Calvin Sarver v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: December 8, 2014
• Docket: 29A02-1407-CR-504
• Status: Unpublished

Opinion

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any Dec 08 2014, 9:51 am court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

LAWRENCE D. NEWMAN GREGORY F. ZOELLER Newman & Newman, P.C. Attorney General of Indiana Noblesville, Indiana KENNETH BIGGINS Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

CALVIN SARVER, ) ) Appellant-Defendant, ) ) vs. ) No. 29A02-1407-CR-504 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )

APPEAL FROM THE HAMILTON SUPERIOR COURT The Honorable William J. Hughes, Judge Cause No. 29D03-1002-FB-42

December 8, 2014

MEMORANDUM DECISION – NOT FOR PUBLICATION

BAKER, Judge Calvin Sarver appeals the sentence imposed by the trial court after he pleaded

guilty to Burglary,1 a class B felony. He argues that his sentence was inappropriate in

light of the nature of the offense and his character. The State cross-appeals, arguing that

the trial court improperly granted Sarver’s request for a belated appeal. Finding no

jurisdictional issue and concluding that Sarver’s sentence is not inappropriate, we affirm.

FACTS

On January 28, 2010, Annette Kreider, a resident of Hamilton County, dialed 911

to report that her home had been broken into. Kreider hid in a closet in her home until

the police responded. Officers with the Carmel Police Department arrived and

discovered Sarver and another man inside Kreider’s home. The two men had moved

several of Kreider’s possessions, including three televisions, a DVD player, a Nintendo

Wii gaming system, and a laptop computer, into a staging area for subsequent removal.

Police arrested both men. Sarver cooperated with police and admitted to his involvement

in the burglary.

On February 4, 2010, the State charged Sarver with class B felony burglary and

class D felony theft. On August 12, 2010, Sarver pleaded guilty to burglary. In exchange

for Sarver’s guilty plea, the State agreed to dismiss the theft charge. The plea agreement

left sentencing to the trial court’s discretion but provided a cap of ten years

imprisonment. On September 3, 2010, the trial court accepted Sarver’s plea and

sentenced him to ten years for the burglary conviction.

1 Ind. Code § 35-43-2-1. 2 Sarver was never told of his right to appeal by the trial court or counsel. On

March 25, 2014, Sarver requested permission to file a belated appeal, and the trial court

granted permission on April 2, 2014. The trial court also appointed local counsel.

Sarver’s counsel allowed the deadline for perfecting the appeal to pass, and, therefore,

Sarver again requested permission to file a belated notice of appeal on May 27, 2014, and

requested a hearing to present evidence. A hearing was held on July 3, 2014, and the trial

court granted Sarver’s request. Sarver now appeals his conviction and the State cross-

appeals.

DISCUSSION AND DECISION

We first address the State’s contention that the trial court improperly granted

Sarver’s second request to file a belated notice of appeal. The State maintains that the

trial court was not required to advise Sarver of his right to appeal his sentence and argues

that Sarver failed to show that he diligently pursued his appeal.

Indiana Post-Conviction Rule 2(1) provides that an eligible defendant convicted

after a trial or plea of guilty may petition the trial court for permission to file a belated

notice of appeal of the conviction or sentence if: 1) the defendant failed to file a timely

notice of appeal, 2) the failure to file a timely notice of appeal was not due to the fault of

the defendant, and 3) the defendant has been diligent in requesting permission to file a

belated notice of appeal.

The decision to grant permission to file a belated notice of appeal or belated

motion to correct error is within the sound discretion of the trial court. Moshenek v.

3 State, 868 N.E.2d 419, 422 (Ind. 2007). The defendant bears the burden of proving by a

preponderance of the evidence that he was without fault in the delay and was diligent in

pursuing permission to file a belated motion to appeal. Id. There are no set standards of

fault or diligence, and each case turns on its own facts. Id. A trial court’s ruling on a

petition for permission to file a belated notice of appeal under Post-Conviction Rule 2

will be affirmed unless it was based on an error of law or a clearly erroneous factual

determination. Id. at 423-24.

Here, Sarver was not advised of his right to appeal. Tr. p. 26, 32-33. Neither the

trial court nor counsel told him of his right. While Sarver did wait a considerable time to

file his request to file a belated notice, and his counsel failed to meet the deadline for

perfecting his appeal and another request was filed, this Court has previously determined

that a request to file a belated notice of appeal was appropriate where a defendant had

waited up to four years to filed a request, which illustrates that timing is not the only

determinative factor. See Baysinger v. State, 835 N.E.2d 233 (Ind. Ct. App. 2005).

Under these circumstances, we do not find that the trial court’s decision to grant

permission to file a belated notice of appeal was based on an error of law or a clearly

erroneous factual determination.

Turning to the merits of the appeal, we address Sarver’s argument that his

sentence was inappropriate in light of the nature of the offense and his character. On

appeal, this 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

4 the nature of the offense and the character of the offender.” Ind. Appellate Rule 7(B).

However, this Court does not substitute its judgment for that of the trial court. Foster v.

State, 795 N.E.2d 1078, 1092 (Ind. Ct. App. 2003). Under Appellate Rule 7(B), the

question is not whether it is more appropriate to impose a different sentence upon the

defendant, but whether the defendant’s sentence is inappropriate. Steinberg v. State, 941

N.E.2d 515, 535 (Ind. Ct. App. 2011). The defendant bears the burden of persuasion on

appeal that the sentence he received is inappropriate. Childress v. State, 848 N.E.2d

1073, 1080 (Ind. 2006).

We start by noting that, when considering the nature of the offense, “the advisory

sentence is the starting point the Legislature has selected as an appropriate sentence for

the crime committed.” Anglemyer v. State, 868 N.E2d 482, 494 (Ind. 2007). Here, the

trial court imposed a ten year sentence, the advisory sentence for a class B felony. Ind.

Code 35-50-2-5(a). Our Supreme Court has cautioned that “[a] defendant’s conscious

choice to enter a plea agreement that limits the trial court’s discretion to a sentence less

than the statutory maximum should usually be understood as strong and persuasive

evidence of sentence reasonableness and appropriateness,” and that following such an

agreement, we should grant relief “only in the most rare, exceptional cases.” Childress v.

State, 848 N.E.2d 1073, 1081 (Ind. 2006) (Dickson, J., concurring). Moreover, the

record shows that Sarver broke into Kreider’s home while she was inside. Appellant’s

App. p. 12. Kreider hid fearfully in a closet while Sarver and another man attempted to

steal her property. Tr. p. 9.

5 Furthermore, regarding Sarver’s character, the record shows that, prior to this

burglary conviction, Sarver had been charged with several misdemeanors. Appellant’s

App. p. 172-3. Sarver had also been charged with murder, and, in that case, pleaded

guilty to voluntary manslaughter. Id. Clearly, these experiences with the criminal justice

system have not convinced him to abandon his propensity for criminal behavior. We find

that Sarver’s sentence was appropriate in light of the nature of the offense and his

character.

The judgment of the trial court is affirmed.

VAIDIK, C.J., and RILEY, J., concur.