MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Aug 31 2015, 8:42 am 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 Thomas C. Allen Gregory F. Zoeller Fort Wayne, Indiana Attorney General of Indiana Christina D. Pace Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Shamar D. Shelton, August 31, 2015 Appellant-Defendant, Court of Appeals Case No. 02A04-1502-CR-56 v. Appeal from the Allen Superior Court State of Indiana, The Honorable John F. Surbeck, Appellee-Plaintiff. Judge Trial Court Cause No. 02D05-1406-FB-106
Pyle, Judge.
Court of Appeals of Indiana | Memorandum Decision 02A04-1502-CR-56 | August 31, 2015 Page 1 of 8 Statement of the Case [1] Appellant/Defendant, Shamar D. Shelton (“Shelton”), appeals his sentence for
his conviction of Class B felony unlawful possession of a firearm by a serious
violent felon (“SVF”).1 On appeal, he asks us to revise his sentence under
Appellate Rule 7(B). Because we conclude that his sentence was not
inappropriate in light of the nature of his offense and his character, we decline
to revise his sentence.
[2] We affirm.
Issue Whether Shelton’s sentence was inappropriate in light of the nature of his offense and his character.
Facts [3] On June 11, 2014, Fort Wayne Police Department Officer David Tinsley
(“Officer Tinsley”) received a dispatch a little after midnight that there was a
potential burglary in progress at a local residence. He and another officer,
Officer Tim Hughes (“Officer Hughes”), both responded to the dispatch and
arrived at the scene at the same time. The residence was a three-bedroom
house with a detached garage. There was a five to six foot tall privacy fence in
1 IND. CODE § 35-47-4-5. This statute was amended effective July 1, 2014, and Shelton’s offense would now be considered a Level 4 felony. However, we will apply the version of the statute that was in effect at the time of Shelton’s offense.
Court of Appeals of Indiana | Memorandum Decision 02A04-1502-CR-56 | August 31, 2015 Page 2 of 8 front of the house and a four to five foot tall chain link fence surrounding the
backyard.
[4] When they arrived at the scene, Officer Tinsley approached the garage from the
west side, and Officer Hughes approached from the east. As Officer Tinsley
was walking beside the garage, he noticed that there were plastic oil cans by the
fence at the rear of the house. He later testified that he found this evidence
significant because frequently when a person breaks into a residence, that
person will pile items so that they are easier to take.
[5] After noticing the oil cans, Officer Tinsley saw a man, who was later identified
as Shelton, in the area between the detached garage and the house. He yelled at
Shelton to stop and informed him that he was a police officer. Initially, Shelton
complied with Officer Tinsley’s orders and put his hands above his head.
However, he then relaxed his hands and jumped over the chain link fence.
[6] Officer Hughes arrived at the backyard of the residence as Shelton jumped, and
he followed Shelton over the fence. Shelton then jumped the privacy fence in
front of the house and ran across the street into the yard of another house.
Officer Hughes saw an object in Shelton’s hand but could not identify what it
was. Meanwhile, Officer Tinsley repeatedly yelled at Shelton to stop running
and that they were the police, but Shelton did not stop. However, as Shelton
was running, he changed directions quickly, slipped on the wet grass, and fell.
[7] After Shelton’s fall, the officers approached him and took control of his arms.
They discovered that there was a little flashlight on the ground by his head, as
Court of Appeals of Indiana | Memorandum Decision 02A04-1502-CR-56 | August 31, 2015 Page 3 of 8 well as a gun in a soft fabric holster. The gun did not belong to either of the
police officers. Officer Tinsley also observed that Shelton was wearing gloves.
[8] By the point that they apprehended Shelton, several other officers had arrived at
the scene. A K-9 officer issued commands for anyone remaining in the garage
to come outside, and another man, later identified as Brandon Kyles, exited.
Inside, the officers discovered that one of the garage’s bays was empty, except
for a pile of items in the middle of the floor. Officer Tinsley concluded that the
pile, like the plastic oil cans, was consistent with preparation for a burglary.
The officers also discovered that the door frame to the garage was damaged,
“consistent with having been pushed or kicked in.” (Tr. 141). One officer
checked Shelton’s record and found that he did not have a permit to carry a
handgun.
[9] Subsequently, the officers called the owner of the residence, William Carswell
(“Carswell”), who was eighty years old and staying at a cottage he owned an
hour away. Carswell drove back to his residence in Fort Wayne and confirmed
that when he had left the residence, the house and garage had both been locked
and that the door jam of the garage had not been damaged. He also observed
that the items found by the police were not in the condition in which he had left
them. For example, he did not leave the oil cans in a pile by the back fence
before he left, and he did not leave his belongings piled on the floor of the
garage. In addition to the changed condition of his garage, Carswell identified
that he was missing several items, including three lawn mowers, three chain
saws, a compressor, a tool box with tools in it, and a battery charger.
Court of Appeals of Indiana | Memorandum Decision 02A04-1502-CR-56 | August 31, 2015 Page 4 of 8 [10] On June 17, 2014, the State charged Shelton with Class B felony unlawful
possession of a firearm by an SVF; Class C felony burglary; and Class A
misdemeanor resisting law enforcement. The trial court held a jury trial on
December 3 and 4, 2014, and the jury found Shelton guilty as charged.
[11] Thereafter, on January 9, 2015, the trial court held a sentencing hearing and
sentenced Shelton to fifteen (15) years for his unlawful possession of a firearm
by an SVF conviction, five (5) years for his burglary conviction, and one (1)
year for his resisting law enforcement conviction. The trial court ordered his
sentences for unlawful possession of a firearm by an SVF and burglary to run
consecutively, with his sentence for resisting law enforcement to run
concurrently. The trial court found that Shelton’s significant criminal history
and Carswell’s age were aggravating factors. Shelton now appeals his sentence.
Decision
[12] On appeal, Shelton argues that we should revise his sentence for his conviction
of unlawful possession of a firearm by an SVF under Appellate Rule 7(B) based
on the nature of his offense and his character. 2 First, Shelton argues that the
circumstances of his offense were not “unusual.” (Shelton’s Br. 10) As for his
character, Shelton notes that even though he had an extensive criminal history,
his past convictions were dissimilar in nature to the instant convictions, his
juvenile convictions were almost fifteen years removed, and he had only had
2 Shelton does not appeal his sentences from his other two convictions.
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Aug 31 2015, 8:42 am 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 Thomas C. Allen Gregory F. Zoeller Fort Wayne, Indiana Attorney General of Indiana Christina D. Pace Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Shamar D. Shelton, August 31, 2015 Appellant-Defendant, Court of Appeals Case No. 02A04-1502-CR-56 v. Appeal from the Allen Superior Court State of Indiana, The Honorable John F. Surbeck, Appellee-Plaintiff. Judge Trial Court Cause No. 02D05-1406-FB-106
Pyle, Judge.
Court of Appeals of Indiana | Memorandum Decision 02A04-1502-CR-56 | August 31, 2015 Page 1 of 8 Statement of the Case [1] Appellant/Defendant, Shamar D. Shelton (“Shelton”), appeals his sentence for
his conviction of Class B felony unlawful possession of a firearm by a serious
violent felon (“SVF”).1 On appeal, he asks us to revise his sentence under
Appellate Rule 7(B). Because we conclude that his sentence was not
inappropriate in light of the nature of his offense and his character, we decline
to revise his sentence.
[2] We affirm.
Issue Whether Shelton’s sentence was inappropriate in light of the nature of his offense and his character.
Facts [3] On June 11, 2014, Fort Wayne Police Department Officer David Tinsley
(“Officer Tinsley”) received a dispatch a little after midnight that there was a
potential burglary in progress at a local residence. He and another officer,
Officer Tim Hughes (“Officer Hughes”), both responded to the dispatch and
arrived at the scene at the same time. The residence was a three-bedroom
house with a detached garage. There was a five to six foot tall privacy fence in
1 IND. CODE § 35-47-4-5. This statute was amended effective July 1, 2014, and Shelton’s offense would now be considered a Level 4 felony. However, we will apply the version of the statute that was in effect at the time of Shelton’s offense.
Court of Appeals of Indiana | Memorandum Decision 02A04-1502-CR-56 | August 31, 2015 Page 2 of 8 front of the house and a four to five foot tall chain link fence surrounding the
backyard.
[4] When they arrived at the scene, Officer Tinsley approached the garage from the
west side, and Officer Hughes approached from the east. As Officer Tinsley
was walking beside the garage, he noticed that there were plastic oil cans by the
fence at the rear of the house. He later testified that he found this evidence
significant because frequently when a person breaks into a residence, that
person will pile items so that they are easier to take.
[5] After noticing the oil cans, Officer Tinsley saw a man, who was later identified
as Shelton, in the area between the detached garage and the house. He yelled at
Shelton to stop and informed him that he was a police officer. Initially, Shelton
complied with Officer Tinsley’s orders and put his hands above his head.
However, he then relaxed his hands and jumped over the chain link fence.
[6] Officer Hughes arrived at the backyard of the residence as Shelton jumped, and
he followed Shelton over the fence. Shelton then jumped the privacy fence in
front of the house and ran across the street into the yard of another house.
Officer Hughes saw an object in Shelton’s hand but could not identify what it
was. Meanwhile, Officer Tinsley repeatedly yelled at Shelton to stop running
and that they were the police, but Shelton did not stop. However, as Shelton
was running, he changed directions quickly, slipped on the wet grass, and fell.
[7] After Shelton’s fall, the officers approached him and took control of his arms.
They discovered that there was a little flashlight on the ground by his head, as
Court of Appeals of Indiana | Memorandum Decision 02A04-1502-CR-56 | August 31, 2015 Page 3 of 8 well as a gun in a soft fabric holster. The gun did not belong to either of the
police officers. Officer Tinsley also observed that Shelton was wearing gloves.
[8] By the point that they apprehended Shelton, several other officers had arrived at
the scene. A K-9 officer issued commands for anyone remaining in the garage
to come outside, and another man, later identified as Brandon Kyles, exited.
Inside, the officers discovered that one of the garage’s bays was empty, except
for a pile of items in the middle of the floor. Officer Tinsley concluded that the
pile, like the plastic oil cans, was consistent with preparation for a burglary.
The officers also discovered that the door frame to the garage was damaged,
“consistent with having been pushed or kicked in.” (Tr. 141). One officer
checked Shelton’s record and found that he did not have a permit to carry a
handgun.
[9] Subsequently, the officers called the owner of the residence, William Carswell
(“Carswell”), who was eighty years old and staying at a cottage he owned an
hour away. Carswell drove back to his residence in Fort Wayne and confirmed
that when he had left the residence, the house and garage had both been locked
and that the door jam of the garage had not been damaged. He also observed
that the items found by the police were not in the condition in which he had left
them. For example, he did not leave the oil cans in a pile by the back fence
before he left, and he did not leave his belongings piled on the floor of the
garage. In addition to the changed condition of his garage, Carswell identified
that he was missing several items, including three lawn mowers, three chain
saws, a compressor, a tool box with tools in it, and a battery charger.
Court of Appeals of Indiana | Memorandum Decision 02A04-1502-CR-56 | August 31, 2015 Page 4 of 8 [10] On June 17, 2014, the State charged Shelton with Class B felony unlawful
possession of a firearm by an SVF; Class C felony burglary; and Class A
misdemeanor resisting law enforcement. The trial court held a jury trial on
December 3 and 4, 2014, and the jury found Shelton guilty as charged.
[11] Thereafter, on January 9, 2015, the trial court held a sentencing hearing and
sentenced Shelton to fifteen (15) years for his unlawful possession of a firearm
by an SVF conviction, five (5) years for his burglary conviction, and one (1)
year for his resisting law enforcement conviction. The trial court ordered his
sentences for unlawful possession of a firearm by an SVF and burglary to run
consecutively, with his sentence for resisting law enforcement to run
concurrently. The trial court found that Shelton’s significant criminal history
and Carswell’s age were aggravating factors. Shelton now appeals his sentence.
Decision
[12] On appeal, Shelton argues that we should revise his sentence for his conviction
of unlawful possession of a firearm by an SVF under Appellate Rule 7(B) based
on the nature of his offense and his character. 2 First, Shelton argues that the
circumstances of his offense were not “unusual.” (Shelton’s Br. 10) As for his
character, Shelton notes that even though he had an extensive criminal history,
his past convictions were dissimilar in nature to the instant convictions, his
juvenile convictions were almost fifteen years removed, and he had only had
2 Shelton does not appeal his sentences from his other two convictions.
Court of Appeals of Indiana | Memorandum Decision 02A04-1502-CR-56 | August 31, 2015 Page 5 of 8 one previous conviction for a violent offense. He also notes that his
presentence investigation report revealed a “number of positive aspects of his
general character” because his “Family and Social Support domain level, his
Peer Association domain level, and his Criminal Attitude and Behavior
Patterns domain level were all moderate in range” and his “Neighborhood
Problem domain level was low.” (Shelton’s Br. 13).
[13] Pursuant to Appellate Rule 7(B), a reviewing court may revise a sentence if,
“after due consideration of the trial court’s decision,” it finds that the sentence
is inappropriate in light of the nature of the offense and the character of the
offender. Childress v. State, 848 N.E.2d 1073, 1079-80 (Ind. 2006) (quoting App.
R. 7(B)). Although this Court is not required to use “great restraint,” we
nevertheless exercise deference to a trial court’s sentencing decision, both
because Appellate Rule 7(B) requires that we give “due consideration” to that
decision and because we recognize the unique perspective a trial court has when
making decisions. Stewart v. State, 866 N.E.2d 858, 865-66 (Ind. Ct. App.
2007). The “principal role of appellate 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.” Cardwell v. State, 895 N.E.2d 1219, 1225
(Ind. 2008). In addition, the defendant bears the burden of persuading this
Court that his sentence is inappropriate. Childress, 848 N.E.2d at 1080.
[14] The sentencing range for a Class B felony is between six (6) and twenty (20)
years with an advisory sentence of ten (10) years. Accordingly, Shelton’s fifteen
Court of Appeals of Indiana | Memorandum Decision 02A04-1502-CR-56 | August 31, 2015 Page 6 of 8 (15) year sentence was five (5) years more than the advisory sentence for a Class
B felony.
[15] However, we conclude that Shelton’s sentence was not inappropriate in light of
the nature of his offense and his character. Although the nature of his offense
might not have been “unusual,” it was a serious offense for him to possess a
firearm, as an SVF, and run with the firearm through a neighborhood to escape
police officers. (Shelton’s Br. 10).
[16] Moreover, Shelton’s character alone supports his sentence. See Williams v. State,
891 N.E.2d 621, 633 (Ind. Ct. App. 2008) (stating that revision of a sentence
under Indiana Appellate Rule 7(B) requires the appellant to demonstrate that
his sentence is inappropriate in light of both the nature of his offenses and his
character). As the trial court noted—and contrary to Shelton’s argument—
Shelton had been convicted of a similar offense of burglary in the past. In
addition, his criminal history was extensive. He had been adjudicated as a
juvenile delinquent eight times between the ages of twelve and sixteen. Then,
as an adult, he had received two felony convictions, including robbery and
receiving stolen property, and nine misdemeanor convictions, including two
convictions for resisting law enforcement. At the time of the sentencing
hearing, Shelton was only thirty years old. As the trial court noted, “it is clear
the way it continues to arise in almost every conviction here that [Shelton] has
absolutely no intent of abiding by the rules of this community.” (Sentencing Tr.
11). In light of this evidence of the nature of Shelton’s offense and his
character, we decline to revise his sentence under Appellate Rule 7(B).
Court of Appeals of Indiana | Memorandum Decision 02A04-1502-CR-56 | August 31, 2015 Page 7 of 8 [17] Affirmed.
Vaidik, C.J., and Robb, J., concur.
Court of Appeals of Indiana | Memorandum Decision 02A04-1502-CR-56 | August 31, 2015 Page 8 of 8