Roderick Nelson v. State of Indiana (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before any Jul 31 2019, 11:27 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
Karen Celestino-Horseman Curtis T. Hill, Jr.
Of Counsel, Austin & Jones, P.C. Attorney General of Indiana
Indianapolis, Indiana Samuel J. Dayton
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Roderick Nelson, July 31, 2019
Appellant-Defendant, Court of Appeals Case No.
19A-CR-218
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Lisa F. Borges,
Appellee-Plaintiff. Judge
Trial Court Cause No.
49G04-1707-F2-25324
Brown, Judge.
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[1] Roderick Nelson appeals his sentence for armed robbery as a level 3 felony as
enhanced by his status as an habitual offender, residential entry as a level 6
felony, and two counts of unlawful possession of a firearm by a serious violent
felon as level 4 felonies. He raises one issue which we revise and restate as
whether his sentence is inappropriate in light of the nature of the offenses and
his character. We affirm.
Facts and Procedural History
[2] In June 2017, Herbert Coleman, who went by the nickname Big Baby and has
chronic degenerative disk disease and chronic back pain, lived in a house in
Indianapolis with his son and his son’s girlfriend. At that time, Coleman knew
Nelson by the nickname Roger and had known him for about a month and a
half, and he had been to Coleman’s house a couple of times with one of
Coleman’s friends.
[3] On June 20, 2017, Coleman was awakened by Nelson who was nudging him in
the face with a gun. Nelson was with Lemon, a man Coleman knew from the
neighborhood, and “a white guy that had [a] yellow bandanna over his face”
looking in the window. Transcript Volume II at 54. Coleman tried to reach for
his pellet pistol, but Nelson told him, “Uh-uh, uh-uh, move, move,” and made
him sit down. Id. Nelson pulled the mattress out and “tore the bed up looking
for stuff.” Id. at 55.
[4] Nelson made Coleman move from the bed to a chair, told him to sit there, and
took his wallet out of his pocket, which contained forty or fifty dollars, his bank
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card, and his insurance disability card. While Coleman was sitting in the chair,
Nelson said: “You must don’t know who I am. I’m Roger.” Id. at 61. Nelson
raised up his shirt, and Coleman observed a scar from his navel to his chest.
Lemon stood at the back door “watching out,” while the white male was
“loading stuff,” including his TVs and a DVD player, and “taking it out to the
SUV.” Id. at 56. Nelson took Coleman’s collection of DVDs. One of the men
threw Coleman’s glucose meter in a five-gallon bucket of paint. Nelson and the
others left in a white SUV, and Coleman called 911.
[5] Meanwhile, Coleman’s neighbor, Edward Embry, who had suffered a stroke in
2009 and was on disability, lived with his wife Stacey and had a camera at his
back door which allowed him to view the back of Coleman’s property. He
observed Nelson and others place things in a white SUV.
[6] Sometime later, Embry and Stacey saw Nelson talking to a friend, and Stacey
called the friend and told the friend he did not need to be around Nelson if he
was doing what everybody said he did, but she did not realize she was on
speakerphone during the call. Later, Nelson and two other people entered
Embry’s home through a closed screen door. Nelson had a pistol with him and
told Embry and Stacey that he “didn’t do something,” and Embry told him that
he did not care and to go back outside. Id. at 107. Nelson said “your wife, you
know, running her mouth.” Id. He also said, “Eddie, I respect you,” put his
hand on his pistol, and started to bring the pistol up when Stacey jumped in the
middle and started screaming, “No, don’t do it. It’s not worth it, don’t, don’t,
don’t don’t.” Id. at 107, 128. Embry also had a gun and told Nelson: “My wife
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ain’t got nothing to do with this.” Id. at 108. He also yelled at the two people
with Nelson: “This s*** is gonna to get you guys killed.” Id. at 108. Nelson
and the others then left.
[7] On July 10, 2017, the State charged Nelson with: Count I, burglary as a level 2
felony; Count II, armed robbery as a level 3 felony; Count III, unlawful
possession of a firearm by a serious violent felon as a level 4 felony; Count IV,
residential entry as a level 6 felony; Count V, pointing a firearm as a level 6
felony; and Count VI, unlawful possession of a firearm by a serious violent
felon as a level 4 felony. On November 13, 2018, the State filed a notice of
intent to have Nelson sentenced as an habitual offender.
[8] In December 2017, Coleman was placed in Marion County Jail II, also known
as the CCA, and was placed in the same room as Nelson during the first day.
At some point, another inmate gave Coleman a note from Nelson which read in
part:
I’m sorry what happened. I was cracked out and lost bad.
Everyday I sit here want take things that I done. I’m sorry and I
hope you can forgive me Big Bro. Look, my mother is at old age
and I’m not trying to be in prison for life knowing that I couldn’t
say bye, Bro. I was off all types of drugs Big Baby. Please
forgive me.
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Id. at 165. 1
[9] On November 26 and 27, 2018, the court held a jury trial. The jury found
Nelson guilty of armed robbery as a level 3 felony and residential entry as a
level 6 felony and not guilty of burglary as a level 2 felony and pointing a
firearm as a level 6 felony. Nelson then pled guilty to two counts of unlawful
possession of a firearm by a serious violent felon as level 4 felonies and
admitted to his status as an habitual offender.
[10] At the sentencing hearing, Nelson’s counsel asked for a total sentence of
twenty-four years with sixteen years in the Department of Correction (“DOC”)
and eight years in community corrections. The court found Nelson’s criminal
history to be a significant aggravator, noted his conduct at the DOC, and
acknowledged he had not had problems while at the CCA. The court stated: “I
do find that the victims – the couple that lived next door are clearly disabled
and infirm. And that the victim of this offense was a disabled individual. And
I think its something that you knew.” Transcript Volume III at 28. The court
recognized that he had admitted to some of the charges and being an habitual
offender as mitigators. The court found that the aggravators far outweighed the
mitigators.
1
The text of the letter included in the record is difficult to decipher. When Detective Wanda Perry was
asked to read the letter aloud, she provided the foregoing text in her answer without objection.
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[11] The court sentenced Nelson to sixteen years for Count II, armed robbery as a
level 3 felony, and enhanced that sentence by twenty years for his status as an
habitual offender, twelve years for Count III, unlawful possession of a firearm
by a serious violent felon as a level 4 felony, two years for Count IV, residential
entry as a level 6 felony, and ten years for Count VI, unlawful possession of a
firearm by a serious violent felon as a level 4 felony. The court ordered that the
sentences for Counts II and III be served consecutive to each other, that the
sentence for Count IV be served concurrent to Count VI, and that Count VI be
served consecutive to Count III. The court stated: “I will recommend the
Therapeutic Community. However, I will not consider a sentence modification
for that, all right. . . . I’m not going to put you on probation or Community
Corrections, or suspend any of that time. I just think that that has never
worked for you, and to [sic] I am not going to do that.” Id. at 29.
Discussion
[12] The issue is whether Nelson’s sentence is inappropriate in light of the nature of
the offenses and his character. Nelson argues that he was sentenced to the
maximum sentences for Count II, robbery as a level 3 felony, and Count III,
possession of a firearm by a serious violent felon as a level 4 felony. He
contends that his criminal history, while lengthy, does not involve much in the
way of violent crimes. He also argues that there was no evidence presented that
he knew or should have known about the infirmities of Coleman and Embry.
He contends that he will be unable to provide emotional or financial support to
his children during the remainder of their childhood due to his sentence, that he
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pled guilty to two counts of unlawful possession of a firearm as a serious violent
felon and admitted to being an habitual offender, that he apologized to
Coleman before trial, that he had never been offered the opportunity to
participate in a substance abuse program while in prison, and that he completed
four twelve-week programs regarding living without violence, substance abuse,
victim impact, and living positively. The State argues that Nelson’s sentence is
not inappropriate in light of his extensive criminal history, disrespect for the
law, illegal possession of firearms, and threats of violence against multiple
disabled victims.
[13] Ind. Appellate Rule 7(B) provides that we “may revise a sentence authorized by
statute 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.” Under this rule, the burden is on the defendant to persuade
the appellate court that his or her sentence is inappropriate. Childress v. State,
848 N.E.2d 1073, 1080 (Ind. 2006).
[14] Ind. Code § 35-50-2-5 provides that a person who commits a level 3 felony
“shall be imprisoned for a fixed term of between three (3) and sixteen (16)
years, with the advisory sentence being nine (9) years.” Ind. Code § 35-50-2-8provides that a court “shall sentence a person found to be a habitual offender to
an additional fixed term that is between . . . six (6) years and twenty (20) years,
for a person convicted of murder or a Level 1 through Level 4 felony” and that
“[a]n additional term imposed under this subsection is nonsuspendible.” Ind.
Code § 35-50-2-5.5 provides that a person who commits a level 4 felony “shall
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be imprisoned for a fixed term of between two (2) and twelve (12) years, with
the advisory sentence being six (6) years.” Ind. Code § 35-50-2-7 provides that
a person who commits a level 6 felony “shall be imprisoned for a fixed term of
between six (6) months and two and one-half (2 ½) years, with the advisory
sentence being one (1) year.”
[15] Our review of the nature of the offenses reveals that Coleman suffered from
chronic degenerative disk disease and chronic back pain, and Nelson nudged
him with a gun in the face while he was sleeping and made Coleman move
from the bed to a chair. Nelson and others with him took Coleman’s DVDs,
TVs, a DVD player, and his wallet, which contained cash and his insurance
disability card. One of the men threw Coleman’s glucose meter in a five-gallon
bucket of paint. Nelson later entered the home of Embry, who had suffered a
stroke and was on disability, and started to bring the pistol up when Stacey
jumped in the middle and started screaming. The presentence investigation
report (“PSI”) states: “When asked about the Instant Offense the defendant
admitted, ‘I took the television and sold it’ admitting he used the money for
drugs.” Appellant’s Appendix Volume III at 103.
[16] Our review of the character of the offender reveals that Nelson pled guilty to
two counts of unlawful possession of a firearm by a serious violent felon as level
4 felonies and admitted to his status as an habitual offender after the jury found
him guilty of armed robbery as a level 3 felony and residential entry as a level 6
felony. Nelson has a lengthy criminal history. As a juvenile, he had true
findings for disorderly conduct in 1996 and possession of marijuana/hash
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oil/hashish and disorderly conduct in 1997. He also had multiple charges
including rioting, battery, battery resulting in bodily injury, which were either
dismissed, resulted in no action taken, or in which prosecution was rejected. As
an adult, Nelson has convictions for two counts of resisting law enforcement as
class D felonies, failure to stop after an accident as a class B misdemeanor, and
possession of marijuana/hash oil/hashish as a class A misdemeanor in 2000;
resisting law enforcement as a class A misdemeanor in 2001; auto
theft/receiving stolen parts as a class D felony, two counts of criminal trespass
as class A misdemeanors, and resisting law enforcement as a class A
misdemeanor in 2002; possession of marijuana/hash oil/hashish as a class A
misdemeanor, operating a motor vehicle without ever receiving a license as a
class C misdemeanor, criminal recklessness, and carrying a handgun without a
license as a class A misdemeanor in 2003; possession of cocaine or a schedule I
or II drug as a class D felony, robbery as a class C felony, intimidation as a class
C felony, intimidation as a class D felony, criminal confinement as a class D
felony, and battery as a class A misdemeanor in 2005; operating a vehicle while
intoxicated in 2006; strangulation as a class D felony in 2010; strangulation as a
class D felony and domestic battery as a class A misdemeanor in 2011;
operating while intoxicated endangering a person and criminal conversion as
class A misdemeanors in 2012; and two counts of counterfeiting as class D
felonies in 2014. The PSI also listed pending charges of residential entry as a
level 6 felony and criminal mischief as a class B misdemeanor in Marion
County under cause number 49G04-1707-F6-27563 (“Cause No. 63”). At the
sentencing hearing, Nelson pled guilty to residential entry as a level 6 felony
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related to events on July 23, 2017, under Cause No. 63, the State dismissed the
remaining count, and the court ordered the sentence under Cause No. 63 be
served concurrently with the sentence under the present case. The PSI
summarizes Nelson’s adult history as including twenty-seven arrests resulting in
nine misdemeanor convictions and nine felony convictions. Nelson had his
probation revoked multiple times. The PSI states that the DOC records
indicate forty-five incidents including fighting and disorderly conduct.
[17] The PSI further indicates Nelson first consumed alcoholic beverages at the age
of sixteen, used marijuana prior to his incarceration whenever he had the
money or was around someone who had it, and used cocaine in the amount of
one-half ounce a week prior to his arrest. The PSI states that, regarding any
substance abuse treatment, he “replied, ‘just last year when I was in CCA,’” but
it also states that he claimed he never sought substance abuse treatment. Id. at
104. The PSI indicates that he has a fifteen-year-old daughter who lives with
her mother in Anderson and a one-year-old daughter who lives in foster care.
He advised that he was not ordered to pay child support for his children. The
PSI indicates that his overall risk assessment score places him in the very high
risk to reoffend category.
[18] After due consideration and in light of his lengthy criminal history, we
conclude that Nelson has not sustained his burden of establishing that his
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aggregate sentence is inappropriate in light of the nature of the offenses and his
character. 2
[19] For the foregoing reasons, we affirm Nelson’s sentence.
[20] Affirmed.
Altice, J., and Tavitas, J., concur.
2
To the extent Nelson argues the court abused its discretion by finding that he violated the conditions of
pretrial release as an aggravator, we need not address this issue because we find that his sentence is not
inappropriate under Ind. Appellate Rule 7(B). See Windhorst v. State, 868 N.E.2d 504, 507 (Ind. 2007)
(holding that, in the absence of a proper sentencing order, Indiana appellate courts may either remand for
resentencing or exercise their authority to review the sentence pursuant to Ind. Appellate Rule 7(B)), reh’g
denied; Shelby v. State, 986 N.E.2d 345, 370 (Ind. Ct. App. 2013) (holding that “even if the trial court did
abuse its discretion by failing to consider the alleged mitigating factor of residual doubt, this does not require
remand for resentencing”), trans. denied; Chappell v. State, 966 N.E.2d 124, 134 n.10 (Ind. Ct. App. 2012)
(holding that any error in sentencing is harmless if the sentence imposed is not inappropriate), trans. denied;
Mendoza v. State, 869 N.E.2d 546, 556 (Ind. Ct. App. 2007) (citing Windhorst and holding that, “even if the
trial court is found to have abused its discretion in the process it used to sentence the defendant, the error is
harmless if the sentence imposed was not inappropriate”), trans. denied.
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