David C. Wilson v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: May 17, 2012
• Docket: 49A04-1110-CR-516
• Status: Unpublished

Opinion

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before FILED May 17 2012, 9:32 am any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case. CLERK of the supreme court, court of appeals and tax court

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

TIMOTHY J. O’CONNOR GREGORY F. ZOELLER O’Connor & Auersch Attorney General of Indiana Indianapolis, Indiana KARL M. SCHARNBERG Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

DAVID C. WILSON, ) ) Appellant-Defendant, ) ) vs. ) No. 49A04-1110-CR-516 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Patricia J. Gifford, Judge Cause No. 49G05-0912-FA-100865

May 17, 2012

MEMORANDUM DECISION - NOT FOR PUBLICATION

BRADFORD, Judge Appellant-Defendant David Wilson appeals the forty-year sentence imposed following

his convictions for Class A felony Burglary,1 Class B felony Possession of a Firearm by a

Serious Violent Felon,2 and Class B felony Conspiracy to Commit Burglary.3 Specifically,

Wilson contends that the trial court abused its discretion in failing to consider his young age

as a mitigating factor. We affirm.

FACTS AND PROCEDURAL HISTORY

A few days prior to March 16, 2009, James Warfield’s apartment was burglarized.

The thieves took approximately ten pounds of marijuana. Warfield suspected that David and

Jason Killinger were behind the burglary. Angry that his apartment had been burglarized,

Warfield formulated a plan to “take his stuff back.” Tr. p. 118.

On March 16, 2009, Warfield, Kyle Hittle, Brian Bronough, and Wilson, who was

nineteen years old at the time, met at a house on Post Road in Indianapolis where they

discussed Warfield’s plan. Hittle, Bronough, and Wilson agreed to participate in Warfield’s

plan. In preparation for the burglary, the men drove to a Wal-Mart to purchase duct tape and

gloves. They then drove to the Killingers’ home.

Upon arriving at the home, Wilson, armed with an AK-47, kicked the door in and

Warfield, Bronough, and Wilson entered the home. After hearing the door being kicked in,

1 Ind. Code § 35-43-2-1 (2008). 2 Ind. Code § 35-47-4-5 (2008). 3 Ind. Code §§ 35-43-2-1 and 35-74-4-5 (2008). 2 Jason and his brother Brian Killinger hid in a bathroom and David hid in a bedroom. 4 David

called and reported the break-in to the police.

At some point, Brian opened the bathroom door to see what was happening in the

interior of the house. Brian found that Bronough was standing outside the bathroom pointing

a gun at Brian and Jason. Bronough forced his way into the bathroom, began wrestling with

Jason, and demanded money. During the struggle, Bronough’s gun discharged, but no one

was hit.

As Bronough entered the bathroom, Wilson went back to the living room and

exchanged the AK-47 for the 9mm handgun that Warfield was carrying. Wilson returned to

the bathroom and shot Brian, who was unarmed and sitting on the bathroom floor, in the

stomach. Brian shut the bathroom door. Wilson fired again. The bullet traveled through the

bathroom door and struck Brian in the arm. After Brian was shot, Jason agreed to give the

intruders money. Bronough marched Jason into the living room while holding a gun to his

head.

At that moment, the police entered the residence shouting, “[G]et down, get down.”

Tr. p. 133. Wilson and Warfield forced open the back door and fled from the home.

Warfield was soon taken into custody by the police. Warfield later identified Wilson from a

photo lineup, leading to Wilson’s arrest.

On December 16, 2009, the State charged Wilson with Class A felony burglary, Class

4 A fourth man, who is described as a friend of David Killinger, was also inside the home at the time of the burglary.

3 A felony attempted robbery, Class C felony battery, Class B felony possession of a firearm by

a serious violent felon, Class B felony conspiracy to commit burglary, Class C felony

assisting a criminal, and Class A misdemeanor carrying a handgun without a license.5 Wilson

waived his right to trial by a jury. The trial court conducted a bench trial on August 1 and

August 24, 2011, at the conclusion of which it found Wilson guilty as charged. On

September 13, 2011, the trial court sentenced Wilson to forty years for the burglary, fifteen

years for the possession of a firearm by a serious violent felon, and fifteen years for the

conspiracy to commit burglary. The remaining counts were merged out of double jeopardy

concerns. The trial court ordered that the sentences run concurrently to one another but

consecutively to Wilson’s sentence in cause number 49G22-0607-FB-130165. This appeal

follows.

DISCUSSION AND DECISION

Wilson contends that the trial court abused its discretion in sentencing him by failing

to consider his youth as a mitigating factor at sentencing. Sentencing decisions rest within

the sound discretion of the trial court and are reviewed on appeal only for an abuse of

discretion. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), modified on other grounds

on reh’g, 875 N.E.2d 218 (Ind. 2007). “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. (quotation omitted).

5 The State subsequently filed an additional charging information alleging that the carrying a handgun without a license charge should rise to the level of a Class C felony because Wilson had previously been convicted of a felony within the preceding fifteen years. 4 When imposing a sentence in a felony case, the trial court must provide a reasonably detailed

sentencing statement explaining its reason for imposing the sentence. Id.

One way in which a trial court may abuse its discretion is failing to enter a sentencing statement at all. Other examples include entering 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, or the sentencing statement omits reasons that are clearly supported by the record and advanced for consideration, or the reasons given are improper as a matter of law. Under those circumstances, remand for resentencing may be the appropriate remedy 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 490-91.

In sentencing Wilson, the trial court found Wilson’s criminal history to be an

aggravating factor and his mental disability to be a mitigating factor. After considering each

of these factors, the trial court imposed an enhanced, aggregate forty-year term.6 Again, in

challenging his sentence, Wilson claims that the trial court abused its discretion by failing to

find his youth to be a mitigating factor.

The allegation that the trial court failed to find a mitigating factor requires Wilson to

establish that the mitigating evidence is both significant and clearly supported by the record.

Anglemyer, 868 N.E.2d at 493. “However, ‘[i]f the trial court does not find the existence of a

mitigating factor after it has been argued by counsel, the trial court is not obligated to explain

why it has found that the factor does not exist.’” Id. (quoting Fugate v. State, 608 N.E.2d

6 Indiana Code section 35-50-2-4 (2008) provides that a person who commits a Class A felony shall be imprisoned for a fixed term of between twenty and fifty years, with the advisory sentence being thirty years. Indiana Code section 35-50-2-5 (2008) provides that a person who commits a Class B felony shall be imprisoned for a fixed term of between six and twenty years, with the advisory sentence being ten years. 5 1370, 1374 (Ind. 1993)). Likewise, the trial court is not “obligated to weigh or credit the

mitigating factors the way a defendant suggests they should be weighed or credited.” Abel v.

State, 773 N.E.2d 276, 280 (Ind. 2002). “‘[I]f the defendant fails to advance a mitigating

circumstance at sentencing, this court will presume that the factor is not significant, and the

defendant is precluded from advancing it as a mitigating circumstance for the first time on

appeal.’” Creekmore v. State, 853 N.E.2d 523, 530 (Ind. Ct. App. 2006), clarified on denial

of reh’g (quoting Wells v. State, 836 N.E.2d 475, 479 (Ind. Ct. App. 2005)).

Wilson concedes that his trial counsel did not argue that his youth should be

considered to be a mitigating factor at sentencing. Wilson, however, argues that the trial

court abused its discretion by failing to consider his youth to be a mitigating factor because

his age was correctly listed in the pre-sentence investigation report. In making his claim,

Wilson acknowledges that a defendant’s youth is not automatically a significant mitigating

circumstance, but argues that, under the facts and circumstances presented here, it should

have been considered mitigating. See generally, Gross v. State, 769 N.E.2d 1136, 1141 n.4

(Ind. 2002) (providing that while a defendant’s youth may be a mitigating factor in some

circumstances, age is not a per se mitigating factor). Wilson asserts that in light of his mental

disabilities, which he acknowledges that the trial court found to be a mitigating factor, his

youth should also have been considered a mitigating factor because, at the time he committed

the instant crimes, he was more immature and less able to control his impulses than other

nineteen-year-olds.

For its part, the State asserts that because Wilson failed to advance his youth as a

6 mitigating circumstance at sentencing, this court should presume that it is not significant and

conclude that Wilson is precluded from advancing it as a mitigating circumstance for the first

time on appeal. See Creekmore, 853 N.E.2d at 530. We agree. However, in light of our

preference for deciding claims on their merits, we will nonetheless entertain Wilson’s claim

on appeal.

Again, a defendant’s youth is not automatically a significant mitigating factor. See

Gross, 769 N.E.2d at 1141 n.4. Upon review, we conclude that Wilson’s youth does not

warrant significant mitigating consideration as his actions are more akin to those of a

hardened criminal than those of an immature nineteen-year-old. The record demonstrates

that Wilson acted purposefully in carrying out his part of the conspiracy to break into the

Killingers’ home and rob them of certain items. Wilson went with Warfield, Bronough, and

Hittle to a store to purchase certain materials which could be used in furtherance of their

crimes, entered the Killingers’ home carrying an AK-47, and upon entering the home,

switched weapons with Warfield and shot an unarmed Brian Killinger in the stomach and in

the arm. Moreover, Wilson’s criminal history indicates that he had previously been involved

in at least two burglaries as a juvenile and one as an adult. Thus, in light of Wilson’s

apparent predilection for committing burglaries, we can say with confidence that we believe

that the trial court would have imposed the same sentence even if it had considered Wilson’s

age to be a mitigating factor. As such, we conclude that the trial court acted within its

discretion in sentencing Wilson. See Anglemyer, 868 N.E.2d at 490-91.

The judgment of the trial court is affirmed.

7 VAIDIK, J, and CRONE, J., concur.