MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jun 10 2020, 10:33 am
court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE Cara Schaefer Wieneke Josiah Swinney Wieneke Law Office, LLC Deputy Attorney General Brooklyn, Indiana Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Jesse Atwood, June 10, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-2977 v. Appeal from the Shelby Superior Court State of Indiana, The Honorable R. Kent Apsley, Appellee-Plaintiff. Judge Trial Court Cause No. 73D01-1808-F5-70
Najam, Judge.
Statement of the Case [1] Jesse Atwood appeals his sentence following his conviction for theft, as a Level
6 felony. Atwood raises one issue for our review, namely, whether his sentence
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2977 | June 10, 2020 Page 1 of 6 is inappropriate in light of the nature of the offense and his character. We
affirm.
Facts and Procedural History [2] On August 4, 2018, Christopher Springman was sitting on his porch talking to
his neighbor and “doing something on his phone.” Tr. Vol. II at 64. At some
point, Springman walked into his house, but he left his phone outside. While
Springman was inside, Atwood walked up to Springman’s door, turned around,
and “forcefully kicked it.” Id. at 69. After he kicked the door open, Atwood
took one step into the house and “smacked” Springman’s dog. Id. at 70.
Atwood then left the house and took Springman’s cell phone, which was still on
the porch. Springman’s daughter attempted to prevent Atwood from leaving,
but Atwood was able to get away. Springman’s daughter then called 9-1-1 and
reported that Atwood had stolen Springman’s phone.
[3] Sergeant Keith England with the Shelbyville Police Department responded to
the call. When he arrived, he saw Atwood walking away from Springman’s
house. Sergeant England then spoke with Atwood, and he was able to observe
that Atwood had a cell phone in his hands. Atwood then informed Sergeant
England that he had taken the cell phone because it was “interfering with other
cell phones in the area.” Id. at 83. Atwood also indicated that he believed that
Springman had child pornography on the phone. During his conversation with
Atwood, Sergeant England noticed that Atwood was “sweaty” and that he
“displayed signs of . . . paranoia or irrational thinking,” which Sergeant
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2977 | June 10, 2020 Page 2 of 6 England believed to be consistent with methamphetamine use. Id. at 84. With
Springman’s consent, officers searched his phone and determined that
Atwood’s claims regarding child pornography were “unfounded.” Id. at 87.
Officers then returned the cell phone to Springman.
[4] The State charged Atwood with one count of theft, as a Class A misdemeanor
(Count I), and one count of theft, as a Level 6 felony (Count II). 1 Following a
bifurcated jury trial, the jury found Atwood guilty as charged. At sentencing,
the court found Count I to be a lesser included offense and entered judgment of
conviction only on Count II. The court then identified as aggravating factors
Atwood’s criminal history and the fact that Atwood was charged with new
offenses while on bond for the instant offense, and the court did not identify
any mitigators. Accordingly, the court imposed a two-year, fully executed
sentence. This appeal ensued.
Discussion and Decision [5] Atwood contends that his sentence is inappropriate in light of the nature of the
offense and his character. Indiana Appellate Rule 7(B) provides that “[t]he
Court may revise a sentence 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.” This court
1 The State also charged Atwood with intimidation, as a Level 5 felony; residential entry, as a Level 6 felony, and alleged that he is a habitual offender. However, the State dismissed those charges prior to trial.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2977 | June 10, 2020 Page 3 of 6 has recently held that “[t]he advisory sentence is the starting point the
legislature has selected as an appropriate sentence for the crime committed.”
Sanders v. State, 71 N.E.3d 839, 844 (Ind. Ct. App. 2017). And the Indiana
Supreme Court has recently explained that:
The principal role of appellate review should be to attempt to leaven the outliers . . . but not achieve a perceived “correct” result in each case. Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). Defendant has the burden to persuade us that the sentence imposed by the trial court is inappropriate. Anglemyer v. State, 868 N.E.2d 482, 494 (Ind.), as amended (July 10, 2007), decision clarified on reh’g, 875 N.E.2d 218 (Ind. 2007).
Shoun v. State, 67 N.E.3d 635, 642 (Ind. 2017) (omission in original).
[6] Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate
sentence to the circumstances presented, and the trial court’s judgment “should
receive considerable deference.” Cardwell, 895 N.E.2d at 1222. Whether we
regard a sentence as inappropriate at the end of the day turns on “our sense of
the culpability of the defendant, the severity of the crime, the damage done to
others, and myriad other facts that come to light in a given case.” Id. at 1224.
The question is not whether another sentence is more appropriate, but rather
whether the sentence imposed is inappropriate. King v. State, 894 N.E.2d 265,
268 (Ind. Ct. App. 2008). Deference to the trial court “prevail[s] unless
overcome by compelling evidence portraying in a positive light the nature of the
offense (such as accompanied by restraint, regard, and lack of brutality) and the
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2977 | June 10, 2020 Page 4 of 6 defendant’s character (such as substantial virtuous traits or persistent examples
of good character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015).
[7] The sentencing range for a Level 6 felony is six months to two and one-half
years, with an advisory sentence of one year. Ind. Code § 35-50-2-7(b). Here,
the court identified as aggravating factors Atwood’s criminal history and the
fact that Atwood was charged with new offenses while on bond. The court did
not identify any mitigating factors. Accordingly, the court imposed an
enhanced sentence of two years.
[8] On appeal, Atwood contends that his sentence is inappropriate in light of the
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jun 10 2020, 10:33 am
court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE Cara Schaefer Wieneke Josiah Swinney Wieneke Law Office, LLC Deputy Attorney General Brooklyn, Indiana Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Jesse Atwood, June 10, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-2977 v. Appeal from the Shelby Superior Court State of Indiana, The Honorable R. Kent Apsley, Appellee-Plaintiff. Judge Trial Court Cause No. 73D01-1808-F5-70
Najam, Judge.
Statement of the Case [1] Jesse Atwood appeals his sentence following his conviction for theft, as a Level
6 felony. Atwood raises one issue for our review, namely, whether his sentence
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2977 | June 10, 2020 Page 1 of 6 is inappropriate in light of the nature of the offense and his character. We
affirm.
Facts and Procedural History [2] On August 4, 2018, Christopher Springman was sitting on his porch talking to
his neighbor and “doing something on his phone.” Tr. Vol. II at 64. At some
point, Springman walked into his house, but he left his phone outside. While
Springman was inside, Atwood walked up to Springman’s door, turned around,
and “forcefully kicked it.” Id. at 69. After he kicked the door open, Atwood
took one step into the house and “smacked” Springman’s dog. Id. at 70.
Atwood then left the house and took Springman’s cell phone, which was still on
the porch. Springman’s daughter attempted to prevent Atwood from leaving,
but Atwood was able to get away. Springman’s daughter then called 9-1-1 and
reported that Atwood had stolen Springman’s phone.
[3] Sergeant Keith England with the Shelbyville Police Department responded to
the call. When he arrived, he saw Atwood walking away from Springman’s
house. Sergeant England then spoke with Atwood, and he was able to observe
that Atwood had a cell phone in his hands. Atwood then informed Sergeant
England that he had taken the cell phone because it was “interfering with other
cell phones in the area.” Id. at 83. Atwood also indicated that he believed that
Springman had child pornography on the phone. During his conversation with
Atwood, Sergeant England noticed that Atwood was “sweaty” and that he
“displayed signs of . . . paranoia or irrational thinking,” which Sergeant
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2977 | June 10, 2020 Page 2 of 6 England believed to be consistent with methamphetamine use. Id. at 84. With
Springman’s consent, officers searched his phone and determined that
Atwood’s claims regarding child pornography were “unfounded.” Id. at 87.
Officers then returned the cell phone to Springman.
[4] The State charged Atwood with one count of theft, as a Class A misdemeanor
(Count I), and one count of theft, as a Level 6 felony (Count II). 1 Following a
bifurcated jury trial, the jury found Atwood guilty as charged. At sentencing,
the court found Count I to be a lesser included offense and entered judgment of
conviction only on Count II. The court then identified as aggravating factors
Atwood’s criminal history and the fact that Atwood was charged with new
offenses while on bond for the instant offense, and the court did not identify
any mitigators. Accordingly, the court imposed a two-year, fully executed
sentence. This appeal ensued.
Discussion and Decision [5] Atwood contends that his sentence is inappropriate in light of the nature of the
offense and his character. Indiana Appellate Rule 7(B) provides that “[t]he
Court may revise a sentence 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.” This court
1 The State also charged Atwood with intimidation, as a Level 5 felony; residential entry, as a Level 6 felony, and alleged that he is a habitual offender. However, the State dismissed those charges prior to trial.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2977 | June 10, 2020 Page 3 of 6 has recently held that “[t]he advisory sentence is the starting point the
legislature has selected as an appropriate sentence for the crime committed.”
Sanders v. State, 71 N.E.3d 839, 844 (Ind. Ct. App. 2017). And the Indiana
Supreme Court has recently explained that:
The principal role of appellate review should be to attempt to leaven the outliers . . . but not achieve a perceived “correct” result in each case. Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). Defendant has the burden to persuade us that the sentence imposed by the trial court is inappropriate. Anglemyer v. State, 868 N.E.2d 482, 494 (Ind.), as amended (July 10, 2007), decision clarified on reh’g, 875 N.E.2d 218 (Ind. 2007).
Shoun v. State, 67 N.E.3d 635, 642 (Ind. 2017) (omission in original).
[6] Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate
sentence to the circumstances presented, and the trial court’s judgment “should
receive considerable deference.” Cardwell, 895 N.E.2d at 1222. Whether we
regard a sentence as inappropriate at the end of the day turns on “our sense of
the culpability of the defendant, the severity of the crime, the damage done to
others, and myriad other facts that come to light in a given case.” Id. at 1224.
The question is not whether another sentence is more appropriate, but rather
whether the sentence imposed is inappropriate. King v. State, 894 N.E.2d 265,
268 (Ind. Ct. App. 2008). Deference to the trial court “prevail[s] unless
overcome by compelling evidence portraying in a positive light the nature of the
offense (such as accompanied by restraint, regard, and lack of brutality) and the
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2977 | June 10, 2020 Page 4 of 6 defendant’s character (such as substantial virtuous traits or persistent examples
of good character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015).
[7] The sentencing range for a Level 6 felony is six months to two and one-half
years, with an advisory sentence of one year. Ind. Code § 35-50-2-7(b). Here,
the court identified as aggravating factors Atwood’s criminal history and the
fact that Atwood was charged with new offenses while on bond. The court did
not identify any mitigating factors. Accordingly, the court imposed an
enhanced sentence of two years.
[8] On appeal, Atwood contends that his sentence is inappropriate in light of the
nature of the offense because the offense was “very minor,” it “did not appear
to be motivated by malicious intent,” and the phone was returned to
Springman. Appellant’s Br. at 8. And Atwood contends that his sentence is
inappropriate in light of his character because he suffers from depression and
anxiety and because he experienced a “troubled childhood.” Id. at 9.
[9] However, Atwood has not met his burden on appeal to demonstrate that his
sentence is inappropriate. With respect to the nature of the offense, Atwood
did not simply take Springman’s phone. Rather, during the commission of the
offense, Atwood “forcefully” kicked in Springman’s door and then “smacked”
Springman’s dog. Tr. Vol. II at 70. Further, Springman’s daughter “had a hold
of” Atwood in an attempt to stop him from leaving, but Atwood was able to get
away. Id. at 71. And, while Springman’s phone was ultimately returned, it was
not because Atwood returned it; Springman only received his phone back after
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2977 | June 10, 2020 Page 5 of 6 officers took the phone from Atwood. Atwood has not presented compelling
evidence portraying the nature of the offense in a positive light. See Stephenson,
29 N.E.2d at 122.
[10] As to his character, Atwood has a lengthy criminal history that includes six
prior felony convictions and eight prior misdemeanor convictions. Further,
Atwood has been given several opportunities to avoid incarceration in the past
through alternative sentences, but he continues to commit crimes. Indeed,
while on bond for the instant offense, Atwood was charged with four new
offenses, one of which resulted in a new conviction. We cannot say that
Atwood’s sentence is inappropriate in light of his character. We therefore
affirm Atwood’s sentence.
[11] Affirmed.
Kirsch, J., and Brown, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2977 | June 10, 2020 Page 6 of 6