.2d 1073, 1080 (Ind. 2006).
[8] Ind. Code § 35-50-2-5 provides that a person who commits a level 3 felony shall
be imprisoned for a fixed term of between three and sixteen years, with the
advisory sentence being nine years. Jackson was sentenced to twelve years.
[9] Our review of the nature of the offenses reveals that Jackson entered the Family
Dollar store dressed in black and wearing a mask on his face, displayed an
Airsoft gun which was designed to look like a Colt firearm and pointed it at the
manager’s head, and demanded money. He yelled and threatened the store
employees, telling the manager that “if the safe didn’t open . . . he was gonna
blow her head off.” Transcript Volume 2 at 26. He took money from the
manager and money from the cashier which she obtained from a lockbox. The
manager testified that the robbery occurred over ten or fifteen minutes. The
manager testified she was “[s]cared, like [she] was gonna die” and “[s]cared to
death,” and the cashier testified that she was terrified and “kept saying ‘I got a
daughter. Please don’t do this.’” Id. at 12, 16, 25. After leaving the store,
Jackson removed his black pants and shirt, asked a man to hide him, lifted his
shirt to display his gun, and attempted to enter the man’s house.
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[10] Our review of the character of the offender reveals that, according to the
presentence investigation report (the “PSI”), Jackson’s criminal history consists
of possession of a controlled substance as a felony in Missouri in May 1999, for
which he was placed on probation which was revoked twice and he was
ordered to serve five years in prison, and murder in the second degree, armed
criminal action, and attempted robbery in the first degree as felonies in October
2001, for which he was sentenced to fifteen years in prison. The PSI indicates
that he was released to parole in July 2014 and discharged from parole in
October 2015. The PSI also states that, according to Jackson’s NCIC report, it
appears he was arrested in Missouri in 1999 for “Tampering With Motor
Vehicle – Airplane” but that no further information was obtained. Appellant’s
Appendix Volume III at 6.
[11] The PSI further provides that Jackson stated that he plans to abstain from
further trouble by working and that he reported that, prior to his present
incarceration, he worked at various temporary agencies. It also provides that
Jackson stated that he suffered from chronic seizures. The PSI indicates that
Jackson reported that he began using marijuana at age eighteen or nineteen and
used daily until age thirty-six when he claimed to have quit. The PSI states
that, when asked about his feeling toward the present verdict, Jackson stated
“They did me wrong.” Id. at 8. The PSI indicates that Jackson scored high in
two domains of the Indiana risk assessment system tool, the criminal history
domain and the criminal attitudes and behavioral patterns domain, and that his
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overall risk assessment score places him in the moderate risk to reoffend
category.
[12] After due consideration, we conclude that Jackson has not sustained his burden
of establishing that his sentence is inappropriate in light of the nature of the
offenses and his character.1
[13] For the foregoing reasons, we affirm Jackson’s sentence.
Affirmed.
Altice, J., and Tavitas, J., concur.
1
To the extent Jackson argues the court abused its discretion in sentencing him by failing to consider his
family support, desire to stay out of trouble, and mental health, we need not address this issue because we
find that his sentence is not inappropriate. See Chappell v. State, 966 N.E.2d 124, 134 n.10 (Ind. Ct. App.
2012) (noting that any error in failing to consider the defendant’s guilty plea as a mitigating factor is harmless
if the sentence is not inappropriate) (citing Windhorst v. State, 868 N.E.2d 504, 507 (Ind. 2007) (holding that,
in the absence of a proper sentencing order, Indiana appellate courts may either remand for resentencing or
exercise their authority to review the sentence pursuant to Ind. Appellate Rule 7(B) ), reh’g denied; Mendoza v.
State, 869 N.E.2d 546, 556 (Ind. Ct. App. 2007) (noting that, “even if the trial court is found to have abused
its discretion in the process it used to sentence the defendant, the error is harmless if the sentence imposed
was not inappropriate”), trans. denied), trans. denied; Shelby v. State, 986 N.E.2d 345, 370 (Ind.Ct.App.2013)
(holding that “even if the trial court did abuse its discretion by failing to consider the alleged mitigating factor
of residual doubt, this does not require remand for resentencing” and citing Windhorst and Mendoza), trans.
denied. Even if we were to consider Jackson’s abuse of discretion argument, we would not find it to be
persuasive. Jackson did not argue at sentencing that his family support and desire to stay out of trouble
constituted mitigating circumstances, and while Jackson’s counsel stated that Jackson may have a learning
disability which was possibly related to his previous head wound, the trial court did not find that Jackson’s
mental health issues constituted a mitigating circumstance.
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