Devontay T. Reese, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

Statement of the Case

[1] While law enforcement was conducting a traffic stop nearby, Devontay Reese attempted to hide the handgun he was carrying in the car he was in. Unfortunately for Reese, his actions caught the eye of one of the officers who decided to walk by Reese's car. Inside Reese's car, the officer noticed a handgun, which caused officers to arrest Reese. During the trip to jail, Reese threatened the officers with bodily harm. Reese was charged with and convicted of carrying a handgun without a license and intimidation. The trial court sentenced Reese to six years of incarceration. Reese now appeals, raising two issues for our review:

1. Whether the trial court abused its discretion in identifying mitigating factors; and

2. Whether Reese's sentence is inappropriate under Indiana Appellate Rule 7(B).

[2] We affirm.

Facts and Procedural History

[3] On March 16, 2021, law enforcement officers conducted a traffic stop on a Dodge Charger outside an apartment complex. During the stop, law enforcement officers observed Reese exit the driver seat of a Pontiac vehicle nearby, look toward the officers, then quickly reenter the Pontiac and reach toward the floorboard. After Reese exited the vehicle a second time and walked toward the apartment complex, officers approached the driver's side of the Pontiac and observed a black semiautomatic handgun lying on the floorboard. Because the officers recognized Reese and knew his criminal history, the officers pulled back to surveil the vehicle and, minutes later, observed Reese's mother, Brandy Shaw, approach the driver's side of the Pontiac from the direction of the apartments. Shaw used a key to unlock the car and reached under the driver's seat. When officers stopped Shaw, she was holding a handgun and a bag of fentanyl. Later, officers identified Reese as the owner of both items and arrested him. En route to the jail, Reese threatened to “beat [the arresting officers] ass[es].” Tr. Vol. II at 125.

[4] Reese was charged ¹ with and convicted of carrying a handgun without a license as a Level 5 felony ² and intimidation as a Level 6 felony ³ . At sentencing, the trial court found Reese's familial hardship and his moderate risk to reoffend were mitigating factors but gave those factors “little to no weight.” Tr. Vol. III at 36. The trial court found that “significant aggravators” included Reese's criminal history and repeated failed attempts at rehabilitation. Id. The trial court determined that “the aggravators listed outweigh[ed] the mitigators” and sentenced Reese to five years executed on the carrying a handgun conviction and one year executed on the intimidation conviction. Id. The trial court ordered Reese's sentences to be served consecutively, resulting in a total sentence of six years executed at the Indiana Department of Correction (“DOC”). This appeal ensued.

Discussion and Decision

1. The Trial Court Did Not Abuse Its Discretion in Identifying Mitigating Factors

[5] Reese contends that the trial court erred by not identifying a mitigating factor at sentencing. Our Supreme Court has explained the standard of review for a trial court's identification of mitigating circumstances as follows:

We review a sentencing court's decision about whether to find a mitigating factor for an abuse of discretion. Carter v. State, 711 N.E.2d 835, 838–39 (Ind. 1999). “An allegation that the trial court failed to identify or find a mitigating factor requires the defendant to establish that the mitigating evidence is both significant and clearly supported by the record.” Id. at 838. Sentencing courts are “under no duty to deem mitigating every factor” advanced “simply because it [was] supported by some evidence in the record.” Bivins v. State, 642 N.E.2d 928, 952 (Ind. 1994). And “the sentencing judge is not obligated to explain why [they have] chosen not to make a finding of mitigation ․ Moreover, the [sentencing] court is not obligated to credit or weigh the defendant's evidence of mitigating circumstances the same way the defendant does.” Id. (quotations omitted).

Russell v. State, 234 N.E.3d 829, 847–48 (Ind. 2024) (alterations in original).

[6] Reese asserts that the trial court should have given “mitigating consideration for his acceptance of responsibility” even though “this mitigating factor is not typically applied to cases which proceed to trial.” Appellant's Br. at 13. The Indiana Supreme Court has held that “a defendant who pleads guilty deserves ‘some’ mitigating weight be given to the plea in return.” Anglemyer, 875 N.E.2d at 220–21 (citing McElroy, 865 N.E.2d at 591). However, Reese did not plead guilty. And, nowhere in his brief does he detail how he accepted responsibility. Rather, he argues the State “never offered Mr. Reese the opportunity to plead to lesser counts II and III for which Mr. Reese was found guilty.” Appellant's Br. at 13. Reese apparently believes we should infer that he would have accepted responsibility if the offered plea had been more to his liking. This reasoning is purely speculative and unpersuasive. There is no evidence in the record that Reese would have pled guilty if he had been offered a more favorable plea bargain. Actually, in this record, there is evidence of the opposite. In Reese's presentence investigation report (“PSI”), Reese advised that he “wished to maintain his innocence” when asked about Count III (intimidation), and said, “I believe I am innocent, and feel like I want to continue to fight” when asked about all the “present offenses.” Appellant's App. Vol. II at 119, 121. Therefore, the trial court did not abuse its discretion by not mitigating Reese's sentence based upon his counsel's argument that Reese would have pled guilty if he had been given a better plea offer.

2. Reese's Sentence Is Not Inappropriate Under Appellate Rule 7(B)

[7] Finally, Reese argues his sentence is inappropriate under Appellate Rule 7(B) and should be revised.⁴ The Indiana Constitution authorizes us to independently review and revise a trial court's sentencing decision. Russell, 234 N.E.3d at 855–56 (citing Ind. Const. art. 7, §§ 4, 6; Jackson v. State, 145 N.E.3d 783, 784 (Ind. 2020)). That authority is implemented through Appellate Rule 7(B), which permits us to revise a sentence if, “after due consideration of the trial court's decision, [we] find[ ] that the sentence is inappropriate in light of the nature of the offense and the character of the offender.” Konkle v. State, 253 N.E.3d 1068, 1092 (Ind. 2025) (quoting McCain v. State, 148 N.E.3d 977, 985 (Ind. 2020)).

[8] Our Supreme Court has explained our role under Appellate Rule 7(B) as follows:

“[O]ur constitutional authority to review and revise sentences boils down to our collective sense of what is appropriate,” Cramer [v. State], 240 N.E.3d [693,] 698 [(Ind. 2024)] (quoting Taylor v. State, 86 N.E.3d 157, 165 (Ind. 2017)), an act that, importantly, is reserved for “exceptional” cases, id. (citing Gibson v. State, 43 N.E.3d 231, 241 (Ind. 2015)). Determining a sentence's appropriateness thus “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.” McCain, 148 N.E.3d at 985.

Konkle, 253 N.E.3d at 1092.

[9] Additionally, the defendant bears the burden of proving that “his or her sentence has met the inappropriateness standard of review.” Konkle, 253 N.E.3d at 1092 (quoting Cramer, 240 N.E.3d at 698). And because sentencing “ ‘is principally a discretionary function in which the trial court's judgment should receive considerable deference,’ a trial court's sentencing decision will generally prevail “unless overcome by compelling evidence portraying in a positive light the nature of the offense ․ and the defendant's character ․” Id. at 1093 (alteration omitted) (quoting Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015)).

[10] In reviewing the defendant's sentence, “we are not limited to the mitigators and aggravators found by the trial court,” Brown v. State, 10 N.E.3d 1, 4 (Ind. 2014), and we “focus on the forest—the aggregate sentence—rather than the trees—consecutive or concurrent, number of counts, or length of the sentence on any individual count,” Lane v. State, 232 N.E.3d 119, 122 (Ind. 2024) (quoting Cardwell, 895 N.E.2d at 1225). Similarly, a defendant “need not ‘necessarily prove’ that the sentence is inappropriate on both counts” so long as “one of the prongs weighs heavily in favor” of revising the defendant's sentence. Id. at 126–27 (quoting Connor v. State, 58 N.E.3d 215, 219 (Ind. Ct. App. 2016)) (emphasis in original). Nonetheless, “to the extent the evidence on one prong militates against relief, a claim based on the other prong must be all the stronger to justify relief.” Id. at 127 (citing Connor, 58 N.E.3d at 220).

[11] When considering the nature of the offense, we start with the advisory sentence. Brown, 10 N.E.3d at 4 (citing Anglemyer, 868 N.E.2d at 494. Here, Reese was convicted of and sentenced on one count each for carrying a handgun without a license as a Level 5 felony and intimidation as a Level 6 felony. “A person who commits a Level 5 felony (for a crime committed after June 30, 2014) shall be imprisoned for a fixed term of between one (1) and six (6) years, with the advisory sentence being three (3) years.” I.C. § 35-50-2-6(b) (emphasis added). On his carrying a handgun without a license conviction, the trial court sentenced Reese to five years executed at the DOC. “A person who commits a Level 6 felony ․ shall be imprisoned for a fixed term of between six (6) months and two and one-half (2 1/212) years, with the advisory sentence being one (1) year.” I.C. § 35-50-2-7(b) (emphasis added). On his intimidation conviction, the trial court sentenced Reese to one year executed at the DOC. In total, the trial court sentenced Reese to six years executed at the DOC—two years more than the aggregate advisory sentence of four years.

[12] Next, we consider “whether there is anything more or less egregious about the offense committed by the defendant that makes it different from the ‘typical’ offense accounted for by the legislature when it set the advisory sentence.” T.A.D.W. v. State, 51 N.E.3d 1205, 1211 (Ind. Ct. App. 2016) (quoting Holloway v. State, 950 N.E.2d 803, 806–07 (Ind. Ct. App. 2011)), as amended (May 26, 2023). We also consider whether the offense was “accompanied by restraint, regard, and lack of brutality.” Konkle, 253 N.E.3d at 1093 (quoting Stephenson, 29 N.E.3d at 122).

[13] Here, Reese saw law enforcement officers pull over another vehicle, and knowing he was not allowed to possess a handgun, he attempted to hide the handgun on the floorboard of his car and walked away. Prior to this, Reese recorded a video of himself on social media dancing with the handgun shown in his waistband. Then, after he was arrested for carrying the handgun, Reese threatened to “beat [the arresting officers] ass[es],” and “referenced knowing individuals ․ that knew [one of the officers], and particular vehicles [that officer] drove on a daily basis.” Tr. Vol. II at 125. Reese's dancing with a handgun on social media combined with his threats to harm the arresting officer display a lack of restraint and regard for the law, and we find no “compelling evidence portraying in a positive light the nature of the offense.” Konkle, 253 N.E.3d at 1093. Considering the counts taken together and the sentence in the aggregate, this prong does not weigh in favor of sentence revision. We now turn to Reese's character.

[14] In determining the character of the offender, “we engage in a broad consideration of a defendant's qualities,” T.A.D.W., 51 N.E.3d at 1211 (citing Aslinger v. State, 2 N.E.3d 84, 95 (Ind. Ct. App. 2014), clarified on other grounds on reh'g), including whether the defendant has “substantial virtuous traits or persistent examples of good character,” Konkle, 253 N.E.3d at 1093 (quoting Stephenson, 29 N.E.3d at 122). “When considering a defendant's character, their criminal history is relevant.” Hancz-Barron v. State, 235 N.E.3d 1237, 1249 (Ind. 2024) (citing Johnson v. State, 986 N.E.2d 852, 857 (Ind. Ct. App. 2013)).

[15] Reese's PSI reveals three prior misdemeanor and two prior felony convictions as well as multiple revocations of probation and other alternative sentences. One of the prior offenses was for carrying a handgun without a license. Reese argues that we should infer his good character from his “attempt[ ] to accept responsibility.” Appellant's Br. at 16. However, Reese neither pled guilty nor made any comment at sentencing or to probation that could even remotely be interpreted as accepting responsibility. To the contrary, Reese's comments seem to support the opposite conclusion: “I was playing with a gun on social media,” Appellant's App. Vol. II at 121; “I believe I am innocent, and feel like I want to continue to fight,” id. We find no “substantial virtuous traits or persistent examples of good character” that would compel us to weigh this prong in Reese's favor. Konkle, 253 N.E.3d at 1093.

[16] Based on the repeated nature of Reese's offense of carrying a handgun without a license, his threats to law enforcement officers upon his arrest, his history of criminal behavior, and multiple failed attempts at rehabilitation, we cannot say that Reese has produced compelling evidence demonstrating that the nature of his offense or his character renders his sentence inappropriate. See Hancz-Barron, 235 N.E.3d at 1248–49; Lane, 232 N.E.3d 119; Russell, 234 N.E.3d at 855–56.

Conclusion

[17] In sum, the trial court did not abuse its discretion in identifying mitigating and aggravating circumstances, and the sentence it imposed is not inappropriate under Appellate Rule 7(B). We thus affirm the trial court on all issues raised.

[18] Affirmed.

FOOTNOTES

1.   Reese was also charged in Count I with possession of a narcotic drug as a Level 3 felony; however, he was acquitted of this charge.

2.   Id. § 35-47-2-1(e)(2) (2022) (effective July 1, 2017).

3.   Id. § 35-45-2-1((b)(1)(C) (2022) (effective July 1, 2019).

4.   In his brief, Reese states he “is not requesting a sentence reduction [on his intimidation as a Level 6 felony conviction].” Appellant's Br. at 17. We deny this request to “focus on the trees” in this manner and choose to review the aggregate sentence—or the forest. See Lane v. State, 232 N.E.3d 119, 122 (Ind. 2024).

Felix, Judge.

Judges Vaidik and Tavitas concur. Vaidik, J., and Tavitas, J., concur.