MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Apr 30 2018, 6:17 am regarded as precedent or cited before any court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Adam C. James Curtis T. Hill, Jr. Shelbyville, Indiana Attorney General of Indiana Caroline G. Templeton Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Terry E. Belden, April 30, 2018 Appellant-Defendant, Court of Appeals Case No. 73A04-1709-CR-2242 v. Appeal from the Shelby Superior Court State of Indiana, The Honorable R. Kent Apsley, Appellee-Plaintiff. Judge Trial Court Cause No. 73D01-1609-F5-71
Mathias, Judge.
[1] Terry E. Belden (“Belden”) pleaded guilty in Shelby Superior Court to Level 5
felony operating a motor vehicle with a lifetime license forfeiture and was
Court of Appeals of Indiana | Memorandum Decision 73A04-1709-CR-2242 | April 30, 2018 Page 1 of 7 sentenced to four years of incarceration. Belden appeals and argues that his
sentence is inappropriate in light of the nature of his offense and his character.
[2] We affirm.
Facts and Procedural History [3] On the afternoon of September 16, 2016, Indiana State Police Sergeant Dennis
Scudder (“Sgt. Scudder”) was driving his patrol car westbound on Interstate 74
when he observed a car traveling at a slow speed pull off onto the right shoulder
of the highway. Sgt. Scudder pulled his car behind the other car to see if the
driver needed assistance. Sgt. Scudder spoke with the driver of the car, Belden,
and quickly learned that Belden was an habitual traffic violator whose license
had been forfeited for life. Belden was then placed under arrest.
[4] On September 21, 2016, the State charged Belden with Level 5 felony operating
a motor vehicle with a lifetime license forfeiture. A bench trial was scheduled
for August 1, 2017, but on the day the trial was to occur, Belden entered an
open plea of guilty. A sentencing hearing was held on August 30, 2017. At the
hearing, Belden explained that he did not have a ride to work on the day he was
arrested, so he drove to work despite being aware of his lifetime license
forfeiture and his status as an habitual traffic violator. Belden testified that he
has two minor children—a sixteen-year-old child for whom he pays child
Court of Appeals of Indiana | Memorandum Decision 73A04-1709-CR-2242 | April 30, 2018 Page 2 of 7 support,1 and a one-year-old child—and that he was living with the younger
child’s mother, who has some cognitive problems and was on disability.
[5] The trial court found as mitigating that Belden was the father of two dependent
children and that incarceration would be a hardship to them. The court also
found as mitigating that Belden was gainfully employed. The court found as
aggravating Belden’s significant criminal history, especially that nine of
Belden’s prior arrests were for habitual traffic violator offenses and five of those
arrests came after Belden had his driving privileges forfeited for life. Belden’s
arrests led to numerous convictions; he was convicted of driving as an habitual
traffic violator in 1988, 1989, 2001, 2005, and 2012. Belden also has prior
convictions for operating a vehicle while intoxicated, theft, and burglary. In
total, Belden has accumulated six felony and ten misdemeanor convictions.
Belden himself agreed with the State’s characterization that “[t]he majority of
your adult life you’ve either been incarcerated or had a case pending or been on
probation or parole.” Tr. p. 29. The court also found as a significant aggravator
that Belden had been released from prison for the very same offense only ten
months before the current incident. Further, despite the condition of his release
on bond that he not commit any additional criminal offense, there was evidence
presented at the sentencing hearing that Belden repeatedly continued to drive
while out on bond.
1 Belden acknowledged that he has a child support arrearage for the older child.
Court of Appeals of Indiana | Memorandum Decision 73A04-1709-CR-2242 | April 30, 2018 Page 3 of 7 [6] The trial court ultimately decided to impose an executed sentence of four years
at the Department of Correction, stating:
But I’ll be quite honest with you, Mr. Belden, based on your prior criminal history, based on the evidence that I’ve heard about your continuing to drive while you’re on bond, and your history of driving after conviction for the same offense, I mean, your prior criminal history is ridiculous. I think it, you know, the definition of insanity is continuing to do the same thing and expecting a different result. I . . . I’m not gonna sit here and pretend that if I put you on probation, or if I put you on house arrest, or work release, or something like . . . I’m not going to pretend that I’m putting you on one of those programs and that you won’t drive because your history is, the evidence is that you’re gonna drive no matter what I say, no[] matter what the legislature says, no matter what conditions I put on you, you’re gonna drive so it’s ridiculous for me to put you on any kind of a program that allows you an opportunity to drive, and for me to pretend that you’re not going to. So that having been said, probation to me doesn’t strike me as a logical option. Home detention does not strike me as a logical option in this matter. Again, you know, I’m not gonna put those kinds of conditions on you and pretend you’re gonna abide by them and then us end up back here and me setting you up for failure in that regard. The only thing that makes sense to me in this case is an executed sentence.
Tr. p. 51. Belden now appeals.
Discussion and Decision [7] On appeal, Belden argues that his four-year executed sentence is inappropriate.
Even if a trial court acted within its statutory discretion in imposing a sentence,
Sections 4 and 6 of Article 7 of the Indiana Constitution authorize independent
Court of Appeals of Indiana | Memorandum Decision 73A04-1709-CR-2242 | April 30, 2018 Page 4 of 7 appellate review and revision of a sentence imposed by the trial court. Rose v.
State, 36 N.E.3d 1055, 1063. This constitutional authority is implemented
through Indiana Appellate Rule 7(B), which provides that we “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.”
[8] Still, we must exercise deference to a trial court’s sentencing decision, because
Rule 7(B) requires us to give “due consideration” to that decision and because
we understand and recognize the unique perspective a trial court brings to its
sentencing decisions. Id. Although we have the power to review and revise
sentences, 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 what
we perceive to be a “correct” result in each case. Cardwell v. State, 895 N.E.2d
1219, 1225 (Ind. 2008).
[9] Our review under Appellate Rule 7(B) should focus on “the forest—the
Free access — add to your briefcase to read the full text and ask questions with AI
MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Apr 30 2018, 6:17 am regarded as precedent or cited before any court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Adam C. James Curtis T. Hill, Jr. Shelbyville, Indiana Attorney General of Indiana Caroline G. Templeton Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Terry E. Belden, April 30, 2018 Appellant-Defendant, Court of Appeals Case No. 73A04-1709-CR-2242 v. Appeal from the Shelby Superior Court State of Indiana, The Honorable R. Kent Apsley, Appellee-Plaintiff. Judge Trial Court Cause No. 73D01-1609-F5-71
Mathias, Judge.
[1] Terry E. Belden (“Belden”) pleaded guilty in Shelby Superior Court to Level 5
felony operating a motor vehicle with a lifetime license forfeiture and was
Court of Appeals of Indiana | Memorandum Decision 73A04-1709-CR-2242 | April 30, 2018 Page 1 of 7 sentenced to four years of incarceration. Belden appeals and argues that his
sentence is inappropriate in light of the nature of his offense and his character.
[2] We affirm.
Facts and Procedural History [3] On the afternoon of September 16, 2016, Indiana State Police Sergeant Dennis
Scudder (“Sgt. Scudder”) was driving his patrol car westbound on Interstate 74
when he observed a car traveling at a slow speed pull off onto the right shoulder
of the highway. Sgt. Scudder pulled his car behind the other car to see if the
driver needed assistance. Sgt. Scudder spoke with the driver of the car, Belden,
and quickly learned that Belden was an habitual traffic violator whose license
had been forfeited for life. Belden was then placed under arrest.
[4] On September 21, 2016, the State charged Belden with Level 5 felony operating
a motor vehicle with a lifetime license forfeiture. A bench trial was scheduled
for August 1, 2017, but on the day the trial was to occur, Belden entered an
open plea of guilty. A sentencing hearing was held on August 30, 2017. At the
hearing, Belden explained that he did not have a ride to work on the day he was
arrested, so he drove to work despite being aware of his lifetime license
forfeiture and his status as an habitual traffic violator. Belden testified that he
has two minor children—a sixteen-year-old child for whom he pays child
Court of Appeals of Indiana | Memorandum Decision 73A04-1709-CR-2242 | April 30, 2018 Page 2 of 7 support,1 and a one-year-old child—and that he was living with the younger
child’s mother, who has some cognitive problems and was on disability.
[5] The trial court found as mitigating that Belden was the father of two dependent
children and that incarceration would be a hardship to them. The court also
found as mitigating that Belden was gainfully employed. The court found as
aggravating Belden’s significant criminal history, especially that nine of
Belden’s prior arrests were for habitual traffic violator offenses and five of those
arrests came after Belden had his driving privileges forfeited for life. Belden’s
arrests led to numerous convictions; he was convicted of driving as an habitual
traffic violator in 1988, 1989, 2001, 2005, and 2012. Belden also has prior
convictions for operating a vehicle while intoxicated, theft, and burglary. In
total, Belden has accumulated six felony and ten misdemeanor convictions.
Belden himself agreed with the State’s characterization that “[t]he majority of
your adult life you’ve either been incarcerated or had a case pending or been on
probation or parole.” Tr. p. 29. The court also found as a significant aggravator
that Belden had been released from prison for the very same offense only ten
months before the current incident. Further, despite the condition of his release
on bond that he not commit any additional criminal offense, there was evidence
presented at the sentencing hearing that Belden repeatedly continued to drive
while out on bond.
1 Belden acknowledged that he has a child support arrearage for the older child.
Court of Appeals of Indiana | Memorandum Decision 73A04-1709-CR-2242 | April 30, 2018 Page 3 of 7 [6] The trial court ultimately decided to impose an executed sentence of four years
at the Department of Correction, stating:
But I’ll be quite honest with you, Mr. Belden, based on your prior criminal history, based on the evidence that I’ve heard about your continuing to drive while you’re on bond, and your history of driving after conviction for the same offense, I mean, your prior criminal history is ridiculous. I think it, you know, the definition of insanity is continuing to do the same thing and expecting a different result. I . . . I’m not gonna sit here and pretend that if I put you on probation, or if I put you on house arrest, or work release, or something like . . . I’m not going to pretend that I’m putting you on one of those programs and that you won’t drive because your history is, the evidence is that you’re gonna drive no matter what I say, no[] matter what the legislature says, no matter what conditions I put on you, you’re gonna drive so it’s ridiculous for me to put you on any kind of a program that allows you an opportunity to drive, and for me to pretend that you’re not going to. So that having been said, probation to me doesn’t strike me as a logical option. Home detention does not strike me as a logical option in this matter. Again, you know, I’m not gonna put those kinds of conditions on you and pretend you’re gonna abide by them and then us end up back here and me setting you up for failure in that regard. The only thing that makes sense to me in this case is an executed sentence.
Tr. p. 51. Belden now appeals.
Discussion and Decision [7] On appeal, Belden argues that his four-year executed sentence is inappropriate.
Even if a trial court acted within its statutory discretion in imposing a sentence,
Sections 4 and 6 of Article 7 of the Indiana Constitution authorize independent
Court of Appeals of Indiana | Memorandum Decision 73A04-1709-CR-2242 | April 30, 2018 Page 4 of 7 appellate review and revision of a sentence imposed by the trial court. Rose v.
State, 36 N.E.3d 1055, 1063. This constitutional authority is implemented
through Indiana Appellate Rule 7(B), which provides that we “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.”
[8] Still, we must exercise deference to a trial court’s sentencing decision, because
Rule 7(B) requires us to give “due consideration” to that decision and because
we understand and recognize the unique perspective a trial court brings to its
sentencing decisions. Id. Although we have the power to review and revise
sentences, 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 what
we perceive to be a “correct” result in each case. Cardwell v. State, 895 N.E.2d
1219, 1225 (Ind. 2008).
[9] Our review under Appellate Rule 7(B) 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. The
appropriate question is not whether another sentence is more appropriate;
rather, the question is whether the sentence imposed is inappropriate. Rose, 36
N.E.3d at 1063. It is the defendant’s burden on appeal to persuade us that the
sentence imposed by the trial court is inappropriate. Childress v. State, 848
N.E.2d 1073, 1080 (Ind. 2006)).
Court of Appeals of Indiana | Memorandum Decision 73A04-1709-CR-2242 | April 30, 2018 Page 5 of 7 [10] Here, Belden was convicted of a Level 5 felony and sentenced to four years.
The sentencing range for a Level 5 felony is one to six years, with an advisory
sentence of three years. Ind. Code § 35-50-2-6(b). Thus, Belden’s four-year
sentence is one year above the advisory sentence and two years below the
maximum sentence. With this in mind, we consider the nature of the offense
and the character of the offender.
[11] With regard to the nature of the offense, Belden argues that his offense was
non-violent. But regardless of whether his offense was violent, our General
Assembly has classified it as a Level 5 felony. And given his extensive criminal
history, Belden knew well that he was not permitted to drive, and his family
had even made arrangements to get him to work without driving. Yet when his
normal ride to work was unavailable, Belden did not seek out alternative means
of transport, but instead decided to drive both to and from work. Nothing about
the nature of this offense convinces us that Belden’s four-year sentence is
inappropriate.
[12] We now turn our consideration to the character of the offender. When
considering the character of the offender, one relevant fact is the defendant’s
criminal history. Garcia v. State, 47 N.E.3d 1249, 1251 (Ind. Ct. App. 2015),
trans. denied. The significance of a defendant’s criminal history varies based on
the gravity, nature, and number of prior offenses in relation to the current
offense. Id.
Court of Appeals of Indiana | Memorandum Decision 73A04-1709-CR-2242 | April 30, 2018 Page 6 of 7 [13] As detailed above, Belden has an extensive criminal history that includes six
felony convictions and ten misdemeanor convictions. He has six prior
convictions for operating a motor vehicle as an habitual traffic violator. Belden
has been shown leniency in the past, including probation, work release, home
detention, and community corrections. Yet he violated the terms of his
probation, home detention, and community corrections. Still, his criminal
behavior has been undeterred. Just ten months prior to the instant offense, he
was released from incarceration for committing the very same offense. And
when he was released on bond in the present case, he continued to flout the law
and drive. Belden’s extensive criminal history reveals that he is a scofflaw when
it comes to our state’s vehicular rules and regulations. There is nothing about
Belden’s character, as revealed by his criminal history and disregard for the
laws of this state, which persuades us that his four-year sentence is
[14] Affirmed.
Najam, J., and Barnes, J., concur.
Court of Appeals of Indiana | Memorandum Decision 73A04-1709-CR-2242 | April 30, 2018 Page 7 of 7