Derek A. Saylor v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: September 19, 2018
• Docket: 18A-CR-528
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Sep 19 2018, 10:18 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 Donald C. Swanson, Jr. Curtis T. Hill, Jr. Deputy Public Defender Attorney General of Indiana Fort Wayne, Indiana Henry A. Flores, Jr. Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Derek A. Saylor, September 19, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-528 v. Appeal from the Allen Superior Court State of Indiana, The Honorable John F. Surbeck, Appellee-Plaintiff. Jr., Judge Trial Court Cause No. 02D06-1706-F5-164

Friedlander, Senior Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-528 | September 19, 2018 Page 1 of 5 [1] Derek Saylor appeals the sentence he received upon his conviction of criminal 1 recklessness as a Level 5 felony. We affirm.

[2] Saylor presents two issues for our review:

1. Whether the trial court abused its discretion in sentencing Saylor by not entering a sentencing statement.

2. Whether Saylor’s sentence is inappropriate.

[3] In June 2017, Saylor went to the residence of Jamie Lantz, his ex-girlfriend, to

pay her for some damage he had previously caused to her vehicle. When he

arrived, Lantz’s current boyfriend exited the residence, and Saylor began

shooting at him. When Saylor had emptied the bullets from that gun, he

obtained another gun from someone in a vehicle that had arrived at the

residence after him. Armed with the second gun, Saylor resumed shooting at

Lantz’s residence, and an individual in the vehicle began firing a gun at Lantz’s

residence as well. Saylor then left. The gunshots caused damage to both

Lantz’s residence and the residence behind hers. Based upon this incident,

Saylor was charged with two counts of criminal recklessness as Level 5 felonies

and two counts of criminal recklessness as Level 6 felonies. He pleaded guilty

to one Level 5 felony, and the State dismissed the remaining charges. The trial

court sentenced Saylor to three years at the Department of Correction.

1 Ind. Code § 35-42-2-2 (2014).

Court of Appeals of Indiana | Memorandum Decision 18A-CR-528 | September 19, 2018 Page 2 of 5 [4] Saylor first contends the trial court abused its discretion in sentencing him by

not entering a sentencing statement that he alleges is required for sentencing in

all felony cases.

[5] Saylor pleaded guilty to a Level 5 felony which has an advisory sentence of

three years. See Ind. Code § 35-50-2-6 (b) (2014). The trial court sentenced

Saylor on February 9, 2018 to a three-year term of imprisonment. Effective

July 1, 2014, a trial court is no longer required to issue a sentencing statement

when imposing the advisory sentence for a felony conviction. See Ind. Code §

35-38-1-1.3 (2014) (“After a court has pronounced a sentence for a felony

conviction, the court shall issue a statement of the court’s reasons for selecting

the sentence that it imposes unless the court imposes the advisory sentence for the

felony.”) (emphasis added). Thus, the court was not required to issue a

statement of its reasons for selecting the advisory sentence for Saylor;

accordingly, there was no error.

[6] Saylor also argues that his sentence is inappropriate. Particularly, he challenges

the appropriateness of his placement in the DOC; he claims the appropriate

sentence is the advisory sentence, fully suspended to probation.

[7] Although a trial court may have acted within its lawful discretion in imposing a

sentence, article VII, section 6 of the Indiana Constitution authorizes this Court

to review and revise sentences. This authority is implemented through Indiana

Appellate Rule 7(B), which provides that we may revise a sentence authorized

by statute if, after due consideration of the trial court’s decision, we determine

Court of Appeals of Indiana | Memorandum Decision 18A-CR-528 | September 19, 2018 Page 3 of 5 that the sentence is inappropriate in light of the nature of the offense and the

character of the offender. Thompson v. State, 5 N.E.3d 383 (Ind. Ct. App. 2014).

The defendant bears the burden of persuading the appellate court that his or her

sentence is inappropriate. Childress v. State, 848 N.E.2d 1073 (Ind. 2006).

[8] The location where a sentence is to be served is an appropriate focus for

application of our review and revise authority. King v. State, 894 N.E.2d 265

(Ind. Ct. App. 2008). Nonetheless, we note that it will be difficult for a

defendant to prevail on a claim that the placement of his or her sentence is

inappropriate. Fonner v. State, 876 N.E.2d 340 (Ind. Ct. App. 2007). “This is

because the question under Appellate Rule 7(B) is not whether another sentence

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

inappropriate.” King, 894 N.E.2d at 268. Moreover, a defendant challenging

the placement of a sentence must convince us that the given placement is itself

inappropriate. Fonner, 876 N.E.2d 340.

[9] To assess whether the sentence is inappropriate, we look first to the statutory

range established for the class of the offense. Here, the offense is a Level 5

felony, for which the advisory sentence is three years, with a minimum sentence

of one year and a maximum of six years. Ind. Code § 35-50-2-6. As discussed

above, Saylor was sentenced to the advisory term of three years.

[10] Next, we look to the nature of the offense and the character of the offender. As

to the nature of the current offense, we note that Saylor endangered numerous

people by shooting a handgun at Lantz’s boyfriend and at inhabited homes in a

Court of Appeals of Indiana | Memorandum Decision 18A-CR-528 | September 19, 2018 Page 4 of 5 residential area. Moreover, he was not content to fire all the bullets in one

handgun but instead was prepared with a second loaded gun and, literally, a

partner-in-crime who fired at Lantz’s boyfriend and residence as well.

[11] With regard to the character of the offender, we observe that Saylor has no

juvenile adjudications but appears to have had some contact with the juvenile

system. He has no adult criminal history. At the time of the offense, Saylor

was employed, and he pleaded guilty to the offense.

[12] Although forty-year-old Saylor lacks a criminal history, this offense was quite

dangerous for those involved, as well as innocent bystanders in nearby

residences. Saylor has not convinced us that his placement in the DOC is

inappropriate.

[13] Judgment affirmed.

May, J., and Pyle, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-528 | September 19, 2018 Page 5 of 5