MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Jul 15 2019, 8:18 am
regarded as precedent or cited before any
court except for the purpose of establishing CLERK
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
Brian A. Karle Curtis T. Hill, Jr.
Ball Eggleston, PC Attorney General of Indiana
Lafayette, Indiana
Benjamin J. Shoptaw
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jaylen N. Thomas, July 15, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-3018
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Mark D. Stoner,
Appellee-Plaintiff. Judge
Trial Court Cause No.
49G06-1710-MR-41391
Najam, Judge.
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Statement of the Case
[1] Jaylen N. Thomas appeals his fifty-five year sentence, with seven years
suspended and three of those seven years suspended to probation, following his
conviction for murder, a felony, which Thomas committed at the age of fifteen.
Thomas raises a single issue for our review, namely, whether his sentence is
inappropriate in light of the nature of the offense and his character.
[2] We affirm.
Facts and Procedural History
[3] On February 2, 2017, Thomas, who was fifteen years old at the time, “brought
up” to two of his juvenile acquaintances that they “should . . . steal” some
marijuana from a dealer they knew. Tr. Vol. 3 at 112. The three juveniles
agreed, and one of them then contacted Jacob Arnett, who agreed to sell them
marijuana. The three juveniles then arranged for transportation to meet with
Arnett.
[4] At the designated buy location, Arnett approached the vehicle in which the
three juveniles were sitting and gave them the marijuana they had requested in
expectation of payment. However, upon receiving the marijuana through the
car window, Thomas yelled for the driver to “go,” and the driver immediately
“spe[d] off.” Id. at 116. Arnett grabbed onto the window through which he
had handed the juveniles the marijuana and hung onto the window even
though the vehicle was moving. One of the juveniles then handed Thomas a
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firearm and told Thomas to “hit” Arnett. Id. at 117. Thomas then shot Arnett
in the face and killed him.
[5] Immediately after shooting Arnett, Thomas acted like “it didn’t matter.” Id. at
118. When they returned to one of the juvenile’s residences, Thomas and the
other juveniles smoked the marijuana they had purchased. Thomas also
“smashed” all of their cell phones “with a hammer.” Id. at 119. Thomas
appeared to dispose of the firearm in a “body of water near [the] house.” Id.
Thomas told the other juveniles that, if any of them “sa[id] anything,” he would
“shoot everybody.” Id. at 78. After the State charged Thomas with murder, a
felony, and the juvenile court waived him into adult court, a jury found him
guilty.
[6] At the conclusion of the ensuing sentencing hearing, the trial court pronounced
Thomas’s sentence as follows:
The Court notes [Thomas] may have been sexually abused, but I
cannot give it significant mitigation[] because [Thomas] has not
been forthcoming as to who abused him. It’s an easy thing to
make up. It’s an easy thing to say. I am very sympathetic and
will act on it, but I cannot act upon it if . . . the probation
department and the State [are] not given an opportunity to
corroborate it . . . .
***
I also have a hard time . . . finding it to be a significant mitigator
about being remorseful or taking responsibility for what you’re
doing[] if you’re not willing to hold [the juvenile who handed
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you the firearm ac]countable for his role in this as well. . . . And
if they’re not prosecuted, they’re going to understand that they’re
above the law . . . [and] do it again, because no one holds them
accountable for it.
***
In terms of aggravating circumstances the Court does find that
[Thomas] is—first off, because of his mental health issues, that he
is going to need substantial counseling. The . . . limit[ed]
criminal history he does have is related to [a] gun offense, in
terms of possession of a firearm[ and having been] shot. He
managed to associate himself . . . with people [who] have anti-
social behavior. I think the thing that most stunned me . . . is
how you all can be involved in shooting [Arnett], bad enough
that you didn’t give him help, but then you just went and you all
just smoked the stuff afterwards, as if it [were] just another day.
Absolutely incomprehensible to me that you can have no moral
center, to do that.
. . . [T]o just go out and smoke the dope is absolutely
reprehensible. . . . The Court notes that the evidence did show
[Thomas] . . . did destroy evidence, concealed it. I’m not going
to find a significant aggravator of [Thomas] bragging about
having no remorse. That strikes me as the mind of a 15-year-old.
Threatening other people, that probably is an aggravator . . . .
All told, in balancing all of these, and the Court’s mindful that
[Thomas] has to do 80 percent of his time so a 45[-]year sentence
is 36 actual years, the maximum sentence of 65 is 52 actual years.
And looking at all of these things, the Court sentences [Thomas]
to a period of 55 years. The Court suspends seven of those years,
imposes 48 years executed, seven years suspended[ with] three
years’ probation. The three years’ probation is to help
[Thomas] . . . to reintegrate into society, to get any mental health
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counseling and/or sexual abuse counseling that he didn’t get in
the Department of Correction.
Id. at 214-18. This appeal ensued.
Discussion and Decision
[7] Thomas asserts on appeal that his sentence is inappropriate in light of the
nature of the offense and his character. Indiana Appellate Rule 7(B) provides
that “[t]he Court may revise a sentence authorized by statute if, after due
consideration of the trial court’s decision, the Court finds that the sentence is
inappropriate in light of the nature of the offense and the character of the
offender.” This Court has often recognized that “[t]he advisory sentence is the
starting point the legislature has selected as an appropriate sentence for the
crime committed.” Sanders v. State, 71 N.E.3d 839, 844 (Ind. Ct. App. 2017).
And the Indiana Supreme Court has explained that “[t]he principal role of
appellate review should be to attempt to leaven the outliers . . . but not achieve
a perceived ‘correct’ result in each case. Defendant has the burden to persuade
us that the sentence imposed by the trial court is inappropriate.” Shoun v. State,
67 N.E.3d 635, 642 (Ind. 2017) (citations omitted; omission in original).
[8] Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate
sentence to the circumstances presented, and the trial court’s judgment “should
receive considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind.
2008). Whether we regard a sentence as inappropriate at the end of the day
turns on “our sense of the culpability of the defendant, the severity of the crime,
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the damage done to others, and myriad other facts that come to light in a given
case.” Id. at 1224. The question is not whether another sentence is more
appropriate, but rather whether the sentence imposed is inappropriate. King v.
State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008). Deference to the trial court
“prevail[s] unless overcome by compelling evidence portraying in a positive
light the nature of the offense (such as accompanied by restraint, regard, and
lack of brutality) and the defendant’s character (such as substantial virtuous
traits or persistent examples of good character).” Stephenson v. State, 29 N.E.3d
111, 122 (Ind. 2015).
[9] Here, the trial court sentenced Thomas to a fifty-five years, with seven years
suspended and three of those seven years suspended to probation. The advisory
sentence for murder is fifty-five years executed. Ind. Code § 35-50-2-3(a)
(2018). However, a trial court may sentence a defendant convicted of murder
between forty-five years and sixty-five years. Id.
[10] Thomas asserts that his sentence is inappropriate in light of the nature of the
offense because his murder of Arnett “cannot be termed ‘brutal’ in relation to
other murders,” and because the firearm in question was not Thomas’s and was
not brought to the scene by Thomas or with Thomas’s knowledge. Appellant’s
Br. at 10. Instead, Thomas asserts that he took the firearm from the other
juvenile and shot Arnett “[i]n the heat of the moment” because his age made
him particularly susceptible “to make poor decisions when in the presence of a
group of peers.” Id. Thomas also asserts that his sentence is inappropriate in
light of his character because he had a good employment history for his age;
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that he had no prior adult criminal history and no prior felony-level offenses;
that he had a “difficult childhood and lack of family support,” including prior
physical and sexual abuse and a lack of care after having suffered a gunshot
wound at fourteen years old, id. at 12; that he has related “untreated mental
health issues,” id. at 13; and that his young age demonstrates that he is capable
of rehabilitation.
[11] We begin our analysis by recognizing that Thomas’s age at the time of the
murder here is relevant. As our Supreme Court has explained:
We take this opportunity to reiterate what the United States
Supreme Court has expressed: Sentencing considerations for
youthful offenders—particularly for juveniles—are not
coextensive with those for adults. See Miller v. Alabama, 567 U.S.
460, 478-79, 132 S. Ct. 2455, 2469, 183 L. Ed. 2d 407 (2012)
(requiring the sentencing judge to “take into account how
children are different, and how those differences counsel against
irrevocably sentencing them to a lifetime in prison” (footnote
omitted)). Thus, both at initial sentencing and on appellate
review it is necessary to consider an offender’s youth and its
attendant characteristics.
In holding death sentences and mandatory life without parole
sentences for those under the age of eighteen to be
unconstitutional, the United States Supreme Court has
underpinned its reasoning with a general recognition that
juveniles are less culpable than adults and therefore are less
deserving of the most severe punishments. See Graham[ v.
Florida], 560 U.S. [48, 68 (2010)]. This presumption that
juveniles are generally less culpable than adults is based on
previous and ongoing “‘developments in psychology and brain
science’” which “‘continue to show fundamental differences
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between juvenile and adult minds’” in, for instance, “‘parts of the
brain involved in behavior control.’” Miller, 132 S. Ct. at 2464
(quoting Graham, 560 U.S. at 68, 130 S. Ct. 2011). The Supreme
Court has discerned “three significant gaps between juveniles and
adults.” Id. First, “[a]s compared to adults, juveniles have a
‘lack of maturity and an underdeveloped sense of responsibility.’”
Graham, 560 U.S. at 68, 130 S. Ct. 2011 (quoting Roper v.
Simmons, 543 U.S. 551, 569, 125 S. Ct. 1183, 161 L. Ed. 2d 1
(2005) (quotation omitted)). Second, “they ‘are more vulnerable
or susceptible to negative influences and outside pressures,
including peer pressure,’” Id. (quoting Roper, 543 U.S. at 569, 125
S. Ct. 1183), and “they have limited ‘contro[l] over their own
environment’ and lack the ability to extricate themselves from
horrific, crime-producing settings.” Miller, 132 S. Ct. at 2464
(alteration in original) (quoting Roper, 543 U.S. at 569, 125 S. Ct.
1183). Finally, “a child’s character is not as ‘well formed’ as an
adult’s . . . and his actions [are] less likely to be ‘evidence of
irretrievabl[e] deprav[ity].’” Id. (alteration in original) (quoting
Roper, 543 U.S. at 570, 125 S. Ct. 1183). “These salient
characteristics mean that ‘[i]t is difficult even for expert
psychologists to differentiate between the juvenile offender whose
crime reflects unfortunate yet transient immaturity, and the rare
juvenile offender whose crime reflects irreparable corruption.’”
Graham, 560 U.S. at 68, 130 S. Ct. 2011 (alteration in original)
(quoting Roper, 543 U.S. at 573, 125 S. Ct. 1183). Even justices
not finding categorical Constitutional violations in these juvenile
cases agree with this precept. See Graham, 560 U.S. at 90, 130 S.
Ct. 2011 (Roberts, C.J., concurring in the judgment) (“Roper’s
conclusion that juveniles are typically less culpable than adults
has pertinence beyond capital cases.”); Roper, 543 U.S. at 599,
125 S. Ct. 1183 (O’Connor, J., dissenting) (“It is beyond cavil
that juveniles as a class are generally less mature, less
responsible, and less fully formed than adults, and that these
differences bear on juveniles’ comparative moral culpability.”).
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Consistent with the Supreme Court’s reasoning this Court has
not been hesitant to reduce maximum sentences for juveniles
convicted of murder. In Carter v. State, we reduced to fifty years a
fourteen-year-old’s maximum sixty-year sentence for the brutal
murder of a seven-year-old girl, recognizing among other things
his young age. 711 N.E.2d 835, 836-37 (Ind. 1999). In the case
of a sixteen-year-old who brutally beat his adoptive parents to
death while they slept, we reduced a maximum 120-year sentence
to eighty years. Walton v. State, 650 N.E.2d 1134, 1135, 1137
(Ind. 1995). And in Widener v. State, 659 N.E.2d 529, 530 (Ind.
1995), the seventeen-year-old defendant and his two eighteen-
year-old cohorts planned to rob a woman as she made a night
deposit after work. In executing the crime, the defendant fired
multiple shots at the victim, killing her. In the days after the
robbery the perpetrators spent the proceeds of their crime at the
mall, going to the movies and out to eat. Finding additional
mitigating circumstances not recognized by the trial court, we
concluded the defendant’s seventy-year sentence was manifestly
unreasonable and reduced it to an aggregate term of fifty years.
Id. at 530-31, 534.
Brown v. State, 10 N.E.3d 1, 6-8 (Ind. 2014) (reducing a 150-year sentence for a
sixteen-year-old defendant to an aggregate term of eighty years on two murder
convictions and one robbery conviction); see also Legg v. State, 22 N.E.3d 763,
767 (Ind. Ct. App. 2014) (affirming the trial court’s imposition of the advisory
term of fifty-five years for a sixteen-year-old defendant convicted of one count
of murder).
[12] We cannot say that the trial court’s imposition of the advisory term of fifty-five
years for murder, with seven years suspended and three of those seven years
suspended to probation, is such an outlier in light of the nature of Thomas’s
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offense and his character that our revision of his sentence is required. Indeed,
“[w]e are unlikely to consider an advisory sentence inappropriate.” Shelby v.
State, 986 N.E.2d 345, 371 (Ind. Ct. App. 2013), trans. denied. A defendant
“bears a particularly heavy burden in persuading us that his sentence is
inappropriate when the trial court imposes the advisory sentence,” Fernbach v.
State, 954 N.E.2d 1080, 1089 (Ind. Ct. App. 2011), trans. denied, to say nothing
of an advisory sentence with a portion suspended. And in considering the
appropriateness of a sentence, we consider “all aspects of the penal
consequences imposed by the trial judge in sentencing,” including “whether a
portion of the sentence is ordered suspended.” Davidson v. State, 926 N.E.2d
1023, 1025 (Ind. 2010). Thomas has not met the heavy burden he faces in this
appeal.
[13] Regarding the nature of the offense, Thomas had the initial idea to rob a third-
party marijuana dealer; in the commission of that offense, he shot Arnett in the
face, killing him; and afterward, Thomas destroyed evidence of the robbery and
murder. There is no “compelling evidence portraying in a positive light the
nature of the offense” such that the advisory sentence, with a significant
suspended term, is inappropriate. Stephenson, 29 N.E.3d at 122.
[14] Neither is Thomas’s sentence inappropriate in light of his character. Again, we
acknowledge Thomas’s youth at the time of the offense. And we acknowledge,
as the trial court did, Thomas’s claims of prior abuse, his mental-health issues,
and his minor criminal history. But we also acknowledge that Thomas shot
Arnett in the face and, immediately afterward, presented himself as if that act
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“didn’t matter.” Tr. Vol. 3 at 118. Thomas then went back to one of his
acquaintance’s residences and smoked the marijuana they had just stolen;
destroyed evidence of the offenses; and threatened to murder others if they
reported the incident to authorities. We cannot say that Thomas’s character,
including his youth, demonstrates “substantial virtuous traits or persistent
examples of good character” such that the advisory sentence, with seven years
suspended, is an outlier requiring our revision of his sentence. Stephenson, 29
N.E.3d at 122; see Legg, 22 N.E.3d at 767. Accordingly, we affirm Thomas’s
sentence.
[15] Affirmed.
Baker, J., and Robb, J., concur.
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