Crosby Rayne Waller v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: November 1, 2018
• Docket: 18A-CR-1401
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Nov 01 2018, 8:51 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Michael Frischkorn Curtis T. Hill, Jr. Fortville, Indiana Attorney General of Indiana

Henry A. Flores, Jr. Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Crosby Rayne Waller, November 1, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-1401 v. Appeal from the Hamilton Superior Court State of Indiana, The Honorable William J. Hughes, Appellee-Plaintiff. Judge Trial Court Cause No. 29D03-1710-F5-7768

Najam, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1401 | November 1, 2018 Page 1 of 6 Statement of the Case [1] Crosby Rayne Waller appeals his sentence following his guilty plea to domestic

battery, as a Level 6 felony. He raises a single issue for our review, namely,

whether his sentence is inappropriate in light of the nature of the offense and his

character.

[2] We hold that, because Waller has failed to present any authority or analysis

with respect to whether his sentence is inappropriate in light of the nature of his

offense, he has waived appellate review of the inappropriateness of his sentence.

However, his waiver notwithstanding, Waller has failed to persuade us that his

sentence is inappropriate. Accordingly, we affirm.

Facts and Procedural History [3] On October 24, 2017, Waller engaged in a physical altercation with his father,

Stephen Waller. Waller’s mother witnessed the altercation, and she called the

police. Officer Wade Burtron with the Westfield Police Department responded

to the call. After Officer Burtron arrived at the scene, he took a report from

Stephen. Stephen told Officer Burtron that Waller had punched him in the face

and kicked and hit him multiple times. Officer Burtron was able to observe that

Stephen had a cut on his forehead that was bleeding, a scrape on his elbow, and

a cut on his knee. Officer Burtron arrested Waller and read him his Miranda

rights. Waller admitted to Officer Burtron that he had punched Stephen in the

head.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1401 | November 1, 2018 Page 2 of 6 [4] On October 25, the State charged Waller with one count of domestic battery, as

a Class A misdemeanor (“Count 1”); one count of domestic battery, as a Level

6 felony (“Count 2”); and one count of domestic battery, as a Level 5 felony

(“Count 3”). On March 1, 2018, the State and Waller entered into a plea

agreement. Pursuant to the terms of the agreement, Waller agreed to plead

guilty to Count 2, and the State agreed to dismiss Counts 1 and 3. The plea

agreement left sentencing to the discretion of the trial court. After a hearing,

the trial court accepted Waller’s guilty plea and sentenced him to 730 days

executed in the Department of Correction. This appeal ensued.

Discussion and Decision [5] On appeal, Waller asserts that his 730-day executed sentence is inappropriate in

light of the nature of the offense and his character. However, the entirety of

Waller’s argument on appeal is as follows:

Mr. Waller immediately admitted to the offense at the time of the incident after being read his Miranda rights. He has saved the State the time and expense of going to trial. Also, Mr. Waller has a number of mental health issues that are set out at length in the Pre-Sentence Investigation Report. Mr. Waller has been diagnosed from an early age with high-functioning autism. Also, he has substance abuse issues and has had difficulties with his gender identity which led to bullying in school. During the interview, Mr. Waller ha[d] fresh cuts on his arms and a history of self-harm. Based on Mr. Waller’s history and mental health issues, an executed sentence is not appropriate.

Appellant’s Br. at 6-7 (internal citations omitted). As such, Waller’s argument

is that his executed sentence is inappropriate only in light of his character. Court of Appeals of Indiana | Memorandum Decision 18A-CR-1401 | November 1, 2018 Page 3 of 6 However, that argument, by itself, is not sufficient to invoke this court’s

authority to revise a sentence under Indiana Appellate Rule 7(B).

[6] As this court has recently explained:

Article 7, Sections 4 and 6 of the Indiana Constitution “authorize[ ] independent appellate review and revision of a sentence imposed by the trial court.” Roush v. State, 875 N.E.2d 801, 812 (Ind. Ct. App. 2007) (alteration original). This appellate authority is implemented through Indiana Appellate Rule 7(B). Id. Revision of a sentence under Rule 7(B) requires the appellant to demonstrate that his sentence is “inappropriate in light of the nature of his offenses and his character.” Ind. Appellate Rule 7(B) (emphasis added). That language is clear: Rule 7(B) plainly requires, as this court has long acknowledged, “the appellant to demonstrate that his sentence is inappropriate in light of both the nature of the offenses and his character.” Williams v. State, 891 N.E.2d 621, 633 (Ind. Ct. App. 2008) (emphasis original to Williams).

Sanders v. State, 71 N.E.3d 839, 843-44 (Ind. Ct. App. 2017), trans denied.

Because Waller’s argument on appeal does not address his sentence in relation

to the nature of his offense, he has waived our review of the inappropriateness

of his sentence. See id.

[7] His waiver notwithstanding, Waller has failed to persuade us that his executed

sentence is inappropriate. Indiana’s flexible sentencing scheme allows trial

courts to tailor an appropriate sentence to the circumstances presented, and the

trial court’s judgment “should receive considerable deference.” Cardwell, 895

N.E.2d at 1222. Whether we regard a sentence as inappropriate at the end of

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1401 | November 1, 2018 Page 4 of 6 the day turns on “our sense of 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. The question is not whether another

sentence is more appropriate, but rather whether the sentence imposed is

inappropriate. King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008).

Deference to the trial court “prevail[s] unless overcome by compelling evidence

portraying in a positive light the nature of the offense (such as accompanied by

restraint, regard, and lack of brutality) and the defendant’s character (such as

substantial virtuous traits or persistent examples of good character).” Stephenson

v. State, 29 N.E.3d 111, 122 (Ind. 2015). Further, the location where a sentence

is to be served is an appropriate focus of our review and revise authority. See

Biddinger v. State, 868 N.E.2d 407, 414 (Ind. 2007).

[8] Here, aside from providing no authority or analysis concerning the nature of his

offense, Waller has not shown that his sentence is inappropriate in light of his

character. “When 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). Waller’s criminal history consists of four prior misdemeanor

convictions and one prior felony conviction. And two of those prior offenses

were similar in nature to the instance offense. Indeed, Waller had previously

been convicted of two separate crimes of battery, one as a Class A

misdemeanor and one as a Level 6 felony. Additionally, Waller was on

probation for his felony battery conviction when he committed the instant

battery offense. Waller’s criminal history reflects poorly on his character.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1401 | November 1, 2018 Page 5 of 6 Further, the fact that Waller committed the instant offense against his own

father also reflects poorly on his character. We cannot say that Waller’s 730-

day executed sentence is inappropriate in light of the nature of the offense and

his character. As such, we affirm Waller’s sentence.

[9] Affirmed.

Pyle, J., concurs. Crone, J., concurs in result.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1401 | November 1, 2018 Page 6 of 6