Charles A. Pickering v. State of Indiana (mem. dec.) ( 2018 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Aug 10 2018, 6:00 am
regarded as precedent or cited before any CLERK
court except for the purpose of establishing Indiana Supreme Court
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
Marielena Duerring Curtis T. Hill, Jr.
South Bend, Indiana Attorney General of Indiana
Michael Gene Worden
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Charles A. Pickering, August 10, 2018
Appellant-Defendant, Court of Appeals Case No.
71A03-1711-CR-2785
v. Appeal from the St. Joseph
Superior Court
State of Indiana, The Honorable Elizabeth C.
Appellee-Plaintiff. Hurley, Judge
Trial Court Cause No.
71D08-1704-F3-24
Najam, Judge.
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Statement of the Case
[1] Charles Pickering appeals his sentence following his convictions for rape, as a
Level 3 felony, and battery, as a Level 6 felony. He presents a single issue for
our review, namely, whether his maximum sentence is inappropriate in light of
the nature of the offenses and his character. We affirm.
Facts and Procedural History
[2] On January 11, 2017, Pickering met S.B., a sixty-three-year-old homeless
woman, at a shelter in South Bend, and he invited her to come with him to an
apartment where he was staying. Pickering and S.B. drank some beer and
vodka, and then Pickering started to undress. S.B. told Pickering that she did
not want to have sex with him, but he grabbed her hair and forced her to
perform fellatio on him. Pickering hit S.B. hard in the face multiple times. S.B.
tried to push him away, and he eventually backed off. Approximately fifteen
minutes later, Pickering called S.B. a “b****” and forcibly removed her clothes.
Tr. Vol. II at 112. S.B. repeatedly told him “No,” but he attempted to have
anal sex with her. Id. When that was unsuccessful, Pickering forcibly
penetrated S.B.’s vagina with his penis. All the while, Pickering was pulling
S.B.’s hair and hitting her, and S.B. was telling him to stop.
[3] At some point, S.B. was able to dial 9-1-1 on her cell phone, but Pickering
grabbed her phone and threw it out of a window. S.B. finally made her way out
of the apartment, and she found a South Bend Police Officer. After she
informed the police officer of what had occurred, she was taken to a hospital
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where she was examined and treated for her several injuries. Officers then
obtained a warrant, found Pickering in the apartment, and arrested him.
[4] The State charged Pickering with three counts of rape, as Level 3 felonies, and
one count of battery, as a Level 6 felony. A jury found Pickering guilty of one
count of rape and battery but acquitted him on the other two counts of rape.
Following a sentencing hearing, the trial court sentenced Pickering to
consecutive executed sentences of sixteen years for the Level 3 felony and two
and one-half years for the Level 6 felony, for an aggregate sentence of eighteen
and one-half years. This appeal ensued.
Discussion and Decision
[5] Pickering asserts that his sentence is inappropriate in light of the nature of the
offenses and his character. As we have explained:
Indiana Appellate Rule 7(B) permits an Indiana appellate court
to “revise a sentence 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.” We assess the trial court’s
recognition or nonrecognition of aggravators and mitigators as an
initial guide to determining whether the sentence imposed was
inappropriate. Gibson v. State, 856 N.E.2d 142, 147 (Ind. Ct.
App. 2006). The principal role of appellate review is to “leaven
the outliers.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.
2008). A defendant must persuade the appellate court that his or
her sentence has met the inappropriateness standard of review.
Roush v. State, 875 N.E.2d 801, 812 (Ind. Ct. App. 2007).
Robinson v. State, 61 N.E.3d 1226, 1228 (Ind. Ct. App. 2016).
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[6] Here, the trial court imposed the maximum possible, fully executed sentence on
each conviction and ordered that the sentences run consecutively. Pickering
contends that the nature of the offenses does not support “the absolute
maximum allowed by law,” and he asks that we revise his aggregate sentence
down to twelve years. Appellant’s Br. at 10. And he asserts that his sentence is
inappropriate in light of his character because his criminal history does not
support the sentence imposed and because he has mental health and substance
abuse issues. Pickering maintains that he is not “the worst of the worst” and
does not, therefore, deserve the maximum sentence. Id. at 9.
[7] We first address Pickering’s contention that he is not “the worst of the worst.”
Id. As we have observed,
[a]lthough the maximum possible sentences are generally most
appropriate for the worst offenders, this rule is not an invitation
to determine whether a worse offender could be imagined, as it is
always possible to identify or hypothesize a significantly more
despicable scenario, regardless of the nature of any particular
offense and offender.
Kovats v. State, 982 N.E.2d 409, 416 (Ind. Ct. App. 2013). By stating that
maximum sentences are ordinarily appropriate for the “worst offenders,” we
refer generally to the class of offenses and offenders that warrant the maximum
punishment, which encompasses a considerable variety of offenses and
offenders. Id. Accordingly, “[w]e concentrate less on comparing the facts of
this case to others, whether real or hypothetical, and more on focusing on the
nature, extent, and depravity of the offense for which the defendant is being
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sentenced, and what it reveals about the defendant’s character.” Wells v. State,
904 N.E.2d 265, 274 (Ind. Ct. App. 2009), trans. denied.
[8] Here, regarding the nature of the offenses, Pickering acknowledges that rape “is
a serious offense which by its very nature carries with it emotional and physical
trauma to the victim.” Id. Further, S.B. testified that she feared for her life
during the attack. We cannot say that the nature of the offenses does not
support the maximum sentence.
[9] Regarding his character, Pickering’s criminal history includes twenty-two prior
convictions, including three felony burglary convictions, and probation
violations. Pickering suggests that, because his previous crimes “are mostly
misdemeanor convictions” and are “dissimilar” and not “close in proximity” to
the instant offenses, “the weight to which [his] criminal history should be given
is much less than what the trial court focused upon.” Id. at 8. But the sheer
number of convictions, coupled with probation violations, shows Pickering’s
consistent inability to lead a law-abiding life. Regarding his alleged mental
illness, beyond a statement in his presentence investigation report that he has
suffered from manic depression for many years, Pickering does not direct us to
any evidence to support his claim that he is mentally ill. And Pickering does
not explain how his history of substance abuse and consumption of alcohol on
the day of the offenses reflects positively on his character. We cannot say that
Pickering’s aggregate eighteen and one-half years executed sentence is
inappropriate in light of the nature of the offenses and his character, and we
affirm his sentence.
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[10] Affirmed.
Crone, J., and Pyle, J., concur.
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