Date: 05-06-2022

Case Style:

Carl Lamont Breeding v. State of Indiana

Case Number: 21A-CR-01945

Judge: Cale J. Bradford

Court:

COURT OF APPEALS OF INDIANA

On appeal from The Marion Superior Court

Plaintiff's Attorney: Theodore E. Rokita
Attorney General of Indiana

Steven J. Hosler
Deputy Attorney General

Amika Ghosh
Certified Legal Intern

Defendant's Attorney:

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Description:

Indianapolis, IN - Criminal Defense lawyer represented defendant with appealing that his 910-day sentence is inappropriate.

On October 23, 2020, Louann Ross was sitting outside her apartment building
on Fort Wayne Avenue in Indianapolis when she saw Breeding looking “as if
he had been beat up” with knots on his head and blood running down his face.
Tr. Vol. II p. 141. Ross offered Breeding, whom she had seen around the
neighborhood, aid. Breeding subsequently refused to leave Ross’s apartment
after being asked by Ross and two different neighbors, so Ross eventually called
the police.
Court of Appeals of Indiana | Memorandum Decision 21A-CR-1945 | May 6, 2022 Page 3 of 8
[3] Upon arriving at the scene, Indianapolis Metropolitan Police Officer John
Gomez encountered Breeding and Raymond Taylor, a resident of the
apartment building who had responded to a request for help from Ross.
Although Officer Gomez initially focused his attention on Taylor, he quickly
turned his attention to Breeding, who had started walking away. Officer
Gomez ordered Breeding to stop but Breeding ignored Officer Gomez’s order
and continued to walk away. Officer Gomez spotted “a black object cupped in
[Breeding’s] left hand,” which was later determined to be a black “meth pipe.”
Tr. Vol. II 187, 194. Breeding also ignored Officer Gomez’s second order to
stop.
[4] Officer Gomez approached Breeding and “tried to grab [his] left arm and put it
behind his back.” Tr. Vol. II p. 189. When Officer Gomez then “tried to go
for” Breeding’s right arm, Breeding “immediately pulled away.” Tr. Vol. II p.
189. Officer Gomez ordered Breeding multiple times to put his arms behind his
back, but Breeding refused to do so. While this was happening, Officer Travis
McCauley arrived to assist Officer Gomez. Breeding continued to resist the
officers’ attempts to place him in handcuffs.
[5] At some point, in order to gain control over Breeding, Officer Gomez
performed a “leg sweep” to “safely place” Breeding on the ground. Tr. Vol. II
p. 191. Once on the ground, Breeding, “immediately turned away from”
Officer Gomez and hid his hands against his stomach. Tr. Vol. II p. 191. The
officers ordered Breeding multiple times to take his hands away from his
stomach, but Breeding refused.
Court of Appeals of Indiana | Memorandum Decision 21A-CR-1945 | May 6, 2022 Page 4 of 8
[6] At some point, Officer Michael Edward McCalip also arrived at the scene. As
the three officers were attempting to restrain him, Breeding “tried to kick [the]
officers multiple times.” Tr. Vol. II p. 196. Officer McCalip described Breeding
as “out of control.” Tr. Vol. II p. 217. As Officer McCalip tried to hold down
Breeding’s legs and place leg shackles on him, he continued to flail, kick, and
twist. While twisting and kicking, Breeding kicked Officer McCalip’s left knee,
causing him to experience pain and discomfort. The officers were eventually
able to place Breeding in handcuffs and leg shackles and medics who arrived on
the scene gave Breeding medication to calm him down. Breeding was
eventually transported to an area hospital.
[7] On October 28, 2020, the State charged Breeding with Level 6 felony criminal
confinement, Level 6 felony battery against a public official, Class A
misdemeanor resisting law enforcement, Class A misdemeanor intimidation,
and Class C misdemeanor possession of paraphernalia.
1
A jury trial was held
on August 9, 2021. During trial, the trial court granted a directed verdict and
dismissed the charge of intimidation. Following trial, the jury found Breeding
not guilty of confinement and guilty of battery against a public official, resisting
law enforcement, and possession of paraphernalia. On August 30, 2021, the
trial court sentenced Breeding to concurrent sentences of 910 days for battery
1
The confinement and intimidation charges related to Breeding’s alleged act of confining Ross, who is
wheelchair bound, inside the bedroom of her apartment.
Court of Appeals of Indiana | Memorandum Decision 21A-CR-1945 | May 6, 2022 Page 5 of 8
against a public safety official, one year for resisting law enforcement, and sixty
days for possession of paraphernalia.
Discussion and Decision
[8] Breeding contends that his 910-day sentence is inappropriate. Indiana
Appellate Rule 7(B) provides that “[t]he Court may revise a sentence
authorized by statute if, after due consideration of the trial court’s decision, the
Court finds that the sentence is inappropriate in light of the nature of the offense
and the character of the offender.” In analyzing such claims, we “concentrate
less on comparing the facts of [the case at issue] to others, whether real or
hypothetical, and more on focusing on the nature, extent, and depravity of the
offense for which the defendant is being sentenced, and what it reveals about
the defendant’s character.” Paul v. State, 888 N.E.2d 818, 825 (Ind. Ct. App.
2008) (internal quotation omitted). The defendant bears the burden of
persuading us that his sentence is inappropriate. Sanchez v. State, 891 N.E.2d
174, 176 (Ind. Ct. App. 2008).
[9] Again, Breeding was sentenced to 910 days, or two and one-half years, for his
Level 6 felony battery conviction, one year for his Class A misdemeanor
resisting law enforcement conviction, and sixty days for his Class C
misdemeanor possession of paraphernalia conviction. A person convicted of a
Level 6 felony “shall be imprisoned for a fixed term of between six (6) months
and two and one-half (2 ½) years, with the advisory sentence being one (1)
year.” Ind. Code § 35-50-2-7(b). “A person who commits a Class A
Court of Appeals of Indiana | Memorandum Decision 21A-CR-1945 | May 6, 2022 Page 6 of 8
misdemeanor shall be imprisoned for a fixed term of not more than one (1)
year.” Ind. Code § 35-50-3-2. Likewise, “[a] person who commits a Class C
misdemeanor shall be imprisoned for a fixed term of not more than sixty (60)
days.” Ind. Code § 35-50-3-4. In challenging the appropriateness of his
sentence, Breeding argues that his “910-day prison sentence is the maximum
sentence permitted by law for his Level 6 felony. His sentence is well above the
‘starting point’ for an appropriate sentence and is therefore presumptively
inappropriate.” Appellant’s Br. p. 9. We disagree.
[10] With regard to the nature of his offense, Breeding asserts that his “battery
offense is less egregious than the ‘typical’ offense of battery on a public safety
official,” Appellant’s Br. p. 9, describing his encounter with police as follows:
While an officer was trying to lay on Breeding’s legs, Breeding
kicked the officer one time in the leg. The kick Breeding landed
was not intentional or malicious; rather, the record indicates it
was incidental contact that occurred while Breeding was flailing
face down on the ground. The officer testified that pain from the
kick subsided in less than an hour. The nature of the offense
does not call for the maximum prison sentence imposed here.
Appellant’s Br. pp. 9–10 (emphasis in original). We cannot say that Breeding’s
actions were less egregious than a so-called “typical” battery on a public safety
official. The record reveals that Breeding was out of control, and it took three
officers to restrain him in both handcuffs and leg shackles and medication to
calm him down. Even then, he battered one of the three officers, kicking the
officer in the knee and causing the officer to suffer pain and discomfort.
Court of Appeals of Indiana | Memorandum Decision 21A-CR-1945 | May 6, 2022 Page 7 of 8
Further, his interaction with police only occurred after he refused to leave the
apartment of a wheelchair-bound individual who had offered him medical
assistance.
[11] As for his character, Breeding asserts that his “employment history and
willingness to work is evidence of good character that supports a sentence
revision.” Appellant’s Br. p. 10. While Breeding may have demonstrated a
willingness to work, we cannot say that either his employment status or his
alleged issues with substance abuse and mental illness warrant a less onerous
sentence. In addition, Breeding indicated to a probation officer that he was not
willing to participate in any programs which might provide treatment or
rehabilitation. The record also reveals that the trial court considered these
factors, finding that they did not warrant significant mitigating weight.
[12] Further, “[w]hen considering the character of the offender, one relevant fact is
the defendant’s criminal history.” Garcia v. State, 47 N.E.3d 1249, 1251 (Ind.
Ct. App. 2015). “The significance of criminal history varies based on the
gravity, nature, and number of prior offenses in relation to the current offense.”
Id. A review of the record reveals that Breeding has a substantial criminal
history, consisting of two juvenile adjudications, four prior felony convictions
and fourteen prior misdemeanor convictions. Of his prior felony convictions,
one was for battery on a law enforcement officer causing injury and of his prior
misdemeanor convictions, five were convictions for resisting law enforcement,
two of the crimes committed in the instant case. Breeding’s probation has also
been revoked on five prior occasions, suggesting that prior attempts at leniency
Court of Appeals of Indiana | Memorandum Decision 21A-CR-1945 | May 6, 2022 Page 8 of 8
were unsuccessful. At the time of sentencing, Breeding also had two pending
criminal cases, one of which included three misdemeanor charges and the other
included one felony and two misdemeanor charges. Breeding was also found to
be a “high” risk to reoffend. Appellant’s App. Vol. II p. 186. Breeding’s
criminal history and failure to take advantage of prior lesser-restrictive attempts
for rehabilitation demonstrate a disregard for the laws of this state and reflect
poorly on his character. Breeding has failed to convince us that his aggregate
four-year sentence is inappropriate. See Sanchez, 891 N.E.2d at 176 (“The
defendant bears the burden of persuading us the sentence is inappropriate.”).

Outcome: The judgment of the trial court is affirmed.

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