MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this
FILED
Memorandum Decision shall not be regarded as Jun 09 2017, 9:04 am
precedent or cited before any court except for the CLERK
purpose of establishing the defense of res judicata, Indiana Supreme Court
Court of Appeals
collateral estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Anthony S. Churchward Curtis T. Hill, Jr.
Anthony S. Churchward, P.C. Attorney General of Indiana
Fort Wayne, Indiana
Michael Gene Worden
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Antonio D. Townsend, June 9, 2017
Appellant-Defendant, Court of Appeals Case No.
02A03-1611-CR-2630
v. Appeal from the Allen Superior
Court.
The Honorable John F. Surbeck, Jr.,
State of Indiana, Judge.
Appellee-Plaintiff. Trial Court Cause No.
02D06-1510-F5-280
Darden, Senior Judge
Statement of the Case
[1] Antonio D. Townsend appeals the four-year sentence the trial court imposed
after he pleaded guilty to criminal recklessness, a Level 5 felony, and carrying a
handgun without a license, a Class A misdemeanor. We affirm.
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Issue
[2] Townsend raises one issue, which we restate as: whether Townsend’s sentence
is inappropriate in light of the nature of the offenses and his character.
Facts and Procedural History
[3] On September 7, 2015, at approximately 2:30 in the afternoon, Townsend and
his two friends were at an apartment complex in Fort Wayne, where their
actions were recorded by a security camera. The recording showed Townsend
pulling a handgun out of his pants as he walked out of an apartment building.
He did not have a license to carry a handgun. Unprovoked, Townsend fired
several shots into the parking lot. Next, a silver car accelerated through the
parking lot, and its occupants fired into the building as Townsend fled back
inside. The incoming gunfire shattered several windows, which fell on
Townsend’s friends. Townsend returned shots at the car and then, after the
shooting was over, left the building, walked behind it, and concealed the
handgun behind a dumpster.
[4] Officers were dispatched to the scene. A witness told them that Townsend hid
the handgun behind the dumpster. Townsend told the officers he was
defending himself and his friends from people who shot at them from a passing
car. He further stated a friend dropped the gun during the shooting and he
picked it up and fired in self-defense. The officers later received the security
camera recording and arrested Townsend after reviewing the recording.
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[5] The State charged Townsend with criminal recklessness and carrying a
handgun without a license. Approximately a month before trial, Townsend
entered a plea of guilty as charged without a plea agreement. The court
accepted the guilty plea.
[6] At sentencing, Townsend conceded the surveillance video showed him
provoking the gun fight. The court sentenced Townsend to an aggregate
sentence of four years, with two years suspended to probation. The court
further ordered Townsend to serve the sentence consecutively to a nine-year
sentence for armed robbery from another case. This appeal followed.
Discussion and Decision
[7] Townsend argues his sentence is inappropriate and should be reduced.
Although a trial court may have acted within its lawful discretion in fashioning
a sentence, the Court may revise the sentence “‘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.”’ Foutch v. State, 53
N.E.3d 577, 580 (Ind. Ct. App. 2016) (quoting Ind. Appellate Rule 7(B)). The
role of appellate review under Appellate Rule 7(B) is to attempt to leaven the
outliers. Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). Whether we
regard a sentence as inappropriate turns on our sense of the culpability of the
defendant, the severity of the crime, the damage done to others, and myriad
other factors that come to light in each case. Id. at 1224. The defendant bears
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the burden of persuading this Court that his sentence is inappropriate. Clark v.
State, 26 N.E.3d 615, 618 (Ind. Ct. App. 2014), trans. denied.
[8] The advisory sentence is the starting point the legislature has selected as an
appropriate sentence for the crime committed. Blair v. State, 62 N.E.3d 424, 430
(Ind. Ct. App. 2016). At the time Townsend committed his offenses, the
maximum sentence for a Level 5 felony was six years, the minimum was one
year, and the advisory sentence was three years. Ind. Code § 35-50-2-6 (2014).
The maximum sentence for a Class A misdemeanor was one year. Ind. Code §
35-50-3-2 (1977). The trial court sentenced Townsend to four years for criminal
recklessness, with two years suspended to probation. The court further
sentenced Townsend to one year for carrying a handgun without a license. The
court directed Townsend to serve the sentences concurrently, for a total
sentence of four years, with two executed. Finally, the court directed
Townsend to serve his aggregate sentence consecutively to a nine-year sentence
for armed robbery in an unrelated case.
[9] Turning to the nature of the offense, Townsend presents no argument on the
issue. In any event, we note that Townsend provoked a gunfight in an
apartment complex in broad daylight. He fired shots from a handgun at several
individuals in a silver car, who in turn sped away through the parking lot and
returned fire at Townsend and his friends. Townsend’s actions endangered the
lives of people in the car, himself, his friends, and possibly others in the
complex.
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[10] In addition, Townsend attempted to deceive investigators by hiding the
handgun. He also lied to the officers, claiming the people in the silver car shot
first and, in self-defense, he picked up the gun and fired it after a friend had
dropped it. If not for the security camera recording, Townsend may have
succeeded in obstructing the officers’ investigation.
[11] As for the character of the offender, Townsend was nineteen years old at the
time of sentencing. His presentence investigation report revealed a lengthy
juvenile history, including an adjudication in Florida for an act that would have
constituted battery if committed by an adult. In Indiana, he had been
adjudicated a delinquent for acts that, if committed by an adult, would have
constituted escape, and receiving stolen auto parts, both as Class D felonies.
He also had delinquency adjudications for battery, criminal trespass, resisting
law enforcement, and conversion, all Class A misdemeanors if committed by an
adult. As an adult, less than a month after he committed the current offenses,
he committed armed robbery, a Level 3 felony, for which he later received a
nine-year sentence. Townsend amassed a significant criminal history all within
a few short years.
[12] Townsend argues he is entitled to credit for pleading guilty without a plea
agreement, well in advance of the trial date, thereby conserving valuable
judicial resources. A guilty plea is not necessarily a mitigating factor where the
evidence against the defendant is so strong that the decision to plead guilty is
merely pragmatic. Amalfitano v. State, 956 N.E.2d 208, 212 (Ind. Ct. App.
2011), trans. denied. Here, there was a live witness to the event, Townsend’s
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criminal behavior was recorded by a security camera, and he conceded at
sentencing that the recording shows him initiating the gunfight. We conclude
Townsend has failed to demonstrate that his sentence is inappropriate.
Conclusion
[13] For the reasons stated above, we affirm the judgment of the trial court.
[14] Affirmed.
Bailey, J., and Robb, J., concur.
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Antonio D. Townsend v. State of Indiana (mem. dec.)
Combined Opinion