Andre Glenn 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 Jun 10 2020, 9:30 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 ATTORNEY FOR APPELLEE
Jessica L. Richert Marjorie Lawyer-Smith
Richmond, Indiana Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Andre Glenn, June 10, 2020
Appellant-Defendant, Court of Appeals Case No.
20A-CR-64
v. Appeal from the Wayne Circuit
Court
State of Indiana, The Honorable David A. Kolger,
Appellee-Plaintiff. Judge
Trial Court Cause No.
89C01-1708-F4-31
Mathias, Judge.
[1] Andre Glenn (“Glenn”) was convicted in Wayne Circuit Court of Level 4
felony possession of a firearm by a serious violent felon. He appeals his five-
year sentence arguing that it is inappropriate in light of the nature of the offense
and the character of the offender.
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[2] We affirm.
Facts and Procedural History
[3] On August 1, 2017, during a traffic stop, law enforcement officers discovered a
handgun in Glenn’s vehicle. Glenn did not have a license for the handgun, and
law enforcement also determined that Glenn had a prior attempted murder
conviction. On August 3, 2017, Glenn was charged with Level 4 felony
possession of a firearm by a serious violent felon.
[4] On August 26, 2019, Glenn pleaded guilty in open court without the benefit of
a plea agreement. Glenn’s sentencing hearing was held on November 14, 2019.
[5] At sentencing, Glenn told the trial court that he was the victim of burglary and
attempted murder in 2016, and that he still receives threats from individuals
associated with his assailants. As a result, he moved from Gary to Richmond,
Indiana. He admitted to feeling paranoid about his and his family’s safety,
which is the reason he possessed the handgun. Also, Glenn’s employer testified
on his behalf and described him as an “exemplary employee” who is “kind to
others.” Tr. p. 20. His employer stated that he had intended to promote Glenn.
Tr. p. 24.
[6] While he was out on bond for this offense, Glenn was arrested for conversion
and resisting arrest. He pleaded guilty to conversion, and the resisting charge
was dismissed. Glenn’s prior criminal history also consists of attempted
murder, misdemeanor carrying a handgun without a license, misdemeanor false
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informing, and a probation violation. He also had juvenile adjudications for
burglary and conversion.
[7] The trial court considered Glenn’s prior criminal history and commission of a
criminal offense while he was out on bond in this case as aggravating
circumstances. Tr. pp. 47–48. The court considered Glenn’s guilty plea as a
mitigating circumstance but noted that the case pended for two years and his
jury trial was scheduled to begin just two weeks after he pleaded guilty. The
court also considered Glenn’s fear for his safety after he was the victim of a
crime as a mitigating circumstance. After weighing the aggravators and
mitigators, the trial court ordered Glenn to serve five years executed in the
Department of Correction for his Level 4 felony possession of a firearm by a
serious violent felon conviction. Glenn appeals his sentence.
Discussion and Decision
[8] Pursuant to Indiana Appellate Rule 7(B), “[t]he 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.” We must exercise deference to a trial court’s
sentencing decision because Rule 7(B) requires us to give due consideration to
that decision, and we understand and recognize the unique perspective a trial
court brings to its sentencing decisions. Rose v. State, 36 N.E.3d 1055, 1063 (Ind.
Ct. App. 2015). “Such 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
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character (such as substantial virtuous traits or persistent examples of good
character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015).
[9] The determination of whether we regard a sentence as inappropriate “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.” Bethea v. State, 983 N.E.2d 1134, 1145 (Ind. 2013) (quoting Cardwell v.
State, 895 N.E.2d 1219, 1224 (Ind. 2008)). The appropriate question is not
whether another sentence is more appropriate, but whether the sentence
imposed is inappropriate. Rose, 36 N.E.3d at 1063.
[10] Although we have the power to review and revise sentences, the principal role
of appellate review should be to attempt to “leaven the outliers, and identify
some guiding principles for trial courts and those charged with improvement of
the sentencing statutes, but not to achieve a perceived ‘correct’ result in each
case.” Cardwell, 895 N.E.2d at 1225. Our review under Rule 7(B) should focus
on “the forest—the aggregate sentence—rather than the trees—consecutive or
concurrent, number of counts, or length of the sentence on any individual
count.” Id. And 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).
[11] Glenn was convicted of Level 4 felony possession of a firearm by a serious
violent felon. Indiana Code section 35-50-2-5.5 provides that “[a] person who
commits a Level 4 felony shall be imprisoned for a fixed term of between two
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(2) and twelve (12) years, with the advisory sentence being six (6) years.”
Glenn’s five-year sentence is one year less than the advisory sentence for a
Level 4 felony. Glenn argues that his sentence should be reduced and/or he
should be sentenced to serve a portion of his sentence in home detention or
probation.
[12] Concerning the nature of his offense, Glenn correctly observes that his offense
did not cause damage to property or injury to any person. Glenn admits, as he
did to the trial court, that he made a poor choice in obtaining a handgun when
his prior felony conviction prevented him from doing so legally. We agree that
there is nothing aggravating in the circumstances surrounding Glenn’s offense.
[13] Glenn also argues that his five-year sentence is inappropriate in light of his
character because he accepted responsibility for his crime, he expressed
remorse, and he had stable employment. The trial court noted his expression of
remorse and commended Glenn for respectful behavior toward law
enforcement officers and court personnel. Glenn’s exemplary employment for
his most recent employer also reflects well on his character.
[14] Glenn has been surrounded by violence most of his life. In 2016, he was the
victim of a crime and continued to fear for his safety. Smartly, Glenn moved his
family from Gary to Richmond because of the continued threats toward his life.
But Glenn is a serious violent felon, and his fear for his safety does not justify
his decision to illegally carry a handgun.
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[15] Furthermore, Glenn’s criminal history is not insignificant. Most troubling to the
trial court, Glenn committed conversion while he was out on bond for this
offense. And even though Glenn pleaded guilty to that offense, his recitation of
the offense to the trial court minimized his culpability.
[16] The trial court weighed all of these circumstances and imposed a five-year
sentence, which is one year less than the advisory sentence for a Level 4 felony.
Despite facts that reflect well on Glenn’s character, in light of his criminal
history and his commission of an additional offense while out on bond in this
case, we conclude that Glenn has not met his burden of persuading us that his
five-year sentence is an outlier that warrants revision by our court.
Conclusion
[17] For all of these reasons, we conclude that Glenn’s five-year sentence is not
inappropriate in light of the nature of the offense and the character of the
offender.
[18] Affirmed.
Riley, J., and Tavitas, J., concur.
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