IN THE
Court of Appeals of Indiana FILED Brent Thomas Wills, Oct 10 2025, 8:34 am
Appellant-Defendant CLERK Indiana Supreme Court Court of Appeals and Tax Court
v.
State of Indiana, Appellee-Plaintiff
October 10, 2025 Court of Appeals Case No. 24A-CR-1453 Appeal from the Tippecanoe Superior Court The Honorable Steven P. Meyer, Judge Trial Court Cause No. 79D02-2310-F4-56
Opinion by Judge Pyle Judge Kenworthy concurs. Senior Judge Baker dissents with separate opinion.
Court of Appeals of Indiana | Opinion 24A-CR-1453 | October 10, 2025 Page 1 of 31 Pyle, Judge.
Statement of the Case1 [1] Brent Wills (“Wills”) pled guilty to two counts of operating while intoxicated
causing death as Level 4 felonies and one count of operating while intoxicated
causing serious bodily injury as a Level 5 felony. The trial court sentenced him
to an aggregate term of twenty-eight years. Wills now appeals, arguing that (1)
the trial court abused its discretion in sentencing him; and (2) his sentence is
inappropriate. Concluding that the trial court did not abuse its discretion and
that Wills’ sentence is not inappropriate, we affirm the trial court’s judgment
and sentence imposed.
[2] We affirm.
Issues 1. Whether the trial court abused its discretion in sentencing Wills.
2. Whether Wills’ sentence is inappropriate.
Facts [3] On September 18, 2023, Wills and his friend, Evan Witkoske (“Witkoske”),
attended a golf outing in Indianapolis, Indiana. They traveled from Lafayette,
1 On September 4, 2025, a panel of this Court traveled to Culver Academies as a part of our Appeals on Wheels program. We thank the parties for their able advocacy and Culver Academies for hosting the oral argument.
Court of Appeals of Indiana | Opinion 24A-CR-1453 | October 10, 2025 Page 2 of 31 which is in Tippecanoe County, and arrived at approximately 9:30 a.m. Before
and during the outing, Wills consumed alcoholic beverages. Afterwards, Wills
and Witkoske went to Rick’s Café Boatyard, a sponsor of the event, where they
consumed additional alcoholic beverages. At approximately 7:30 p.m., they
decided to return to Lafeyette. A friend offered them the opportunity to stay
the night in Indianapolis, but they declined the offer. Wills left Indianapolis
driving a Jeep Grand Cherokee with a Purdue University - Fort Wayne license
plate. Arriving in Tippecanoe County, they stopped at a bar, consumed
additional alcoholic beverages, and Wills and Witkoske continued their trip
home.
[4] Sometime later, Ed Ward (“Ward”), Chief of the Wabash Township Fire
Department, was driving south, with his son, on Klondike Road approaching a
roundabout at Lindburgh Road. Ward observed a Jeep with a Purdue license
plate travel straight through the roundabout at approximately 60 miles per hour
(“mph”).
[5] Sometime near 9:30 p.m., Wills was driving north on County Road 400 West.
The posted speed limit was 35 mph. At the same time, Kimberly Burge
(“Kimberly”) was driving west on U.S. Highway 52 in a Pontiac G2 sedan
approaching 400 West. She was traveling with her son, Rylan Burge (“Rylan”),
and his friend, Jaden Harvey (“Jaden”). When Wills reached U.S. Highway
52, he disregarded the stop sign and struck Kimberly’s vehicle. Wills was
traveling approximately 62 mph. The force of the crash spun Kimberly’s car
into an embankment before her car came to rest. Will’s Jeep spun in a
Court of Appeals of Indiana | Opinion 24A-CR-1453 | October 10, 2025 Page 3 of 31 counterclockwise direction, collided with another stop sign, and flipped onto its
passenger side before coming to rest.
[6] The damage to both vehicles was extensive. Kimberly and Jaden suffered
extensive blunt force trauma and were pronounced dead at the scene. Rylan
suffered severe injuries and was flown by helicopter to an Indianapolis hospital
for treatment. Wills was also taken to a hospital to treat his injuries.
Subsequent blood testing done on Wills’ blood revealed the presence of
cannabinoids and that his alcohol concentration equivalent (“ACE”) was .248
grams per 100 milliliters of blood.
[7] On October 10, 2023, Wills was charged with the following offenses related to
Kimberly’s death: Count I, Operating a Vehicle While Intoxicated Causing
Death as a Level 4 Felony;2 Count II, Operating a Vehicle with an ACE of .08
or more Causing Death as a Level 4 Felony;3 and Count III, Reckless Homicide
as a Level 5 Felony.4 For Jaden’s death, Wills was charged with the following
offenses: Count IV, Operating While Intoxicated Causing Death as a Level 4
Felony;5 Count V, Operating a Vehicle with an ACE of .08 or More Causing
Death as a Level 4 Felony;6 and Count VI, Reckless Homicide as a Level 5
2 IND. CODE § 9-30-5-5(a)(3). 3 I.C. § 9-30-5-5(a)(1). 4 IND. CODE § 35-42-1-5. 5 I.C. § 9-30-5-5(a)(3). 6 I.C. § 9-30-5-5(a)(1).
Court of Appeals of Indiana | Opinion 24A-CR-1453 | October 10, 2025 Page 4 of 31 Felony.7 For the injuries to Rylan, Wills was charged with the following
offenses: Count VII, Operating a Vehicle While Intoxicated Causing Serious
Bodily Injury as a Level 5 Felony;8 and Count VIII, Operating a Vehicle With
an ACE of .08 or More Causing Serious Bodily Injury as a Level 5 felony.9 On
October 12, 2023, Wills was arrested and posted bond.
[8] In the aftermath of the crash, Rylan underwent surgery for his numerous
injuries. The crash had fractured Rylan’s spine and clavicle, lacerated his
kidney and his spleen, injured his carotid artery, caused hemorrhaging in his
brain, and caused respiratory failure.
[9] One year later, on May 20, 2024, Wills agreed to plead guilty as charged and
was taken into custody pending the sentencing hearing. Prior to the sentencing
hearing, the State filed victim impact statements, crash investigation reports,
medical records, and a sentencing memorandum. Wills’ counsel filed letters
from Wills’ addiction counselor, an attendance record from Alcoholics
Anonymous (“A.A.”), a letter from Wills’ A.A. sponsor, and numerous letters
of support from friends, family, and coworkers.
7 I.C. § 35-42-1-5. At Wills’ sentencing hearing, Count VII was amended to correctly label it as a Level 5 Felony. In addition, during his guilty plea hearing, Wills had been erroneously advised that the potential penalty for Count VII were those related to a Level 4 Felony. Without objection, the trial court properly advised Wills of the penalty for Level 5 felonies. 8 I.C. § 9-30-5-4(a)(3). 9 I.C. § 9-30-5-4(a)(1).
Court of Appeals of Indiana | Opinion 24A-CR-1453 | October 10, 2025 Page 5 of 31 [10] Wills’ sentencing hearing was held on June 10, 2024. The evidence revealed
that this crash had occurred on Rylan’s birthday. Brandon Fultz (“Fultz”),
Rylan’s brother, testified and highlighted the irony that September 18, 2023
would now be the anniversary of Rylan’s mother’s and best friend’s deaths.
Fultz recounted being in the hospital room when Rylan’s breathing tube had
been removed and seeing the look of confusion in Rylan’s eyes. He told the
trial court how painful it had been to tell Rylan he had been in a horrible crash
and that Jaden was dead. Fultz stated that Rylan “cried out no, not [Jaden] . . .
.” (Tr. Vol. 2 at 74). Then, Fultz recounted that he watched “the life entirely
leave his eyes and soul like it was ripped from his chest” when he told Rylan
that his mom had been driving and had been killed. (Tr. Vol. 2 at 74). Fultz
told the trial court that Rylan had endured months in a neck brace and had “not
be[en] able to use his arm,” had gone to numerous doctor visits and scans, had
to learn to walk again, and has to live with “a permanent stiff neck with major
loss of range of motion . . . .” (Tr. Vol. 2 at 74). He described Rylan’s head
injury as being so severe that he was considered “medically decapitated.” (Tr.
Vol. 2 at 73). The State later clarified that “medical decapitation” meant that
“the only thing holding his head to his body after the crash was his spinal
cord.” (Tr. Vol. 2 at 94).
[11] Clayton Fultz (“Clayton”), Rylan’s father, stated that Rylan was or had been
“beyond lucky to be alive” because only three percent of people suffering these
injuries survive. (Tr. Vol. 2 at 53). He testified that there were no words to
describe the pain and emotional distress that he had been enduring since Rylan
Court of Appeals of Indiana | Opinion 24A-CR-1453 | October 10, 2025 Page 6 of 31 had been injured and Kimberly and Jaden had been killed. He further testified
that he had nightmares and took medication for the depression he had been
experiencing.
[12] Joyce Anderson (“Anderson”), Kimberly’s mother, stated that she will never
forget the words of the three state troopers who had come to her door at 2:00
a.m. to tell her that her daughter was dead. Anderson told the trial court that
the injuries to Kimberly were so severe that she was only able to view her
daughter’s hand at the funeral home. Anderson stated that she would “never be
the same person” and “ha[d] lost interest in doing things that [she] used to
love[.]” (Tr. Vol. 2 at 57). Anderson further testified that Kimberly is the last
thing she thinks of before she goes to bed and the first thing she thinks of when
she gets up in the morning. As a result, Anderson testified, “I don’t know how
to live without her.” (Tr. Vol. 2 at 57).
[13] Dave Harvey (“Harvey”), Jaden’s grandfather, testified that Jaden was
seventeen years old and in his senior year of high school when he had been
killed, just eleven days before his eighteenth birthday. Harvey stated, “His
sudden death was the most shocking and sad[dest]experience of [his] life.” (Tr.
Vol. 2 at 58). He recounted how the funeral director informed the family that
Jaden’s injuries were so severe that “there was only so much they could do.”
(Tr. Vol. 2 at 58). Harvey testified, “We took turns whispering to him, telling
him we loved and missed him a countless number of times as we knew our last
moments with him were coming to a close.” (Tr. Vol. 2 at 58). Kris Harvey
Court of Appeals of Indiana | Opinion 24A-CR-1453 | October 10, 2025 Page 7 of 31 (“Kris”), Jaden’s great aunt, recounted the pain of watching Jaden’s father
having to close the casket for the funeral of his only son.
[14] Concerning Wills, the Presentence Investigation Report (“PSI”) revealed that,
at the time of the crash, Wills had been employed as the general manager and
director of golf at Coyote Crossing Golf Club (“Coyote Crossing”). He had
worked at Coyote Crossing for approximately seven years and had earned
approximately $10,000 per month. He lost that job after being charged in this
case and was subsequently employed at Arni’s Restaurant prior to the
sentencing hearing. Wills has been married for approximately eighteen years
and has two children. He attended Purdue University from 1997 to 2000, but
he did not graduate.
[15] Wills reported that he had first consumed alcohol at the age of fifteen. Over the
course of his life, the frequency of alcohol consumption proceeded as follows:
“[f]our (4) beers/drinks per month between the ages of 15 and 18[;]” “[s]ix (6)
beers/drinks per week between the ages of 19 and 23[;]” “[t]hree (3) beers per
week between the ages of 24 and 37[;]” “[t]wo beers/drinks per day between
the ages of 38 and 40[;]” and “[f]our (4) drinks per day between the ages of 41
and 44.” (App. Vol. 2 at 128) (internal quotation marks omitted). Wills also
acknowledged that he had used marijuana for the first time at the age of fifteen.
Between the ages of 31 and 44, he admitted using marijuana two to three times
per week. However, he claimed that neither drugs nor alcohol had proved to be
problematic in his life “‘until this accident.’” (App. Vol. 2 at 128).
Court of Appeals of Indiana | Opinion 24A-CR-1453 | October 10, 2025 Page 8 of 31 [16] Concerning Wills’ prior criminal history, there were no juvenile adjudications
reported in the PSI. However, Wills had been arrested and charged with
Operating While Intoxicated in 2001 in Tippecanoe County. He had been
stopped by police in the driveway of his home, passed a field sobriety test, and
had a blood alcohol level of .08 grams. But, the case had been dismissed “for
lack of probable cause[.]” (Ex. Vol. 3 at 55).
[17] The PSI shows that, upon posting bond, Wills began working with Theresa
Slayton (“Counselor Slayton”), who is a certified clinical social worker and
addiction counselor. She reported that between September 29, 2023 and April
25, 2024, Wills had attended twenty-three individual therapy sessions.
Counselor Slayton reported that Wills had acknowledged that his “alcohol use
and tolerance” had “cost him his ability to judge his level of impairment due to
high tolerance.” (Ex. Vol. 3 at 55). She also reported that Wills had been
working through unresolved grief involving the death of a close friend who had
died while Wills was performing CPR on him. Additionally, she noted that
Wills had been attending A.A. and had been working through the Twelve Step
Program. Nathan Brown (“Brown”), Wills’ A.A. sponsor, also submitted a
letter confirming to the trial court Wills’ participation in A.A. Brown noted
that Wills had “acknowledged his poor judgement that [had] caused the tragic
loss of life, that it was wrong and inexcusable, and that he [felt] extreme
remorse for the decisions he [had] made on September 18, 2023.” (Ex. at 58).
[18] At the conclusion of the sentencing hearing, Wills provided a statement in
allocution to the trial court. Wills testified, “Although it was not my intention[]
Court of Appeals of Indiana | Opinion 24A-CR-1453 | October 10, 2025 Page 9 of 31 that day, my senseless and inexcusable selfish behavior tragically ended the
lives of [Jaden] Harvey, Kimberly Burge, and seriously injured Rylan Burge
and devastated their families.” (Tr. Vol. 2 at 80). Wills apologized to the
families, the court, and the citizens of Indiana for the harm that he had caused.
He thanked the first responders for saving Rylan’s life. Wills pledged to
continue living a sober life and, upon his release, to become a “productive
member of our local community[.]” (Tr. Vol. 2 at 82).
[19] At the conclusion of the evidence, Wills’ counsel argued that when considering
Wills’ sentence, the trial court should consider the following mitigating
circumstances: (1) Wills’ expression of sincere remorse; (2) the absence of any
prior criminal convictions; (3) his cooperation with authorities; (4) the fact that
long-term incarceration would impose a hardship on his family; (5) it is unlikely
that this crime would occur again; and (6) Wills would respond affirmatively to
probation or short-term incarceration. Wills’ counsel asked the trial court to
impose a ten-year sentence, with seven years executed in the Department of
Correction and the balance served on probation.
[20] In response, the State reminded the trial court that, in preparing the PSI, the
probation department had recommended that the maximum executed sentence
of thirty years be imposed. The State argued that this was not an accident but a
result of repeat behavior demonstrated by Wills’ 2001 arrest for operating while
intoxicated. The State urged the trial court to consider the following
aggravating circumstances: (1) the nature and circumstances of this case; (2)
that the harm suffered by the victims was “greater than the elements necessary
Court of Appeals of Indiana | Opinion 24A-CR-1453 | October 10, 2025 Page 10 of 31 to prove the commission of the crime[;]” and (3) a lesser sentence would
depreciate the seriousness of this crime. ( Tr. Vol. 2 at 94). The State
concluded by asking the trial court to impose the maximum executed sentence
of thirty years.
[21] Before imposing Wills’ sentence, the trial court noted that this was one of the
most difficult sentencing decisions it had had to make. The trial court thanked
the attorneys for submitting the large volume of information for its
consideration. The trial court stated that it had read the letters from the many
family members, friends, and people from the community expressing support
for the victims and Wills. In addition, the trial court specifically stated as
follows:
But the most heartbreaking letters were from family and friends of Kimberly Burge, [Jaden] Harvey and Rylan Burge. Those letters tell the story of the lives of these wonderful, caring and beautiful people, and their hurt, pain and devastation that these families and friends have experienced as the result of the inexcusable actions of the Defendant. In fact, I had to read those letters in increments and put them down at times to just reflect on the enormous amount of suffering and harm that the survivors of this horrible crime have endured. Heartbreaking too, were the letters submitted in support of the Defendant. By most accounts he is a loving husband, devoted father, and trusted employee. The actions he took during the day and evening of September 18, 2023, will forever change the lives of his wife, his two daughters and his extended family and friends.
(Tr. Vol. 2 at 98).
Court of Appeals of Indiana | Opinion 24A-CR-1453 | October 10, 2025 Page 11 of 31 [22] The trial court then explained that the victims were completely innocent people
out “celebrating a teenager’s birthday.” (Tr. Vol. 2 at 99). It noted that this
case was not an accident because Wills had had options that he chose not to
pursue. For example, the trial court highlighted that Wills could have chosen
not to drink, he could have accepted the invitation to stay in Indianapolis, he
could have called an Uber or other ride service, he could have stopped at a
hotel, or he could have obeyed the speed limit and other traffic laws. The trial
court stated, “Sadly, [Wills] chose none of those options.” (Tr. Vol. 2 at 99).
[23] The trial court further stated that these “circumstances alone” justified
imposing the maximum sentence for each count. (Tr. Vol. 2 at 99). However,
it recognized that Indiana law required the consideration of mitigating factors
before imposing a sentence. As a result, the trial court acknowledged that Wills
had no “significant criminal history” and that long-term imprisonment would
impose a hardship on his dependents. (Tr. Vol. 2 at 100). Further, the trial
court found as a mitigating factor the fact that Wills had pleaded guilty as
charged without the benefit of a plea agreement. In addition, Wills had shown
sincere remorse for his actions as demonstrated by his participation in
counseling and cooperation with the attorneys who had filed the civil cases on
behalf of the victims’ estates. The trial court also noted that Wills had a history
of regular employment, had strong support from his family and friends, and
participated in counseling while on bond.
[24] Yet, despite these mitigating factors, the trial court stated that this crime
required incarceration in the Department of Correction “so as not to depreciate
Court of Appeals of Indiana | Opinion 24A-CR-1453 | October 10, 2025 Page 12 of 31 the seriousness of these offense[s] and the tragic [e]ffect that they’ve had on the
survivors and their communities.” (Tr. Vol. 2 at 100). To that end, the trial
court identified the following aggravating circumstances: (1) the nature and
circumstances of the case; (2) the harm, injury, loss, and damage suffered by the
victims of the offenses were significant and greater than the elements necessary
to prove the commission of the offenses; (3) some history of criminal behavior;
and (4) imposition of a reduced sentence would depreciate the seriousness of
the crime.
[25] Specifically addressing the nature and circumstances of the case, the trial court
described the particular nature of the case as follows:
. . . [Wills] drove impaired from Indianapolis, stopped at the bar, continued drinking here. His blood alcohol was three times the legal limit. He tested positive for cannabis. And just the overall irresponsibility he showed throughout the day. There were three victims killed or seriously hurt from this. The harm, injury, loss and damage suffered by the victim of the offense was significant and greater than the elements necessary. And I say that because I think at the very least it’s fair for the Court to consider that the only survivor of this, Rylan, suffered both the loss of his mother and his best friend. Court also considers the extended [e]ffect, the emotional toll that this has had on the families. I can tell from the letters and the testimony here they continue to grieve and will grieve for some time. And I think it’s fair to say because of the circumstances. The lives were taken and the people were injured under these circumstances which were not expected and they were swiftly taken away without any opportunity for these families to have talked to their loved ones or be prepared for this drastic kind of event. But at the very least, I think it’s fair to consider the impact that it has had on Rylan.
Court of Appeals of Indiana | Opinion 24A-CR-1453 | October 10, 2025 Page 13 of 31 (Tr. Vol. 2 at 101).
[26] Finding that the aggravating circumstances justified an enhanced sentence, the
trial court then imposed Wills’ sentence. For Count I, Operating While
Intoxicated Causing Death as a Level 4 Felony, the trial court imposed a
sentence of eleven (11) years. The trial court merged Counts II and III into
Count I. For Count IV, Operating While Intoxicated Causing Death as a Level
4 Felony, the trial court imposed a sentence of eleven (11) years. The trial court
merged Counts V and VI into Count IV. For Count VII, Operating While
Intoxicated Causing Serious Bodily Injury as a Level 5 Felony, the trial court
imposed a sentence of six (6) years. The trial court merged Count VIII into
Count VII. The trial court ordered Counts I, IV, and VII to be served
consecutively for an aggregate sentence of twenty-eight (28) years. Of those
years, the trial court ordered twenty-four (24) years to be executed in the
Department of Correction. Of the remaining four (4) years, the trial court
ordered two (2) years to be served through Tippecanoe County Community
Corrections and the remaining two (2) years to be served on probation.
[27] Wills now appeals his sentence.
Decision [28] Wills argues that: (1) the trial court abused its discretion in imposing his
sentence; and (2) his sentence is inappropriate. We address each contention in
turn.
Court of Appeals of Indiana | Opinion 24A-CR-1453 | October 10, 2025 Page 14 of 31 1. Sentencing Discretion [29] Sentencing decisions rest within the sound discretion of the trial court.
Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d
218 (Ind. 2007). So long as the sentence is within the statutory range, it is
subject to review only for an abuse of discretion. Id. An abuse of discretion
will be found where 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. Id. A trial court may abuse its discretion in
several ways, including: (1) failing to enter a sentencing statement at all; (2)
entering a sentencing statement that includes aggravating and mitigating factors
that are unsupported by the record; (3) entering a sentencing statement that
omits reasons that are clearly supported by the record; or (4) entering a
sentencing statement that includes reasons that are improper as a matter of law.
Id. at 490-91. “When an abuse of discretion occurs, this Court will remand for
resentencing only 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.” Ackerman v. State, 51 N.E.3d 171, 194 (Ind. 2016)
(internal quotation marks and citation omitted), cert. denied.
[30] Our General Assembly has established a statutory minimum and maximum
range for felonies with an advisory sentence set in the middle of that range.
Gomillia v. State, 13 N.E.3d 846, 852 (Ind. 2014). To determine a particular
defendant’s sentence, trial courts may consider mitigating and aggravating
circumstances from a non-exhaustive list provided under INDIANA CODE § 35-
Court of Appeals of Indiana | Opinion 24A-CR-1453 | October 10, 2025 Page 15 of 31 38-1-7.1. Id. at 849. After considering mitigating and aggravating
circumstances, a trial court may impose any sentence within the statutory
range. Id. (holding that trial courts may impose any sentence authorized by
statute and Indiana’s Constitution, “regardless of the presence or absence of
aggravating circumstances or mitigating circumstances”).
A. Mitigators
[31] The determination of mitigating circumstances lies within the trial court’s
discretion. Spears v. State, 735 N.E.2d 1161, 1167 (Ind. 2000), reh’g denied. A
trial court is not obligated to accept a defendant’s claim as to what constitutes a
mitigating circumstance. Rascoe v. State, 736 N.E.2d 246, 249 (Ind. 2000). In
fact, a claim that the trial court failed to find a mitigating circumstance 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.
[32] Wills argues that the trial court failed to consider the fact that he expressed
“genuine remorse.” (Willis’ Br. 12). He specifically claims that he “expressed
genuine remorse and was steadfast in his desire to provide restitution and
cooperate in the victims’ efforts at civil recovery.” (Wills’ Br. 12). Concerning
Wills’ restitution mitigator, the State argues that the trial court specifically
acknowledged his cooperation and willingness to make restitution. The trial
court simply considered that as part of his expression of remorse, which it
acknowledged as a mitigator. The State further argues that the trial court’s
statement at the sentencing hearing shows that the trial court considered the
mitigators advanced by Wills but chose not to accept all of them because of the Court of Appeals of Indiana | Opinion 24A-CR-1453 | October 10, 2025 Page 16 of 31 seriousness of the crime. The State further argues that the trial court
“determined that [Wills’] excessive irresponsibility and disregard for others by
driving so heavily intoxicated, speeding, and ignoring a stop sign merited a
sentence above the advisory sentence.” (State’s Br. 11).
[33] In this case, the record reveals that the trial court considered the mitigators
advanced by Wills’ counsel. The trial court specifically recognized that Wills
showed sincere remorse, had no significant criminal history, cooperated with
the victim’s civil attorneys, and that long-term imprisonment would impose a
hardship on his dependents. In addition, the trial court recognized that Wills
had a history of regular employment, strong family support, and had
participated in counseling immediately after the offense was committed. It was
not obligated to consider the mitigators in the same manner as Wills had argued
at the sentencing hearing. The evidence before the trial court supported its
decision to place greater emphasis on the aggravators advanced for
consideration at the sentencing hearing. As a result, we find no error here.
B. Aggravators
[34] Trial courts have discretion in identifying aggravating circumstances when
deciding whether to impose enhanced or consecutive sentences. Gomillia, 13
N.E.3d at 849. Regarding the nature and circumstances aggravator, our
Indiana Supreme Court has provided the following holding:
The “nature and circumstances” of a crime is a proper aggravator. While a trial court may not use a factor constituting a material element of an offense as an aggravating
Court of Appeals of Indiana | Opinion 24A-CR-1453 | October 10, 2025 Page 17 of 31 circumstance, a court may look to the particularized circumstances of the criminal act[.] Although the particular manner in which a crime is committed may constitute an aggravating factor, a trial court should specify why a defendant deserves an enhanced sentence under the particular circumstances[.]
Bond v. State, 729 N.E.2d 1002, 1005 (Ind. 2000) (citations omitted), reh’g
denied.
[35] Wills argues that the trial court imposed an enhanced sentence based on several
improperly applied aggravating circumstances. He specifically argues that the
aggravators were “not proper because every operating a vehicle while
intoxicated resulting in death case involves death and hardship to the victim’s
family, and every operating a vehicle while intoxicated resulting in serious
bodily injury case involves serious injury to the victim.” (Wills’ Br. 11). The
State argues that the trial court properly considered the harm and effect of this
crime on Rylan and the victims’ family members because the harm was
particularly destructive, that is, not normally associated with this type of crime
and was foreseeable to Wills.
Of particular note is the trial court’s reliance on the nature and circumstances of
this case as an aggravator. It is well settled that “a single aggravating
circumstance may be used both to enhance a sentence and to impose
consecutive sentences.” Hildebrandt v. State, 770 N.E.2d 355, 364 (Ind. Ct. App.
2002) (internal citation omitted), trans. denied. As a result, if we hold that the
Court of Appeals of Indiana | Opinion 24A-CR-1453 | October 10, 2025 Page 18 of 31 trial court properly relied upon this aggravator, we need not review Wills’ other
allegations of sentencing error regarding aggravators.
[36] Our recent decision in Howard v. State, 266 N.E.3d 304 (Ind. Ct. App. 2025) is
instructive in how a trial court may use the particular circumstances of a crime
to justify the enhancement of a defendant’s sentence. In that case, Howard was
a twenty-two-year-old recent graduate of Indiana University who had attended
a tailgate party prior to a football game. Later that evening, she attended a
birthday party at a local bar which provided bottle service. Howard consumed
a significant amount of alcohol before leaving the bar. While driving in a state
of intoxication, Howard struck Nathaniel Stratton (“Stratton”), who was riding
a scooter in a bike lane.
The impact between Howard’s car and Stratton knocked Stratton's shoe off his foot, shattered Howard's passenger-side windshield, and threw Stratton’s body further north on Walnut Street. As Stratton lay bleeding in the street, Howard drove away dragging Stratton's scooter under her car, which caused sparks to fly from the rear of her car.
Id. at 310. Howard continued to drive for several blocks, at times driving
partially on the sidewalk, before she stopped and people yelled that she was
dragging a scooter under her car. Police soon responded and Howard was
taken into custody. A subsequent blood test revealed that Howard had an ACE
of .226.
[37] Howard was charged with multiple felony offenses and pled guilty to Level 3
felony leaving the scene of an accident during or after the commission of the Court of Appeals of Indiana | Opinion 24A-CR-1453 | October 10, 2025 Page 19 of 31 offense of operating a vehicle while intoxicated causing death. At her
sentencing hearing, Howard’s counsel argued that the trial court should impose
a sentence less than the advisory sentence and that any executed time should be
served on community corrections. Acknowledging the horrible crime that had
been committed, counsel argued that Howard had performed many good deeds
throughout her life and submitted numerous letters attesting to her good
character. Howard’s counsel proposed that the trial court consider a number of
mitigators. Howard’s counsel further argued that the trial court should not
consider the harm or injury to Stratton as aggravators because they were
elements of the offense and Howard had not caused a harm greater than death.
[38] The State argued that the trial court should impose an enhanced sentence based
on the nature and circumstances of the case. Specifically, the State argued that
Howard’s “excessive intoxication, her speed, and the fact that she drove in such
a manner in a highly populated area” were facts justifying an enhanced
sentence. Id. at 317.
[39] After considering the parties’ arguments, the trial court identified Howard’s
manner of driving and her “extreme level of intoxication” as aggravating factors
and imposed an enhanced sentence of twelve (12) years with ten (10) years
executed in the Indiana Department of Correction. Id.
[40] On appeal, Howard argued that the trial court’s consideration of her level of
intoxication was improper because it was an element of the offense and the
manner of her driving was improper because there was no evidence of her speed
Court of Appeals of Indiana | Opinion 24A-CR-1453 | October 10, 2025 Page 20 of 31 at the time of the crash. We disagreed. We noted that “the particularized
circumstances of a criminal act may constitute a separate aggravating
circumstance.” Id. at 322. Howard was charged under INDIANA CODE § 9-30-
5-5, which required proof of intoxication or a .08 ACE. Nevertheless, we held
that the trial court’s particularized finding that Howard’s ACE of .226
represented an “extreme level of intoxication” went beyond noting the elements
of the offense and was properly used as an aggravator. Id. See also Rodriquez v.
State, 785 N.E.2d 1169, 1178 (Ind. Ct. App. 2003) (holding that, in a case
involving a defendant who pleaded guilty to operating a motor vehicle while
intoxicated causing death, the trial court properly considered as an aggravating
circumstance the particularized fact that the defendant’s BAC was nearly three
times the legal limit at the time of a traffic accident), superseded by statute on other
grounds, trans. denied; Robinson v. State, 775 N.E.2d 316, 321 (Ind. 2002) (holding
that shooting murder victim multiple times, stripping, looting, robbing, and
then dumping the body in a lake was proper use of nature and circumstance
aggravator); Hulfachor v. State, 813 N.E.2d 1204, 1209 (Ind. Ct. App. 2004)
(holding that “facts evidencing the particular brutality of the attack and severity
of the resulting injury may be considered as an aggravating factor”); Benton v.
State, 691 N.E.2d 459, 465 (Ind. Ct. App. 1998) (although bodily injury is an
element of burglary, “the viciousness with which the injury was inflicted” could
be considered as an aggravating circumstance to enhance the sentence).
[41] In this case, the trial court found that the nature and circumstances of the
offenses were an aggravating factor. Specifically, the trial court noted that: (1)
Court of Appeals of Indiana | Opinion 24A-CR-1453 | October 10, 2025 Page 21 of 31 Wills’ ACE was more than three times the legal limit; (2) he tested positive for
marijuana; (3) Wills demonstrated irresponsibility by choosing to drive after
consuming alcohol all day; and (4) the harm and injury done to the three
victims and their families. In addition, the record demonstrates that the trial
court considered the testimony that Kimberly and Jaden’s bodies were so
mangled by the crash that their funerals had to be held with their caskets closed.
Further, Rylan suffered injuries severe enough to be described as a medical
decapitation. Just as in Howard, we hold that the trial court went beyond
describing the elements of the offenses and particularly described Wills’ extreme
irresponsibility and the brutality of the offenses. We also hold that the nature
and circumstances aggravator, as used in this case, was sufficient to justify the
enhancement of the sentences in each count. As a result, we need not address
Wills’ other arguments regarding improper aggravators. See Hildebrandt, 770
N.E.2d at 364 (holding that a single aggravating factor may be used to enhance
a defendant’s sentence).
2. Inappropriate Sentence [42] Wills argues that his sentence is inappropriate under Indiana Appellate Rule
7(b). We may revise a sentence if it is inappropriate in light of the nature of the
offense and the character of the offender. Ind. Appellate Rule 7(B). The
defendant has the burden of persuading us that his sentence is
inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). The
principal role of an Appellate Rule 7(B) review “should be to attempt to leaven
the outliers, and identify some guiding principles for trial courts and those
Court of Appeals of Indiana | Opinion 24A-CR-1453 | October 10, 2025 Page 22 of 31 charged with improvement of the sentencing statutes, but not to achieve a
perceived ‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225
(Ind. 2008). In other words, there must be “‘compelling evidence portraying in
a positive light the nature of the offense’ and ‘the defendant’s character.’”
Norton v. State, 235 N.E.3d 1285, 1291 (Ind. Ct. App. 2024) (quoting Lane v.
State, 232 N.E.3d 119, 122 (Ind. 2024)). Whether we regard a sentence as
inappropriate turns on 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. “Appellate Rule 7(B) analysis is not to determine
whether another sentence is more appropriate but rather whether the sentence
imposed is inappropriate.” Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012)
(cleaned up), reh’g denied.
[43] When determining whether a sentence is inappropriate, we acknowledge that
the advisory sentence “is the starting point the Legislature has selected as an
appropriate sentence for the crime committed.” Childress, 848 N.E.2d at
1081. Wills pled guilty to and was convicted of two counts of Level 4 felony
operating while intoxicated causing death. A person who commits a Level 4
felony “shall be imprisoned for a fixed term of between two (2) and twelve (12)
years, with the advisory sentence being six (6) years.” I.C. § 35-50-2-5.5. Wills
also pled guilty to and was convicted of one count of Level 5 felony operating
while intoxicated causing serious bodily injury. A person who commits a Level
5 felony “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-
Court of Appeals of Indiana | Opinion 24A-CR-1453 | October 10, 2025 Page 23 of 31 6(b). Here, the trial court imposed consecutive eleven-year terms for the Level
4 felonies and a consecutive six-year term for the Level 5 felony, resulting in a
total aggregate sentence of twenty-eight years.
[44] Turning to the nature of the offense, we examine the “details and circumstances
surrounding the offense and the defendants’ participation.” Perry v. State, 78
N.E.3d 1, 13 (Ind. Ct. App. 2017). Here, the horrific facts are not in dispute.
Wills spent the day consuming alcohol and marijuana while attending a golf
outing in Indianapolis. After turning down an invitation to stay overnight in
Indianapolis, he chose to drive home to Lafayette. On his way home, Wills
stopped to consume more alcohol, drove through a roundabout, and then
disregarded a stop sign before crashing into another car, killing Kimberly and
Jaden and medically decapitating Rylan. The damage to Kimberly and Jaden
bodies were so severe that their caskets were closed for their funerals.
[45] Concerning Wills’ character, there is evidence in the record showing the good
deeds Wills has done in his life. The letters introduced at the sentencing
hearing provide evidence that he was a devoted husband and father with a
lengthy history of employment. However, the PSI also reveals a lengthy and
accelerating pattern of substance abuse. While Wills made commendable
progress in addressing his substance abuse through counseling while on bond,
he claimed, during his PSI interview, that his consumption of alcohol and
marijuana did not present a problem “‘until this accident.’” (App. Vol. 2 at
128). His explanation and description of this offense as an “accident” suggest a
failure to understand the depth of his substance abuse issues and the nature of
Court of Appeals of Indiana | Opinion 24A-CR-1453 | October 10, 2025 Page 24 of 31 this offense. As a result, we are not persuaded that compelling evidence exists
justifying a revision of Wills’ sentence, and we hold that Wills’ sentence is not
inappropriate.
[46] Affirmed.
Kenworthy, J., concurs. Baker, Sr.J., dissents with separate opinion.
ATTORNEYS FOR APPELLANT James H. Voyles Tyler D. Helmond Voyles Vaiana Lukemeyer Baldwin & Webb Indianapolis, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana John R. Oosterhoff Deputy Attorney General Indianapolis, Indiana
Court of Appeals of Indiana | Opinion 24A-CR-1453 | October 10, 2025 Page 25 of 31 Baker, Senior Judge, dissenting.
I. Introduction [47] This case presents tragic circumstances, and the trial judge was faced with
difficult sentencing decisions. And our standard of review is “highly
deferential[,]” with sentencing “normally left to the sound discretion of the trial
court.” Hardebeck v. State, 656 N.E.2d 486, 490 (Ind. Ct. App. 1995), trans.
denied. But, as to Wills’ sentences for the two counts of Level 4 felony
operating while intoxicated causing death, I conclude the trial court abused its
sentencing discretion. I further conclude Wills has shown his sentence is
inappropriate under Appellate Rule 7(B). Consequently, I respectfully dissent
and would direct the trial court to impose a reduced sentence.
II. Sentencing Discretion [48] The trial court listed four aggravating sentencing factors: (1) a history of
criminal behavior; (2) imposition of a reduced sentence would depreciate the
seriousness of the crime; (3) the harm, injury, loss, and damage suffered by the
victim of the offense was significant and greater than the elements necessary to
commit the offense; and (4) the nature and circumstances of the offenses,
beyond what is necessary to prove the elements of the offense. Tr. Vol. 2, pp.
100-02. Starting with the criminal behavior aggravating factor, the State
conceded at oral argument that the trial court should not have considered Wills’
Court of Appeals of Indiana | Opinion 24A-CR-1453 | October 10, 2025 Page 26 of 31 previous arrest and charge for operating while intoxicated, which was 10 dismissed.
[49] As for the aggravating factor that a reduced sentence would depreciate the
seriousness of the offense, there is no indication in the transcript that the trial
court considered a sentence below the advisory for any of the three charges. To
the contrary, it appears to me that the trial court started with the maximum
sentence for each count and worked from there. It is often said that where you
start from often determines where you end. For Wills’ part, he requested the
advisory sentence for each offense. For these reasons, the court’s identification
of this aggravating factor was inappropriate. See Powell v. State, 751 N.E.2d 311,
317 (Ind. Ct. App. 2001) (rejecting trial court’s selection of depreciation of
seriousness of offense as aggravating factor; trial court did not consider
imposing less than presumptive sentence and did not state that imposition of
less than an enhanced term would depreciate the seriousness of the offense).
[50] Turning to the aggravating factor of harm to the victims being greater than what
was necessary to prove the elements of the offense, I cannot dispute that it
applies to Rylan Burge under Count VII. He has suffered physical injuries that
will affect him for the rest of his life, as well as the emotional harm from losing
his mother and best friend in the same accident. But I disagree that this
aggravating factor applies to Count I (the death of Kimberly Burge) and Count
10 See Oral Argument at 29:13, https://events.in.gov/event/appeals-brent-t-willis-v-state-of-indiana-24a-cr- 1453 [https://perma.cc/45VD-GUJ9] (last visited October 2, 2025).
Court of Appeals of Indiana | Opinion 24A-CR-1453 | October 10, 2025 Page 27 of 31 IV (the death of Jaden Harvey). By all accounts, they died either instantly or
very shortly after the collision. And although Kimberly and Jaden’s families
suffered extensive emotional harm from their deaths, “under normal
circumstances the impact upon family is not an aggravating circumstance for
purposes of sentencing.” Bacher v. State, 686 N.E.2d 791, 801 (Ind. 1997).
[51] That leaves us with the fourth aggravating circumstance, the nature and
circumstances of the offenses beyond what was necessary to prove the elements
of the offenses. I agree with the majority that this aggravating circumstance
was appropriate as to all three offenses. Wills’ level of intoxication was well
above the legal limit after a day of drinking, there were cannabinoids in his
system, and he was speeding when he struck the victims’ car.
[52] In summary, with respect to Counts I and IV, I conclude there is one valid
aggravating circumstance versus seven mitigating circumstances: (1) his guilty
plea and acceptance of responsibility; (2) his statement of remorse; (3) his lack
of a formal criminal history; (4) hardship to Wills’ dependents because he was
the sole breadwinner; (5) his attempts at rehabilitation while the case was
pending; (6) a history of regular employment; and (7) strong support from
family and friends. Tr. Vol. 2, p. 102.
[53] I fully accept our Court’s longstanding precedent stating: (1) we do not second-
guess the trial court’s weighing of aggravating and mitigating factors; and (2)
one valid aggravating factor is sufficient to uphold a sentence above the
advisory amount set by statute. See Robinson v. State, 894 N.E.2d 1038, 1042
Court of Appeals of Indiana | Opinion 24A-CR-1453 | October 10, 2025 Page 28 of 31 (Ind. Ct. App. 2008) (a trial court cannot be said to have abused its discretion in
failing to properly weigh aggravating and mitigating factors); Guzman v. State,
985 N.E.2d 1125, 1133 (Ind. Ct. App. 2013) (“a single aggravating factor is
sufficient to warrant an enhanced sentence”). “Sentencing is fact-sensitive[.]”
Bluck v. State, 716 N.E.2d 507, 515 (Ind. Ct. App. 1999). But allowing the
sentence here to stand as to Counts I and IV, with such a lopsided count of
aggravating and mitigating factors, effectively renders trial court sentencing
decisions unreviewable under an abuse of discretion standard. I conclude that
the court abused its sentencing discretion as to Counts I and IV, but rather than
remanding the case for a new sentencing hearing, I would impose relief as set
forth below.
III. Rule 7(B) Sentencing Review [54] I do not disagree with the majority’s statement of our standards and procedures
under Appellate Rule 7(B), but I think the sentences for Counts I and IV are
rare outliers in need of correction. As to the nature of the offenses, Wills chose
to heavily drink all day and consume cannabinoids before driving home, and he
was speeding at the time he ran into Kimberly Burge’s car, killing her and
Jaden Harvey. But they died on impact or soon after, and there is no evidence
that they suffered. On the other hand, Rylan Burge suffered life-threatening
injuries that will affect the rest of his life, as well as serious emotional harm
from losing his mother and best friend.
[55] Turning to the character of the offender, Wills pleaded guilty without an
agreement. “A guilty plea demonstrates a defendant’s acceptance of Court of Appeals of Indiana | Opinion 24A-CR-1453 | October 10, 2025 Page 29 of 31 responsibility for the crime and at least partially confirms the mitigating
evidence regarding his character.” Cotto v. State, 829 N.E.2d 520, 525 (Ind.
2005). Although the evidence against Wills was strong, his guilty plea saved
time and expense and avoided the hardship of putting Rylan Burge and the
victims’ other family members through a trial, as the trial court noted. In
addition, during sentencing Wills expressed remorse for his crimes and took
responsibility. The trial court determined Wills’ remorse was genuine.
[56] Wills has no formal criminal history, although I acknowledge that his lack of
arrests or convictions is tempered by his admission that he has often smoked
marijuana throughout his adult life. Even so, Wills has also consistently
worked his entire adult life. He lost his job after this case began, but he
obtained a new one and continued to work while the case was pending.
[57] “Sentencing decisions often defy quantification[,]” and “principled appellate
review and revision of sentences [is] difficult.” Bluck, 716 N.E.2d at 515. I
conclude the sentences for Wills’ two convictions of Level 4 felony operating
while intoxicated resulting in death are inappropriate in light of the nature of
the offenses and his character. I would direct the trial court to reduce his
sentences for each count to the advisory sentence of six years, to be served
consecutively to each other and to his six-year sentence for operating while 11 intoxicated causing bodily injury, for a total sentence of eighteen years. I
11 I would have reduced his sentences for each Level 4 felony to five years each, but Wills did not request a sentence below the advisory amount.
Court of Appeals of Indiana | Opinion 24A-CR-1453 | October 10, 2025 Page 30 of 31 would further suspend four years of the sentence, with two years served on
community corrections and two years served on probation, as ordered by the
trial court.
[58] Reviewing a sentence under 7(B) requires deference to the trial court’s decision,
but it also “‘boils down to our collective sense of what is appropriate.’” Faith v.
State, 131 N.E.3d 158, 160 (Ind. 2019) (quoting Taylor v. State, 86 N.E.3d 157,
165 (Ind. 2017)). My sense of the inappropriateness of Wills’ sentence differs
from that of my colleagues, and I respectfully dissent.
Court of Appeals of Indiana | Opinion 24A-CR-1453 | October 10, 2025 Page 31 of 31