Dennis D. Nelms 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 Nov 18 2020, 8:32 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Alexander W. Robbins Curtis T. Hill, Jr.
The Law Office of Alex Robbins Attorney General of Indiana
Bedford, Indiana
George P. Sherman
Supervising Deputy Attorney
General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Dennis D. Nelms, November 18, 2020
Appellant-Defendant, Court of Appeals Case No.
20A-CR-911
v. Appeal from the Morgan Superior
Court
State of Indiana, The Honorable Sara A. Dungan,
Appellee-Plaintiff. Judge
Trial Court Cause No.
55D03-1808-F3-1408
Pyle, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-911 | November 18, 2020 Page 1 of 6
Statement of the Case
[1] Dennis Nelms (“Nelms”) appeals, following a jury trial, the sentence imposed
following his convictions for Level 5 felony battery by means of a deadly
weapon1 and Level 6 felony possession of methamphetamine.2 Nelms argues
that the trial court abused its discretion by failing to find, as a mitigating
circumstance, that his incarceration would impose an undue financial hardship
on his family. Concluding that the trial court did not abuse its discretion, we
affirm his sentence.
[2] We affirm.
Issue
Whether the trial court abused its discretion by failing to find, as a
mitigating circumstance, that Nelms’ incarceration would impose
an undue financial hardship on his family.
Facts
[3] On August 19, 2018, Nelms stabbed Chad Williams twice in the chest with a
knife during an altercation at a bar in Mooresville. When officers responded to
the bar, they found methamphetamine in Nelms’ pocket.
1
IND. CODE § 35-42-2-1.
2
I.C. § 35-48-4-6.1.
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[4] On August 21, 2018, the State charged Nelms with Level 3 felony aggravated
battery, Level 5 felony battery by means of a deadly weapon, and Level 6 felony
possession of methamphetamine. The trial court held a three-day jury trial on
February 5-7, 2020. The jury found Nelms guilty of Level 5 felony battery by
means of a deadly weapon and Level 6 felony possession of methamphetamine
and not guilty of Level 3 felony aggravated battery.
[5] At the subsequent sentencing hearing, Nelms explained that he and his wife had
filed for bankruptcy protection. Nelms also testified that he was not currently
employed but anticipated working at a seasonal construction job in the future.
During the argument portion of the hearing, Nelms’ counsel argued that he
“believe[d] that there [was] a justification that [incarceration] could result in
undue hardship to [Nelms’] family[.]” (Tr. Vol. 4 at 77). In response, the State
argued that incarceration is an undue hardship for anyone who commits a
crime and is found guilty.
[6] In determining Nelms’ sentence, the trial court considered the Pre-Sentence
Investigation Report (“PSI”), which set forth Nelms’ criminal history that
included two convictions for Class A misdemeanor operating a vehicle while
intoxicated, one conviction for Class D felony operating a vehicle while
intoxicated, and one conviction for Level 6 felony intimidation. Additionally,
the PSI indicated that Nelms had been released on bond at the time he had
Court of Appeals of Indiana | Memorandum Decision 20A-CR-911 | November 18, 2020 Page 3 of 6
committed the instant offenses.3 The PSI also revealed that Nelms had been
unemployed since 2016 and that his wife had been the primary source of
income for the family. Furthermore, the PSI indicated that Nelms did not have
any dependent children but that his adult daughter and her two children resided
in the family home.
[7] Thereafter, the trial court identified Nelms’ criminal history and the fact that he
had violated pretrial release as aggravating circumstances. When discussing
mitigating circumstances, the trial court noted that Nelms had previously done
well on probation and community corrections in the past, which indicated that
he was likely to respond affirmatively to probation or short-term
imprisonment.4 Thereafter, the trial court sentenced Nelms to four (4) years,
with two (2) years executed in the Department of Correction and two (2) years
suspended to probation for his Level 5 felony conviction and a concurrent time
served sentence for his Level 6 felony conviction. Nelms now appeals.
Decision
[8] Nelms argues that the trial court abused its discretion when sentencing him.
Sentencing decisions rest within the sound discretion of the trial court.
3
At the time Nelms committed the instant offenses, he was pending charges of Level 6 felony intimidation,
Class B misdemeanor battery, and Class B misdemeanor disorderly conduct under cause number 55D03-
1804-F6-0615. Ultimately, Nelms was found guilty of Level 6 felony intimidation.
4
In its written sentencing order, the trial court stated that it did not find any statutory mitigating
circumstances.
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Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d
218 (Ind. 2007). So long as the sentence is within the statutory range, it is
subject to review only for an abuse of discretion. Id. An abuse of discretion
will be found where 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. Id. A trial court may abuse its discretion in
a number of ways, including: (1) failing to enter a sentencing statement; (2)
entering a sentencing statement that explains reasons for imposing a sentence
where the record does not support the reasons; (3) entering a sentencing
statement that omits reasons that are clearly supported by the record and
advanced for consideration; and (4) entering a sentencing statement in which
the reasons given are improper as a matter of law. Id. at 490-91.
[9] Here, Nelms contends that the trial court abused its discretion by failing to find,
as a mitigating circumstance, that his incarceration would impose an undue
financial hardship on his family. A trial court is not obligated to accept a
defendant’s claim as to what constitutes a mitigating circumstance. Rascoe v.
State, 736 N.E.2d 246, 249 (Ind. 2000). A claim that the trial court failed to
find a mitigating circumstance requires the defendant to establish that the
mitigating evidence is both significant and clearly supported by the record.
Anglemyer, 868 N.E.2d at 493. Absent special circumstances, trial courts are not
required to find that imprisonment will result in undue hardship. Dowdell v.
State, 720 N.E.2d 1146, 1154 (Ind. 1999).
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[10] At the sentencing hearing, Nelms testified that he and his wife had filed for
bankruptcy. He also explained that he was currently unemployed, and the PSI
shows that he had been unemployed since 2016. Moreover, the PSI indicates
that his wife is employed and that she had been the primary source of income
for the family. The PSI also states that Nelms had one adult daughter and no
dependent children. None of this evidence presents any special circumstances
establishing that the hardship on his family is both significant and clearly
supported by the record. See Benefield v. State, 904 N.E.2d 239, 247-48 (Ind. Ct.
App. 2009) (recognizing that incarceration “almost always” works a hardship
on others and concluding that the defendant failed to show “special
circumstances” because there were other people who could take care of the
defendant’s mother while she was incarcerated), trans. denied. Thus, the trial
court did not abuse its discretion by failing to find undue hardship as a
mitigating circumstance.
[11] Affirmed.
Kirsch, J., and Tavitas, J., concur.
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