FILED
Apr 15 2020, 6:43 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Mark A. Kiesler Curtis T. Hill, Jr.
Kiesler Law Office Attorney General of Indiana
New Albany, Indiana
Josiah Swinney
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Derek J. Tanksley, April 15, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-2411
v. Appeal from the Washington
Circuit Court
State of Indiana, The Honorable Larry W. Medlock,
Appellee-Plaintiff. Judge
Trial Court Cause No.
88C01-1906-F6-495
Sharpnack, Senior Judge.
Court of Appeals of Indiana | Opinion 19A-CR-2411 | April 15, 2020 Page 1 of 11
Statement of the Case
[1] Derek J. Tanksley appeals his conviction by jury of failure to appear, a Level 6
1
felony. He also appeals the sentence the trial court imposed for his conviction
and for an habitual offender enhancement. We affirm.
Issues
[2] Tanksley raises two issues, which we restate as:
I. Whether the evidence is sufficient to sustain Tanksley’s
conviction.
II. Whether Tanksley’s sentence is appropriate in light of the
nature of the offense and his character.
Facts and Procedural History
[3] The State had filed charges, including a Level 6 felony, against Tanksley in a
prior case. Tanksley, by counsel, filed a motion in that case to be released from
pretrial incarceration. The trial court granted his request. On April 2, 2019,
Tanksley was released from jail after he signed a “Release on Personal
Recognizance.” Tr. Vol. 3, p. 10. The Release stated that Tanksley promised
to appear in the Washington County Superior Court on May 29, 2019, at 9
a.m., to answer for the pending charges. The Release further stated, “I
UNDERSTAND THAT FAILURE TO APPEAR AT THE ABOVE
1
Ind. Code § 35-44.1-2-9 (2014).
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STATED TIME OR TIMES AS REQUIRED WILL RESULT IN THE
IMMEDIATE ISSUANCE OF A WARRANT FOR MY ARREST.” Id. The
Release also stated, “I HAVE READ ALL OF THIS DOCUMENT AND
FULLY UNDERSTAND ALL TERMS AND CONDITIONS OF IT.” Id.
[4] Tanksley did not appear in court on May 29, 2019 at the required time. That
same day, the court ordered the trial court clerk to issue a warrant for
Tanksley’s arrest. Also, on May 29, Tanksley’s attorney moved to withdraw
her appearance, citing Tanksley’s failure to appear. In the motion, Tanksley’s
attorney apologized “for any inconvenience” caused by Tanksley’s absence. Id.
at 11.
[5] On June 7, 2019, the State began the current case by charging Tanksley with
failure to appear, a Level 6 felony. The State also filed a notice of intent to seek
habitual offender status. On June 20, 2019, the trial court issued an order
finding probable cause for Tanksley’s arrest and ordering the trial court clerk to
issue an arrest warrant. Tanksley was subsequently arrested on a date not
provided in the record.
[6] The trial court presided over a bifurcated jury trial on August 21, 2019. We
discuss the proceedings in more detail below. The jury determined Tanksley
was guilty of failure to appear. Next, Tanksley admitted he was an habitual
offender, waiving his right to a jury trial on the sentencing enhancement.
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[7] On September 11, 2019, the trial court held a sentencing hearing. The court
sentenced Tanksley to two years for the Level 6 felony, plus four years for the
habitual offender sentencing enhancement. This appeal followed.
Discussion and Decision
I. Sufficiency of the Evidence
[8] Tanksley argues the State failed to present sufficient evidence of his guilt.
When a defendant challenges the sufficiency of the evidence, we neither
reweigh evidence nor judge witness credibility. McCallister v. State, 91 N.E.3d
554, 558 (Ind. 2018). We instead consider only the probative evidence and the
reasonable inferences that support the verdict. Phipps v. State, 90 N.E.3d 1190,
1195 (Ind. 2018). We will affirm the conviction if probative evidence supports
each element of the crime beyond a reasonable doubt. Brantley v. State, 91
N.E.3d 566, 570 (Ind. 2018), reh’g denied, cert. denied, 139 S. Ct. 839, 202 L. Ed.
2d 609 (2019).
[9] To obtain a conviction of failure to appear as a Level 6 felony, the State was
required to prove beyond a reasonable doubt that Tanksley: (1) had been
released from lawful detention; (2) on condition that he appear at a specified
time and place; (3) in connection with a felony charge; but (4) intentionally (5)
failed to appear at the specified time and place. Ind. Code § 35-44.1-2-9.
Tanksley claims the State failed to prove beyond a reasonable doubt that he was
the person who had been released from lawful detention in the prior case with
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instructions to appear. In other words, he challenges the State’s proof of
identity.
[10] The State argues we should not address Tanksley’s claim because he admitted
during trial, through counsel, that he was the person who had been released in
the prior case. We agree with the State. An attorney’s remarks during opening
statement or closing argument may constitute judicial admissions that are
binding on the client. Saylor v. State, 55 N.E.3d 354, 363 (Ind. Ct. App. 2016),
trans. denied. To qualify as a judicial admission, an attorney’s remarks must be
a “clear and unequivocal admission of fact.” Parker v. State, 676 N.E.2d 1083,
1086 (Ind. Ct. App. 1997). Stated differently, the attorney’s remarks “must be
an intentional act of waiver[,] not merely assertion or concession made for
some independent purpose.” Collins v. State, 174 Ind. App. 116, 120-21, 366
N.E.2d 229, 232 (1977).
[11] In the current case, during the State’s opening statement, the deputy prosecutor
told the jury:
And the States [sic] burden is to prove ah, that Derek Tanksley
failed to appear beyond a reasonable doubt. . . . [Y]ou’re going
to see documents that prove that defendant Derek Tanksley was
in jail on a felony charge in Superior Court and then on April 2,
2019, Derek Tanksley was released from that detention on the
condition that he appear in Superior Court on a specific date at
specific time and that was May 29, 2019 at 9 a.m.
Amended Tr. Vol. 2, p. 67.
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[12] Tanksley’s opening statement, in its entirety, was as follows:
Thank you very much Your Honor. The Judge has already read
to you, preliminary instruction number 4. As, as [the deputy
prosecutor] has said, the elements of this case are that Mr.
Tanksley was released from a felony charge. He was given notice
to appear on May 29, 2019 at 9 am.[sic] He failed to appear. We
agree. We disagree that he intentionally failed to appear. Please pay
attention to the evidence. Thank you.
Id. at 67-68 (emphasis added).
[13] During the State’s presentation of its case in chief, Tanksley objected to the
admission of bench warrants that had been issued against Tanksley in prior
cases. Tanksley argued the documents were “not relevant to the intent of my
client with respect to failure to appear on May 29th of 2019 at 9 am.[sic]. Tr.
Vol. 2, p. 78. In response, the prosecutor claimed the documents were relevant
to the question of intent, and intent was “the only issue they raised when they
were talking to the jury.” Id.
[14] During closing arguments, the State told the jury that it had met its burden of
proving beyond a reasonable doubt that Tanksley had failed to appear in
connection with a prior felony charge. In response, Tanksley’s closing
argument, in its entirety, was as follows:
The instruction that that [sic] I think the Judge will read to you as
final instruction number five ah, says that a person engages in
conduct intentionally if when he or she engages in that contact
[sic], it is his or her conscious objective to do so. In order for the
State to prove its case they have to prove that it was this mans
Court of Appeals of Indiana | Opinion 19A-CR-2411 | April 15, 2020 Page 6 of 11
[sic] conscious objection, conscious objective to do so. The State
has proven that Mr. Tanksley was released from jail on the condition
that he return which means that missing a court date, would return him
to jail. If, it doesn’t make sense to expect he would form a
conscious objective to go back to jail. The State would have you
be persuaded by an instruction that says absent extenuating
circumstances or lack of adequate notice an intent to fail to
appear, may be presumed. Please look at, that’s instruction
number six. Please look at that and, and note that it may be
presumed. It doesn’t have to be presumed. It doesn’t make any
sense for this man to have decided not to go back to jail on that
date and that is based upon the prove [sic] made by the State in
its Case in Chief. In order to find my client guilty, you have to
find that he intended not to appear. There is no such evidence.
Thanks for your time.
Id. at 98-99 (emphasis added).
[15] We conclude from Tanksley’s opening statement and closing argument that he,
as a matter of strategy, made a judicial admission on the question of identity.
Counsel’s statements were more than casual or mistaken remarks. Instead,
Tanksley unequivocally and repeatedly conceded to the jury and the trial court
that he was the person who the State alleged had been released from
incarceration and ordered to appear at a specific time and place in connection
with a felony case, but he did not appear. Tanksley disputed only whether his
failure to appear was intentional. Under these circumstances, Tanksley is
bound by his judicial admission and may not raise on appeal the issue of
identity. See Lee v. State, 43 N.E.3d 1271, 1274-75 (Ind. 2015) (defendant made
binding judicial admission during trial, conceding as a matter of strategy that
she struck the victim).
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II. Appropriateness of Sentence
[16] Tanksley argues his six-year sentence is too severe and asks the Court to reduce
it to three years, with one year suspended to probation. Indiana 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 the sentence is inappropriate
in light of the nature of the offense and the character of the offender.
[17] The principal role of appellate review of sentences under Appellate Rule 7(B) is
“to attempt to leaven the outliers,” rather than achieving a perceived “correct”
result in each case. Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). “In
assessing the nature of the offense and character of the offender, we may look to
any factors appearing in the record.” Boling v. State, 982 N.E.2d 1055, 1060
(Ind. Ct. App. 2013). Tanksley bears the burden of demonstrating that his
sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).
[18] The advisory sentence is the starting point in determining the appropriateness of
a sentence. Johnson v. State, 986 N.E.2d 852, 856 (Ind. Ct. App. 2013). At the
time Tanksley committed the offense of failing to appear, the advisory sentence
for a Level 6 felony was one year, the maximum sentence was two and one-half
years, and the minimum sentence was six months. Ind. Code § 35-50-2-7
(2016). In addition, a trial court shall sentence a person who is convicted of a
Level 6 felony and found to be an habitual offender, to an additional fixed term
between two and six years. Ind. Code § 35-50-2-8 (2017)(i). In Tanksley’s case,
the trial court imposed a sentence of two years for the Level 6 felony, enhanced
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by four years for the habitual offender determination. His six-year sentence is
above the advisory sentence but short of the maximum possible sentence of
eight and one-half years.
[19] Turning to the nature of the offense, Tanksley argues he did not commit “an
excessively heinous crime.” Appellant’s Br. p. 15. Although the offense of
failure to appear is not inherently violent, the circumstances of his commission
of the offense do not weigh in favor of sentence revision. Tanksley’s failure to
appear was no mere accident or the result of a short delay. Instead, Tanksley
absented himself from court for almost two weeks, until the police took him
into custody and he had no choice but to appear. Further, Tanksley placed his
attorney in a difficult position. She advocated for him to be released on his own
recognizance to assist in his defense, and when he failed to appear in court at
the required time and date, she had to apologize to the trial court.
[20] Turning to the character of the offender, Tanksley was thirty-two years old at
sentencing, and he has a lengthy criminal history. As a juvenile, he was
adjudicated a delinquent for acts that, had they been committed by an adult,
would have constituted Class B felony burglary and three counts of Class D
felony theft. As an adult, Tanksley accrued felony convictions for receiving
stolen property, possession of a controlled substance, possessing marijuana with
intent to deliver, possession of a synthetic drug or lookalike substance, and
possession of methamphetamine. He also accrued misdemeanor convictions of
public intoxication, operating a vehicle while intoxicated, possession of a
synthetic drug or lookalike substance, resisting law enforcement, invasion of
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privacy, and possession of paraphernalia. Tanksley accrued these convictions
at a steady pace, demonstrating a refusal to comply with the law for more than
one or two years at a time.
[21] In addition, it is relevant that when Tanksley was released to probation in prior
cases, he regularly failed to appear for court hearings, resulting in courts issuing
several warrants for his arrest. In addition, he repeatedly violated the terms of
his probationary placements. His refusals to appear in court, and his refusals to
comply with court-ordered terms of probation, demonstrate that he would be
unlikely to successfully complete probation in this case.
[22] During the sentencing process, Tanksley admitted he has used marijuana
consistently since his teenage years, and he has regularly used
methamphetamine since age twenty. Tanksley argues that his extensive
criminal history is related to his lengthy history of addiction to controlled
substances, and that he should receive court-ordered treatment rather than
incarceration. His argument is undercut by his admission that he has never
“sought any meaningful treatment to combat his substance abuse issues.”
Appellant’s Br. p. 18. Tanksley has failed to demonstrate that his sentence is
inappropriate.
Conclusion
[23] For the reasons stated above, we affirm the judgment of the trial court.
[24] Affirmed.
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Baker, J., and Altice, J., concur.
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