Shane T. Wilson v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: November 14, 2018
• Docket: 18A-CR-233
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Nov 14 2018, 7:55 am this Memorandum Decision shall not be CLERK regarded as precedent or cited before any Indiana Supreme Court Court of Appeals court except for the purpose of establishing and Tax Court

the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE R. Patrick Magrath Curtis T. Hill, Jr. Alcorn Sage Schwartz & Magrath, LLP Attorney General of Indiana Madison, Indiana Angela Sanchez Assistant Section Chief, Criminal Appeals Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Shane T. Wilson, November 14, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-233 v. Appeal from the Ripley Superior Court State of Indiana, The Honorable Jeffrey L. Sharp, Appellee-Plaintiff. Judge Trial Court Cause No. 69D01-1707-F6-111

Najam, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-233 | November 14, 2018 Page 1 of 6 Statement of the Case [1] Shane T. Wilson appeals his 830-day sentence following his conviction for

attempted arson, as a Level 6 felony. Wilson raises a single issue for our

review, namely, whether his sentence is inappropriate in light of the nature of

the offense and his character.

[2] We affirm.

Facts and Procedural History [3] On July 13, 2017, Wilson poured gasoline on Ashley Wilson, his wife of nine

years, while she was in the marital bed and threatened to set her and the bed on

fire. Ashley called police, and officers arrested Wilson. The State charged

Wilson with arson and intimidation, and he pleaded guilty to attempted arson,

as a Level 6 felony.

[4] In January of 2018, the trial court held a sentencing hearing, and Ashley

testified. Following the hearing, the court found as follows:

The Court appreciates both parties’ well-thought out arguments, but[,] really, when you cut this thing, it is very simple. We have a situation where a man threatened his wife to set her on fire. I kind of think that is enough said. The Court does find the criminal history to be an aggravating factor, two prior OWIs. The Court gives that the weight the two OWIs get, it is not a first-time offense and this is his third offense. . . . The Court considers the impact on the victim[] as a[n] aggravating factor, that being her own statement that indicates that she constantly lives in fear with this situation and has constant nightmares and that it has not only affected her, but it has affected her children.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-233 | November 14, 2018 Page 2 of 6 The other aggravators the State’s indicated . . . is just the nature and the circumstance. On[c]e again, you end up with a situation where you have a domestic situation that escalates to the point where the Defendant had removed all of the telephones from the home, disconnected the wires to the battery of the . . . vehicles and doused the bed with gasoline and threatened her with a lighter. I honestly can’t think, that is a very terrifying situation and I think it is a heinous, heinous act, probably one of the worst. The Court does consider the mitigating factor that Mr. Wilson ple[aded] guilty with no plea agreement. Balancing the aggravators and mitigators, the Court finds the aggravators clearly outweigh the mitigators and sentence[s] Mr. Wilson to 830 days, with all of that time executed . . . .

Sent. Tr. at 28-29. This appeal ensued.

Discussion and Decision [5] On appeal, Wilson asserts that his sentence is inappropriate in light of the

nature of the offense and his character. Indiana Appellate Rule 7(B) provides

that “[t]he 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.” The Indiana Supreme Court has recently reiterated that:

The principal role of appellate review should be to attempt to leaven the outliers . . . but not achieve a perceived “correct” result in each case. Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). Defendant has the burden to persuade us that the sentence imposed by the trial court is inappropriate. Anglemyer v. State, 868 N.E.2d 482, 494 (Ind.), as amended (July 10, 2007), decision clarified on reh’g, 875 N.E.2d 218 (Ind. 2007).

Court of Appeals of Indiana | Memorandum Decision 18A-CR-233 | November 14, 2018 Page 3 of 6 Shoun v. State, 67 N.E.3d 635, 642 (Ind. 2017) (omission in original).

[6] 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, 895 N.E.2d at 1222. 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 factors that come to light in a given case.” Id. at 1224.

Deference to the trial court “prevail[s] unless overcome by compelling evidence

portraying in a positive light the nature of the offense (such as accompanied by

restraint, regard, and lack of brutality) and the defendant’s character (such as

substantial virtuous traits or persistent examples of good character).” Stephenson

v. State, 29 N.E.3d 111, 122 (Ind. 2015).

[7] Again, the trial court ordered Wilson to serve 830 days, about 82 days shy of

two and one-half years. For a Level 6 felony conviction, a sentence may be

between six months and two and one-half years, with an advisory term of one

year. Ind. Code § 35-50-2-7(b) (2018). In support of Wilson’s aggravated

sentence, the court relied on Wilson’s criminal history, the impact of the crime

on his victim, and the nature and circumstances of the offense.

[8] Wilson asserts that his sentence is inappropriate in light of the nature of the

offense because he and Ashley had had marital trouble and the nature and

circumstances of the offense do not exceed the statutory elements of the offense.

He also asserts that, while Ashley was negatively impacted, “[s]he received no

Court of Appeals of Indiana | Memorandum Decision 18A-CR-233 | November 14, 2018 Page 4 of 6 physical injury.” Appellant’s Br. at 11. And, with respect to his character,

Wilson states that he has a history of mental illnesses, that his prior criminal

history is unrelated and remote in time, that he quickly pleaded guilty without

the benefit of a plea agreement, and that he has abided by the court’s no-contact

order.

[9] We cannot say that Wilson’s 830-day sentence is inappropriate in light of the

nature of the offense. Rather, we agree with the trial court that the nature and

circumstances of the offense reflect its “heinous” and “terrifying” nature. Sent.

Tr. at 28-29. Wilson pleaded guilty to attempted arson under Indiana Code

Section 35-43-1-1(d), which is a Level 6 felony as a property offense, and he

contends that the facts show nothing more than the elements of that offense.

But that is manifestly incorrect. Wilson threatened to set his wife on fire in

their marital bed after he had hidden phones in the residence and disabled the

family vehicles. This was more than a mere property offense. Further, Ashley

and her children continue to suffer from the terrifying nature of Wilson’s act—

Ashley has constant nightmares and the children now fear their former father

figure.

[10] Likewise, we cannot say that his sentence is inappropriate in light of his

character. While his guilty plea is deserving of mitigating weight and his

criminal history is unrelated and remote, the trial court considered those factors

in the first instance and we cannot say that its balancing of them was erroneous.

Instead, we agree with the trial court that the fact that this was Wilson’s third

Court of Appeals of Indiana | Memorandum Decision 18A-CR-233 | November 14, 2018 Page 5 of 6 criminal offense reflects poorly on his character, as does the domestic nature of

his threatened violence. We affirm Wilson’s 830-day sentence.

[11] Affirmed.

Crone, J., and Pyle, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-233 | November 14, 2018 Page 6 of 6