Opinion
24A-CR-773
10-02-2024
Jalen Frierson, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEYS FOR APPELLANT Talisha Griffin Marion County Public Defender Agency Appellate Division Indianapolis ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Kathy Bradley Deputy Attorney General Indianapolis
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Marion Superior Court The Honorable Angela Dow Davis, Judge Trial Court Cause No. 49D27-2205-MR-11667
ATTORNEYS FOR APPELLANT Talisha Griffin Marion County Public Defender Agency Appellate Division Indianapolis
ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Kathy Bradley Deputy Attorney General Indianapolis
Judge Brown Judges Mathias and Kenworthy concur.
MEMORANDUM DECISION
Brown, Judge.
[¶1] Jalen Frierson appeals his sentence for murder and attempted robbery. He also argues his conviction for attempted robbery should have been entered as a level 3 felony. We affirm Frierson's sentence and remand for entry of a revised abstract of judgment and sentencing order.
Facts and Procedural History
[¶2] On April 23, 2022, D'Nijah Long, Diamond Troutman, Hakeem Jackson, and Frierson traveled in Long's vehicle to a "smoke shop" on College Avenue in Indianapolis. Transcript Volume III at 20. Long and Troutman entered the shop, purchased incense, and returned to the vehicle. Jackson drove the vehicle to a beauty supply store, where Long and Troutman went inside and purchased a ski mask for Frierson at his request. Jackson then drove the four individuals back to the smoke shop and parked behind it. Long and Troutman stayed in the vehicle, and Frierson and Jackson entered the smoke shop. Upon entering, Frierson drew a firearm and pointed it at Eric Preer, who was behind the counter. Jackson stayed at the door and held it open. Preer attempted to run from Frierson and retrieve his handgun, and Frierson took "a shooter's stance" and shot him two times in the back. Id. at 8. Frierson and Jackson ran to Long's vehicle. Preer died from his gunshot injuries. Frierson went to Jackson's apartment after the shooting, took a shower, and played a video game. He was apprehended several days later.
[¶3] The State charged Frierson with: Count I, murder; Count II, felony murder; Count III, attempted robbery resulting in serious bodily injury as a level 2 felony; and Count IV, unlawful possession of a firearm by a serious violent felon as a level 4 felony. A jury found Frierson guilty of murder as charged in Counts I and II, attempted robbery resulting in serious bodily injury as a level 2 felony, and possession of a firearm. The State dismissed Count IV. At sentencing, Frierson's counsel argued "as a mitigating factor [] this happened very shortly after [Frierson's] 21st birthday," "[s]o he was also a young man," the presentence investigation report ("PSI") indicated that "around his 17th birthday that he was diagnosed with conduct disorder, ADHD, and major depressive disorder, borderline intellectual functioning," and "I think those conditions combined with his age may have contributed to what he is charged with . . . and what he was found guilty of." Transcript Volume IV at 164.
[¶4] The trial court did not find any mitigating circumstances and found that the aggravating circumstances included Frierson's criminal history, "the harm, injury, and loss and damage suffered was significant and to the family was greater than the elements necessary," and that Frierson was on probation for armed robbery. Id. at 165-166. It stated that Frierson had been arrested eighteen times with eleven convictions and that his "history is atrocious for a 21-year-old." Id. at 165. The court stated, "[w]hen the court tried to help you, you absolutely did nothing while you were on probation except forget [sic] arrested" and "[y]ou did not comply to Gallahue, you did not get your mental health evaluation, you never even scheduled the appointment." Id. at 166. It also noted Frierson was "on probation for an armed robbery and did the exact same thing" and that, after committing the crimes, Frierson went to an apartment and "acted like nothing happened." Id. The court sentenced Frierson to sixty-five years with five years served on work release under Count I, vacated Count II, sentenced him to sixteen years for attempted robbery under Count III, and ordered the sentence in Count III be served consecutive to the sentence in Count I. The abstract of judgment and sentencing order indicate judgment of conviction was entered for murder in Count I and attempted robbery as a level 2 felony in Count III, that Count II was vacated, and that Count IV was dismissed.
Discussion
I.
[¶5] Frierson argues the trial court abused its discretion in failing to give mitigating weight to his age and that he suffers from ADHD, major depressive disorder, and borderline intellectual functioning. He also argues the court abused its discretion in finding as an aggravating factor that the harm, injury, and loss suffered was greater than the necessary elements.
[¶6] An abuse of discretion occurs if 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." Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh'g, 875 N.E.2d 218. A court abuses its discretion if it: (1) fails "to enter a sentencing statement at all;" (2) enters "a sentencing statement that explains reasons for imposing a sentence-including a finding of aggravating and mitigating factors if any-but the record does not support the reasons;" (3) enters a sentencing statement that "omits reasons that are clearly supported by the record and advanced for consideration;" or (4) considers reasons that "are improper as a matter of law." Id. at 490-491. If the trial court has abused its discretion, we will remand for resentencing "if we cannot say with confidence that the trial court would have imposed the same sentence had it properly considered reasons that enjoy support in the record." Id. at 491. The relative weight or value assignable to reasons properly found, or those which should have been found, is not subject to review for abuse of discretion. Id. Generally, a single aggravator is sufficient to support an enhanced sentence. Trusley v. State, 829 N.E.2d 923, 927 (Ind. 2005).
A. Mitigators
[¶7] The determination of mitigating circumstances is within the discretion of the trial court. Rogers v. State, 878 N.E.2d 269, 272 (Ind.Ct.App. 2007), trans. denied. The trial court is not obligated to accept the defendant's argument as to what constitutes a mitigating factor, and a trial court is not required to give the same weight to proffered mitigating factors as does a defendant. Id. 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. Anglemyer, 868 N.E.2d at 493. If the trial court does not find the existence of a mitigating factor after it has been argued by counsel, it is not obligated to explain why it has found that the factor does not exist. Id.
1. Age
[¶8] Frierson committed the murder and attempted robbery soon after he turned twenty-one years old. Frierson argues, "[a]t the age of twenty-one, [he] was not capable of acting with the level of moral depravity that might characterize an older defendant." Appellant's Brief at 13. The Indiana Supreme Court has stated:
We take this opportunity to reiterate what the United States Supreme Court has expressed: Sentencing considerations for youthful offenders - particularly for juveniles - are not coextensive with those for adults. See Miller v. Alabama, [567] U.S. [460], [480,] 132 S.Ct. 2455, 2469 (2012) (requiring the sentencing judge to "take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison" (footnote omitted)). Thus, both at initial sentencing and on appellate review it is necessary to consider an offender's youth and its attendant characteristics.Lewis v. State, 116 N.E.3d 1144, 1154 (Ind.Ct.App. 2018) (citing Brown v. State, 10 N.E.3d 1, 6-7 (Ind. 2014)), trans. denied. A defendant's youth may be a significant mitigating factor in some circumstances. Id. The Court has also stated:
Focusing on chronological age is a common shorthand for measuring culpability, but for people in their teens and early twenties it is frequently not the end of the inquiry. There are
both relatively old offenders who seem clueless and relatively young ones who appear hardened and purposeful.Id. at 1155 (citing Ellis v. State, 736 N.E.2d 731, 736 (Ind. 2000)).
[¶9] While Frierson was relatively young, he had a significant criminal record before he committed the murder and attempted robbery in April 2022. According to the PSI, Frierson's first adjudication occurred when he was fourteen years old and, as a juvenile, he received eight referrals resulting in true findings for charges of theft, possession of marijuana, auto theft, criminal recklessness, and carrying a handgun without a license. As an adult, Frierson committed armed robbery as a level 3 felony in 2019 for which he was sentenced to "9 years . . . 4 years executed (MCCC with strict compliance), 5 years suspended" and was "referred to Gallahue." Appellant's Appendix Volume II at 212. When Frierson committed the murder and attempted robbery of Preer, he was on probation and had significant contact with the criminal justice system.
The PSI also indicates Frierson was charged with criminal confinement with bodily injury as a level 5 felony and battery resulting in bodily injury as a class A misdemeanor, that the date of the offense was October 31, 2023, and that, "[a]ccording to the Probable Cause Affidavit filed in this case, the events occurred during incarceration at Marion County Adult Detention Center." Appellant's Appendix Volume II at 212. It states that Marion County Jail records indicate jail incidents for assault on May 9 and July 11, 2022, and January 4 and November 1, 2023, and for contraband found on October 31, 2023.
[¶10] Further, the record reveals that Frierson asked Long and Troutman to purchase a ski mask for him before returning to the smoke shop. He entered the smoke shop, pointed a firearm at Preer, took "a shooter's stance," and shot Preer twice in the back. Transcript Volume III at 8. After the shooting, Frierson went to an apartment, took a shower, and played a video game. The trial court noted that, after the shooting, Frierson "acted like nothing happened." Transcript Volume IV at 166. Frierson's actions prior to committing the crimes suggest he actively planned his participation in the robbery-turned-murder. The record shows that Frierson was not a "clueless" twenty-one-year-old, but rather reveals that his actions were purposeful. See Ellis, 736 N.E.2d at 736. Under the circumstances, we cannot conclude that the trial court abused its discretion in declining to give Frierson's age mitigating weight. See Lewis, 116 N.E.3d at 1155 ("The record shows that Lewis was not a clueless eighteen-year-old.... He actively planned and participated in the robbery turned double murder and seemed unaffected by the horrific results.... Any weight given this mitigator would be exceedingly minimal under the circumstances.").
2. Mental Health
[¶11] With respect to Frierson's mental health, the PSI states: "Preliminary Inquiry (dated 3/26/19) indicated: In April of 2018, [Frierson] was ordered to undergo a psychological evaluation .... At that time, [Frierson] met the diagnostic criteria to be diagnosed with conduct disorder, ADHD, cannabis abuse, and major depressive disorder borderline intellectual functioning." Appellant's Appendix Volume II at 215-216.
[¶12] Several considerations bear on the weight, if any, that should be given to mental illness in sentencing.
These factors include: (1) the extent of the defendant's inability to control his or her behavior due to the disorder or impairment; (2) overall limitations on functioning; (3) the duration of the mental illness; and (4) the extent of any nexus between the disorder or impairment and the commission of the crime.Lewis, 116 N.E.3d at 1155 (citing Weeks v. State, 697 N.E.2d 28, 30 (Ind. 1998)).
[¶13] Frierson did not present evidence or argument regarding how any diagnosis, impairment, or limited functioning may have impacted these factors including his ability to control his behavior at the time he committed the crimes or the extent of any nexus between any impairment and the crimes. Moreover, his actions before, during, and after the shooting do not suggest that he was not in control of his faculties. We cannot conclude the trial court abused its discretion in declining to give Frierson's mental health mitigating weight. See Hamilton v. State, 233 N.E.3d 461, 482 (Ind.Ct.App. 2024) ("There is no evidence in the record that Hamilton's anxiety, racing thoughts, or insomnia impaired his ability to control his behavior, limited his functioning, or was in any way linked to the offense."), trans. denied; Lewis, 116 N.E.3d at 1155-1156 ("The extent to which Lewis would have been unable to control his behavior due to the [Bipolar II] disorder is similarly unclear, and his behavior before, during, and after the murders suggests that he was in control of his faculties. The weight attributable to this mitigator, if any, would have been extremely low under the circumstances.").
B. Aggravators
[¶14] The trial court found, as an aggravating factor, that "the harm, injury, and loss and damage suffered was significant and . . . greater than the elements necessary." Transcript Volume IV at 165-166. Preer's children were one year old and five years old. His five-year-old daughter received medication for anxiety and had been in counseling since his murder. Preer stayed with and helped his terminally ill mother. Members of Preer's family testified regarding the impact his murder had on the family. Moreover, Frierson does not challenge the other aggravating factors found by the court. The unchallenged factors were significant. The court found Frierson's criminal history to be an aggravating factor and stated that he had been arrested eighteen times with eleven convictions and that his "history is atrocious for a 21-year-old." Id. at 165. The court also noted that, "while you're in jail, . . . you managed to get arrested and charged with a Level 5 confinement and [] a battery." Id. The court stated "[y]ou were ordered to get a mental health evaluation and treatment," "[y]ou were ordered to get [a] substance abuse evaluation and treatment," "they gave you the referral to Gallahue," and "[y]ou didn't go. You didn't show up for a year." Id. It also stated "you were on probation for an armed robbery and did the exact same thing" and "went to somebody's apartment and acted like nothing happened." Id at 166. We cannot say that the trial court abused its discretion, and we can say with confidence that the court would have imposed the same sentence based on the record and the unchallenged aggravators.
II.
[¶15] Frierson further argues that his conviction for attempted robbery should have been entered as a level 3 felony rather than a level 2 felony. At sentencing, the prosecutor indicated that it would be appropriate to sentence Frierson as a level 3 felony for his attempted robbery conviction "because the SBI is the shooting, and . . . death." Transcript Volume IV at 162. The trial court stated: "For the armed robbery, I will bump it down -- I mean, I will show that the robbery for what . . . he was found guilty of is included in -- with the serious bodily injury in the murder and the felony murder. And so I will sentence him under a Level 3 to 16 years[.]" Id. at 166-167. The trial court's abstract of judgment and sentencing order reflect that it entered judgment of conviction under Count III as a level 2 felony. On appeal, the State concedes "this Court should remand this matter to the trial court to enter judgment of conviction for Level 3 felony attempted robbery." Appellee's Brief at 18. We remand with instructions to vacate the entry of Frierson's conviction for attempted robbery as a level 2 felony and to enter judgment of conviction for attempted robbery as a level 3 felony.
[¶16] For the foregoing reasons, we affirm Frierson's sentence and remand for entry of a revised abstract of judgment and sentencing order.
[¶17] Affirmed and remanded.
Mathias, J., and Kenworthy, J., concur.