Cody Silvers v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: April 8, 2015
• Docket: 47A01-1409-CR-374
• Status: Published

Opinion

MEMORANDUM DECISION Apr 08 2015, 10:10 am 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 ATTORNEY FOR APPELLEE Brooke N. Russell Gregory F. Zoeller Indianapolis, Indiana Attorney General of Indiana Chandra K. Hein Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Cody Silvers, April 8, 2015

Appellant-Defendant, Court of Appeals Case No. 47A01-1409-CR-374 v. Appeal from the Lawrence Superior Court

State of Indiana, The Honorable Michael Robbins, Judge Appellee-Plaintiff. Case No. 47D01-1308-FC-1029

Mathias, Judge.

[1] Cody Silvers (“Silvers”) pleaded guilty in Lawrence Superior Court to Class C

felony leaving the scene of an accident resulting in death. He was ordered to

serve eight years in the Department of Correction and pay restitution in the

amount of $792.25. Silvers appeals and argues that:

Court of Appeals of Indiana | Memorandum Decision No. 47A01-1409-CR-374 | April 8, 2015 Page 1 of 10 I. The trial court abused its discretion in sentencing him;

II. His sentence is inappropriate in light of the nature of the offense and the character of the offender; and

III. The trial court abused its discretion in ordering him to pay restitution.

[2] We affirm.

Facts and Procedural History

[3] On August 16, 2013, Silvers, who had consumed alcohol earlier that day, was

driving on a county road near Bedford, Indiana when he struck a moped with

his pickup truck. The moped’s two passengers were thrown from the moped.

Silvers stopped his truck on an embankment near where the victims were,

exited the vehicle, and approached the victims. He told the victims he would

seek help for them, then left the scene and did not return or call for help. One of

the victims, sixteen-year-old K.Y., was pronounced dead at the scene. The

other passenger, N.B., was airlifted to Riley Hospital with serious injuries.

Evidence collected at the scene, including surveillance video and tire marks,

connected Silvers to the accident. Silvers eventually admitted that he was the

driver of the truck involved in the crash and that he left the scene.

[4] On August 22, 2013, the State charged Silvers with Class C felony failure to

stop after an accident resulting in death and Class D felony failure to stop after

an accident causing serious bodily injury. Silvers pleaded guilty to Class C

felony failure to stop after an accident resulting in death and agreed to pay

restitution in an amount to be determined at sentencing.

Court of Appeals of Indiana | Memorandum Decision No. 47A01-1409-CR-374 | April 8, 2015 Page 2 of 10 [5] At Silvers’s sentencing hearing, after hearing argument by both parties, the trial

court found no mitigating factors and found the following aggravating factors:

that twenty-one-year-old Silvers had a criminal history including residential

entry and operating while intoxicated; that Silvers had been drinking prior to

crashing into the victims’ moped; that Silvers was on probation at the time of

his crime; and that he was charged with criminal mischief while incarcerated

awaiting sentencing. The trial court ordered Silvers to pay Brown restitution in

the amount of $792.25 for medical expenses not covered by insurance and

sentenced Silvers to eight years executed in the Department of Correction.

[6] Silvers now appeals.

I. Abuse of Discretion

[7] Silvers argues that the trial court abused its discretion by failing to consider as

mitigating factors Silvers’s guilty plea and his expression of remorse. Sentencing

decisions rest within the sound discretion of the trial court. Anglemyer v. State,

868 N.E.2d 482, 490 (Ind. 2007) (“Anglemyer I “). 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 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. Id. at 491. A trial court

may abuse its sentencing discretion in a number of 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 Court of Appeals of Indiana | Memorandum Decision No. 47A01-1409-CR-374 | April 8, 2015 Page 3 of 10 by the record; or (4) entering a sentencing statement that includes reasons that

are improper as a matter of law. Id. at 490-91.

[8] In its opinion on rehearing in Anglemyer I, our supreme court noted that:

a defendant who pleads guilty deserves “some” mitigating weight be given to the plea in return. But an allegation that the trial court failed to identify or find a mitigating factor requires the defendant to establish that the mitigating evidence is not only supported by the record but also that the mitigating evidence is significant. And the significance of a guilty plea as a mitigating factor varies from case to case. For example, a guilty plea may not be significantly mitigating when it does not demonstrate the defendant’s acceptance of responsibility, or when the defendant receives a substantial benefit in return for the plea.

Anglemyer v. State, 875 N.E.2d 218, 221 (Ind. 2007) (“Anglemyer II “) (citations

omitted).

[9] In this case, the evidence against Silvers was overwhelming. His truck was

recorded by surveillance video cameras and matched the tire tracks at the scene

of the crash, eyewitnesses placed him at the crash scene, and he admitted to the

crime. Furthermore, despite his plea of guilty, Silvers continued to minimize his

responsibility for the crash at his sentencing hearing. See Tr. p. 30. Because

Silvers’s decision to plead guilty was more likely the result of pragmatism than

acceptance of responsibility and because of Silvers’s minimization of his guilt,

we conclude the trial court did not abuse its discretion by omitting reference to

his guilty plea when imposing his sentence.

[10] As for Silvers’s expression of remorse, we note that, while an expression of

remorse may be considered as a mitigating circumstance, the trial court is under Court of Appeals of Indiana | Memorandum Decision No. 47A01-1409-CR-374 | April 8, 2015 Page 4 of 10 no obligation to accept a defendant’s alleged remorse as a mitigator. Phelps v.

State, 969 N.E.2d 1009, 1020 (Ind. Ct. App. 2012), trans. denied. The trial court

possesses the ability to directly observe a defendant and can best determine

whether a defendant’s remorse is genuine. Id. Therefore, substantial deference

must be given to the trial court’s evaluation of a defendant’s remorse. Id. Absent

evidence of some impermissible consideration by the trial court, we will accept

its determination as to remorse. Stout v. State, 834 N.E.2d 707, 711 (Ind. Ct.

App. 2005).

[11] Here, Silvers asks that we accept his declaration of remorse, which was clearly

rejected by the trial court. Further, Silvers presents no evidence of any

impermissible aggravator considered by the trial court. We also note that, at

Silvers’s sentencing hearing, he attempted to minimize his blame for the

accident, arguing that the State never proved that he was the person who

caused the crash, just that he left the scene. Tr. p. 30. Under these facts and

circumstances, the trial court was well within its discretion to discredit Silvers’s

self-serving claim of remorse.

II. Inappropriate Sentence

[12] Silvers next argues that his seven-year sentence is inappropriate in light of the

nature of the offense and the character of the offender. Pursuant to Indiana

Appellate Rule 7(B), we may revise a sentence otherwise 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 our review of sentences under this rule, “we must and Court of Appeals of Indiana | Memorandum Decision No. 47A01-1409-CR-374 | April 8, 2015 Page 5 of 10 should exercise deference to a trial court’s sentencing decision, both because

Rule 7(B) requires us to give ‘due consideration’ to that decision and because

we understand and recognize the unique perspective a trial court brings to its

sentencing decisions.” Trainor v. State, 950 N.E.2d 352, 355 (Ind. Ct. App.

2011), trans. denied.

[13] Although we have the power to review and revise sentences, the principal

purpose of our review should be to attempt to level the outliers and identify

some guiding principles for trial courts and those charged with improvement of

the sentencing statutes, not to achieve what we perceive to be a “correct” result

in each case. Fernbach v. State, 954 N.E.2d 1080, 1089 (Ind. Ct. App. 2011),

trans. denied. Our review under Appellate Rule 7(B) should focus on “the

forest—the aggregate sentence—rather than the trees—consecutive or

concurrent, number of counts, or length of the sentence on any individual

count.” Id. The appropriate question is not whether another sentence is more

appropriate; rather, the question is whether the sentence imposed is

inappropriate. Former v. State, 876 N.E.2d 340, 344 (Ind. Ct. App. 2007). It is

the defendant’s burden on appeal to persuade us that the sentence imposed by

the trial court is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind.

2006).

[14] Silvers argues that his sentence is inappropriate because he showed remorse

during sentencing; because in pleading guilty, he saved the State and the

victims’ families the trouble of having to go to trial; because he experienced

trauma after witnessing this crash as well as a previous crash involving his

Court of Appeals of Indiana | Memorandum Decision No. 47A01-1409-CR-374 | April 8, 2015 Page 6 of 10 cousin; and because he has endured hardship during his incarceration. We note,

however, that Silvers was on probation for a 2011 residential entry conviction at

the time of the present offense. In 2012, Silvers pleaded guilty to operating a

vehicle with a Schedule I or II controlled substance in a person’s body. Also,

while Silvers was incarcerated awaiting sentencing, he was charged with

criminal mischief. Furthermore, despite his declarations of remorse, he

attempted to minimize his role in the crash at his sentencing hearing.

[15] With regard to the nature of Silvers’s offense, we note that Silvers struck a

moped carrying two young passengers, stopped his vehicle and approached the

gravely injured victims, promised to find help, then never returned.

Furthermore, he later tried to cover up his crime by removing the distinctive

hood from his truck and changing the truck’s damaged front tire.

[16] Under these facts and circumstances, we cannot say that Silvers’s eight-year

sentence is inappropriate in light of the nature of the offense and the character

of the offender.

III. Restitution

[17] Finally, Silvers argues that the trial court abused its discretion in ordering

restitution. Specifically, he argues that there was insufficient evidence to

support the amount of restitution ordered by the trial court.

[18] We reverse a trial court’s order to pay restitution only for an abuse of

discretion. Gil v. State, 988 N.E.2d 1231, 1234 (Ind. Ct. App. 2013). A trial

court abuses its discretion if its “decision is clearly against the logic and effects

Court of Appeals of Indiana | Memorandum Decision No. 47A01-1409-CR-374 | April 8, 2015 Page 7 of 10 of the facts and circumstances before it” or if it “misinterprets or misapplies the

law.” Id.

[19] Indiana Code section 35-50-5-3(a) provides, in relevant part, that “in addition to

any sentence imposed under this article for a felony or misdemeanor, the court

may . . . order the person to make restitution to the victim of the crime[.]”

When such an order is entered, it must be based upon a consideration of:

(1) property damages of the victim incurred as a result of the crime, based on the actual cost of repair (or replacement if repair is inappropriate); (2) medical and hospital costs incurred by the victim (before the date of sentencing) as a result of the crime; (3) the cost of medical laboratory tests to determine if the crime has caused the victim to contract a disease or other medical condition; (4) earnings lost by the victim (before the date of sentencing) as a result of the crime including earnings lost while the victim was hospitalized or participating in the investigation or trial of the crime; and (5) funeral, burial, or cremation costs incurred by the family or estate of a homicide victim as a result of the crime. Id.

[20] An order of restitution is as much a part of a criminal sentence as a fine or other

penalty. Kotsopoulos v. State, 654 N.E.2d 44, 46 (Ind. Ct. App. 1995). It is well

established that the restitution order must reflect the actual loss sustained by the

victim. Smith v. State, 471 N.E.2d 1245, 1248 (Ind. Ct. App. 1984), trans. denied.

The amount of actual loss is a factual matter, which can be determined only

upon presentation of evidence. Id.

Court of Appeals of Indiana | Memorandum Decision No. 47A01-1409-CR-374 | April 8, 2015 Page 8 of 10 [21] A restitution order must reflect a loss sustained by the victim as a direct and

immediate result of the defendant’s criminal acts, and the trial court may

consider only expenses incurred by the victim prior to the date of sentencing.

Rich v. State, 890 N.E.2d 44 (Ind. Ct. App. 2008), trans. denied.

[22] “Generally, failure to object to an award of restitution constitutes waiver of a

challenge to the award on appeal, unless a defendant argues that the award was

fundamentally erroneous and in excess of statutory authority.” Morris v. State, 2

N.E.3d 7, 9 (Ind. Ct. App. 2013). “[A] defendant’s failure to make a specific

and timely objection to the trial court’s receipt of evidence concerning the

amount of restitution constitutes waiver of the issue on appeal.” Id.

[23] Here, as part of his plea agreement, Silvers agreed to “pay restitution to the

victims in an amount to be determined at the Sentencing hearing.” Appellant’s

App. p. 10. When the State entered into evidence invoices denoting the balance

of Brown’s medical expenses, Silvers did not object, nor did he object to the

trial court’s restitution order. Therefore, Silvers waived his claim of error.

[24] Waiver notwithstanding, the trial court did not abuse its discretion in its award

of restitution. The State submitted itemized medical bills detailing the unpaid

balance of Brown’s medical expenses, which totaled $792.25. These bills

provided a reasonable basis for determining Brown’s loss and did not subject

the trial court to speculation or conjecture with regards to the loss. See Guzman

v. State, 985 N.E.2d 1125 (Ind. Ct. App. 2013) (letter from surviving crime

victim’s attorney, setting out victim’s claim for restitution for medical expenses

Court of Appeals of Indiana | Memorandum Decision No. 47A01-1409-CR-374 | April 8, 2015 Page 9 of 10 incurred as a result of automobile accident which formed basis of defendant’s

conviction for felony reckless homicide, was sufficient to support trial court’s

restitution order; letter broke down total claim by amount and to whom amount

was due, and established exact amount of loss incurred by victim).

Conclusion

[25] For all of these reasons, we conclude that the trial court did not abuse its

discretion in sentencing Silvers and that Silvers’s sentence is not inappropriate

in light of the nature of the offense and the character of the offender. We also

conclude that the trial court did not abuse its discretion in ordering Silvers to

pay $792.25 in restitution to the victim.

[26] Affirmed.

May, J., and Robb, J., concur.

Court of Appeals of Indiana | Memorandum Decision No. 47A01-1409-CR-374 | April 8, 2015 Page 10 of 10