MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), 08/25/2017, 11:45 am this Memorandum Decision shall not be CLERK Indiana Supreme Court regarded as precedent or cited before any Court of Appeals and Tax Court 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 Mark K. Leeman Curtis T. Hill, Jr. Leeman Law Office and Attorney General of Indiana Cass County Public Defender Larry D. Allen Logansport, Indiana Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Daniel Michael Walts, August 25, 2017 Appellant-Defendant, Court of Appeals Case No. 09A04-1703-CR-642 v. Appeal from the Cass Superior Court State of Indiana, The Honorable Appellee-Plaintiff Richard A. Maughmer, Judge Trial Court Cause No. 09D02-1605-F1-2
Kirsch, Judge.
Court of Appeals of Indiana | Memorandum Decision 09A04-1703-CR-642 | August 25, 2017 Page 1 of 6 [1] Following his plea of guilty to attempted murder, a Level 1 felony,1 David
Michael Walts appeals his thirty-year sentence, contending that it is
inappropriate and an abuse of discretion. Concluding that it is neither, we
affirm.
Facts and Procedural History [2] On May 17, 2016, Walts was sixty-seven years old and angry with Steve Smith
for the way Smith was treating Smith’s wife, Kathy Smith. He went to the
Bungalow Bar in Logansport, Indiana armed with a loaded gun and waited for
Smith. When Smith arrived, Walts cocked and pointed his loaded gun at
Smith, but hesitated because of concern for two female bystanders whom he
told to get out and lock the door behind them. Smith ran out the back of the
bar before Walts could shoot, and Walts chased Smith out the door.
[3] Walts was charged with attempted murder, a Level 1 felony, and three counts
of intimidation, each as Level 5 felonies. Walts pleaded guilty to attempted
murder on the condition that the State dismiss the remaining three counts.
During his plea hearing, Walts admitted that he intentionally cocked and
pointed a loaded gun at Smith, with the intent to kill. The trial court accepted
the guilty plea.
1 See Ind. Code §§ 35-42-1-1(1), 35-41-5-1(a).
Court of Appeals of Indiana | Memorandum Decision 09A04-1703-CR-642 | August 25, 2017 Page 2 of 6 [4] The pre-sentence report showed a history of alcohol offenses and that Walts
reported that he drank all his life. In addition, he had no high school education
and a prior hospitalization for a nervous breakdown. At sentencing, the trial
court found that Walts’s criminal history was an aggravating circumstance and
identified no mitigating circumstances. Its written sentencing statement did not
identify any mitigating or aggravating circumstances. The trial court sentenced
Walts to a term of thirty years of incarceration, and the State dismissed the
remaining three criminal counts. Walts now appeals.
Discussion and Decision
I. Abuse of Discretion [5] Walts argues that the trial court abused its discretion by failing to give proper
weight to his age of sixty-seven years, his alcoholism, and his guilty plea. 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.” Anglemyer v. State, 868 N.E.2d 482,
490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007). A trial court
abuses its discretion if it: (1) fails “to enter a sentencing statement at all”; (2)
enters “a sentencing statement that explains reasons for imposing a sentence --
including a finding of aggravating and mitigating factors if any -- but the record
does not support the reasons”; (3) enters a sentencing statement that “omits
reasons that are clearly supported by the record and advanced for
consideration”; or (4) considers reasons that “are improper as a matter of law.”
Id. at 409-91. If the trial court has abused its discretion, we will remand for
Court of Appeals of Indiana | Memorandum Decision 09A04-1703-CR-642 | August 25, 2017 Page 3 of 6 resentencing “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.” Id. at 491.
[6] Regarding age, our Supreme Court has observed that “[a]ge is neither a
statutory nor a per se mitigating factor.” Sensback v. State, 720 N.E.2d 1160,
1164 (Ind. 1999) (emphasis added). In Sensback, the defendant was eighteen
years old. The court concluded that the defendant’s young age was beyond the
age at which the law commands special treatment of youth and that it was
within the trial court’s discretion to find that the defendant’s age was not a
mitigating factor. At sixty-seven, Walts is long beyond the age for special
treatment, and his long criminal history dating back to 1967 shows a long-
standing disregard for the law.
[7] Regarding his alcoholism, Walts long knew of the problem and was made
aware of it in conviction after conviction, but failed to take any steps to remedy
it. See Bennett v. State, 787 N.E.2d 938, 948 (Ind. Ct. App. 2003) (holding
alcohol abuse may be considered aggravating circumstance when the defendant
is aware of the problem but does not seek to remedy it), trans. denied. Walts was
aware of his drinking problem and failed to remedy it. Indeed, he was drinking
on the day he attempted to murder Smith.
[8] Finally, with regard to Walts’s claim that the trial court abused its discretion by
failing to find that his guilty plea was a significant mitigator, we note that our
courts have long held that a defendant who pleads guilty deserves to have some
Court of Appeals of Indiana | Memorandum Decision 09A04-1703-CR-642 | August 25, 2017 Page 4 of 6 mitigating weight extended to the guilty plea in return. See Cotto v. State, 829
N.E.2d 520, 524 (Ind. 2005). Where, however, there was substantial evidence
of the defendant’s guilt, where he received a substantial benefit from his plea in
the dismissal of the other charges, and where he did not plead guilty until the
day of trial when the State had already expended significant resources on trial
preparation, it is not error for a trial court not to find that the guilty plea is a
substantial mitigator. See Scott v. State, 840 N.E.2d 376, 383 (Ind. Ct. App.
2006). We, therefore, conclude that the trial court did not abuse its discretion
in sentencing Walts.
II. Inappropriate Sentence [9] Turning to Walts’s claim that his sentence is inappropriate, we note that while a
trial court may have acted within its lawful discretion in determining a
sentence, Article VII, 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). This
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MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), 08/25/2017, 11:45 am this Memorandum Decision shall not be CLERK Indiana Supreme Court regarded as precedent or cited before any Court of Appeals and Tax Court 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 Mark K. Leeman Curtis T. Hill, Jr. Leeman Law Office and Attorney General of Indiana Cass County Public Defender Larry D. Allen Logansport, Indiana Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Daniel Michael Walts, August 25, 2017 Appellant-Defendant, Court of Appeals Case No. 09A04-1703-CR-642 v. Appeal from the Cass Superior Court State of Indiana, The Honorable Appellee-Plaintiff Richard A. Maughmer, Judge Trial Court Cause No. 09D02-1605-F1-2
Kirsch, Judge.
Court of Appeals of Indiana | Memorandum Decision 09A04-1703-CR-642 | August 25, 2017 Page 1 of 6 [1] Following his plea of guilty to attempted murder, a Level 1 felony,1 David
Michael Walts appeals his thirty-year sentence, contending that it is
inappropriate and an abuse of discretion. Concluding that it is neither, we
affirm.
Facts and Procedural History [2] On May 17, 2016, Walts was sixty-seven years old and angry with Steve Smith
for the way Smith was treating Smith’s wife, Kathy Smith. He went to the
Bungalow Bar in Logansport, Indiana armed with a loaded gun and waited for
Smith. When Smith arrived, Walts cocked and pointed his loaded gun at
Smith, but hesitated because of concern for two female bystanders whom he
told to get out and lock the door behind them. Smith ran out the back of the
bar before Walts could shoot, and Walts chased Smith out the door.
[3] Walts was charged with attempted murder, a Level 1 felony, and three counts
of intimidation, each as Level 5 felonies. Walts pleaded guilty to attempted
murder on the condition that the State dismiss the remaining three counts.
During his plea hearing, Walts admitted that he intentionally cocked and
pointed a loaded gun at Smith, with the intent to kill. The trial court accepted
the guilty plea.
1 See Ind. Code §§ 35-42-1-1(1), 35-41-5-1(a).
Court of Appeals of Indiana | Memorandum Decision 09A04-1703-CR-642 | August 25, 2017 Page 2 of 6 [4] The pre-sentence report showed a history of alcohol offenses and that Walts
reported that he drank all his life. In addition, he had no high school education
and a prior hospitalization for a nervous breakdown. At sentencing, the trial
court found that Walts’s criminal history was an aggravating circumstance and
identified no mitigating circumstances. Its written sentencing statement did not
identify any mitigating or aggravating circumstances. The trial court sentenced
Walts to a term of thirty years of incarceration, and the State dismissed the
remaining three criminal counts. Walts now appeals.
Discussion and Decision
I. Abuse of Discretion [5] Walts argues that the trial court abused its discretion by failing to give proper
weight to his age of sixty-seven years, his alcoholism, and his guilty plea. 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.” Anglemyer v. State, 868 N.E.2d 482,
490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007). A trial court
abuses its discretion if it: (1) fails “to enter a sentencing statement at all”; (2)
enters “a sentencing statement that explains reasons for imposing a sentence --
including a finding of aggravating and mitigating factors if any -- but the record
does not support the reasons”; (3) enters a sentencing statement that “omits
reasons that are clearly supported by the record and advanced for
consideration”; or (4) considers reasons that “are improper as a matter of law.”
Id. at 409-91. If the trial court has abused its discretion, we will remand for
Court of Appeals of Indiana | Memorandum Decision 09A04-1703-CR-642 | August 25, 2017 Page 3 of 6 resentencing “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.” Id. at 491.
[6] Regarding age, our Supreme Court has observed that “[a]ge is neither a
statutory nor a per se mitigating factor.” Sensback v. State, 720 N.E.2d 1160,
1164 (Ind. 1999) (emphasis added). In Sensback, the defendant was eighteen
years old. The court concluded that the defendant’s young age was beyond the
age at which the law commands special treatment of youth and that it was
within the trial court’s discretion to find that the defendant’s age was not a
mitigating factor. At sixty-seven, Walts is long beyond the age for special
treatment, and his long criminal history dating back to 1967 shows a long-
standing disregard for the law.
[7] Regarding his alcoholism, Walts long knew of the problem and was made
aware of it in conviction after conviction, but failed to take any steps to remedy
it. See Bennett v. State, 787 N.E.2d 938, 948 (Ind. Ct. App. 2003) (holding
alcohol abuse may be considered aggravating circumstance when the defendant
is aware of the problem but does not seek to remedy it), trans. denied. Walts was
aware of his drinking problem and failed to remedy it. Indeed, he was drinking
on the day he attempted to murder Smith.
[8] Finally, with regard to Walts’s claim that the trial court abused its discretion by
failing to find that his guilty plea was a significant mitigator, we note that our
courts have long held that a defendant who pleads guilty deserves to have some
Court of Appeals of Indiana | Memorandum Decision 09A04-1703-CR-642 | August 25, 2017 Page 4 of 6 mitigating weight extended to the guilty plea in return. See Cotto v. State, 829
N.E.2d 520, 524 (Ind. 2005). Where, however, there was substantial evidence
of the defendant’s guilt, where he received a substantial benefit from his plea in
the dismissal of the other charges, and where he did not plead guilty until the
day of trial when the State had already expended significant resources on trial
preparation, it is not error for a trial court not to find that the guilty plea is a
substantial mitigator. See Scott v. State, 840 N.E.2d 376, 383 (Ind. Ct. App.
2006). We, therefore, conclude that the trial court did not abuse its discretion
in sentencing Walts.
II. Inappropriate Sentence [9] Turning to Walts’s claim that his sentence is inappropriate, we note that while a
trial court may have acted within its lawful discretion in determining a
sentence, Article VII, 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). This
appellate authority is implemented through Indiana Appellate Rule 7(B). Id.
Revision of a sentence under this rule requires the appellant to demonstrate that
his sentence is inappropriate in light of the nature of his offenses and his
character. We assess the trial court’s recognition or non-recognition of
aggravators and mitigators as an initial guide to determining whether the
sentence imposed was inappropriate. Gibson v. State, 856 N.E.2d 142, 147 (Ind.
Ct. App. 2006). The “defendant must persuade the appellate court that his or
Court of Appeals of Indiana | Memorandum Decision 09A04-1703-CR-642 | August 25, 2017 Page 5 of 6 her sentence has met the inappropriateness standard of review.” Roush, 875
N.E.2d at 812.
[10] Looking first at the nature of the offense, we see that Walts lured his intended
victim to the bar, pointed his gun at the bartender and threatened to kill her,
threatened to kill two patrons of the bar if they called police, repeatedly
threatened to kill Smith as he chased him, gun in hand, and told the arresting
officer that he would kill Smith when he was let out of prison. See Tr. Vol. II at
21-25. Turning to the defendant’s character, we see that Walts has an extensive
criminal history extending over several decades, and he went to the bar
intending to kill Smith whom he saw as a friend. We conclude that Walts’s
sentence is not inappropriate in light of the nature of the offense and the
character of the offender.
[11] Affirmed.
Najam, J., and Brown, J., concur.
Court of Appeals of Indiana | Memorandum Decision 09A04-1703-CR-642 | August 25, 2017 Page 6 of 6