MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Jun 26 2018, 8:22 am this Memorandum Decision shall not be regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court
the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Derick W. Steele Curtis T. Hill, Jr. Kokomo, Indiana Attorney General of Indiana Evan Matthew Comer Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Paul W. Calloway, June 26, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-186 v. Appeal from the Howard Superior Court State of Indiana, The Honorable Appellee-Plaintiff. George A. Hopkins, Judge. Trial Court Cause No. 34D04-1605-F1-83
Kirsch, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-186 | June 26, 2018 Page 1 of 7 Paul W. Calloway (“Calloway”) pled guilty to attempted aggravated battery1 as
a Level 3 felony and was sentenced to twelve years in the Indiana Department
of Correction (“DOC”). He now appeals his sentence contending that it is
inappropriate in light of the nature of the offense and the character of the
offender.
We affirm.
Facts and Procedural History At 2:13 a.m., on May 1, 2016, Sergeant Mark Miller (“Sgt. Miller”) and Officer
Ryan Shuey (“Officer Shuey”) of the Kokomo Police Department were
dispatched to investigate a report of a man attempting to break into a shed.
Appellant’s App. Vol. 2 at 19. Approximately thirty minutes prior to this, another
officer had been called to that same area following a report that gunshots had
been heard, but no suspect was found by the investigating officer at that time.
Id. at 19, 21. The shed in question was located behind a house in a populated
area where apartments and other homes were also located. Id. at 21. A tree
line wrapped along the eastern and northern boundaries of the property. Id. at
19. After arriving on scene, the officers parked their vehicle, and Sgt. Miller
entered the tree line in order to seek cover as he approached the shed. Id. As
he did so, Sgt. Miller noticed what appeared to be a cellphone screen glowing
1 See Ind. Code § 35-42-2-1.5.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-186 | June 26, 2018 Page 2 of 7 near the ground. Id. at 20. Sgt. Miller walked towards the glowing light and
found Calloway hidden beneath a bush, lying on his side and facing the
opposite direction. Id.
Sgt. Miller ordered Calloway to roll over and to show his hands. Id. As
Calloway turned, Sgt. Miller could see that Calloway was holding a gun. Id.
As Sgt. Miller began to move away, Calloway fired the weapon at him four
times. Id. Sgt. Miller ran approximately twenty feet away from the place where
Calloway was lying before firing his own gun and then seeking cover behind a
nearby tree. Id. Officer Shuey also discharged his firearm several times. Id. at
21. Of the shots that were fired, none hit any of the individuals involved, and
no one was physically injured. Id. at 20-21.
From his shelter behind the tree, Sgt. Miller began to negotiate with Calloway
in an effort to keep him from firing additional rounds. Id. at 20. Other officers
arrived on the scene and set up a horseshoe perimeter around Calloway’s
location. Id. Officers placed a light on Calloway, and he was observed pointing
his gun at his head. Id. Sgt. Miller talked with Calloway for forty-five minutes,
and Calloway told Sgt. Miller that he had recently been released from prison
after serving a twenty-four-year sentence for child molestation and that he had
recently been accused of reoffending. Id. at 20, 55. Because of this, Calloway
told Sgt. Miller, he wanted the police to kill him. Id. at 20; Tr. Vol. II at
16.Throughout the standoff, Calloway refused to relinquish his gun. Appellant’s
App. Vol. 2 at 20; Tr. Vol. II at 17. At times, Calloway would sit up, put his gun
Court of Appeals of Indiana | Memorandum Decision 18A-CR-186 | June 26, 2018 Page 3 of 7 in his mouth, and then lay back down again. Appellant’s App. Vol. 2 at 20.
Eventually, the Kokomo SWAT Team arrived on the scene and took over the
negotiations. Id.
Calloway surrendered at 6:23 a.m., approximately four hours after Sgt. Miller
and Officer Shuey first arrived on the scene. Id. at 20-21. The State charged
Calloway with one count of Level 1 felony attempted murder and one count of
Level 6 felony resisting law enforcement. Id. at 15-16. Calloway pleaded guilty
to Level 3 felony attempted aggravated battery and was sentenced to twelve
years all to be executed in the DOC. Id. at 9, 47-51. Calloway now appeals.
Discussion and Decision For his Level 3 felony attempted aggravated battery conviction, the trial court
sentenced Calloway to twelve years with no time suspended. Calloway now
argues that his sentence is an inappropriate sentence in light of the nature of the
offense and his character and contends that his sentence should be what the
probation sentencing report suggested: nine years, with three years executed,
and the balance suspended to supervised probation, with credit for time already
served.
Pursuant to Indiana Appellate Rule 7(B), this 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.” Our Supreme Court has explained that the
principal role of appellate review should be to attempt to leaven the outliers,
Court of Appeals of Indiana | Memorandum Decision 18A-CR-186 | June 26, 2018 Page 4 of 7 “not to achieve a perceived ‘correct’ result in each case.” Cardwell v. State, 895
N.E.2d 1219, 1225 (Ind. 2008). We independently examine the nature of
Calloway’s offense and his character under Appellate Rule 7(B) with substantial
deference to the trial court’s sentence. Satterfield v. State, 33 N.E.3d 344, 355
(Ind. 2015). In conducting our review, the test is whether the sentence is
inappropriate, and we do not look to see whether another sentence might be
more appropriate. Barker v. State, 994 N.E.2d 306, 315 (Ind. Ct. App. 2013),
trans. denied. Calloway bears the burden of persuading us that his sentence is
inappropriate. Id.
“As to the nature of the offense, the advisory sentence is the starting point the
legislature has selected as an appropriate sentence for the crime committed.”
Kunberger v. State, 46 N.E.3d 966, 973 (Ind. Ct. App. 2015). The advisory
sentence for a Level 3 felony conviction is nine years, with a range of between
three and sixteen years. Ind. Code § 35-50-2-5.
The nature of the offense is found in the details and circumstances of the
commission of the offense and the defendant’s participation. Croy v. State, 953
N.E.2d 660, 664 (Ind. Ct. App. 2011). Here, Calloway highlights that, at the
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MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Jun 26 2018, 8:22 am this Memorandum Decision shall not be regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court
the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Derick W. Steele Curtis T. Hill, Jr. Kokomo, Indiana Attorney General of Indiana Evan Matthew Comer Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Paul W. Calloway, June 26, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-186 v. Appeal from the Howard Superior Court State of Indiana, The Honorable Appellee-Plaintiff. George A. Hopkins, Judge. Trial Court Cause No. 34D04-1605-F1-83
Kirsch, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-186 | June 26, 2018 Page 1 of 7 Paul W. Calloway (“Calloway”) pled guilty to attempted aggravated battery1 as
a Level 3 felony and was sentenced to twelve years in the Indiana Department
of Correction (“DOC”). He now appeals his sentence contending that it is
inappropriate in light of the nature of the offense and the character of the
offender.
We affirm.
Facts and Procedural History At 2:13 a.m., on May 1, 2016, Sergeant Mark Miller (“Sgt. Miller”) and Officer
Ryan Shuey (“Officer Shuey”) of the Kokomo Police Department were
dispatched to investigate a report of a man attempting to break into a shed.
Appellant’s App. Vol. 2 at 19. Approximately thirty minutes prior to this, another
officer had been called to that same area following a report that gunshots had
been heard, but no suspect was found by the investigating officer at that time.
Id. at 19, 21. The shed in question was located behind a house in a populated
area where apartments and other homes were also located. Id. at 21. A tree
line wrapped along the eastern and northern boundaries of the property. Id. at
19. After arriving on scene, the officers parked their vehicle, and Sgt. Miller
entered the tree line in order to seek cover as he approached the shed. Id. As
he did so, Sgt. Miller noticed what appeared to be a cellphone screen glowing
1 See Ind. Code § 35-42-2-1.5.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-186 | June 26, 2018 Page 2 of 7 near the ground. Id. at 20. Sgt. Miller walked towards the glowing light and
found Calloway hidden beneath a bush, lying on his side and facing the
opposite direction. Id.
Sgt. Miller ordered Calloway to roll over and to show his hands. Id. As
Calloway turned, Sgt. Miller could see that Calloway was holding a gun. Id.
As Sgt. Miller began to move away, Calloway fired the weapon at him four
times. Id. Sgt. Miller ran approximately twenty feet away from the place where
Calloway was lying before firing his own gun and then seeking cover behind a
nearby tree. Id. Officer Shuey also discharged his firearm several times. Id. at
21. Of the shots that were fired, none hit any of the individuals involved, and
no one was physically injured. Id. at 20-21.
From his shelter behind the tree, Sgt. Miller began to negotiate with Calloway
in an effort to keep him from firing additional rounds. Id. at 20. Other officers
arrived on the scene and set up a horseshoe perimeter around Calloway’s
location. Id. Officers placed a light on Calloway, and he was observed pointing
his gun at his head. Id. Sgt. Miller talked with Calloway for forty-five minutes,
and Calloway told Sgt. Miller that he had recently been released from prison
after serving a twenty-four-year sentence for child molestation and that he had
recently been accused of reoffending. Id. at 20, 55. Because of this, Calloway
told Sgt. Miller, he wanted the police to kill him. Id. at 20; Tr. Vol. II at
16.Throughout the standoff, Calloway refused to relinquish his gun. Appellant’s
App. Vol. 2 at 20; Tr. Vol. II at 17. At times, Calloway would sit up, put his gun
Court of Appeals of Indiana | Memorandum Decision 18A-CR-186 | June 26, 2018 Page 3 of 7 in his mouth, and then lay back down again. Appellant’s App. Vol. 2 at 20.
Eventually, the Kokomo SWAT Team arrived on the scene and took over the
negotiations. Id.
Calloway surrendered at 6:23 a.m., approximately four hours after Sgt. Miller
and Officer Shuey first arrived on the scene. Id. at 20-21. The State charged
Calloway with one count of Level 1 felony attempted murder and one count of
Level 6 felony resisting law enforcement. Id. at 15-16. Calloway pleaded guilty
to Level 3 felony attempted aggravated battery and was sentenced to twelve
years all to be executed in the DOC. Id. at 9, 47-51. Calloway now appeals.
Discussion and Decision For his Level 3 felony attempted aggravated battery conviction, the trial court
sentenced Calloway to twelve years with no time suspended. Calloway now
argues that his sentence is an inappropriate sentence in light of the nature of the
offense and his character and contends that his sentence should be what the
probation sentencing report suggested: nine years, with three years executed,
and the balance suspended to supervised probation, with credit for time already
served.
Pursuant to Indiana Appellate Rule 7(B), this 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.” Our Supreme Court has explained that the
principal role of appellate review should be to attempt to leaven the outliers,
Court of Appeals of Indiana | Memorandum Decision 18A-CR-186 | June 26, 2018 Page 4 of 7 “not to achieve a perceived ‘correct’ result in each case.” Cardwell v. State, 895
N.E.2d 1219, 1225 (Ind. 2008). We independently examine the nature of
Calloway’s offense and his character under Appellate Rule 7(B) with substantial
deference to the trial court’s sentence. Satterfield v. State, 33 N.E.3d 344, 355
(Ind. 2015). In conducting our review, the test is whether the sentence is
inappropriate, and we do not look to see whether another sentence might be
more appropriate. Barker v. State, 994 N.E.2d 306, 315 (Ind. Ct. App. 2013),
trans. denied. Calloway bears the burden of persuading us that his sentence is
inappropriate. Id.
“As to the nature of the offense, the advisory sentence is the starting point the
legislature has selected as an appropriate sentence for the crime committed.”
Kunberger v. State, 46 N.E.3d 966, 973 (Ind. Ct. App. 2015). The advisory
sentence for a Level 3 felony conviction is nine years, with a range of between
three and sixteen years. Ind. Code § 35-50-2-5.
The nature of the offense is found in the details and circumstances of the
commission of the offense and the defendant’s participation. Croy v. State, 953
N.E.2d 660, 664 (Ind. Ct. App. 2011). Here, Calloway highlights that, at the
time of the offense, he was suffering from an extreme mental illness and did not
intend to injure a police officer, but instead, wanted to end his own life.
Calloway indicates that he was suicidal for many reasons: he had several
health problems; he had lost his health insurance; and he had recently suffered
the loss of his fiancée.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-186 | June 26, 2018 Page 5 of 7 Our review of the record reveals that the circumstances of the offense are that
police were called to investigate a report of an individual attempting to break
into a shed. Sgt. Miller found Calloway in a wooded area hidden beneath a
bush, lying on his side and facing the opposite direction. After being instructed
to roll over and show his hands, Calloway displayed a gun and fired four shots
at Sgt. Miller. Sgt. Miller returned fire. Calloway was initially charged with
one count of Level 1 felony attempted murder and one count of Level 6 felony
resisting law enforcement and eventually pleaded guilty to Level 3 felony
attempted aggravated battery. We agree with the State that “Calloway accepted
a plea agreement at substantial benefit to himself. Had he elected not to plead
guilty, he would have faced a trial for Level 1 felony attempted murder, which
carried a minimum sentence of [twenty] years if convicted.2” Appellee’s Br. at 9.
Nothing about the nature of the offense warrants a reduction in the imposed
sentence.
“The character of the offender is found in what we learn of the offender’s life
and conduct.” Croy, 953 N.E.2d at 664. Calloway argues that his prior
criminal history was not the most heinous. He contends that his character did
not warrant the twelve-year sentence. Calloway has two prior felony
convictions, burglary and criminal sexual conduct, and a misdemeanor,
operating a vehicle while intoxicated. Calloway was required to register as a
sex offender because of his criminal sexual conduct felony conviction. At the
2 See Ind. Code § 35-50-2-4(b)
Court of Appeals of Indiana | Memorandum Decision 18A-CR-186 | June 26, 2018 Page 6 of 7 time of this offense, Calloway was out on bond for the misdemeanor charge.
Based on the record before us, we cannot say that his character warrants
revision of his sentence.
Calloway has failed to carry his burden of establishing that his sentence is
inappropriate in light of the nature of the offense and his character.
Affirmed.
Baker, J., and Bradford, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-186 | June 26, 2018 Page 7 of 7