Preview:

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case. ATTORNEY FOR APPELLANT: MATTHEW J. ELKIN Deputy Public Defender Kokomo, Indiana

FILED
Dec 30 2008, 8:49 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEYS FOR APPELLEE: STEVE CARTER Attorney General of Indiana ELLEN H. MEILAENDER Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
TIMOTHY BREWER, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 34A05-0808-CR-466

APPEAL FROM THE HOWARD SUPERIOR COURT The Honorable George A. Hopkins, Judge Cause No. 34D04-0802-FB-42

December 30, 2008

MEMORANDUM DECISION - NOT FOR PUBLICATION

ROBB, Judge

Case Summary and Issues Timothy Brewer appeals the eight-year sentence imposed following his plea of guilty to child molesting, a Class C felony. On appeal, Brewer raises two issues, which we restate as: (1) whether Brewers sentence violates the Sixth Amendment of the U.S. Constitution; and (2) whether Brewers sentence is inappropriate in light of the nature of the offense and the character of the offender. Concluding that Brewers sentence does not violate the Sixth Amendment and is not inappropriate, we affirm. Facts and Procedural History1 Brewer lives with his mother and younger brother at his maternal grandmothers house. Brewer suffers from several mental and physical conditions, including: attention deficit-hyperactivity disorder ("ADHD"); dyslexia; hydrocephalus accompanied by seizures;2 high blood pressure; and thyroid problems. Although nineteen years old at the time of the offense, Brewer was still in high school attending regular and special education classes as well as automotive vocational classes.

Brewers counsel is reminded that pursuant to Indiana Appellate Rule 46(A)(6), the statement of facts should be given in narrative form stated in the light most favorable to the judgment and should not be argumentative. Nicholson v. State, 768 N.E.2d 1043, 1045 n.2 (Ind. Ct. App. 2002). The statement of facts in Brewers brief does not present a narrative summary of the molestation, attempting instead to gloss over it in a single sentence and imply that only one episode of molestation occurred when the evidence clearly does not support such an inference. Counsels failure to provide an adequate statement of facts has made our review of this case much more difficult. In addition, Brewers counsel included in his appendix a copy of the presentence investigation report on white paper. Indiana Appellate Rule 9(J) requires that "[d]ocuments and information excluded f rom public access pursuant to Administrative Rule 9(G)(1) shall be filed in accordance with Trial Rule 5(G)." Indiana Administrative Rule 9(G)(1)(b)(viii) states that "[a]ll pre-sentence reports pursuant to Ind. Code

Download Timothy Brewer v. State of Indiana.pdf

Indiana Law