MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                                   FILED
regarded as precedent or cited before any                                           Dec 28 2020, 9:10 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
James A. Shoaf                                          Curtis T. Hill, Jr.
Columbus, Indiana                                       Attorney General of Indiana
                                                        Carah Rochester
                                                        J.T. Whitehead
                                                        Deputy Attorneys General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Brian Andrew Hoover,                                    December 28, 2020
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        20A-CR-1393
        v.                                              Appeal from the Bartholomew
                                                        Superior Court
State of Indiana,                                       The Honorable James D. Worton,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        03D01-2001-F6-487



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A-CR-1393 | December 28, 2020                Page 1 of 6
                                              Case Summary
[1]   Brian Andrew Hoover (“Hoover”) challenges his sentence, following a plea

      agreement, for criminal recklessness with a deadly weapon, as a Level 6 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]   On January 27, 2020, Dustin Hurley (“Hurley”) visited his grandparent’s home,

      where Hoover also lived, to drop off prescription medication for his

      grandfather. Hurley was Hoover’s nephew, and a “family squabble” took

      place. Tr. at 16. Hurley’s grandmother hurried him out of the house, stating

      that Hoover was in a bad mood. As Hurley drove away from the residence, he

      observed Hoover exit the front door and fire a shotgun once at Hurley’s vehicle.

      Hurley pulled over to check the vehicle and noticed no damage.


[4]   Hoover’s neighbor called the police and told the responding officer that, after

      Hurley left the residence, she witnessed Hoover step outside and fire a shotgun

      towards Hurley’s vehicle. Police attempted to contact Hoover at the residence,

      but he could not be located. Officers found the back door of the residence to be




      1
          Ind. Code § 35-42-2-2(a), (b)(1).


      Court of Appeals of Indiana | Memorandum Decision 20A-CR-1393 | December 28, 2020   Page 2 of 6
      unlocked and partially cracked. The officers also observed several firearms in

      plain view, including a black shotgun behind the front door. With the use of an

      unmanned aerial system, Hoover was located in a field east of the residence and

      taken into custody. At the time, Hoover had served only three weeks of his

      probation in another cause.


[5]   On January 28, 2020, the State charged Hoover with criminal recklessness with

      a deadly weapon, as a Level 6 felony. On May 5, Hoover entered into a plea

      agreement with the State under which he agreed to plead guilty as charged. At

      his June 3 guilty plea hearing, Hoover did so plead. On July 1, the trial court

      entered judgment of conviction for the Level 6 felony and conducted a

      sentencing hearing that same day. As mitigating factors, the trial court found

      that Hoover pled guilty and had mental health conditions. The trial court

      found five aggravating factors: (1) Hoover’s history of criminal behavior; (2)

      Hoover was on probation in the past and had had petitions to revoke his

      probation filed against him; (3) Hoover had had the opportunity for treatment

      in the past and was unsuccessful; (4) Hoover was on probation at the time of

      the offense; and (5) Hoover’s pre-trial conduct while in jail, which included jail

      rule violations. Hoover’s criminal history includes convictions of: two counts

      of possession of marijuana; public intoxication; criminal mischief; two counts

      of resisting law enforcement; two counts of operating a vehicle while

      intoxicated; attempted battery by bodily waste; and domestic battery.




      Court of Appeals of Indiana | Memorandum Decision 20A-CR-1393 | December 28, 2020   Page 3 of 6
[6]   The trial court sentenced Hoover to eighteen months, executed, in the

      Department of Corrections (“DOC”).2 This appeal ensued.



                                   Discussion and Decision
[7]   Hoover contends that his sentence for his Level 6 felony 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 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).


[8]   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




      2
        Hoover was also ordered to serve the balance of his two-year sentence in another, separate cause for
      violation of probation, to be served consecutive to the sentence in this case. The sentence for the probation
      violation is not at issue in this appeal.

      Court of Appeals of Indiana | Memorandum Decision 20A-CR-1393 | December 28, 2020                   Page 4 of 6
       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).


[9]    We begin by noting that Hoover’s sentence for his Level 6 felony is within the

       statutory sentencing range and is not at the highest level of the range. I.C. § 35-

       50-2-7(b) (providing the sentencing range for a Level 6 felony is six months to

       two and a half years, with an advisory sentence of one year).


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

       nature of the offenses that would warrant revising Hoover’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, Hoover fired a shotgun at his fleeing nephew. He then tried

       to evade the police.




       Court of Appeals of Indiana | Memorandum Decision 20A-CR-1393 | December 28, 2020   Page 5 of 6
[11]   Nor does the nature of Hoover’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. Hoover

       has an extensive criminal history that includes crimes of violence. He also has

       a history of probation violations and was serving a suspended sentence at the

       time he committed the crime. In fact, Hoover continued to behave poorly even

       while in jail awaiting trial on the current charges; he had several jail rule

       violations. Hoover has been afforded treatment in the past but did not

       successfully complete such treatment. His criminal history, on-going poor

       behavior in jail, and failure to take advantage of past treatment opportunities

       reflect poorly on his character.


[12]   We cannot say that Hoover’s aggregate sentence of eighteen months

       imprisonment for his Level 6 felony conviction is inappropriate in light of the

       nature of the offense and his character.


[13]   Affirmed.


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




       Court of Appeals of Indiana | Memorandum Decision 20A-CR-1393 | December 28, 2020   Page 6 of 6