Akeem J. Bazley v. State of Indiana (mem. dec.)

A
MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                                   FILED
regarded as precedent or cited before any                                           Dec 30 2020, 8:45 am

court except for the purpose of establishing                                            CLERK
                                                                                    Indiana Supreme Court
the defense of res judicata, collateral                                                Court of Appeals
                                                                                         and Tax Court
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
Laura A. Raiman                                         Curtis T. Hill, Jr.
R. Patrick Magrath                                      Attorney General of Indiana
Alcorn Sage Schwartz & Magrath, LLP
                                                        Tina L. Mann
Madison, Indiana                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Akeem J. Bazley,                                        December 30, 2020
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        20A-CR-1247
        v.                                              Appeal from the Bartholomew
                                                        Superior Court
State of Indiana,                                       The Honorable James D. Worton,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        03D01-1912-F5-7260



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A-CR-1247 | December 30, 2020              Page 1 of 6
                                                 Case Summary
[1]   Akeem Bazley (“Bazley”) challenges his sentence, following a plea agreement,

      for intimidation, as a Level 5 felony.1 The only issue he raises on appeal is

      whether his sentence is inappropriate in light of the nature of the offense and his

      character.


[2]   We affirm.



                                Facts and Procedural History
[3]   Bazley and S.B. were in a romantic relationship. On December 26, 2019,

      Bazley drove to S.B.’s apartment and threatened that he would bang on S.B.’s

      door if she did not come outside to see him. S.B.’s friend Donald Dyer

      (“Dyer”) arrived and tried to convince Bazley to leave. Bazley bragged to Dyer

      about having a .45 caliber handgun on his person and having outstanding

      warrants. S.B. then decided to go out and talk to Bazley. When S.B. went

      outside, Bazley charged at her, put his hands around her throat, pinned her

      against the wall, and started choking her. Bazley then pulled out what

      appeared to be a handgun but later was determined to be a BB gun. Bazley

      placed the gun under S.B.’s chin and told her that he would kill her if necessary.




      1
          Ind. Code § 35-45-2-1(a), (b)(2)(A).


      Court of Appeals of Indiana | Memorandum Decision 20A-CR-1247 | December 30, 2020   Page 2 of 6
      S.B. started screaming. S.B.’s roommate then came outside, and Bazley ran

      away.


[4]   Dyer called the police who subsequently located Bazley at a residence where he

      said he had been visiting family. Bazley also stated that he had not threatened

      anyone with a firearm and did not possess a firearm. Police officers confirmed

      that Bazley had outstanding warrants and then transported him to jail. The

      officers subsequently located the BB gun in the yard where Bazley was arrested.


[5]   On December 27, 2019, the State charged Bazley with intimidation, as a Level

      5 felony; strangulation, as a Level 6 felony;2 and domestic battery, as a Class A

      misdemeanor.3 On May 4, 2020, Bazley pled guilty to the charge of Level 5

      felony intimidation, and the State agreed to the dismissal of the other charges.

      Sentencing was left to the trial court’s discretion. On June 3, the trial court

      sentenced Bazley to four years in the Indiana Department of Correction. This

      appeal ensued.



                                      Discussion and Decision
[6]   Bazley contends that the sentence for his Level 5 felony intimidation conviction

      is inappropriate in light of the nature of the offense and his character. Article 7,

      Sections 4 and 6 of the Indiana Constitution “authorize[] independent appellate




      2
          I.C. § 35-42-2-9(c).
      3
          I.C. § 35-42-2-1.3(a)(1).


      Court of Appeals of Indiana | Memorandum Decision 20A-CR-1247 | December 30, 2020   Page 3 of 6
      review and revision of a sentence imposed by the trial court.” Roush v. State,

      875 N.E.2d 801, 812 (Ind. Ct. App. 2007) (alteration in original). This

      appellate authority is implemented through Indiana Appellate Rule 7(B). Id.

      Revision of a sentence under Rule 7(B) requires the appellant to demonstrate

      that his sentence is “inappropriate in light of the nature of the offense and the

      character of the offender.” Ind. Appellate Rule 7(B); see also Rutherford v. State,

      866 N.E.2d 867, 873 (Ind. Ct. App. 2007).


[7]   Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate

      sentence to the circumstances presented, and the trial court’s judgment “should

      receive considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind.

      2008). The principal role of appellate review is to attempt to “leaven the

      outliers.” Id. at 1225. Whether we regard a sentence as inappropriate at the

      end of the day 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.” Id. at 1224. The question is not whether another

      sentence is more appropriate, but rather whether the sentence imposed is

      inappropriate. King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008).

      Deference to the trial court “prevail[s] 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 character (such as

      substantial virtuous traits or persistent examples of good character).” Stephenson

      v. State, 29 N.E.3d 111, 122 (Ind. 2015).




      Court of Appeals of Indiana | Memorandum Decision 20A-CR-1247 | December 30, 2020   Page 4 of 6
[8]    We begin by noting that Bazley’s four-year sentence for his Level 5 felony is

       within the statutory sentencing range and is not at the highest level of the range.

       I.C. § 35-50-2-6(b) (providing the sentencing range for a Level 5 felony is one

       year to six years, with an advisory sentence of three years).


[9]    Moreover, our review of the record discloses nothing remarkable about the

       nature of the offense that would warrant revising Bazley’s sentence. “The

       nature of the offense is found in the details and circumstances of the

       commission of the offense and the defendant’s participation.” Zavala v. State,

       138 N.E.3d 291, 301 (Ind. Ct. App. 2019) (quotation and citation omitted),

       trans. denied. Here, Bazley grabbed S.B. by the throat, pulled out what appeared

       to be a handgun, and threatened to kill S.B. These actions were not

       accompanied by any restraint, as Bazley seems to contend in his brief when he

       notes that the crime was “relatively short in duration and broke off quickly.”

       Appellant Br. at 10. Rather, Bazley only released S.B. and ran away when her

       roommate arrived on the scene.


[10]   Nor does the nature of Bazley’s character warrant a sentence revision. “The

       significance of a criminal history in assessing a defendant’s character and an

       appropriate sentence varies based on the gravity, nature, and number of prior

       offenses in relation to the current offense.” Denham v. State, 142 N.E.3d 514,

       517 (Ind. Ct. App. 2020) (quotation and citation omitted), trans. denied; see also

       Maffett v. State, 113 N.E.3d 278, 286 (Ind. Ct. App. 2018) (“Continuing to

       commit crimes after frequent contacts with the judicial system is a poor

       reflection on one’s character.”) (citation omitted). Bazley has a delinquency

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-1247 | December 30, 2020   Page 5 of 6
       and criminal history that includes multiple convictions of armed robbery. He

       also has a history of probation violation and was out of jail awaiting a bench

       trial for a pending misdemeanor charge in Indiana at the time he committed the

       crime. Moreover, at the time he committed the crime in the instant case,

       Bazley was “listed as a Fugitive out of Jefferson County, Louisiana” and had a

       “parole hold” in place related to criminal charges in Louisiana. App. at 48.

       Bazley’s criminal history reflects poorly on his character.


[11]   We cannot say that Bazley’s sentence of four years imprisonment for his Level

       5 felony conviction is inappropriate in light of the nature of the offense and his

       character.


[12]   Affirmed.


       Robb, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A-CR-1247 | December 30, 2020   Page 6 of 6

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