MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be Oct 13 2017, 10:57 am
regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Kay A. Beehler Curtis T. Hill, Jr.
Terre Haute, Indiana Attorney General of Indiana
Jesse R. Drum
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jordan L. Gosnell, October 13, 2017
Appellant-Defendant, Court of Appeals Case No.
84A01-1702-CR-365
v. Appeal from the Vigo Superior
Court
State of Indiana, The Honorable John T. Roach,
Appellee-Plaintiff Judge
Trial Court Cause No.
84D01-1602-F1-414
Baker, Judge.
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[1] Jordan Gosnell appeals his conviction for one count of Level 3 Felony
Aggravated Battery.1 Gosnell argues that the sentence imposed by the trial
court was erroneous and inappropriate in light of the nature of the offense and
his character. Finding no error and that the sentence is not inappropriate, we
affirm.
Facts
[2] Gosnell was seventeen years old on the night in question. Early in the morning
of February 6, 2016, Gosnell and two friends were breaking into cars in Terre
Haute. Before the break-ins, he had consumed a half-gallon of vodka and taken
ten to fifteen Klonopin pills for which he had no prescription. Gosnell was
armed with a knife that he was using to break into cars.
[3] Lester Hamilton and his wife, Ciara, were alerted by their dog’s barks. While
checking on the dog, Lester discovered Gosnell in the process of breaking into a
neighbor’s car. Gosnell and his friends ran away, but Lester followed them
while Ciara called 911. After Lester caught up to Gosnell, Gosnell yelled for
help from his friends and one of them punched Lester. Gosnell then jumped on
Lester’s back and stabbed Lester several times with the knife. By this point,
Ciara had caught up with Lester and she pulled Gosnell off her husband’s back.
1
Ind. Code § 35-42-2-1.5.
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Gosnell got back up and continued to stab Lester. Shortly thereafter, Gosnell
and his friends “disappeared.” Appellant’s App. Vol. III p. 58.
[4] The Hamiltons returned home and Ciara attended to Lester’s wounds. Before
the police arrived, Gosnell, his friends, and three other individuals—including a
fourteen-year-old girl—went to the Hamiltons’ house and began to kick the
back door. In response, Lester confronted the group, resulting in Gosnell
stabbing Lester two more times. The group fled after they heard police sirens.
Lester was taken to the hospital to receive treatment for a punctured liver and
lung.
[5] Gosnell was arrested later that morning. While in police custody, Gosnell
began to “yell and cuss” and continually hit “his head off the cage and bars in
the car.” Id. at 52. He threatened to batter/kill several officers, and officers
were compelled to place a “spit shield” on Gosnell “for the protection of
Officers.” Id. Gosnell claimed to be part of a gang and referred to officers and
Lester as “Bitch ass n***as” and “that n***a,” respectively. Id. at 8, 52.
Officers also noted that Gosnell’s breath smelled like alcohol, he slurred his
speech, he had bloodshot eyes, and he urinated on himself while speaking to
officers at police headquarters.
[6] On February 10, 2016, the State charged Gosnell with one count of attempted
murder, one count of battery by means of a deadly weapon, and five counts of
intimidation. On November 3, 2016, the parties entered into a plea agreement
and on December 14, 2016, Gosnell pleaded guilty to an amended count of
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Level 3 felony aggravated battery. Under the plea agreement, the State agreed
to dismiss all remaining charges and to cap the sentence at twelve years. On
January 4, 2017, the trial court imposed an eleven-year sentence, with five years
suspended to probation. The trial court also ordered “purposeful incarceration
in the CLIFF program,” and was open to modification under certain
circumstances. Appellant’s App. Vol. II p. 15. Gosnell now appeals.
Discussion and Decision
I. Aggravating Factors
[7] First, Gosnell argues that the trial court erred in its consideration of
aggravators. A trial court may err in the sentencing process if it finds
“aggravating or mitigating circumstances unsupported by the record, omitting
aggravating or mitigating circumstances clearly supported by the record, or
noting reasons for imposing a given sentence that are improper considerations
as a matter of law.” Blair v. State, 62 N.E.3d 424, 429 (Ind. Ct. App. 2016).
[8] In the present case, the trial court found four aggravating factors: (1) Gosnell’s
history of criminal/delinquent behavior; (2) Gosnell committed a crime of
violence in the presence of a person under the age of eighteen; (3) Gosnell was
on probation when he committed the crime; and (4) the nature and
circumstances of the crime. The trial court found no mitigating factors.
Gosnell contends that the trial court erred in its consideration of all the
aggravators and in allegedly finding other improper aggravators.
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[9] With respect to his criminal history, since 2014, Gosnell has been adjudicated
delinquent twice for theft, once for resisting law enforcement, and once for
being a runaway. Gosnell’s argument here amounts to an invitation to reweigh
this factor, which we may not do. See Anglemyer v. State, 868 N.E.2d 482, 491
(Ind. 2007) (noting that trial courts are no longer under an obligation to “weigh
aggravating and mitigating factors against each other” and a trial court cannot
be found to err for failing to “properly weigh” these factors). The trial court did
not err by finding Gosnell’s criminal history to be an aggravator.
[10] With respect to the commission of a crime of violence in the presence of a non-
victim under the age of eighteen, Gosnell argues that this statutory factor
should be limited to crimes where children might be emotionally impacted,
such as sexual assault and child abuse; however, he cites no controlling
authority, nor do we find any. Aggravated battery is a statutory “crime of
violence,” Ind. Code § 35-50-1-2, and Gosnell concedes that he committed the
crime in the presence of a fourteen-year-old; therefore, we find no error.
[11] Gosnell next argues that the trial court erred in finding that he committed the
instant offense while on probation. The presentence investigation report (PSI)
indicates that Gosnell was arrested on December 7, 2014, for being a runaway
and on August 25, 2015, for pushing a stolen moped down the road.
Appellant’s App. Vol. III p. 20. The PSI states that Gosnell was “[c]urrently on
probation” when he was arrested with the moped, but there is no adjudication
date or disposition date for either offense and it is unclear how long his
probation for either offense lasted. Further, the PSI listed “No” under the
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section of the instant offense where it states “On Probation/Parole at Offense.”
Id. at 18.
[12] Assuming solely for argument’s sake that the trial court erred in the
consideration of this factor, we cannot say that Gosnell would be entitled to
resentencing. See, e.g., Sargent v. State, 875 N.E.2d 762, 769 (Ind. Ct. App.
2007) (“If the factors are not supported by the record . . . then remand for
resentencing may be the appropriate remedy if we cannot say with confidence
that the trial court would have imposed the same sentence had it properly
considered reasons that enjoy support in the record.”). The other aggravating
factors were properly considered and any one of those factors could have been
used to support Gosnell’s sentence. E.g., Baumholser v. State, 62 N.E.3d 411,
417 (Ind. Ct. App. 2016) (affirming sentence, despite consideration of an
improper aggravator, when other aggravators were properly considered). We
decline to reverse on this basis.
[13] Next, Gosnell argues that the trial court improperly considered the nature and
circumstances of the crime as an aggravating factor because they were elements
of the offense of aggravated battery. See McElroy v. State, 865 N.E.2d 584, 589-
90 (Ind. 2007) (noting that a material element of a crime may not constitute an
aggravating factor to support a sentence though “‘the trial court may properly
consider the particularized circumstances of the factual elements as aggravating
factors’” (quoting McCarthy v. State, 749 N.E.2d 528, 539 (Ind. 2001))).
Specifically, the trial court described the offense as “horrendous,” “vicious,”
“savage,” and “brutal.” Tr. Vol. III p. 5-6. To convict Gosnell of Level 3
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felony aggravated battery, the State was required to prove beyond a reasonable
doubt that Gosnell knowingly or intentionally inflicted an injury on Lester that
created a substantial risk of death. I.C. § 35-42-2-1.5. The trial court detailed
the reasons why it found the nature and circumstances of this crime to be
egregious, including: (1) Gosnell attacked Lester twice, stabbing him several
times during each incident; (2) Gosnell was under the influence of significant
quantities of drugs and alcohol; and (3) the offense occurred in the context of an
“escalating pattern” of automotive-related thefts. Tr. Vol. III p. 5. The
circumstances were clearly distinct from the material elements; therefore, the
trial court did not err in this regard. See, e.g., Wooley v. State, 716 N.E.2d 919,
930 (Ind. 1999) (holding that defendant’s repeated blows to victim, prior to
stabbing him, properly supported the trial court using the nature and
circumstances aggravator).
[14] Finally, Gosnell contends that the trial court erred in several other respects.
First, Gosnell contends that the trial court found his drug and alcohol use to be
an aggravator. At the sentencing hearing, the trial court stated:
[I]n addition, the Court finds, as non-statutory aggravating
factors, the nature and circumstances of this crime. This was a
horrendous and vicious and savage attack that took place not
only once, but a second time . . . . Um, this is an escalating
pattern with you. [I am] not sure how many other times you
were car-hopping before this incident, but you have, at least, two
(2) other prior convictions for auto theft and stealing a moped
. . . . Um, the amount of drugs and alcohol you had in your
system . . . I don’t know how you were up right [sic], quite
frankly.
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Tr. Vol. III p. 5. It is apparent that the trial court only considered his drug and
alcohol use when it was discussing the nature and the circumstances of the
crime—not as an independent aggravator. Therefore, we find no error.
[15] Next, Gosnell argues that the trial court erroneously found two additional
aggravators: (1) the imposition of a reduced sentence would depreciate the
severity of the crime, and (2) his parents’ behavior. Gosnell requested a fully
suspended sentence. Tr. Vol. II p. 50-51. At the sentencing hearing, the trial
court stated:
[A] placement in your parent’s [sic] home is not viable. I mean,
your dad pulls you out of school because you’re falling asleep.
That, to me, seems pretty extreme . . . . It doesn’t appear to me,
from the records, that there was a whole lot of time spent with
mom’s supervision in any event, who didn’t have a whole lot of
control over your alcohol and drug use . . . . Um, I think to give
you anything less than I’m going to give you today would
diminish the seriousness of this offense, quite frankly.
Tr. Vol. III p. 5-6. It is clear that the trial court only made these statements to
explain why the court considered it inappropriate to release him into his
parents’ custody on a fully suspended sentence. Therefore, we find no error.
[16] Lastly, Gosnell contends that his apology and plea were used as independent
aggravators. During the sentencing hearing, when explaining why it found no
mitigating factors, the trial court stated:
I think your remorse in this case is that you got caught, and . . .
[while] you entered a plea; I think you got significant benefit [sic]
from entering that plea, including the modification of the, the
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most serious charge in this case, and the dismissal of the other
. . . cases.
Id. at 7. It is apparent that the trial court was not utilizing its disbelief in the
sincerity of Gosnell’s remorse or his guilty plea as aggravators—only as reasons
to decline to find them to be mitigators. We decline to reverse for this reason.
II. Appropriateness
[17] Finally, Gosnell argues that the sentence is inappropriate in light of the nature
of the offense and his character. Indiana Appellate Rule 7(B) provides that this
Court may revise a sentence if it is inappropriate in light of the nature of the
offense and the character of the offender. We must “conduct [this] review with
substantial deference and give ‘due consideration’ to the trial court’s decision—
since the ‘principal role of [our] review is to attempt to leaven the outliers,’ and
not to achieve a perceived ‘correct’ sentence . . . .” Knapp v. State, 9 N.E.3d
1274, 1292 (Ind. 2014) (quoting Chambers v. State, 989 N.E.2d 1257, 1259 (Ind.
2013)) (internal citations omitted). Our Supreme Court has cautioned that “[a]
defendant’s conscious choice to enter a plea agreement that limits the trial
court’s discretion to a sentence less than the statutory maximum should usually
be understood as strong and persuasive evidence of sentence reasonableness
and appropriateness,” and that following such an agreement, we should grant
relief “only in the most rare, exceptional cases.” Childress v. State, 848 N.E.2d
1073, 1081 (Ind. 2006) (Dickson, J., concurring).
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[18] Here, Gosnell pleaded guilty to a Level 3 felony. A Level 3 felony is eligible for
a sentence between three and sixteen years, with an advisory term of nine years.
I.C. § 35-50-2-5. The plea agreement capped the executed portion of Gosnell’s
term at twelve years. He received an eleven-year term, with five years
suspended to probation.
[19] As to the nature of the offense, Gosnell committed this offense in the midst of a
crime spree. He willingly acted in concert with a group of at least five other
individuals—including a fourteen-year-old. We observe that he had at least
three chances to retreat: (1) when he called his friends for help; (2) after Ciara
pulled him off Lester’s back; and (3) when he and his friends returned to the
Hamiltons’ residence. Instead of safely retreating, Gosnell repeatedly and
viciously stabbed Lester, whose injuries were so severe that he required
treatment at a hospital.
[20] As to Gosnell’s character, we note, as did the trial court, his young age at the
time he committed this offense. But we also note that at the time of this
offense, Gosnell had been adjudicated delinquent twice for theft, once for
resisting law enforcement, and once for being a runaway; two of these
adjudications would have been felonies had he been convicted as an adult. All
adjudications and arrests occurred within a relatively compressed period—two
years—immediately prior to the instant offense. While this is Gosnell’s first
violent offense, the offense was committed while breaking into cars,
demonstrating that he has not learned anything from his prior adjudications for
theft. Gosnell was also hostile while in custody: he needed to be restrained
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with a spit shield, he used racial epithets toward the victim and officers, and he
threatened to batter and kill several officers.
[21] Although he pleaded guilty, he received a substantial benefit—the dismissal of
six charges, including Level 1 felony attempted murder. See, e.g., Payne v. State,
838 N.E.2d 503, 509 (Ind. Ct. App. 2005) (noting that a guilty plea can
demonstrate a defendant’s acceptance of responsibility but that pleading guilty
in exchange for the dismissal of several serious charges can lessen its mitigating
weight). In addition, although he did apologize, Gosnell largely blamed his
behavior on his drug and alcohol use and did not appear to take any real
responsibility for his actions. While some of his behavior may be attributable to
his substance use, he voluntarily ingested those substances. See Smith v. State,
929 N.E.2d 255, 260 (Ind. Ct. App. 2010) (affirming defendant’s sentence after
observing that defendant’s “poor decision-making” during offenses was due to
“voluntary intoxication on drugs”). Gosnell’s age, his voluntary intoxication,
and his self-serving apology have not diminished the senselessness of this crime,
nor do they justify a reduction to his sentence, of which only six years are
executed—five years less than the executed sentence cap to which he agreed.
[22] In sum, we do not find the sentence imposed by the trial court to be
inappropriate in light of the nature of the offense or Gosnell’s character.
[23] The judgment of the trial court is affirmed.
Bailey, J., and Altice, J., concur.
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