Court of Appeals of Indiana | Memorandum Decision 27A04-1708-CR-1850 | March 28, 2018 Page 1 of 8

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

William T. Myers

Grant County Public Defender

Marion, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Matthew B. MacKenzie

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Brandon M. Newell,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

March 28, 2018

Court of Appeals Case No.

27A04-1708-CR-1850

Appeal from the Grant Superior 

Court

The Honorable Jeffrey Todd, 

Judge

Trial Court Cause No.

27D01-1609-F2-15

Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 27A04-1708-CR-1850 | March 28, 2018 Page 2 of 8

Case Summary and Issue

[1] Following a jury trial, Brandon Newell was convicted of burglary, a Level 2 

felony; armed robbery and criminal confinement, both Level 3 felonies;

unlawful possession of a firearm by a serious violent felon, a Level 4 felony; 

and intimidation and battery by means of a deadly weapon, both Level 5 

felonies. The jury also found Newell to be an habitual offender. The trial court 

sentenced Newell to a total of fifty years, thirty years for the Level 2 burglary 

conviction, enhanced by twenty years for the habitual offender adjudication. 

The sentences for the remaining crimes were ordered to be served concurrently 

with the Level 2 felony sentence. Newell appeals, raising the sole issue of 

whether his sentence is inappropriate in light of the nature of his offense and his 

character. Concluding Newell’s sentence is not inappropriate, we affirm.

Facts and Procedural History

[2] On September 24, 2016, Jesus Martinez was on his front porch with his twoyear-old son when a person, later identified as Newell, approached him and 

asked him for a cigarette. After he provided Newell with a cigarette, Martinez 

turned around and saw that Newell “ha[d] my son and a pistol.” Transcript, 

Volume 2 at 54. Newell told Martinez to go in the house and said “he was 

gonna kill me and my son” if Martinez did not comply. Id. at 58. After they 

entered the house, Newell struck Martinez in the head with the pistol and took

his cell phone and wallet. Newell again threatened to kill Martinez and his son 

if Martinez did not give him more money. Eventually, Newell threw 
Court of Appeals of Indiana | Memorandum Decision 27A04-1708-CR-1850 | March 28, 2018 Page 3 of 8

Martinez’s son back to him, threatened to kill him if he called the police, took 

Martinez’s bike off the front porch, and rode off. Martinez chased Newell in 

his car and Newell subsequently abandoned the bicycle and ran off on foot. 

Martinez saw a Chrysler 300 speed down the street, stop, and pick up Newell. 

Martinez chased this vehicle until Newell got out and ran behind a house. 

Martinez then returned home and eventually contacted police. Martinez later 

identified Newell from a photo array assembled by police.

[3] The State charged Newell with burglary, armed robbery, criminal confinement, 

unlawful possession of a firearm by a serious violent felon, intimidation, and 

battery by means of a deadly weapon. The State also alleged Newell was an 

habitual offender. A jury found him guilty of all charges and also found him to 

be an habitual offender. At sentencing, Newell asked to be placed in a 

Purposeful Incarceration program in order to prepare him for life after 

incarceration. With respect to sentencing, the trial court stated: 

As far as the aggravating circumstances in this case . . . one 

would be the Defendant’s prior criminal and juvenile history as 

set forth in the Pre-Sentence Investigation Report. All of it is 

concerning to the Court, but most relevant, related and troubling 

are the Defendant’s multiple burglaries as a juvenile, two armed 

robbery convictions in 2002, battery resulting in serious bodily 

injury in 2006. Soon after being released from incarceration in 

October of 2009, he committed another armed robbery in 

January of 2011 and was adjudicated to be an habitual offender. 

Then less than fifty days after his release from the Department of 

Corrections [sic] in August of 2016, he committed Counts 1 

through 6 in the case before the Court today. Also troubling to 

the Court is the fact that this [is] the Defendant’s second 
Court of Appeals of Indiana | Memorandum Decision 27A04-1708-CR-1850 | March 28, 2018 Page 4 of 8

adjudication as an habitual offender. The criminal history 

amounts to almost a twenty year pattern of violence, use of 

weapons, threats, and forcibly taking other people’s property. . . . 

Second aggravating circumstance is the victim of Count 3 was [a]

child less than three years of age. Third aggravator is the 

remaining counts other than Count 3, were knowingly 

committed in the presence of this same small child. The fourth 

aggravating circumstance is that at the time the Defendant 

committed these offenses, he was on probation in two different 

cases for separate armed robberies.[1] I do not find that there are 

any mitigating circumstances in this case.

[4] Tr., Vol. 4 at 101-03. The trial court sentenced Newell to thirty years executed 

for burglary enhanced by twenty years for the habitual offender finding, sixteen 

years for armed robbery, sixteen years for criminal confinement, twelve years 

for unlawful possession of a firearm by a serious violent felon, six years for 

intimidation, and six years for battery by means of a deadly weapon, all to be 

served concurrently with the burglary sentence for an aggregate sentence of fifty 

years. Newell now appeals his sentence.

Discussion and Decision

I. Standard of Review

[5] Indiana Appellate Rule 7(B) provides, “[t]he Court may revise a sentence 

authorized by statute if, after due consideration of the trial court’s decision, the 

 

1 Newell’s probation in these two cases was revoked and the trial court also sentenced him for the probation 

violations during the sentencing hearing in this case.
Court of Appeals of Indiana | Memorandum Decision 27A04-1708-CR-1850 | March 28, 2018 Page 5 of 8

Court finds that the sentence is inappropriate in light of the nature of the offense 

and the character of the offender.” Whether a sentence is regarded as 

inappropriate turns on “the culpability of the defendant, the severity of the 

crime, the damage done to others, and myriad other factors that come to light 

in a given case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). A 

sentence review under Indiana Appellate Rule 7(B) is “very deferential to the 

trial court.” Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012). This “deference 

should prevail 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). The defendant bears the burden to persuade this court 

that the sentence is inappropriate. Sandleben v. State, 29 N.E.3d 126, 136 (Ind. 

Ct. App. 2015), trans. denied. The analysis is “not to determine whether another 

sentence is more appropriate but rather whether the sentence imposed is 

inappropriate.” Conley, 972 N.E.2d at 876 (quotation omitted).

II. Inappropriate Sentence

[6] Newell does not challenge the length of the sentence imposed by the trial court. 

Instead, he challenges the sentence as inappropriate because it “failed to include 

a recommendation for purposeful incarceration . . . .” Brief of Appellant at 8.

Purposeful Incarceration is a project where the Department of Correction 

(“DOC”) “works in collaboration with Judges who can sentence chemically 

addicted offenders and document that they will ‘consider a sentence 
Court of Appeals of Indiana | Memorandum Decision 27A04-1708-CR-1850 | March 28, 2018 Page 6 of 8

modification’ should the offender successfully complete [a] . . . Therapeutic 

community.” Therapeutic communities “provide intensive substance abuse 

treatment . . . that hold the offenders highly accountable.” Purposeful 

Incarceration, https://www.in.gov/idoc/2798.htm (last visited Mar. 15, 2018). 

[7] The place where a sentence is to be served is subject to review under Rule 7(B). 

Biddinger v. State, 868 N.E.2d 407, 414 (Ind. 2007). However, “it will be quite 

difficult for a defendant to prevail on a claim that the placement of his or her 

sentence is inappropriate.” Fonner v. State, 876 N.E.2d 340, 343 (Ind. Ct. App. 

2007). Newell does not challenge his placement in the DOC, but rather 

challenges the lack of a recommendation that he is eligible for the Purposeful 

Incarceration program in the DOC. This underscores that the trial court cannot 

order the DOC to place an offender in the Purposeful Incarceration program, 

but can only alert the DOC to appropriate candidates. See Purposeful 

Incarceration Details, http://www.in.gov/idoc/2798.htm (last visited Mar. 15, 

2018) (“The Courts communicate with the [DOC] that this offender is a 

[Purposeful Incarceration] offender.”). The program then assesses Purposeful 

Incarceration offenders and only admits persons who meet the substance abuse 

admission criteria. Id. The record does show that Newell asked the trial court 

to recommend purposeful incarceration, but does not establish that he is a 

chemically addicted offender. Instead, Newell argues that “[i]n light of his 

character as an individual who has been incarcerated for a long period of time 

of his life without the proper education on how to live in free society this should 

have been viewed as an appropriate case of recommending Purposeful 
Court of Appeals of Indiana | Memorandum Decision 27A04-1708-CR-1850 | March 28, 2018 Page 7 of 8

Incarceration.” Brief of Appellant at 11 (emphasis added). On appeal, 

however, we do not decide “whether another sentence is more appropriate but 

rather whether the sentence imposed is inappropriate.” Conley, 972 N.E.2d at 

876 (quotation omitted). Although the trial court did not specifically address 

Newell’s request for Purposeful Incarceration, we have stated that “it is absurd 

to conclude that the General Assembly could have intended that all DOC 

inmates be entitled to substance abuse treatment regardless of whether they in 

fact suffer from substance abuse.” Cohn v. Strawhorn, 721 N.E.2d 342, 348-49 

(Ind. Ct. App. 1999), trans. denied. Having failed to show that he meets the 

criteria for recommendation to the program, Newell has failed to show that his 

placement in the DOC without such recommendation is inappropriate.

[8] More generally, Newell does little to explain why his sentence is inappropriate 

in light of the nature of his offense or his character. For the purpose of 7(B) 

review, “[t]he nature of the offense is found in the details and circumstances of 

the commission of the offense.” Townsend v. State, 45 N.E.3d 821, 831 (Ind. Ct. 

App. 2015), trans denied. The record reveals that in carrying out these offenses, 

Newell held a gun to the head of a two-year-old child, threatened to murder the 

child and his father, and hit the child’s father in the head with a gun, causing 

him to bleed, while still in the presence of the child. At sentencing, the trial 

court noted the involvement of the child in two of the five aggravating factors. 

We also believe Newell’s conduct to be particularly egregious in light of the 

involvement of a young child. Therefore, we cannot say that Newell’s sentence 

is inappropriate in light of the nature of his offenses.
Court of Appeals of Indiana | Memorandum Decision 27A04-1708-CR-1850 | March 28, 2018 Page 8 of 8

[9] In considering the character of the offender, it is “shown by the offender’s life 

and conduct.” Id. Newell has an extensive criminal history as both a juvenile 

and as an adult, including multiple convictions for armed robbery. At 

sentencing, the trial court noted that Newell’s criminal history “amounts to 

almost a twenty year pattern of violence, use of weapons, threats, and forcibly 

taking other people’s property.” Tr., Vol. 4 at 102. Newell was out of prison 

for less than two months before committing this armed robbery, while still on 

probation for two other offenses of armed robbery. Considering Newell’s 

criminal history, we cannot say his fifty-year sentence is inappropriate in light 

of the nature of his character. 

[10] Newell has not met his burden of convincing us that his placement in DOC 

without a Purposeful Incarceration recommendation is inappropriate because 

he has failed to show that he qualifies as a candidate for the program in the first 

place. As for the length of Newell’s sentence, it is not inappropriate in light of 

the nature of Newell’s crimes and his character. 

Conclusion

[11] Newell’s sentence is not inappropriate in light of the nature of the offense and 

his character. We therefore affirm his sentence of fifty years to be executed in 

the Department of Correction.

[12] Affirmed.

Crone, J., and Bradford, J., concur.