Scott L. Wilkins v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: September 29, 2016
• Docket: 43A03-1604-CR-778
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Sep 29 2016, 9:05 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Donald R. Shuler Gregory F. Zoeller Barkes, Kolbus, Rife & Shuler, LLP Attorney General of Indiana Goshen, Indiana Tyler G. Banks Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Scott L. Wilkins, September 29, 2016 Appellant-Defendant, Court of Appeals Case No. 43A03-1604-CR-778 v. Appeal from the Kosciusko Superior Court State of Indiana, The Honorable Joe V. Sutton, Appellee-Plaintiff. Judge Trial Court Cause No. 43D03-1412-F4-824

Bailey, Judge.

Court of Appeals of Indiana | Memorandum Decision 43A03-1604-CR-778 | September 29, 2016 Page 1 of 10 Case Summary [1] Following a jury trial, Scott Wilkins (“Wilkins”) was convicted of (1) Causing

the Death of Another Person When Operating a Vehicle, as a Level 4 Felony1;

and (2) Failure to Comply with Acts Required of a Driver of a Vehicle Involved

in an Accident Resulting in Death, as a Level 5 Felony2. Wilkins now appeals

his sentence. We affirm.

Issues [2] Wilkins raises two issues for our review:

I. Whether the trial court abused its discretion in sentencing; and

II. Whether Wilkins’s sentence is inappropriate.

Facts and Procedural History [3] Around midnight on December 26, 2014, Wilkins was driving in rural

Kosciusko County with passenger Kami Ellis (“Ellis”), who was a friend. The

speed limit was 55mph, but Wilkins was driving between 86mph and 95mph.

As Wilkins drove over a crest on the road, he lost control of the vehicle. The

1 Ind. Code § 9-30-5-5(b) (2014). The relevant code section was modified, effective July 1, 2016. For this code section and others, we refer to the substantive provisions of the Indiana Code in effect at the time of and applicable to Wilkins’s offenses. 2 I.C. §§ 9-26-1-1; 9-26-1-8(a)2.

Court of Appeals of Indiana | Memorandum Decision 43A03-1604-CR-778 | September 29, 2016 Page 2 of 10 vehicle struck a tree and then a large stump. The force of the collision caused

the engine to break free, roll through a field, and land 223 feet from where the

vehicle came to rest.

[4] Nearby residents heard the crash. They saw flames. They also heard a man

screaming, and observed someone walking near the flames. When both

residents and responders arrived within minutes, flames had already fully

engulfed the vehicle. They saw Ellis’s remains in the passenger seat, but no one

could locate the driver. Ground and aerial searches ensued.

[5] Meanwhile, Wilkins had left the scene and walked approximately four or five

miles away to his apartment. Wilkins’s neighbor, Kyra Davis (“Davis”), saw

him covered in mud and crouching in the bushes across the street. She believed

Wilkins was waiting for police officers to leave before he entered his apartment.

Davis called Wilkins’s roommate Robert Emerick (“Emerick”) to tell him that

Wilkins had arrived. When Emerick came to the apartment, Davis was in the

hallway with Wilkins’s friend Vicki Simmons (“Simmons”). The car in the

collision belonged to Simmons, who had loaned the vehicle to Wilkins.

[6] When Emerick and Simmons entered the apartment, they found Wilkins

showering in the bathroom. Wilkins had blood on his head, an injured arm,

and a swollen ankle. Emerick and Simmons helped Wilkins get dressed, and

then Wilkins told Simmons that she needed to get him out of there. Wilkins

and Simmons then went downstairs into another of Simmons’s vehicles, where

Wilkins directed Simmons to take him to a hotel. Simmons followed Wilkins’s

Court of Appeals of Indiana | Memorandum Decision 43A03-1604-CR-778 | September 29, 2016 Page 3 of 10 instructions. When they reached the parking lot of a Holiday Inn Express,

Wilkins directed Simmons to pay with cash and use a fake name. Simmons

complied, and then they entered the room she had rented.

[7] Shortly thereafter, police arrived and found Wilkins laying in the bed. They

detected the smell of alcohol on his breath. Wilkins was arrested and taken to a

local hospital where he refused to submit to a chemical test. After law

enforcement secured a search warrant, Wilkins’s blood was drawn

approximately seven hours after the collision. Forensic testing revealed the

presence of a metabolite of marijuana in Wilkins’s blood.

[8] On February 15, 2016, Wilkins was brought to trial on charges of (1) Causing

the Death of Another Person When Operating a Vehicle, as a Level 4 Felony3;

(2) Failure to Comply with Acts Required of a Driver of a Vehicle Involved in

an Accident Resulting in Death4, as a Level 5 felony; and (3) Reckless

Homicide, as a Level 5 Felony5.

[9] Following a jury trial, Wilkins was acquitted of Reckless Homicide but

convicted of the remaining charges. On March 16, 2016, the trial court

sentenced Wilkins to an aggregate sentence of fifteen years, sentencing Wilkins

to nine executed years for the Level 4 felony conviction and six executed years

3 I.C. § 9-30-5-5(b). 4 I.C. §§ 9-26-1-1; 9-26-1-8(a)2. 5 I.C. § 35-42-1-5.

Court of Appeals of Indiana | Memorandum Decision 43A03-1604-CR-778 | September 29, 2016 Page 4 of 10 for the Level 5 conviction, with the sentences to be served consecutively.

Wilkins now appeals.

Discussion and Decision Abuse of Discretion [10] Wilkins argues that the trial court abused its discretion in sentencing him.

Specifically, Wilkins contends that the trial court failed to properly consider

certain mitigating factors and aggravating factors in determining his sentence.

[11] The sentencing range for a Level 4 felony conviction is between two and twelve

years, with six years being the advisory sentence. I.C. § 35-50-2-5.5. Wilkins

was sentenced to nine years for his Level 4 felony conviction. The sentencing

range for a Level 5 felony conviction is between one and six years, with three years

being the advisory sentence. I.C. § 35-50-2-6. Wilkins was sentenced to six years

for his Level 5 felony conviction. “So long as the sentence is within the statutory

range, it is subject to review only for abuse of discretion.” Anglemyer v. State, 868

N.E.2d 482, 490 (Ind. 2007), clarified on other grounds, 875 N.E.2d 218 (Ind.

2007).

[12] A trial court abuses its discretion if its sentencing 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. In

sentencing a defendant, the trial court must enter “a sentencing statement that

includes a reasonably detailed recitation of its reasons for imposing a particular

Court of Appeals of Indiana | Memorandum Decision 43A03-1604-CR-778 | September 29, 2016 Page 5 of 10 sentence.” Anglemyer, 868 N.E.2d at 491. Where, as here, a defendant alleges

that the trial court failed to identify or find a mitigating factor, the defendant

must establish that the mitigating evidence is both significant and clearly

supported by the record. Id. at 493. However, the trial court is not obligated to

explain why it did not find a particular circumstance to be significantly

mitigating. Sherwood v. State, 749 N.E.2d 36, 38 (Ind. 2001). We will not

remand unless we “cannot say with confidence that the trial court would have

imposed the same sentence had it properly considered reasons that enjoy

support in the record.” Anglemyer, 868 N.E.2d at 491.

[13] In this case, the trial court, in its written sentencing order, rejected all of

Wilkins’s proffered mitigating factors. Wilkins contends that the trial court

failed to consider his acceptance of responsibility and improperly considered his

remorse6. We observe that an expression of remorse necessarily encompasses a

personal acceptance of responsibility. See Black’s Law Dictionary (10th ed.

2014) (defining remorse as “[a] strong feeling of sincere regret and sadness over

one’s having behaved badly or done harm; intense, anguished self-reproach and

compunction of conscience, esp. for a crime one has committed.”) Moreover, a

consideration of remorse is a credibility determination, which the trial court is

better positioned to make. We will not disturb a trial court’s credibility

6 Wilkins also states, but does not develop argument thereon, that the trial court abused its discretion in rejecting hardship to his children as an additional mitigating circumstance. This issue is waived for review. Pierce v. State, 29 N.E.3d 1258, 1267-68 (Ind. 2015).

Court of Appeals of Indiana | Memorandum Decision 43A03-1604-CR-778 | September 29, 2016 Page 6 of 10 determination at sentencing unless there is evidence of an impermissible

consideration. Pickens v. State, 767 N.E.2d 530, 535 (Ind. 2002).

[14] Wilkins suggests that the trial court made impermissible considerations when

evaluating his remorse. In support of his argument, Wilkins points to a portion

of the trial court’s sentencing colloquy where the trial court made statements

relating to Wilkins’s conduct following the collision and the impact on Ellis’s

family. (Sent. Tr. 44-46.) Prior to those additional comments, however, the

trial court stated that with respect to remorse “[it] tend[ed] to agree with the

State.” (Id. at 44.) The State had just argued that Wilkins continued to excuse

and justify his behavior in the statement Wilkins made in his pre-sentence

investigation report. (Id. at 42.) There, Wilkins wrote: “I’ve admitted wrongs.

And although I did leave the scene, I cannot admit to doing it willfully.” (App.

Vol. III, 52.) Even if Wilkins acknowledged wrongdoing with respect to

causing Ellis’s death, he did not take full responsibility for his evasive actions

following the collision.

[15] In reviewing Wilkins’s claim of remorse and acceptance of responsibility, the

trial court could have reasonably given Wilkins’s statements little weight,

finding that Wilkins did not accept responsibility for all of his criminal actions,

much less show full remorse. Here, the trial court did not abuse its discretion.

Moreover, even if the trial court’s comments amounted to an impermissible

consideration, Wilkins has not persuaded us that the trial court would have

imposed a different sentence. Therefore, we decline to remand.

Court of Appeals of Indiana | Memorandum Decision 43A03-1604-CR-778 | September 29, 2016 Page 7 of 10 [16] Wilkins also argues that the trial court abused its discretion in finding that his

criminal history was an aggravating circumstance. “[T]he significance of a

criminal history varies based on the gravity, nature and number of prior

offenses as they relate to the current offense.” McElfresh v. State, 51 N.E.3d 103,

112 (Ind. 2016) (quoting Williams v. State, 838 N.E.2d 1019, 1021 (Ind. 2005)).

[17] Wilkins characterizes his criminal history as minimal, but both the quantity and

quality of Wilkins’s criminal history is well supported by the record. Wilkins

has two prior felony convictions and two prior misdemeanor convictions. Two

of these, a felony conviction for Possession of Marijuana and a misdemeanor

conviction for Operating a Vehicle While Intoxicated Endangering a Person,

substantively relate to his present conviction. Upon review, Wilkins’s criminal

history is a valid aggravating circumstance.

[18] Wilkins further argues that the trial court improperly found as aggravating

circumstances (1) that he was in a position of trust with respect to Ellis and (2)

that he caused significant harm to the victim’s family. We need not reach these

issues. Even a single aggravating circumstance may be sufficient to support an

enhanced sentence and to justify consecutive sentences. Walter v. State, 727

N.E.2d 443, 448 (Ind. 2000); Miller v. State, 716 N.E.2d 367, 371 (Ind. 1999).

We have concluded that Wilkins’s criminal history is a valid aggravating

circumstance. Moreover, Wilkins does not challenge the trial court’s

determination that his being on probation at the time of the offense was an

aggravating circumstance. Accordingly, we find that the trial court did not

abuse its discretion in enhancing Wilkins’s sentence.

Court of Appeals of Indiana | Memorandum Decision 43A03-1604-CR-778 | September 29, 2016 Page 8 of 10 Inappropriate Sentence [19] Wilkins next requests appellate review and revision of his sentence. Article 7,

Section 4 of the Indiana Constitution grants the authority for appellate review

and revision of criminal sentences, and is implemented through Indiana

Appellate Rule 7(B). Under this rule, 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.” In performing our review, we assess “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.” Cardwell v.

State, 895 N.E.2d 1219, 1224 (Ind. 2008). The principal role of such review is

to attempt to leaven the outliers. Id. at 1225.

[20] As to the nature of the offenses, Wilkins caused death with a marijuana

metabolite in his system and then engaged in exceedingly evasive actions

following the collision. As to the character of the offender, Wilkins was on

probation for operating a vehicle while intoxicated. In the hours prior to the

crash, as Wilkins admits, he violated his probation by consuming alcohol.

Wilkins’s criminal history shows multiple probation violations.

[21] On balance, the record does not show “compelling evidence portraying in a

positive light the nature of the offense . . . and the defendant’s character” that

would warrant disturbing the trial court’s determination. Stephenson v. State, 29

Court of Appeals of Indiana | Memorandum Decision 43A03-1604-CR-778 | September 29, 2016 Page 9 of 10 N.E.3d 111, 122 (Ind. 2015). Seeing no outliers here, we find that the sentence

imposed by the trial court is not inappropriate under Appellate Rule 7(B).

Conclusion [22] The trial court did not abuse its discretion in sentencing Wilkins and his

sentence is not inappropriate.

[23] Affirmed.

Riley, J., and Barnes, J., concur.

Court of Appeals of Indiana | Memorandum Decision 43A03-1604-CR-778 | September 29, 2016 Page 10 of 10