Leonard Shaw v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: June 27, 2013
• Docket: 71A03-1210-CR-433
• Status: Unpublished

Opinion

Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not Jun 27 2013, 7:24 am 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 Duerring Law Offices Attorney General of Indiana South Bend, Indiana

RYAN D. JOHANNINGSMEIER Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA LEONARD SHAW, ) ) Appellant-Defendant, ) ) vs. ) No. 71A03-1210-CR-433 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )

APPEAL FROM THE ST. JOSEPH SUPERIOR COURT The Honorable John M. Marnocha, Judge Cause No. 71D02-1201-FC-24

June 27, 2013

MEMORANDUM DECISION – NOT FOR PUBLICATION

BARNES, Judge Case Summary

Leonard Shaw appeals his sentence of three years for Class D felony

counterfeiting. We affirm.

Issue

The issue before us is whether Shaw’s three-year sentence is inappropriate.

Facts

On November 15, 2011, Marilyn Keldsen’s purse, which contained a checkbook

and other personal items, was stolen at a Wal-mart. She filed a police report and

subsequently closed her accounts. On January 26, 2012, Shaw attempted to cash one of

the stolen checks in the amount of $300 at Community Wide Federal Credit Union

(“Community Wide”) in St. Joseph County. The check was written to Shaw from an

account that belonged to Marilyn and Lloyd Keldsen. Andrea Fields, the teller who

assisted Shaw, noticed that the check was over the limit based on a code system used by

the bank. She also noticed that it was the fourth check from the same account that he was

attempting to cash in a short period of time. She notified her supervisor, and they

subsequently contacted the police.

Upon arrival, Officer Kevin Gibbons questioned Shaw regarding the checks; Shaw

told the officer that an individual named “Lee” had given him checks to cash in exchange

for $25.00, but he was unable to give an exact address for “Lee.” Tr. p. 136. During the

court proceedings, Shaw contacted Marilyn and “asked her not to testify.” Id. at 103. He

2 further told her that Marilyn’s daughter gave him the check; however, Marilyn testified

that she does not have a daughter.

The State charged Shaw with a Class C felony forgery and after trial, he was

convicted of a lesser offense of Class D felony counterfeiting. The probation department

found him at a moderate risk category to reoffend and recommended that he “serve two

(2) years on community corrections . . . .” App. p. 45. However, the trial court sentenced

Shaw to serve three years executed, minus the days credited for serving time during the

proceedings. Tr. p. 241. Shaw now appeals his sentence.

Analysis

We assess whether Shaw’s sentence is inappropriate under Indiana Appellate Rule

7(B) in light of his character and the nature of the offense. See Anglemyer v. State, 868

N.E.2d 482, 491 (Ind. 2007), clarified on r’hg 875 N.E.2d 218 (Ind. 2007). 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.

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.”

3 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 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).

Shaw first challenges his sentence as being excessive because of the nature of the

offense. He argues that there was no loss when he attempted to cash the check at

Community Wide because Marilyn had closed the account. He also states that

Community Wide has a judgment against him in small claims court related to this

incident. We are not persuaded by this argument. Shaw’s intention was to defraud the

Keldsens and Community Wide by withdrawing funds from an account that did not

belong to him. After the proceedings began, Shaw contacted Marilyn to ask her not to

testify at trial and told her that the checks were from her daughter for work that he had

performed, to which Marilyn testified that she has no daughter. These actions show a

disregard of the law, and an apparent willingness to attempt to “game” the criminal

justice system.

4 Shaw next argues that imposing the maximum sentence was excessive in light of

his character. He relies on the recommendation by the probation department, which

indicated that his behavior is at an overall moderate risk to reoffend. Based on his risk

assessment, the probation officer recommended that, instead of incarceration, Shaw serve

in a community corrections program for two years. However, Shaw has an extensive

criminal history. As we have explained:

The significance of a criminal history in assessing a defendant’s character and an appropriate sentence varies based on the gravity, nature, and number of prior offenses in relation to the current offense. A defendant’s age also is highly relevant in determining the weight to be given to a defendant's criminal history or lack thereof.

Rutherford, 866 N.E.2d at 874 (emphasis added) (citations omitted).

Shaw has been convicted of three felonies, including the one on appeal, and forty-

four misdemeanors during his lifetime. He is now forty-seven years old and has been in

trouble with the law since he was a juvenile. He has consistently failed to change his

conduct. For example, a ten-year sentence of incarceration was modified to “shock

probation” for a burglary conviction in 1986. App. p. 25. During his probation, he

continued to have run-ins with the law. We note that “the judge [is] not bound by [the

presentence investigation report] recommendation.” Lemond v. State, 878 N.E.2d 384,

394 (Ind. Ct. App. 2007) (quoting Jenkins v. State, 492 N.E.2d 666, 669 (Ind.1986)).

The trial court found that “the best indicator of whether [he is] going to re-offend or not

is [his] past.” Tr. p. 240. As also noted by the trial court, “the only time [Shaw had not]

5 committed a crime in the past thirty years [was] when [he] was in custody.” Id. at 241.

Nothing has deterred Shaw from a life of crime. Shaw’s criminal history reflects very

poorly on his character.

Conclusion

Even if we were to assume that the offense here was not egregious, we still find

Shaw’s sentence to be appropriate based on his extremely poor character. We affirm the

trial court’s decision.

Affirmed.

NAJAM, J., and BAILEY, J., concur.