Henry Shorter v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: May 7, 2015
• Docket: 20A05-1409-CR-438
• Status: Published

Opinion

MEMORANDUM DECISION May 07 2015, 10:33 am Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any 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 Marielena Duerring Gregory F. Zoeller South Bend, Indiana Attorney General of Indiana J.T. Whitehead Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Henry Shorter, May 7, 2015

Appellant-Defendant, Court of Appeals Case No. 20A05-1409-CR-438 v. Appeal from the Elkhart Circuit Court State of Indiana, The Honorable Terry C. Shewmaker, Appellee-Plaintiff Judge Cause No. 20C01-1301-FB-6

Mathias, Judge.

[1] Henry Shorter (“Shorter”) was convicted in Elkhart Circuit Court of Class A

felony burglary and Class B felony robbery while armed with a deadly weapon.

Shorter also admitted to being an habitual offender. The trial court sentenced

Shorter to an aggregate term of sixty years. Shorter appeals and argues that his

Court of Appeals of Indiana | Memorandum Decision 20A05-1409-CR-438 | May 7, 2015 Page 1 of 8 sentence is inappropriate in light of the nature of the offenses and his character.

Concluding that Shorter’s sentence is not inappropriate, we affirm. However,

we remand with instructions that the trial court attach the habitual offender

enhancement to the sentence imposed on Shorter’s Class B felony conviction,

not as a separate, consecutive sentence.

Facts and Procedural History

[2] On January 8, 2013, Shorter and his fourteen-year-old stepson, L.S., went to

the home of Ricky Beaver (“Beaver”). Also at the home was Raymond Cross

(“Cross”). Shorter told Beaver and Cross that he had a “lick” for them, which

meant to rob someone. Tr. p. 278. When Cross asked where the robbery would

occur, Shorter stated that the potential robbery victim was an illicit drug dealer

who had money, drugs, and a safe, but who did not carry a firearm. Shorter was

referring to Willie Warren (“Warren”), who he referred to as “Woodchuck.”

Tr. pp. 287-88. Cross and Beaver agreed to rob Warren, and Beaver already

knew where Warren lived.

[3] Shorter drove L.S., Beaver, and Cross in a Jeep owned by one of their

acquaintances to the apartment complex where Warren lived. In the vehicle,

the four discussed their plan for the robbery. Each participant had a ski mask,

except for Shorter. When they arrived at the apartment complex, Shorter

parked the Jeep near Warren’s apartment. Cross, Beaver, and L.S. put on their

masks and got out of the vehicle and went to Warren’s apartment. Shorter

remained in the Jeep.

Court of Appeals of Indiana | Memorandum Decision 20A05-1409-CR-438 | May 7, 2015 Page 2 of 8 [4] Cross knocked on the door of Warren’s apartment, and a woman opened the

door. Beaver then pulled out a handgun, pushed the door open, and ordered the

woman to lie face down on the couch. Beaver went into Warren’s bedroom,

where Warren was with another woman. Beaver started to rummage around

the room while Cross and L.S. remained near the front door. Beaver struck

Warren in the head with the gun while asking him “where the stuff was at.” Tr.

p. 301. Beaver eventually left the bedroom, telling his companions that he

couldn’t find any of the drugs, money, or the safe mentioned by Shorter. After a

search of the kitchen revealed nothing, Cross told Beaver that they should

leave.

[5] In the meantime, a young boy came running out of a back bedroom to be with

the woman lying on the couch. At some point, this woman telephoned the

police. When Cross told Beaver again that they should leave, Beaver grabbed a

laptop computer, and the men ran back to the Jeep and fled the scene at a high

rate of speed. Cross asked Shorter and Beaver why there had been no drugs in

the apartment, and Shorter responded, “they must have just picked stuff up.”

Tr. p. 305. Before the four men could return to Beaver’s house, however, they

were stopped by the police, who had been dispatched to the scene of the

robbery and were looking for the vehicle used by the robbers. The police

arrested Shorter, L.S., Cross, and Beaver, and found in the Jeep the stolen

laptop computer, the ski masks used by the robbers, and the handgun used by

Beaver, which was a BB gun, not a firearm.

Court of Appeals of Indiana | Memorandum Decision 20A05-1409-CR-438 | May 7, 2015 Page 3 of 8 [6] On January 15, 2013, the State charged Shorter with Class B felony robbery

while armed with a deadly weapon. The State later added a charge of Class A

felony burglary. Following a jury trial held on August 4 – 6, 2014, the jury

found Shorter guilty as charged. Shorter then admitted to being an habitual

offender.

[7] At the September 4, 2014, sentencing hearing, the trial court found as

aggravating Shorter’s criminal history, that a child was present when the offense

occurred, and that Shorter involved his teenage stepson in the crimes. The trial

court also noted that Shorter was on probation for another offense when the

instant offenses were committed. The court found as mitigating that Shorter did

not go into the residence himself and that Shorter admitted to being an habitual

offender. The trial court found that the aggravating factors outweighed the

mitigating factors and imposed the following sentences: forty-five years on the

Class A felony burglary conviction, a concurrent sentence of twenty years on

the Class B felony robbery conviction, and fifteen years on the habitual offender

enhancement, to be served consecutively to the other sentences, for an

aggregate term of sixty years of incarceration. Shorter now appeals.

Discussion and Decision

[8] Shorter argues that his sixty-year sentence is inappropriate. Pursuant to Indiana

Appellate Rule 7(B), we may revise a sentence otherwise authorized by statute

if, “after due consideration of the trial court’s decision, the Court finds that the

sentence is inappropriate in light of the nature of the offense and the character

of the offender.” In our review of sentences under this rule, appellate courts

Court of Appeals of Indiana | Memorandum Decision 20A05-1409-CR-438 | May 7, 2015 Page 4 of 8 must exercise deference to the trial court’s sentencing decision, both because

Rule 7(B) requires us to give “due consideration” to that decision and because

we understand and recognize the unique perspective a trial court brings to its

sentencing decisions. Williams v. State, 997 N.E.2d 1154, 1165 (Ind. Ct. App.

2013) (citing Trainor v. State, 950 N.E.2d 352, 355 (Ind. Ct. App. 2011)).

[9] Although we have the power to review and revise sentences, the principal role

of our review should be to attempt to level the outliers, and identify some

guiding principles for trial courts and those charged with improvement of the

sentencing statutes, but not to achieve what we perceive to be a “correct” result

in each case. Fernbach v. State, 954 N.E.2d 1080, 1089 (Ind. Ct. App. 2011),

trans. denied (citing Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008)). Our

review under Appellate Rule 7(B) 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. The appropriate question is

not whether another sentence is more appropriate; rather, the question is

whether the sentence imposed is inappropriate. Williams, 997 N.E.2d at 1165. It

is the defendant’s burden on appeal to persuade us that the sentence imposed by

the trial court is inappropriate. Id. (citing Childress v. State, 848 N.E.2d 1073,

1080 (Ind. 2006)).

[10] Shorter was convicted of Class A felony burglary and Class B felony armed

robbery. The sentencing range for a Class A felony is twenty to fifty years, with

the advisory sentence being thirty years. See Ind. Code § 35-50-2-4(a). The

sentencing range for a Class B felony is six to twenty years, with an advisory

Court of Appeals of Indiana | Memorandum Decision 20A05-1409-CR-438 | May 7, 2015 Page 5 of 8 sentence of ten years. See Ind. Code § 35-50-2-5(a). In addition, Shorter

admitted to being an habitual offender. A person found to be an habitual

offender shall be sentenced “an additional fixed term that is not less than the

advisory sentence for the underlying offense nor more than three (3) times the

advisory sentence for the underlying offense. However, the additional sentence

may not exceed thirty (30) years.” Ind. Code § 35-50-2-8(h) (2005). If the

habitual offender enhancement was attached to Shorter’s Class A felony

conviction, the enhancement would have been thirty years; and if attached to

the Class B felony conviction, it would have been between ten and thirty years.

Shorter accordingly faced a possible sentence of up to one hundred years.1 The

trial court sentenced Shorter to sixty years. With this in mind, we address

Shorter’s argument that his sentence is inappropriate.

[11] With regard to the nature of the offense, although Shorter did not actually go

into the house, it was his idea to rob Warren. He also involved his fourteen-

year-old stepson in the robbery. The robbery itself resulted in Warren being

struck on the head and took place in the presence of a young child. This

supports the trial court’s decision to sentence Shorter to greater than the

advisory sentences.

[12] Turning to the character of the offender, we find further support for the trial

court’s sentencing decision. Shorter’s problems with the law began as a 1 Because both burglary and robbery, as Class A or B felonies, are considered “crimes of violence” for purposes of the consecutive sentencing statute, the trial court was not limited by the “episode of criminal conduct” provision of that statute. See Ind. Code § 35-50-1-2 (2013). Still, the trial court exercised its discretion to order the sentence on the Class B felony conviction to run concurrently with that on the Class A felony conviction.

Court of Appeals of Indiana | Memorandum Decision 20A05-1409-CR-438 | May 7, 2015 Page 6 of 8 juvenile, when he had referrals for truancy, possession of stolen property, and

harassment. As an adult, Shorter’s legal issues grew. At the time of the

sentencing hearing, Shorter had seven prior misdemeanor convictions. Most of

these misdemeanor convictions were for driving without a license or with a

suspended license but also include one conviction for resisting law enforcement.

Shorter also has convictions for Class D felony criminal recklessness while

armed, Class D felony battery on a pregnant woman, and Class B felony

dealing in cocaine.2 Not only had Shorter twice violated the terms of his

probation, he was on probation at the time of the instant offenses.

[13] Given these facts and circumstances, we are unable to say that the sixty-year

aggregate sentence imposed by the trial court was inappropriate in light of the

nature of the offense and the character of the offender.

[14] However, the State correctly notes that the trial court treated the habitual

offender enhancement as a separate sentence to be served consecutively to the

other sentences imposed. See Appellant’s App. p. 30 (“the Court ORDERS that

the Habitual Criminal Offender enhancement under this cause to be served

consecutive to the sentences imposed under Counts I & II.”). This is improper.

An habitual offender adjudication does not constitute a separate crime, nor

does it result in a separate sentence. See Reffett v. State, 844 N.E.2d 1072, 1074

(Ind. Ct. App. 2006) (citing Greer v. State, 680 N.E.2d 526, 527 (Ind. 1997)).

Instead, an habitual offender finding results in a sentence enhancement

2 The pre-sentence investigation report is not entirely clear as to whether Shorter was convicted of two counts of Class B dealing in cocaine or only one. See Appellant’s App. p. 62.

Court of Appeals of Indiana | Memorandum Decision 20A05-1409-CR-438 | May 7, 2015 Page 7 of 8 imposed upon the conviction of a subsequent offense. See id. Thus, “trial courts

must impose the resulting [habitual offender] enhancement upon only one of

the convictions and must specify the conviction to be so enhanced.” Greer, 680

N.E.2d at 527.

[15] The trial court erred by ordering the habitual offender enhancement to run as a

separate sentence. Accordingly, we reverse this portion of the trial court’s

sentencing order and remand with instructions that the trial court enhance the

sentence on Shorter’s Class B felony conviction by fifteen years, leaving the

aggregate sentence at sixty years.

[16] Affirmed in part, reversed in part, and remanded with instructions.

May, J., and Robb, J., concur.

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