Court of Appeals of Indiana | Memorandum Decision 20A03

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### MEMORANDUM DECISION ON REHEARING 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.

A TTORNEY FOR A PPELLANT Alexander L. Hoover Law Office of Christopher D. Walter Nappanee , Indiana A TTORNEY S FOR A PPELLEE Gregory F. Zoel ler Attorney General of Indiana Richard C. Webster Christina D. Pace Deputy Attorney General Indianapolis, Indiana



### IN THE 

# COURT OF APPEALS OF INDIANA

Jeffery J. Hunt , Appellant

- Defendant,

v. 

### State of Indiana , Appellee

- Plaintiff August 7 , 2015 Court of Appeals Ca se No. 20A03

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- 00300 Appeal from the Elkhart Circuit Court T he Honorable Terry C. Shewmaker , Judge Trial Court Ca u se No. 20C01

- 1311

- FA

- 064



### Mathias , Judge
.Court of Appeals of Indiana | Memorandum Decision 20A03

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- 300 | August 7 , 2015 Page 2 of 8 [1] Jeffery Hunt ( “ Hunt ” ) pleaded guilty in Elkhart Circuit Court to Count I, Class A felony robbery while armed with a deadly weapon causing seriously bodily injury; Count II, Class A felony burglary; Count III, Class B felony conspiracy to commit burglary; and Count IV, Class B felony criminal confinement. Hunt

was sen tenced to an aggregate term of 120 years executed in the Department of Correction. Hunt appeals and argues that the 120

- year sentence imposed by the trial court is inappropriate in light of the nature of the offense and the character of the offender.

[2] We re verse and remand. 

### Facts and Procedural History

[3] On November 4, 2013, around 9 p.m., Hunt and his father, Jeffrey Hill ( “ Hill ” ), knocked on the door of the New Paris re sidence of Don and Joan Neer

. Eighty

two year old Don Neer came to th e door but refused to open it. Hunt and Hill forced their way into the home , and Hunt struck Mr. Neer on the head with a tire iron, then struck him several more times with the tire iron and his fists as Mrs. Neer watched helplessly

. 1 As a result of the attack, Mr. Neer suffere d lacerations on his head, three fractured vertebrae in his neck, and a bruised wrist. Hunt and Hill then forced Mr. Neer into the living room , restrained him in a chair, and went through the house , taking guns, a television, and cash.

1 Hunt claims that it was his father who struck Mr. Neer with the tire iron. However, both Mr. and Mrs. Neer stated that Hunt was the one who beat Mr. Neer.Court of Appeals of Indiana | Memorandum Decision 20A03

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- 300 | August 7 , 2015 Page 3 of 8 [4] The State charged Hunt with Count I, Class A felony robbery while armed with a deadly weapon causing seriously bodily injury; Count II, Class A felony burglary; Count III, Class B felony conspiracy to commit burglary; and Count IV, Class B felony criminal confinement

. Hunt initially pleaded not guilty , but on June 19, 2014, he withdrew his plea of not guilty and pleaded guilty to all four charges.

[5] The trial court held a sentencing hearing on July 31, 2014. At the hearing, the trial court considered the f act that Hunt accepted responsibility by pleading guilty without the benefit of a plea agreement and Hunt ’ s age, twenty

- six years , as mitigating circumstances. The trial court then found the following aggravating factors: Hunt ’ s criminal history and especi ally his two prior burglary convictions, the fact that he had multiple victims, the age of the victims, the extensive injuries suffered by Mr. Neer, the fact that Hunt failed to seek medical attention for Mr. Neer after beating him, the fact that Hunt woul d not allow Mr. Neer to take his heart medication when he needed it, and the fact that Hunt was determined to be at a high risk to reoffend. After finding that the aggravating factors outweighed the mitigating factors, the trial court sentenced Hunt to fif ty years for Count I, fifty years for Count II, twenty years for Count III, and twenty years for Count IV. The sentences for C ounts I, II, and IV were to be served consecutively , and the sentence for Count III was to be served concurrently with the sentenc e for Count IV, for an aggregate sentence of 120
years
.

[6] Hunt now appeals.Court of Appeals of Indiana | Memorandum Decision 20A03

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### Discussion and Decision

[7] Hunt argues that his sentence is inappropriate in light of the nature of the offense and the character of the offender. Pursuant to Indiana Appellate Rule 7(B ), we may revise a sentence otherwise authorized by statute if, “ after due consideration of the trial court ’ s decision, the Court finds that the sentence is inappropriate in light of the nature of the offense and the character of the offender. ” Although we have the power to review and revise sentences, the principal role of our review should be to attempt to level the outliers, and identify some guiding principles for trial courts and those charged with improvement of the sentencing statutes, but not to ach ieve what we perceive to be a “ correct ” result in each case. Fernbach v. State , 954 N.E.2d 1080, 1089 (Ind. Ct. App. 2011), trans. denied (citing Cardwell v. State , 895 N.E.2d 1219, 1225 (Ind. 2008)).

[8] Also, “ we must and should exercise deference to a trial court ’ s sentencing decision, both because Rule 7(B) requires us to give ‘ due consideration ’ to that decision and because we understand and recognize the unique perspective a trial court brings to its sentencing decisions. ” Stewart v. State , 866 N.E.2d 858, 866 (Ind. Ct. App. 2007). The question under Appellate Rule 7(B) is not whether another sentence is more appropriate; rather, the question is whether the sentence imposed i s inappropriate. Fonner v. State , 876 N.E.2d 340, 344 (Ind. Ct. App. 2007). It is the defendant ’ s burden on appeal to persuade us that the sentence imposed by the trial court is inappropriate. Childress v. State , 848 N.E.2d 1073, 1080 (Ind. 2006).Court of Appeals of Indiana | Memorandum Decision 20A03

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- 300 | August 7 , 2015 Page 5 of 8 [9] In exercising our review power, we are not required to compare a defendant ’ s
sentence with sentences received by other defendants in similar cases. Knight v. State, 930 N.E.2d 20, 22 (Ind. 2010). However, comparison of sentences among those convicted of the same or similar offenses can be a proper consideration when deciding whether a part icular sentence is inappropriate. Id. Our supreme court has stated, “ Of course, a respectable legal system attempts to impose similar sentences on perpetrators committing the same acts who have the same backgrounds. ” Serino v. State, 798 N.E.2d 852, 854 (I nd. 2003).

[10] Hunt pleaded guilty to Count I, Class A felony robbery while armed with a deadly weapon resulting in serious bodily injury; Count II, Class A felony burglary; Count III, Class B felony conspiracy to commit burglary, and Count IV, Class B felony criminal confinement

. On the date of Hunt ’ s offense, 2 t he sentencing range for a Class A felony was twenty to fifty years, with thirty year s being the advisory sentence. See Ind. Code § 35

- 50

- 2

- 4

. The sentencing range for a Class B felony was six to twenty years, with ten year s being the advisory
sentence. See Ind. Code § 35

- 50

- 2

- 5

. T he trial court imposed a sentence of fifty years for Count I, fifty years for Count II, twenty years for Count III, and twenty years for Count IV. The trial court ordere d that the sentences for Counts I, II, and IV be served consecutively and that the sentence for Count III

2 The date of Hunt’s offense was November 4, 2013. I ndiana’s revised sentenci ng statutes took effect on July 1, 2014.Court of Appeals of Indiana | Memorandum Decision 20A03

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- 300 | August 7 , 2015 Page 6 of 8 be served concurrently with the sentence for Count IV, for an aggregate sentence of 120 years.

[11] The facts in this case are undisputedly heinous ; Hunt a dmits as much in his brief. Hunt and his father forced their way into the residence of an elder ly couple, who they knew were home at the time

. Hunt struck Mr. Neer on the head, mouth, and arm with a tire iron and confined t he Neers in their living

room. Mr . Neer was unable to work following the break

- in and had to postpone a scheduled surgery t o remove a tumor on his lungs. Mrs. Neer stated that she has suffered emotional trauma from the attack and that, at night, she still has visions of a hooded Hunt stan ding in the hallway of her home.

[12] Hunt also has a criminal history that includes juvenile adjudications in Illinois for attempted theft and drug possession

. He has previously been convicted of burglary, residential burglary, and battery in Illinois and for operating a vehicle never having been licensed and c riminal conversion in Indiana. Hunt failed to appear for his criminal proceedin gs eight different times. D espite the fact that Hunt pleaded guilty to the crimes, he has continued to blame his father for involving him in the crimes and claim s that it was his father who beat Mr. Neer, even though both Mr. Neer and Mrs. Neer insist that Hunt was the person who struck Mr. Neer.

[13] However, o ur review of reported cases decided since adoption of the

“ inappropria te ” standard for reviewing sentences reveals that sentencing for similar cases has generally ranged from twenty

- six years to ninety years. SeeCourt of Appeals of Indiana | Memorandum Decision 20A03

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- 300 | August 7 , 2015 Page 7 of 8 Campbell v. State , No. 13S05

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- 682, 2014 WL 5490577 (Ind. Oct. 30, 2014) (affirming ninety

- year sentence for convictions for two counts of attempted murder, Class A felony burglary resulting in serious bodily injury, Class B felony aggravated battery, and Class C felony battery ); Bushhorn v. State , 971 N.E.2d 80, 81 (Ind. 2012 ) (forty

- seven year aggregate sentence for Class A felony kidnapping, three counts of Class B felony criminal confinement, and Class B felony attempted escape); Joseph v. State , 975 N.E.2d 420, 424 (Ind. Ct. App. 2012) ( twenty

- six year aggregate sentence f or Class A felony burglary resulting in bodily injury, Class B felony attempted armed robbery, and Clas s B felony criminal confinement ); Kennedy v. State , 934 N.E.2d 779 (Ind. Ct. App. 2010) (affirming twenty

- seven year aggregate sentence with three years suspended for convictions for Class A felony robbery and Class A felo ny conspiracy to commit robbery); Upton v. State , 904 N.E.2d 700, 702 (Ind. Ct. App. 2009) (ninety

- year sentence for two counts of Class A felony child molesting and three counts of Class B felony child molesting).

[14] After surveying sentences imposed in similar cases, we conclude that Hunt ’ s 120

- year sentence is an “ outlier ” that is in need of revision. T o be clear, we need not ensure that all sentences for similar acts and defendants are precisely the same.

[15] We therefore direct that Hunt ’ s sentence be revised as follows: that his
sentence s for his two Class A felony convictions be reduced from fifty years to thirty y ears each , and his sentences for his two Class B felony convictions remain unchanged at twenty years each, all to be served consecutively, for anCourt of Appeals of Indiana | Memorandum Decision 20A03

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- 300 | August 7 , 2015 Page 8 of 8 aggregate sentence of 100 years. We remand with instructions that the trial court issue an amended sentencing order to carry out this revision.


### Conclusion

[16] For all of these reasons, we conclude that Hunt ’ s sentence is inappropriate in light of the nature of the offense and the character of the offender and direct that it be revised to an aggregate term of 100 year s.

[17] Reversed and remanded for proceedings consistent with this opinion

.
Baker, J., and Crone, J., concur.