Joseph Newcome 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 22 2020, 10:02 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
Devon M. Sharpe Curtis T. Hill, Jr.
Jenner & Pattison Attorney General of Indiana
Madison, Indiana
Evan Matthew Comer
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Joseph Newcome, June 22, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-2961
v. Appeal from the Jefferson Circuit
Court
State of Indiana, The Honorable Donald J. Mote,
Appellee-Plaintiff. Judge
Trial Court Cause No.
39C01-1905-F1-551
Mathias, Judge.
[1] Joseph Newcome was sentenced by the Jefferson Circuit Court to thirty-eight
years in the Department of Correction (“DOC”) following his plea of guilty but
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mentally ill to Level 1 felony attempted murder. On appeal, Newcome contends
that the sentence is inappropriate in light of the nature of the offense and his
character as an offender.
[2] We affirm.
Facts and Procedural History
[3] On May 3, 2019, Newcome and Jonathan Bell, coworkers at a factory in
Madison, Indiana, went together after their shift to Bell’s room at a local inn.
Newcome used methamphetamine and made a sexual advance on Bell, who
did not return the advance but allowed Newcome to stay in the room. After
some time, Newcome was overcome by anger, suspicion, and paranoia toward
Bell, who had fallen asleep on his bed with a sheathed knife attached to his belt.
Newcome texted his mother pictures of the sleeping Bell and stated he would
“fix [Bell’s] tune” and “just jump on him and get it fixed.” Ex. Vol., pp. 5–11.
Newcome ignored his mother’s advice to “chill.” Id. at 12.
[4] Newcome instead grabbed the knife from Bell’s belt and stabbed Bell three
times, in the abdomen and the arm. Newcome stole Bell’s paycheck before
fleeing the room. He discarded his shirt and encountered a neighbor, from
whom he demanded a new shirt to change into. The neighbor allowed
Newcome to use her phone and overheard Newcome say that he had “taken
care of it” and not to call the police. Appellant’s App. pp. 24–27. The neighbor
called the police after Newcome left and provided law enforcement with his
description.
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[5] Meanwhile, officers with the Jefferson County Sheriff’s Department responded
to a report of a stabbing at the inn and a suspect who had fled on foot. Bell was
found lying on his back, critically injured, and was transported via stat flight to
the University of Louisville hospital in Kentucky for emergency treatment.
There he underwent surgery to remove his right kidney, which had been
“completely shattered and lacerated almost in half,” and to partially resect his
small intestine, which had been perforated “through and through.” Confidential
Ex. Vol., pp. 20–21. Bell also suffered a lacerated liver, diaphragm injury, and
hematoma on the right side of his body. Id.
[6] Based on the neighbor’s description of the man who had entered her house to
change clothes, and on the eyewitness at the inn, officers identified Newcome
as the likely suspect in the stabbing. Law enforcement located Newcome’s
mother and reviewed their text messages from earlier that day. After changing
his shirt, Newcome had arrived at his mother’s workplace, and she gave him
money for food. Approximately five hours after his attack on Bell, Newcome
was apprehended in the parking lot of a local Burger King, where he had
bought a meal with the money from his mother. Bell’s paycheck was found in
Newcome’s possession. Newcome admitted to stabbing Bell during a
subsequent jail interview with a Madison City police detective.
[7] Newcome was charged on May 6, 2019, with Level 1 felony attempted murder,
Level 1 felony burglary, Level 3 felony aggravated battery, and an habitual
offender enhancement. The charges were later amended, with the State
omitting the burglary offense and adding two counts of Level 2 felony robbery,
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Level 4 felony burglary, and Class A misdemeanor theft. The trial court entered
an order appointing two mental health experts upon Newcome’s motion for
immediate hearing to determine his competency to stand trial, and it set the
competency hearing for August 26, 2019. Newcome was subsequently
examined by two disinterested professionals. Dr. Daniel Hackman, a forensic
psychiatrist, filed his report on August 19, which concluded that Newcome was
“capable of understanding the proceedings against him and assisting in the
preparation of his defense.” Appellant’s App. pp. 51–59. Dr. Stephanie
Callaway, a licensed clinical psychologist, filed her report on August 21,
similarly concluding that Newcome “has an understanding of the proceedings
and he has the ability to aid his attorney in his defense.” Id. at 60–66. Newcome
thus withdrew his competency motion on August 27.
[8] A plea agreement was filed with the court following a plea hearing on October
8, 2019. Newcome pleaded guilty but mentally ill to Level 1 felony attempted
murder, and the remaining charges were dismissed. The agreement left
sentencing to the discretion of the trial court, subject to the statutory penalty
range for that class of offense. On November 20, 2019, the trial court entered an
order on the plea and held Newcome’s sentencing hearing. Judgment of
conviction and a sentencing order were entered on November 22, with
Newcome ordered to serve a thirty-eight-year sentence in the DOC with no
time suspended. This appeal followed.
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Discussion and Decision
[9] Newcome’s sole contention on appeal is that his thirty-eight-year executed
sentence is inappropriate in light of the nature of his offense and his character as
an offender. Newcome was convicted of Level 1 felony attempted murder. The
sentencing range for a Level 1 felony conviction is between twenty and forty
years, with an advisory sentence of thirty years. Ind. Code § 35-50-2-4.
Newcome appeals for a downward revision of his sentence.
[10] Article 7, Sections 4 and 6 of the Indiana Constitution authorize “independent
appellate review and revision of a sentence imposed by the trial court.” Roush v.
State, 875 N.E.2d 801, 812 (Ind. Ct. App. 2007). This appellate authority is
exercised through Appellate Rule 7(B), which states that we “may revise a
sentence authorized by statute if, after due consideration of the trial court’s
decision, [this] Court finds that the sentence is inappropriate in light of the
nature of the offense and the character of the offender.”
[11] Indiana’s sentencing scheme allows trial courts to tailor appropriate sentences
based on the circumstances presented; accordingly, the trial court’s judgment
should receive “considerable deference” and our role upon appellate review is
to attempt to “leaven the outliers.” Cardwell v. State, 895 N.E.2d 1219, 1223,
1225 (Ind. 2008). Our review may include the aggravators and mitigators
identified by the trial court, in addition to any other pertinent factors in the
record, such as the “sense of the culpability of the defendant, the severity of the
crime, [and] the damage done to others.” Id. at 1224. We will not revise a
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sentence in the absence of compelling evidence that portrays in a positive light
the nature of the offense and the defendant’s character. Stephenson v. State, 29
N.E.3d 111, 122 (Ind. 2015). Furthermore, we do not probe whether the
defendant’s sentence is appropriate or if another sentence might be more
appropriate; rather, the test is whether the sentence imposed is inappropriate.
Fonner v. State, 876 N.E.2d 340, 344 (Ind. Ct. App. 2008). Thus, revision under
Rule 7(B) is proper only in “exceptional cases.” Livingston v. State, 113 N.E.3d
611, 613 (Ind. 2018). It is the defendant’s burden to persuade the Court that his
sentence meets the inappropriateness standard. Anglemyer v. State, 868 N.E.2d
482, 494 (Ind. 2007).
[12] In considering whether a sentence is inappropriate in light of the nature of the
offense, we compare the elements of the offense to the “details and
circumstances of the commission of the offense.” Townsend v. State, 45 N.E.3d
821, 831 (Ind. Ct. App. 2015), trans. denied. Newcome stabbed Bell while Bell
slept, causing significant injury that necessitated Bell’s ambulatory airlift to
receive critical care, including emergency surgery. Confidential Ex. Vol., pp.
20–21. Based on the evidence of Bell’s life-threatening injuries, the trial court
did not err in determining that the injury Newcome caused was “greater than
the elements necessary to prove the commission of [Level 1 felony attempted
murder].” Tr. p. 80. We note, too, the additional, disturbing circumstances of
Newcome’s attack on Bell that warrant an elevated sentence: Newcome’s texts
to his mother shortly before the attack are evidence of his awareness that Bell
could suffer serious injury; Bell’s inability, as he slept, to defend himself at the
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moment of Newcome’s attack; and Newcome’s opportunistic choice to steal
from Bell before fleeing the scene. Accordingly, nothing about the
circumstances of Newcome’s commission of Level 1 felony attempted murder
indicates that an above-advisory sentence of thirty-eight years is inappropriate.
See Reis v. State, 88 N.E.3d 1099 (Ind. Ct. App. 2017) (finding that the egregious
nature of an offense supports a sentence in excess of the advisory sentence).
[13] Newcome also contends that his character as an offender warrants a sentencing
revision. The character of a defendant as evidenced by his life and conduct is
relevant for sentencing purposes. Washington v. State, 940 N.E.2d 1220, 1222
(Ind. Ct. App. 2011), trans. denied. A defendant’s criminal history is part of our
consideration of his character under Appellate Rule 7(B). Pelissier v. State, 122
N.E.3d 983, 990 (Ind Ct. App. 2019), trans. denied. And it is well-settled that a
defendant’s criminal history varies in significance based upon the “gravity,
nature and number of prior offenses as they relate to the current offense.” Smith v.
State, 889 N.E.2d 261, 263 (Ind. 2008) (emphasis added) (internal quotation
marks and citation omitted).
[14] Here, Newcome admitted to being under the influence of methamphetamine
when he attacked his victim. Tr. pp. 31, 58. Newcome’s admission in the
instant case is only the most recent and egregious example of the nexus between
his drug use and his criminality: Newcome has past illegal-substance-related
misdemeanor convictions and a prior conviction for Class D felony unlawful
possession of a syringe, among others. Appellant’s App. pp. 119–20. That
Newcome was previously charged with Class A felony conspiracy to commit
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dealing in methamphetamine further reflects poorly on his character, as an
indication that past contact with the criminal justice system has not deterred
him from committing further criminal acts. See Cotto v. State, 829 N.E.2d 520,
526 (Ind. 2016).
[15] And, Newcome has not persuaded us, nor do the expert psychiatric reports
indicate, that aspects of his character, including his history of mental illness,
call for downward revision of his sentence. During sentencing, the trial court
appropriately considered Newcome’s mental illness a mitigating factor. Tr. pp.
79–80. On appeal, Newcome argues that his mental disorder diminishes his
culpability for the attack on Bell and thus should be considered as an aspect of
his character warranting a lesser sentence. Appellant’s Br. pp. 15–16. But the
results of Newcome’s psychiatric evaluations included the finding that
Newcome was not exhibiting “active or acute signs of mental disorder,” and
rather that the auditory hallucinations he claimed to have experienced at the
time of his attack were more likely an effect of his drug abuse. Appellant’s App.
p. 66. Based on Newcome’s admission that he was under the influence of
methamphetamine, there was no error in the trial court’s determination that the
significance of Newcome’s mental illness was diminished as a mitigating factor.
Accordingly, our review of Newcome’s character as an offender does not
indicate that an above-advisory sentence of thirty-eight years is inappropriate.
Conclusion
[16] Newcome’s argument that his thirty-eight-year sentence—two years shorter
than the maximum allowed by statute—amounted to a “de facto maximum
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sentence” is of no avail. Appellant’s Br. pp. 12, 14. Newcome has not
persuaded us that his thirty-eight-year sentence is inappropriate in light of the
nature of his offense and his character as an offender, such that it warrants
revision under Appellate Rule 7(B). Accordingly, we hold that Newcome’s
thirty-eight-year sentence is not inappropriate.
[17] Affirmed.
Riley, J., and Tavitas, J., concur.
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