Raymond Lee Montgomery v. State of Indiana (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Dec 11 2020, 8:41 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Christopher Kunz Curtis T. Hill, Jr.
Marion County Public Defender Attorney General of Indiana
Indianapolis, Indiana
Megan M. Smith
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Raymond Lee Montgomery, December 11, 2020
Appellant-Defendant, Court of Appeals Case No.
20A-CR-183
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Shatrese Flowers,
Appellee-Plaintiff Judge
The Honorable James Snyder,
Commissioner
Trial Court Cause No.
49G02-1902-F3-5674
May, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-183 | December 11, 2020 Page 1 of 8
[1] Raymond Lee Montgomery appeals his sentence for Level 3 felony robbery
resulting in bodily injury 1 and Class A misdemeanor interfering with the
reporting of a crime. 2 Montgomery contends his twelve-year sentence is
inappropriate given the nature of his offenses and his character. We affirm.
Facts and Procedural History
[2] In the early morning of February 11, 2019, Patrick Connors exited his
Indianapolis apartment to go to work. As he was walking down the stairs
inside the apartment building, Connors noticed a man he did not recognize,
later identified as Montgomery, standing at the bottom of the stairwell.
Connors grew concerned because he did not believe Montgomery was a
resident of the apartment building. Upon approaching Montgomery, Connors
informed him that “[he couldn’t] be in here,” (Tr. Vol. II at 68), and
Montgomery replied that he was waiting for his ride to arrive. At the bottom of
the stairwell Connors repeated his statement that Montgomery could not be in
the building, and Montgomery began “talking really crazily.” (Id. at 69.)
[3] When Connors took out his cellphone to call the police, Montgomery lunged
toward the cellphone in Connors’ hand and pulled on Connors’ shirt. Connors
lost his balance, fell, and hit his head on the corner of the wall, which resulted
1
Ind. Code § 35-42-5-1(a)(1).
2
Ind. Code § 35-45-2-5(1).
Court of Appeals of Indiana | Memorandum Decision 20A-CR-183 | December 11, 2020 Page 2 of 8
in a laceration and profuse bleeding. As Connors lay on the ground, a struggle
ensued for his cellphone. Connors kicked at Montgomery to ward him off, but
Montgomery hit Connors, grabbed the cellphone, and also took a pack of
cigarettes that had fallen out of Connors’ pocket.
[4] Montgomery left the building through the back door, and Connors used a
neighbor’s phone to contact the police. Relying on Connors’ description of
Montgomery, police located Montgomery within thirty minutes. The police did
not find the cellphone when they searched Montgomery, but they did find a
pack of cigarettes that matched the brand Connors regularly smoked. The
Marion County Crime Lab analyzed a smear of blood found on the pack of
cigarettes and determined the blood matched Connors’ DNA.
[5] On February 13, 2019, the State charged Montgomery with Level 3 felony
robbery resulting in bodily injury, Class A misdemeanor battery resulting in
bodily injury, 3 and Class A misdemeanor interfering with the reporting of a
crime. During trial on October 30, 2019, a jury found Montgomery guilty of all
counts, but the trial court vacated Montgomery’s battery conviction due to
double jeopardy concerns. On December 18, 2019, the trial court sentenced
Montgomery to a term of twelve years for the Level 3 felony conviction, with
nine years of that sentence to be executed in the Department of Correction.
The court suspended the remaining three years and ordered Montgomery to
3
Ind. Code § 35-42-2-1(c)(1).
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serve two of the three suspended years on probation. The trial court also
imposed a 365-day sentence for the Class A misdemeanor and ordered the
sentence to be served concurrent with Montgomery’s sentence for robbery
resulting in bodily injury.
Discussion and Decision
[6] We will reverse Montgomery’s sentence as inappropriate only if we determine
his sentence is inappropriate in light of both the nature of his offenses and his
character. See Ind. Appellate Rule 7(B) (“the Court may 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”). The nature of the offense analysis
compares the defendant’s actions with the required showing to sustain a
conviction under the charged offense, Cardwell v. State, 895 N.E.2d 1219, 1224
(Ind. 2008), while the character of the offender analysis permits broader
consideration of a defendant’s character. Douglas v. State, 878 N.E.2d 873, 881
(Ind. Ct. App. 2007).
[7] Ultimately, our determination of appropriateness “turns on our sense of 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,
895 N.E.2d at 1224. In maintaining the special deference given to the trial
court, we recognize that the task at hand is not to evaluate whether another
sentence within the prescribed sentencing range is more appropriate, but rather
Court of Appeals of Indiana | Memorandum Decision 20A-CR-183 | December 11, 2020 Page 4 of 8
whether the sentence imposed by the trial court is inappropriate. Barker v. State,
994 N.E.2d 306, 315 (Ind. Ct. App. 2013), trans. denied. The defendant
ultimately bears the burden of demonstrating the inappropriateness of the
sentence. Patterson v. State, 909 N.E.2d 1058, 1063 (Ind. Ct. App. 2009).
[8] When considering the nature of the offense, the advisory sentence is the starting
point for determining the appropriateness of a given sentence. Anglemyer v.
State, 868 N.E.2d 482, 494 (Ind. 2007), clarified on reh’g 878 N.E.2d 218 (Ind.
2007). The advisory sentence for a Level 3 felony is nine years, with a
sentencing range between three and sixteen years. Ind. Code § 35-50-2-5. For
Montgomery’s Level 3 felony robbery resulting in bodily injury the trial court
imposed a twelve-year sentence, which is within the sentencing range for his
offense but above the advisory sentence. In addition, Montgomery was
convicted of Class A misdemeanor interfering with the reporting of a crime and
sentenced to 365-days; the maximum sentence for a Class A misdemeanor is
one year. Ind. Code § 35-50-3-2.
[9] Montgomery argues that he was not doing anything wrong by being inside the
apartment building when he was confronted by Connors and that he did not
plan to commit the robbery or cause injury to Connors. We are not persuaded
by Montgomery’s attempts at self-exculpation or his lack of accountability.
Connors had been a resident of his apartment building for twenty-five years,
and thus he likely would have taken notice of any unauthorized persons idling
in the stairwell in the early morning. Connors provided two opportunities for
Montgomery to leave the building or explain his business or associations in the
Court of Appeals of Indiana | Memorandum Decision 20A-CR-183 | December 11, 2020 Page 5 of 8
apartment building. Montgomery responded by attacking Connors when he
attempted to contact the police. Although Montgomery claims that he was
“not doing anything illegal” by being present inside the apartment building,
(Appellant’s Br. at 12), he prevented Connors from calling the police when
confronted and questioned.
[10] Moreover, rather than leaving immediately when Conners fell, Montgomery
continued to struggle with Connors, who was bleeding profusely from his head
injury, and ultimately took Conners’ cellphone and cigarettes. Montgomery
claims he “panicked and spontaneously robbed Connors.” (Id. at 10.) While
Montgomery may have panicked, we find implausible his assertion that panic
leads to, or could excuse, his robbery of Conners. Although Montgomery
argues that his “robbery was not planned,” (id. at 12), and the State also
acknowledged that Montgomery may not have intended or planned to rob
Connors at the outset of the altercation, (Tr. Vol. II. at 132), we cannot
overlook that Montgomery did not simply walk out of the building after
injuring Connors; instead, Montgomery took the time to grab the cellphone and
a pack of cigarettes that fell out of Connors’ pocket, despite allegedly being in a
state of panic.
[11] When considering the character of the offender, one relevant fact is the
defendant’s criminal history. Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct.
App. 2007). Although the extent to which a defendant’s criminal history may
be used to guide an appropriate sentence “varies based on the gravity, nature,
and number of prior offenses in relation to the current offense,” Wooley v. State,
Court of Appeals of Indiana | Memorandum Decision 20A-CR-183 | December 11, 2020 Page 6 of 8
716 N.E.2d 919, 929 (Ind. 1999), repeated contacts with the criminal justice
system generally reflect poorly on the defendant’s character, because such
contacts suggest the defendant “has not been deterred [from further criminal
behavior] even after having been subjected to the police authority of the State.”
Cotto v. State, 829 N.E.2d 520, 526 (Ind. 2005).
[12] Montgomery’s criminal history includes one felony conviction and ten
misdemeanor convictions, in addition to his adjudication as a delinquent child
twice for possession of marijuana and resisting law enforcement beginning at
fifteen years old. His convictions range from Level 6 felony battery resulting in
moderate bodily injury 4 to Class B misdemeanor disorderly conduct. 5 Also
reflecting negatively on Montgomery’s character is that, when he committed
the present offense, Montgomery had a probation revocation pending in
Indiana for “groping a woman’s breast” in the Indianapolis Circle Center Mall,
(Tr. Vol. II at 157), and an active warrant in Minnesota. See Barber v. State, 863
N.E.2d 1199, 1208 (Ind. Ct. App. 2007) (the commission of an offense while on
probation is a “significant aggravator”), trans. denied. While the trial court
noted Montgomery’s struggles with mental illness, addiction, and
homelessness, it also recognized Montgomery’s failed prior attempts at
rehabilitation, specifically that he has had his probation revoked on two other
occasions, which indicates a continued disregard for the law despite having
4
Ind. Code § 35-42-2-1(c)(1).
5
Ind. Code § 35-45-1-3(a)(1).
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been provided leniency by a trial court. See Littrell v. State, 15 N.E.3d 646, 652-
653 (Ind. Ct. App. 2014) (defendant’s inability to complete drug treatment
programs and the presence of petitions to revoke defendant’s probation confirm
appropriateness of sentence).
[13] Neither Montgomery’s assertions about the nature of his offenses nor his
character, in light of his criminal history and failure to take advantage of prior
opportunities to modify his behavior, convince us that Montgomery’s twelve-
year sentence, with three years suspended, is inappropriate for his crimes. See
Sainvil v. State, 51 N.E.3d 337, 344 (Ind. Ct. App. 2016) (defendant’s sentence
for cocaine possession found to be appropriate where defendant had been
granted leniency in sentencing on previous occasions, without modification of
behavior).
Conclusion
[14] Montgomery’s claim of a “spontaneous” and “unplanned” robbery is counter to
the facts presented and unpersuasive as an excuse. Montgomery’s sentence is
not inappropriate given his previous criminal history of related offenses
demonstrating a lack of deterrence from crime, particularly given his failure to
successfully complete probation on multiple occasions. Accordingly, we affirm.
[15] Affirmed.
Riley, J., and Altice, J., concur.
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