MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any
Apr 28 2017, 10:02 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Theodore J. Minch Curtis T. Hill, Jr.
Sovich Minch, LLP Attorney General of Indiana
Indianapolis, Indiana
Michael Gene Worden
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Domonique Henderson, April 28, 2017
Appellant-Defendant, Court of Appeals Case No.
73A05-1609-CR-2130
v. Appeal from the Shelby Superior
Court
State of Indiana, The Honorable Chris D. Monroe,
Appellee-Plaintiff Senior Judge
Trial Court Cause No.
73D01-1412-FA-24
Crone, Judge.
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Case Summary
[1] Domonique Henderson drove the getaway car for a home invasion that resulted
in injury to the homeowner. He pled guilty by plea agreement to class A felony
burglary and class B felony robbery. In this appeal, he challenges the
appropriateness of his sentence under Indiana Appellate Rule 7(B) and the trial
court’s failure to include pretrial jailtime credit. Finding that he has failed to
demonstrate that his sentence is inappropriate in light of the nature of the
offenses and his character, we affirm his sentence. We also remand for a proper
determination of his pretrial jailtime credit.
Facts and Procedural History
[2] On January 17, 2013, Henderson drove his vehicle from Marion County to
Shelby County with Fernando Pedroza and other passengers, who Henderson
knew to be armed with handguns. Henderson waited in his vehicle while his
companions broke and entered the home of Nicholas and Dara Chesser.
Nicholas and his nine-month-old baby were home at the time. Once inside,
Henderson’s companions beat Nicholas, robbed him, and left with various
items, including firearms. When his companions returned to the vehicle,
loaded the stolen property, and got inside, Henderson drove away. A week and
a half later, police caught Henderson and his companions in the act of
committing a home invasion in Marion County. The State charged Henderson
with multiple felonies stemming from the Marion County home invasion
(“Marion County Cause”). Henderson pled guilty in the Marion County Cause
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and received concurrent sixteen-year sentences, with ten years executed and six
years suspended.
[3] In the instant cause, the State charged Henderson with class A felony burglary,
class B felony robbery resulting in personal injury, and class D felony theft.
Two years later, Henderson pled guilty pursuant to a plea agreement to class A
felony burglary and class B felony robbery, and the theft count was dismissed.
Sentencing was left open, subject to an executed sentence cap of twenty years
and a provision that Henderson’s sentence would run concurrent to the
sentence in the Marion County Cause.
[4] At the sentencing hearing, Dara Chesser testified concerning Nicholas’s
physical injuries, nightmares, and mental suffering. She also spoke at length
concerning the emotional toll of the home invasion on the family. She
explained that fears for family safety had forced them to move from their home,
which she had inherited from her father and had been her childhood home.
Henderson made an allocution statement in which he expressed remorse for the
Chessers’ suffering. The trial court sentenced him to thirty years for the class A
felony, with twenty years executed (per the sentencing cap) and ten years
suspended, with five years of the suspended sentence to be served on probation.
The court sentenced him to a concurrent eight-year term for the class B felony.
[5] Henderson now appeals his sentence. Additional facts will be provided as
necessary.
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Discussion and Decision
Section 1 – Henderson has failed to demonstrate that his
sentence is inappropriate.
[6] Henderson asks that we review and revise his sentence pursuant to Indiana
Appellate Rule 7(B), which states that we “may revise a sentence authorized by
statute if, after due consideration of the trial court’s decision, [this] Court finds
that the sentence is inappropriate in light of the nature of the offense and the
character of the offender.” When a defendant requests appellate review and
revision of his sentence, we have the power to affirm or reduce the sentence.
Akard v. State, 937 N.E.2d 811, 813 (Ind. 2010). In conducting our review, we
may consider all aspects of the penal consequences imposed by the trial court in
sentencing, i.e., whether it consists of executed time, probation, suspension,
home detention, or placement in community corrections, and whether the
sentences run concurrently or consecutively. Davidson v. State, 926 N.E.2d
1023, 1025 (Ind. 2010). We do “not look to see whether the defendant’s
sentence is appropriate or if another sentence might be more appropriate; rather,
the test is whether the sentence is ‘inappropriate.’” Foutch v. State, 53 N.E.3d
577, 581 (Ind. Ct. App. 2016). A defendant bears the burden of persuading this
Court that his sentence meets the inappropriateness standard. Bowman v. State,
51 N.E.3d 1174, 1181 (Ind. 2016).
[7] In considering the nature of Henderson’s offenses, “the advisory sentence is the
starting point the Legislature selected as appropriate for the crime committed.”
Fuller v. State, 9 N.E.3d 653, 657 (Ind. 2014). The sentencing range for a person
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convicted of a class A felony is twenty to fifty years, with a thirty-year advisory
term. Ind. Code § 35-50-2-4 (2013). The sentencing range for a person
convicted of a class B felony is six to twenty years, with a ten-year advisory
term. Ind. Code § 35-50-2-5 (2013). For his class A felony burglary conviction,
the trial court sentenced Henderson to the thirty-year advisory term, with
twenty years executed and ten years suspended. For his class B felony robbery
conviction, the trial court sentenced him to an eight-year concurrent term.
[8] By pleading guilty to class A felony burglary, Henderson admitted to breaking
and entering another’s property with intent to commit a felony (theft) and
resulting in bodily injury to the victim. Ind. Code § 35-43-2-1(2)(A) (2013).
Similarly, by pleading guilty to class B felony robbery, he admitted to
knowingly or intentionally taking property from the victim by use or threat of
force, resulting in bodily injury to the victim. Ind. Code § 35-42-5-1 (2013).
Henderson admitted to knowing that his companions were armed and to
participating in the home invasion as an accomplice. See Ind. Code § 35-41-2-4
(knowingly or intentionally aiding, inducing, or causing his companions to
commit the offenses).
[9] The nature of Henderson’s offenses reflects a violent home invasion where the
victim not only suffered pecuniary loss but also was threatened at gunpoint and
pistol-whipped. The victim’s nine-month-old baby was present in the house
during the attack. At sentencing, the victim’s wife described her husband’s
physical wounds and facial scar, as well as his emotional scars and persistent
nightmares. She also testified concerning her own fear for the family’s safety
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and security, which resulted in the family having to move from the dream home
built by and inherited from her father.
[10] As for Henderson’s character, we conduct our review by engaging in a broad
consideration of his qualities. Aslinger v. State, 2 N.E.3d 84, 95 (Ind. Ct. App.
2014), clarified on other grounds on reh’g, 11 N.E.3d 571. At age twenty-two, his
criminal history, though not lengthy, reflects a pattern of unlawful entry on the
property of others. He has one juvenile true finding for conduct amounting to
class D felony attempted residential entry if committed by an adult. As an
adult, he was charged with class A misdemeanor criminal trespass, for which he
received diversion/dismissal. Less than two weeks after he committed the
present offenses, he committed another home invasion in Marion County, for
which his plea agreement in the present case provided for sentencing concurrent
to his sentence in the Marion County Cause.
[11] On the positive side, Henderson has taken business courses and completed a
therapeutic community program during his incarceration. He has also worked
hard to be on good behavior, with only one write-up for tobacco use. As for his
remorse, his allocution statement includes repeated apologies to the victim’s
wife. However, it also includes attempts to downplay his role as merely the
driver. Moreover, Rule 7(B) requires that we give “due consideration” to the
trial court’s sentencing decision. The trial court found Henderson’s statements
of remorse to amount more to being “sorry you got caught.” Tr. at 56. The
court also noted his persistent lack of effort in helping authorities locate two of
the co-perpetrators still at large and found incredible his statements that he
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could not help because he knew them only by nickname and because he was
incarcerated. Id. The court also found a lack of credibility in his assertion that
he thought the group had gone to the victim’s home only to purchase
marijuana, not to burgle, rob, and injure him. Id. at 55-56. Our deference to
the trial court, especially in matters that concern credibility, “should prevail
unless overcome by compelling evidence portraying in a positive light the
nature of the offense … 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). No such evidence exists here.
[12] Notably, Henderson’s sentence for his class B felony is two years below the
advisory term and is to be served concurrently. The trial court sentenced
Henderson to the advisory thirty-year term for his class A felony, with only
twenty of the thirty years to be executed, per the cap on executed time included
in the plea agreement. In stressing the importance of the additional ten-year
suspended portion of Henderson’s sentence (with five of those years to be
served on probation), the court articulated its concern that he be deterred from
resuming his pattern of criminal conduct after serving the executed portion of
his sentence. Tr. at 56-68. Based on the foregoing, we conclude that
Henderson has failed to meet his burden of demonstrating that his sentence is
inappropriate in light of the nature of the offenses and his character.
Accordingly, we affirm his sentence.
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Section 2 – The trial court failed to make a determination
concerning Henderson’s credit time.
[13] Henderson maintains that the trial court erred in failing to award him a pretrial
jailtime credit of 578 days. “Because pre-trial jail time credit is a matter of
statutory right, trial courts generally do not have discretion in awarding or
denying such credit.” Roberts v. State, 998 N.E.2d 743, 747 (Ind. Ct. App.
2013). The State concedes that pretrial jailtime credit is a matter of statutory
right but argues that Henderson failed to preserve this issue due to his failure to
develop a cogent argument as required by Indiana Appellate Rule 46(A)(8). See
McBride v. State, 992 N.E.2d 912, 920 (Ind. Ct. App. 2013) (party’s failure to
develop cogent argument with citations to authority results in waiver), trans.
denied. We agree that Henderson’s lack of cogency makes it difficult to discern
the specifics of his claim but, being mindful that pretrial jailtime credit is a
matter of statutory right, we believe that the trial court should have addressed
the matter during sentencing. See Weaver v. State, 725 N.E.2d 945, 948-49 (Ind.
Ct. App. 2000) (any time defendant whose liberty has been restricted through
incarceration/confinement presents a legitimate issue concerning credit time,
court must address merits of such motion).
[14] At the guilty plea hearing, the trial court briefly referenced Henderson’s credit
time and stated that it would “attempt to determine how many days that will
be.” Tr. at 20-21. Notwithstanding, the trial court did not address the matter at
all during sentencing, and the sentencing order indicates “no credit given” for
his sentences on both the class A and the class B felonies. Appellant’s App.
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Vol. 3 at 11. The matter of Henderson’s credit time is further confused by the
fact that he was serving a concurrent sentence in the Marion County Cause
during at least part of the 578 days to which he now claims that he is entitled.
Thus, it is important to determine to what extent the concurrent sentence may
affect his credit time. See James v. State, 872 N.E.2d 669, 672 (Ind. Ct. App.
2007) (defendant not entitled to credit for time served on “wholly unrelated
offense”). Accordingly, we remand for a proper determination of Henderson’s
pretrial jailtime credit. Otherwise, we affirm.
[15] Affirmed and remanded.
Baker, J., and Barnes, J., concur.
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