Dillon G. Jackson v. State of Indiana (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Jun 18 2020, 6:27 am
regarded as precedent or cited before any
CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Joseph P. Hunter Curtis T. Hill, Jr.
Quirk and Hunter, P.C. Attorney General of Indiana
Muncie, Indiana
Benjamin J. Shoptaw
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Dillon G. Jackson, June 18, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-3079
v. Appeal from the Delaware Circuit
Court
State of Indiana, The Honorable Thomas A.
Appellee-Plaintiff. Cannon, Jr., Judge
Trial Court Cause No.
18C05-1707-MR-5
Najam, Judge.
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Statement of the Case
[1] Dillon Jackson appeals his sentence following his convictions for reckless
homicide, a Level 5 felony, and pointing a firearm, as a Level 6 felony,
following a jury trial. Jackson presents two issues for our review:
1. Whether the trial court abused its discretion when it
sentenced him.
2. Whether the trial court erred when it did not apply the
sentencing cap under Indiana Code Section 35-50-1-2.
[2] We affirm.
Facts and Procedural History
[3] In July 2017, Jackson and Tracy Wheat were best friends and roommates.
During the evening of July 22 and the early morning hours of July 23, Jackson,
Wheat, Jacob Knight, and Storm Rollins were drinking alcohol and smoking
marijuana at Jackson and Wheat’s home in Muncie. At approximately 5:00
a.m., Knight found Jackson and Wheat in the kitchen, and he saw Wheat grab
a knife sharpener. In response, Jackson shot Wheat in the head from close
range. Knight told Jackson to call 9-1-1, which Jackson did after some delay.
Wheat was still alive when Delaware County Sheriff’s Deputy Grant Delagarza
arrived at the scene. EMTs transported Wheat to the local hospital, and he was
placed on life support. After consulting with the doctors, Wheat’s parents took
him off of life support and he died.
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[4] The State charged Jackson with felony murder and pointing a firearm, as a
Level 6 felony. A jury found Jackson guilty of reckless homicide, a Level 5
felony, and pointing a firearm, as a Level 6 felony. The trial court entered
judgment of conviction accordingly and sentenced Jackson to consecutive terms
of six years for reckless homicide and two years for pointing a firearm, for an
aggregate eight-year term. This appeal ensued.
Discussion and Decision
Issue One: Abuse of Discretion in Sentencing
[5] Jackson first contends that the trial court abused its discretion when it
sentenced him. Sentencing decisions lie within the sound discretion of the trial
court. Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008). An abuse of
discretion occurs if the decision is “clearly against the logic and effect of the
facts and circumstances before the court, or the reasonable, probable, and actual
deductions to be drawn therefrom.” Gross v. State, 22 N.E.3d 863, 869 (Ind. Ct.
App. 2014) (citation omitted), trans. denied.
[6] A trial court abuses its discretion in sentencing if it does any of the following:
(1) fails “to enter a sentencing statement at all;” (2) enters “a
sentencing statement that explains reasons for imposing a
sentence—including a finding of aggravating and mitigating
factors if any—but the record does not support the reasons;” (3)
enters a sentencing statement that “omits reasons that are clearly
supported by the record and advanced for consideration;” or (4)
considers reasons that “are improper as a matter of law.”
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Id. (quoting Anglemyer v. State, 868 N.E.2d 482, 490-91 (Ind.), clarified on reh’g on
other grounds, 875 N.E.2d 218 (Ind. 2007)).
[7] In its sentencing statement, the trial court identified the following mitigators:
Jackson’s youth (twenty-two); he has the emotional and personal support of
family and friends; he was gainfully employed; and he is remorseful. In
addressing aggravating factors, the court stated in relevant part as follows:
The sentencing range for an adult convicted of Reckless
Homicide, as a Level 5 felony, is one (1) to six (6) years, with the
advisory sentence being three (3) years. The sentencing range for
an adult convicted of Pointing a Firearm, as a Level 6 felony, is
six (6) months to two and one-half (2 1/2) years, with the
advisory sentence being one (1) year.
The Court determines the statutory aggravator set forth in I.C.
35-38-1-7.1(a)(1) is applicable in this case. It reads: “The harm,
injury, loss, or damage suffered by the victim of an offense was
(a) significant, and (b) greater than the elements necessary to
prove the commission of the offense.” Tracy Wheat died as a
consequence of the defendant’s reckless actions after lingering at
death’s door for many hours, hooked up to tubes and machines
artificially keeping him alive, all the while suffering the
indignities inherent in such a prolonged process. Tracy Wheat
was nineteen (19) years old at the time of his death, preventing
him from experiencing his entire adult life, which includes
knowing and raising his son who was born months after his
death.
Apart from the listed statutory aggravating circumstance, there
are several non-statutory aggravators that the Court considers to
be significant.
The death of Tracy Wheat was particularly devastating to the
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family members, relatives, and friends he left behind. His death
was senseless and tragic, leaving those that loved him
understandably deeply grieving over his loss. His absence and
their thoughts as to what might have been the future for and with
him can never be satisfactorily remedied.
The defendant, after he shot Tracy Wheat, took steps to conceal
his crime, including delaying in calling 911, calling his father,
instructing others present at the scene to leave and to provide
false information to the authorities if contacted, and he also
provided false and misleading information during the
investigation.
The defendant has significant substance abuse issues which he
not only has failed to address voluntarily, but also he seems to
deny. As self-reported in the presentence investigation report, the
defendant began drinking alcohol and smoking marijuana at age
fourteen (14); at age eighteen (18) he began snorting cocaine and
hydrocodone; then, at age nineteen (19) he “experimented” with
ingesting LSD/acid. His alcohol use is advanced enough that he
reports experiencing hangovers and headaches, vomiting, passing
out, blackouts, and engaging in morning drinking, all common
symptoms of the disease of alcoholism. Incredibly, the defendant
concludes that his drug abuse is “recreational use.” The
defendant’s substance abuse was a significant aggravating factor
in the crimes for which he has been convicted, yet the defendant
has been unable or unwilling to recognize his problem. Available
at the Delaware County Jail are addictions recovery programs,
yet there is no evidence that the defendant has taken any steps to
avail himself of any of these programs.
The facts of this case are particularly disturbing. In the six hours
leading up to the death of Tracy Wheat, there occurred repeated
acts of reckless behavior primarily orchestrated by the defendant.
Five underage teenagers gathered at the defendant’s residence for
a night of drinking and smoking marijuana. A half-gallon of
alcohol was consumed and a substantial amount of marijuana
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was smoked. The defendant and one of the other partygoers
fired their guns outside randomly towards a wooded area on the
property. The defendant was waving his father’s new gun
around, and passing the gun around even though it was still
loaded with one round of ammunition and ended up pointing it
at Tracy Wheat. Later, the defendant took the gun, chambered
the last bullet remaining in the gun, and went outside to confront
the occupants of an automobile that pulled up in his driveway
and after determining that they were not a threat, did not
unload his gun, nor put it up. Thereafter, he had this locked and
loaded weapon in his hand when it went off striking the fatal
wound to Tracy Wheat’s head literally at point blank range. The
defendant then took various actions to cover up what had
occurred as previously mentioned.
The defendant was in a position of trust with Tracy Wheat by his
own description of their relationship. The evidence introduced
during the trial showed that the Defendant and Tracy were not
just friends, but more accurately viewed each other as brothers.
The relationship that existed between these two clearly shows a
position of trust between them. The Defendant’s actions were a
complete betrayal of the friendship that he had with Tracy. As
such, it should be considered as an aggravating circumstance.
Finally, the defendant’s character, at least at this point in his life,
can be summed up by noting his agreement, as set out in the
presentence report, with the phrase, “Do Unto Others Before
They Do Unto You.” From the facts and evidence involved in
this case, the defendant seems to possess personality
characteristics that are self-indulgent, and lacking in self-
awareness and impulse control. The Court concludes that the
defendant appears to be obsessed with guns and violence and
until he recognizes the effect of his substance abuse issues it is
likely that he continues to present a danger to others in the
community.
The Court recognizes and understands the elements of Reckless
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Homicide, but under the facts of this case believes the
recklessness element proved at trial involves reckless conduct to
the extreme.
Having considered the nature of the offenses and the character of
the defendant, the Court believes the aggravating circumstances
outweigh the mitigating circumstances and strongly balance in
support of a fully enhanced sentence. Anything less than a fully
executed sentence would diminish the unpardonable conduct of
the defendant, and alternative sentencing options are simply not
appropriate.
Appellant’s App. Vol. 3 at 73-76.
[8] On appeal, Jackson asserts that the trial court abused its discretion when it:
considered the material elements of reckless homicide as an aggravator;
considered the impact of Wheat’s death on his family as an aggravator; and
“overlooked significant mitigating circumstances in sentencing” him.
Appellant’s Br. at 18. We address each contention in turn.
Material Elements of the Offense
[9] Jackson’s argument on this issue is three sentences long:
That “Tracy Wheat died as a consequence of [Jackson’s] reckless
actions” are the material elements of the offense of reckless
homicide. A trial court may not use a material element of the
offense as an aggravating circumstance. Spears v. State, 735
N.E.2d 1161, 1167 (Ind. 2000). However, the trial court may
find the nature and circumstances of the offense to be an
aggravating circumstance. Id. (citing Dowdell v. State, 720 N.E.2d
1146, 1154 (Ind. 1999).
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Appellant’s Br. at 16.
[10] Jackson takes the court’s statement on this issue out of context and
mischaracterizes it. The full context of the court’s identification of this
aggravator is as follows:
The Court determines the statutory aggravator set forth in I.C.
35-38-1-7.1(a)(1) is applicable in this case. It reads: “The harm,
injury, loss, or damage suffered by the victim of an offense was
(a) significant, and (b) greater than the elements necessary to
prove the commission of the offense.” Tracy Wheat died as a
consequence of the defendant’s reckless actions after lingering at
death’s door for many hours, hooked up to tubes and machines
artificially keeping him alive, all the while suffering the
indignities inherent in such a prolonged process. Tracy Wheat
was nineteen (19) years old at the time of his death, preventing
him from experiencing his entire adult life, which includes
knowing and raising his son who was born months after his
death.
Appellant’s App. Vol. 3 at 73. Thus, rather than merely relying on the elements
of reckless homicide, the trial court found that Wheat’s prolonged death and
young life cut short were significant harms and greater than the elements
necessary to prove reckless homicide. We cannot say that the court abused its
discretion when it found this aggravator.
Impact on Family
[11] Jackson asserts that the trial court erred when it found aggravating the impact
of Wheat’s death on his family and friends. Jackson is correct that “under
normal circumstances the impact upon family is not an aggravating
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circumstance for purposes of sentencing.” Bacher v. State, 686 N.E.2d 791, 801
(Ind. 1997). As such, we agree with Jackson that this aggravator is improper.
However, it is well settled that a court’s reliance on an improper aggravator is
harmless unless the defendant can show that the trial court would have imposed
a different sentence absent the aggravator. See Kayser v. State, 131 N.E.3d 717,
722 (Ind. Ct. App. 2019). And here, there were multiple other valid
aggravating factors upon which the trial court relied in imposing Jackson’s
sentence. Thus, we are confident that the trial court would have rendered the
same sentence irrespective of this aggravator.
Overlooked Mitigator
[12] Jackson contends that the trial court erred when it did not consider his lack of
criminal history to be a mitigating factor. But Jackson ignores the trial court’s
statement indicating its reasons for not finding this proffered mitigator. As the
court found,
[a]lthough his felony convictions in this case are his first formal
charges and convictions, his lifestyle choices have included
criminal activities involving underage drinking and the illegal use
and possession of drugs, and therefore it is a fiction to find that
the defendant has led a law-abiding life for a substantial period of
time before the commission of the crime.
Appellant’s App. Vol. 3 at 72. The trial court did not err when it did not find
Jackson’s lack of criminal history to be a mitigating factor. See Conley v. State,
972 N.E.2d 864, 874 (Ind. 2012) (noting defendant’s lack of criminal history
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was “offset by his actual criminal behavior of smoking marijuana and drinking
alcohol”).
Issue Two: Episode of Criminal Conduct
[13] Finally, Jackson contends that, under Indiana Code Section 35-50-1-2 (2017),
the trial court was required to cap his sentence at seven years. That statute
provides in relevant part as follows:
(b) As used in this section, “episode of criminal conduct” means
offenses or a connected series of offenses that are closely related
in time, place, and circumstance.
(c) [The court shall] determine whether terms of imprisonment
shall be served concurrently or consecutively. . . .
***
The court may order terms of imprisonment to be served
consecutively even if the sentences are not imposed at the same
time. However, except for crimes of violence, the total of the
consecutive terms of imprisonment, exclusive of terms of
imprisonment under IC 35-50-2-8 and IC 35-50-2-10 (before its
repeal) to which the defendant is sentenced for felony convictions
arising out of an episode of criminal conduct shall not exceed the
period described in subsection (d).
(d) Except as provided in subsection (c), the total of the
consecutive terms of imprisonment to which the defendant is
sentenced for felony convictions arising out of an episode of
criminal conduct may not exceed the following:
***
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(2) If the most serious crime for which the defendant
is sentenced is a Level 5 felony, the total of the
consecutive terms of imprisonment may not exceed
seven (7) years.
I.C. § 35-50-1-2.
[14] Jackson asserts that, pursuant to this statute, his aggregate sentence for his
convictions for reckless homicide (a crime of violence) and pointing a firearm
(not a crime of violence) cannot exceed seven years. But, as the State correctly
points out, our Supreme Court has squarely rejected Jackson’s contention on
this issue. In Ellis v. State, the Court “interpreted the statute to exempt from the
sentencing limitation (1) consecutive sentencing among crimes of violence, and
(2) consecutive sentencing between a crime of violence and those that are not crimes of
violence.” 736 N.E.2d 731, 737 (Ind. 2000) (emphases added). Accordingly,
here, the trial court’s imposition of an eight-year aggregate sentence was not
error.
[15] Affirmed.
Kirsch, J., and Brown, J., concur.
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