Kenton T. Winder v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: April 15, 2014
• Docket: 10A04-1309-CR-461
• Status: Unpublished

Opinion

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 Apr 15 2014, 6:22 am establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

WILLIAM A. GRAY GREGORY F. ZOELLER Jeffersonville, Indiana Attorney General of Indiana

LARRY D. ALLEN Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

KENTON T. WINDER, ) ) Appellant-Defendant, ) ) vs. ) No. 10A04-1309-CR-461 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )

APPEAL FROM THE CLARK CIRCUIT COURT The Honorable Daniel E. Moore, Judge Cause No. 10C01-1206-FB-98

April 15, 2014

MEMORANDUM DECISION - NOT FOR PUBLICATION

NAJAM, Judge STATEMENT OF THE CASE

Kenton T. Winder appeals his sentence following his convictions for robbery, as a

Class B felony; criminal confinement, as a Class B felony; and carrying a handgun

without a license, as a Class A misdemeanor. Winder raises four issues for our review,

which we restate as the following two issues:

1. Whether the trial court abused its discretion when it sentenced him.

2. Whether Winder’s sentence is inappropriate in light of the nature of the offenses and his character.

We affirm Winder’s sentence but we remand with instructions that the trial court correct

the abstract of judgment.

FACTS AND PROCEDURAL HISTORY

On June 4, 2012, Winder entered Sally’s Beauty Supply in Clarksville, asked for a

job, and then left. He then came back into the store brandishing a firearm, grabbed one of

the two female store employees around the neck, and then confined both women in a

back room while ordering them to disrobe, which they did. Winder then robbed one of

the women. Both employees eventually escaped their confinement by fleeing into nearby

public places while still disrobed. Police officers apprehended Winder later that day.

On June 6, the State charged Winder with robbery, as a Class B felony; criminal

confinement, as a Class B felony; and carrying a handgun without a license, as a Class A

misdemeanor. On July 11, 2013, Winder entered into a plea agreement in which he

pleaded guilty to all three charges. The plea agreement called for a fourteen-year cap on

Winder’s maximum potential sentence.

2 On August 19, the trial court accepted Winder’s plea agreement and held a

sentencing hearing. Following the arguments of counsel, the court stated as follows:

In my mind there are a lot of unanswered questions here. I don’t see a lot of things tied up. Okay. The presentence report officer and Dr. Galligan . . . both told [the court] that you’re very active in your children’s lives as you should be. That’s your responsibility . . . but I don’t see that as a consistent thing and I hear evidence that you’re actually living someplace else and I know your family supports you, but how old are you sir?

DEFENDANT: I’m 29.

THE COURT: 29. Okay.

DEFENDANT: Yes, sir.

THE COURT: All right. And so I’m glad you’re making progress on the addictions and medication issues, but I have to tell you that [Indiana law] does not limit what the Court may consider. . . . And I certainly am considering and finding that this was a reckless crime of violence. Walking into a store with a gun is totally unacceptable, placing people in fear is totally unacceptable and what you did to that woman is something at the age of 29 you should know you don’t treat women that way. . . . You have daughters. . . . [T]hat certainly is something that maybe you’ll never tell them about . . . and certainly being a father of daughters, I can’t explain why you made th[ose] wom[e]n undress. You can’t explain it to me. You stammered and you stuttered and I didn’t hear you telling me that you were dead drunk or something like that. I don’t understand it, but I wouldn’t have found that to be an excuse either when you walk into a retail outlet with a gun. Guns kill people. So on the crime of Robbery, I’m going to sentence you to a ten year term of imprisonment and find . . . that aggravating circumstances outweigh mitigating circumstances and I’m going to add two years to that sentence. . . . I’m going to sentence you on Count II to the offense of Criminal Confinement for a term of ten years, which will be run concurrent with the Robbery charge. On Count III I’m going to sentence you for Carrying a Handgun without a license to a one year term of imprisonment that will . . . run concurrent with the other two charges. So your total sentence to be executed is twelve years. . . . I’m going to suspend[] three of those years, but you’re going to have to serve an executed sentence of eight years. I’m going to allow you to serve that last year of your sentence on . . . our Community Corrections Program . . . .

Transcript at 71-75. This appeal ensued. 3 DISCUSSION AND DECISION

Issue One: Abuse of Discretion in Sentencing

Winder contends that the trial court abused its discretion when it sentenced him.

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), clarified 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.

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 . . . .

[However, b]ecause the trial court no longer has any obligation to “weigh” aggravating and mitigating factors against each other when imposing a sentence, . . . a trial court cannot now be said to have abused its discretion in failing to “properly weigh” such factors.

Id. at 490-91.

Winder assets that the trial court abused its discretion when it sentenced him for

several reasons. First, Winder argues that the trial court failed to consider the undue

hardship his incarceration would have on his family. Winder is incorrect. The trial court

considered and expressly rejected this proffered mitigator, stating that Winder was “very

active” in the lives of his children but that that was not “a consistent thing.” Transcript at

71-72. The court also noted that Winder is twenty-nine years old yet is being supported 4 by his family. Winder’s argument that the trial court failed to consider this proffered

mitigator is without merit.

Winder next argues that the trial court failed to consider the significance of his

employment history and Winder’s successful daily reporting to community corrections

while on bond for the instant offense. But, again, the finding of mitigating factors is

within the discretion of the trial court, and the court is not obligated to accept the

defendant’s contentions as to what constitutes a significant mitigating factor. McCann v.

State, 749 N.E.2d 1116, 1121 (Ind. 2001) (citing Legue v. State, 688 N.E.2d 408, 411

(Ind. 1997)). “‘An allegation that the trial court failed to identify or find a mitigating

[factor] requires the defendant to establish that the mitigating evidence is both significant

and clearly supported by the record.’” Id. (quoting Carter v. State, 711 N.E.2d 835, 838

(Ind. 1999)). And Winder acknowledges that “post-incident conduct may not be

especially weighty as a mitigating factor.” Appellant’s Br. at 13. Winder’s arguments on

appeal do not demonstrate that these proffered mitigators were significant or clearly

supported by the record, and we cannot say that the trial court abused its discretion when

it did not find otherwise.

Third, Winder asserts that the trial court abused its discretion when it declined to

accept the probation department’s recommended sentence in the presentence

investigation report. The probation department recommended Winder receive a twelve

year sentence, with six years executed, two years on work release, and the remainder

suspended to probation. The State asked the court to “at a mini[m]um” follow that

recommendation, which the State recognized as “very fair.” Transcript at 66.

5 The trial court is under no obligation to base its sentencing determination on the

presentence investigation report or on the probation department’s sentencing

recommendation. Fugate v. State, 516 N.E.2d 75, 80 (Ind. Ct. App. 1987). And, in any

event, here the trial court sentenced Winder to twelve years, with eight years executed,

one year in community corrections, and three years suspended. Thus, the court’s

deviation from the sentence recommended by the probation department was not

significant. We cannot say the trial court abused its discretion on this issue.

Finally, Winder asserts that the trial court’s abused its discretion when it sentenced

him because it “fail[ed] to consider Indiana Constitution Article 1[,] Section 18” in

crafting Winder’s sentence. Appellant’s Br. at 15. This argument is not supported by

cogent reasoning and is waived. Ind. Appellate Rule 46(A)(8)(a); see also Lindsey v.

State, 888 N.E.2d 319, 322 (Ind. Ct. App. 2008) (“Section 18 applies only to the penal

code as a whole and not to individual sentences.”) (quotation omitted), trans. denied. The

trial court did not abuse its discretion when it sentenced Winder.

Issue Two: Indiana Appellate Rule 7(B)

Winder also asserts that his sentence is inappropriate. Article VII, Sections 4 and

6 of the Indiana Constitution “authorize[] independent appellate review and revision of a

sentence imposed by the trial court.” Roush v. State, 875 N.E.2d 801, 812 (Ind. Ct. App.

2007) (alteration original). This appellate authority is implemented through Indiana

Appellate Rule 7(B). Id. Revision of a sentence under Appellate Rule 7(B) requires the

appellant to demonstrate that his sentence is inappropriate in light of the nature of his

offenses and his character. See App. R. 7(B); Rutherford v. State, 866 N.E.2d 867, 873

6 (Ind. Ct. App. 2007). We assess the trial court’s recognition or non-recognition of

aggravators and mitigators as an initial guide to determining whether the sentence

imposed was inappropriate. Gibson v. State, 856 N.E.2d 142, 147 (Ind. Ct. App. 2006).

However, “a defendant must persuade the appellate court that his or her sentence has met

th[e] inappropriateness standard of review.” Roush, 875 N.E.2d at 812 (alteration

original).

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 v. State, 895 N.E.2d 1219, 1222, 1224 (Ind. 2008).

The principal role of appellate review is to attempt to “leaven the outliers.” Id. at 1225.

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.

Winder’s sentence is not inappropriate. On this issue, Winder’s only argument is

that his character—in particular, his educational background and his work history—

justifies a less onerous sentence. But Winder ignores less favorable aspects of his

character, namely, that shortly before June 4, 2012, he had gambled away an entire

paycheck; that he has a history of problems with controlled substances, including illegal

substances and prescription substances; that he has two prior felony convictions for

possession of marijuana; and that he has twice had prior terms of probation revoked.

Winder’s argument on appeal also wholly ignores the nature of the offenses. See

Ind. Appellate Rule 46(A)(8)(a). As explained above, after casing the store by asking for

7 a job application Winder reentered while brandishing a firearm, a decision the trial court

referred to as “reckless.” See Transcript at 72. He physically assaulted one of the two

female workers before confining both of them and then ordering them to disrobe. After

each of the disrobed women escaped his confinement—fleeing into public without

clothing to seek assistance—Winder himself fled the scene.

Further, Winder faced a potential term of forty-one years incarceration for two

Class B felonies and a Class A misdemeanor. The trial court ordered him to serve twelve

years, with eight years executed, one year in community corrections, and three years

suspended. We cannot say that Winder’s sentence is inappropriate in light of the nature

of the offenses or his character.

Finally, we note that the abstract of judgment mistakenly suggests that Winder

may have to serve nine years executed in the Department of Correction. As such, we

remand this matter to the trial court with instructions that it correct this mistake and enter

an abstract of judgment that accurately reflects Winder’s sentence. See Mendoza v.

State, 869 N.E.2d 546, 560 (Ind. Ct. App. 2007), trans. denied.

Affirmed and remanded with instructions.

VAIDIK, C.J., and BROWN, J., concur.