Edward G. Shell v. State of Indiana (mem. dec.)
This text of Edward G. Shell v. State of Indiana (mem. dec.) (Edward G. Shell v. State of Indiana (mem. dec.)) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Jun 16 2016, 10:29 am this Memorandum Decision shall not be regarded as precedent or cited before any CLERK Indiana Supreme Court Court of Appeals court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE P. Stephen Miller Gregory F. Zoeller Fort Wayne, Indiana Attorney General of Indiana
Tyler F. Banks Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Edward G. Shell, June 16, 2016
Appellant-Defendant, Court of Appeals Cause No. 02A04-1511-CR-2025 v. Appeal from the Allen Superior Court State of Indiana, The Honorable Frances M. Appellee-Plaintiff. Gull, Judge Trial Court Cause No. 02D06-1411-F6-426
Barnes, Judge.
Court of Appeals of Indiana | Memorandum Decision 02A04-1511-CR-2025 | June 16, 2016 Page 1 of 6 Case Summary [1] Edward Shell appeals his two-and-a-half year sentence following his conviction
for Level 6 felony theft. We affirm.
Issue [2] The issue before us is whether Shell’s two-and-a-half year sentence is
inappropriate.
Facts [3] On November 15, 2014, Shell was observed in a Wal-Mart in Fort Wayne
hiding items, primarily washcloths, sheets, and toiletries, in his coat. Shell fled
the store with these items, which were valued at $12.00. He was later arrested
and charged with Level 6 felony theft due to his prior convictions for
conversion. Shell stated that he had intended to purchase the items he took, but
that he had been drinking alcoholic beverages, and that he “Does stupid s***”
when he’s been drinking and stole the items instead. App. p. 17. On January
26, 2015, Shell pled guilty to theft. Shell’s sentence was deferred pending his
successful completion of the Allen Superior Drug Court Program.
[4] Following his hearing, Shell started the Allen Superior Drug Court Program.
Over the course of the program, he accumulated one diluted drug screen and
eight positive drug screens for cocaine. In June 2015, Shell was discharged
from a treatment facility for failing to return home. He was then transported to
a different treatment facility. After again testing positive for cocaine, a trial
court hearing regarding Shell was scheduled. When Shell failed to appear in Court of Appeals of Indiana | Memorandum Decision 02A04-1511-CR-2025 | June 16, 2016 Page 2 of 6 court for the hearing, a warrant was issued for him. The trial court revoked
Shell’s placement in the Allen Superior Drug Court Program. On October 21,
2015, the trial court sentenced Shell to two-and-a-half years at the Indiana
Department of Correction.
Analysis [5] Shell’s argument is that his two-and-a-half year sentence is inappropriate under
Indiana Appellate Rule 7(B) in light of his character and the nature of the
offense. Although Rule 7(B) does not require us to be “extremely” deferential
to a trial court’s sentencing decision, we still must give due consideration to that
decision. Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007). We
also understand and recognize the unique perspective a trial court brings to its
sentencing decisions. Id. “Additionally, a defendant bears the burden of
persuading the appellate court that his or her sentence is inappropriate.” Id.
[6] The principal role of Rule 7(B) review “should be to attempt to leaven the
outliers, and identify some guiding principles for trial courts and those charged
with improvement of the sentencing statutes, but not to achieve a perceived
‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.
2008). We “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. Whether a sentence is inappropriate
ultimately turns on 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
Court of Appeals of Indiana | Memorandum Decision 02A04-1511-CR-2025 | June 16, 2016 Page 3 of 6 given case. Id. at 1224. When reviewing the appropriateness of a sentence
under Rule 7(B), we may consider all aspects of the penal consequences
imposed by the trial court in sentencing the defendant, including whether a
portion of the sentence was suspended. Davidson v. State, 926 N.E.2d 1023,
1025 (Ind. 2010).
[7] Pursuant to the statute in effect at the time Shell committed his offense, the
sentencing range for a Level 6 felony is between six months and two-and-a-half
years, with an advisory term of one year. Ind. Code § 35-50-2-7(b). Regarding
the nature of Shell’s offense, we concede that his crime was not egregious.
While intoxicated, Shell stole merchandise that was valued at $12.00.
However, Shell’s character amply justifies his maximum sentence for theft.
Shell had the opportunity to have his sentence deferred pending his successful
completion of the Allen Superior Drug Court Program. Shell failed to
successfully complete the Drug Court Program due to his diluted drug screen,
eight positive drug screens for cocaine, failing to return home, and again testing
positive for cocaine.
[8] Shell also has an extensive criminal history. Sentencing courts may consider
the fact that “[t]he person has a history of criminal or delinquent activity” as
either an aggravating circumstance or as favoring consecutive sentences. I.C. §
35-38-1-7.1(b)(2). The significance of a defendants criminal history in
determining whether to impose a sentence enhancement will vary “based on the
gravity, nature and number of prior offenses as they relate to the current
offense.” Smith v. State, 889 N.E.2d 261, 263 (Ind. 2008). Beginning in 1989,
Court of Appeals of Indiana | Memorandum Decision 02A04-1511-CR-2025 | June 16, 2016 Page 4 of 6 Shell has been convicted of sixteen misdemeanors and six felonies. He has
been convicted of theft, criminal deception, non-support of a dependent,
operating while suspended twice, carrying a handgun without a license twice,
criminal conversion five times, operating a vehicle as a habitual traffic violator
three times, and driving while suspended six times. The extent and number of
Shell’s prior convictions, specifically his conversion and theft convictions, are,
in part, what caused his current conviction to be raised from a misdemeanor to a
Level 6 felony. But his criminal history extends well beyond that. Shell has also
had suspended sentences revoked three times and felony probation revoked
three times.
[9] Shell contends that much of his criminal history is for crimes that are now less
serious than they were before, particularly his driving offenses. But it is well
established that “[t]he sentencing statute in effect at the time a crime is
committed governs the sentence for that crime.” Harris v. State, 897 N.E.2d 927,
928–29 (Ind. 2008).
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