MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this Apr 19 2018, 9:20 am Memorandum Decision shall not be regarded as precedent or cited before any court except for the CLERK Indiana Supreme Court purpose of establishing the defense of res judicata, Court of Appeals and Tax Court collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Mark Small Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana Justin F. Roebel Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Timothy Hartwell, April 19, 2018
Appellant-Defendant, Court of Appeals Cause No. 84A01-1706-CR-1342 v. Appeal from the Vigo Superior Court State of Indiana, The Honorable Michael Rader, Judge Appellee-Plaintiff. Trial Court Cause Nos. 84D05-1405- FB-1303 & 84D05-1605-F5-1155
Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision 84A01-1706-CR-1342 | April 19, 2018 Page 1 of 6 STATEMENT OF THE CASE [1] Appellant-Defendant, Timothy Hartwell (Hartwell), appeals his sentence
following his conviction after pleading guilty to stalking, a Class B felony, Ind.
Code § 35-45-10-5; and intimidation, a Level 5 felony, I.C. § 35-45-2-1(2).
[2] We affirm.
ISSUE [3] Hartwell presents a single issue on appeal, which we restate as: Whether
Hartwell’s sentence is inappropriate in light of the nature of the offenses and his
character.
FACTS AND PROCEDURAL HISTORY [4] On May 16, 2014, the State filed an Information in Cause Number 84D06-
1404-FB-1303 (FB-1303), charging Hartwell with Count I, stalking, a Class D
felony, and Count II, stalking, a Class B felony. On February 13, 2015,
Hartwell filed a Motion for Examination to Determine Competency to Stand
Trial. On March 6, 2015, the trial court ordered Hartwell’s psychiatric
evaluation to be conducted by two doctors. On May 12, 2015, a competency
hearing was conducted and Hartwell was found mentally incompetent to stand
trial and was committed to a mental health facility.
[5] On September 24, 2015, the Indiana Family and Social Services Administration
reported to the trial court that Hartwell was competent to stand trial. On
February 29, 2016, Hartwell again requested a mental health evaluation.
Court of Appeals of Indiana | Memorandum Decision 84A01-1706-CR-1342 | April 19, 2018 Page 2 of 6 Again, the trial court appointed two doctors to conduct Hartwell’s psychiatric
evaluation.
[6] In April 2016, Hartwell sent death threat letters to the presiding judge in Cause
Number FB-1303, and also to his attorney. On May 2, 2016, the State filed an
Information in Cause Number 84D05-1605-F5-1155 (F5-1155), charging
Hartwell with a Level 5 felony intimidation offense toward the presiding judge
in FB-1303, and a Level 6 felony intimidation offense toward his attorney. On
April 20, 2016, the trial judge in FB-1303 recused himself. On May 5, 2016,
Cause Number FB-1303 was transferred into F5-1155. On May 10, 2016, the
trial court conducted a competency hearing for both Causes. At the close of the
hearing, the trial court determined that Hartwell was incompetent to stand trial,
and he was again transferred to a mental health facility. On January 30, 2017,
the trial court found that Hartwell had regained competency and set both
Causes for trial.
[7] On May 2, 2017, Hartwell and the State entered into a plea agreement, where
Hartwell agreed to plead guilty but mentally ill to Class B felony stalking under
FB-1303, and to Level 5 felony intimidation under F5-1155. In exchange, the
State agreed to dismiss the other Class B stalking charge in FB-1303 and the
Level 6 felony intimidation charge in F5-1155. The plea agreement capped the
sentence for the Class B felony stalking charge to twelve years, and four years
for the Level 5 felony intimidation offense. On the same day, the trial court
determined that a factual basis existed for Hartwell’s charged offenses, and the
trial court accepted Hartwell’s plea of guilty but mentally ill. On May 31, 2017,
Court of Appeals of Indiana | Memorandum Decision 84A01-1706-CR-1342 | April 19, 2018 Page 3 of 6 the trial court conducted a sentencing hearing and sentenced Hartwell to
concurrent terms of twelve years for the stalking charge and four years for the
intimidation charge to be executed in the Department of Correction (DOC).
[8] Hartwell now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION [9] Hartwell claims that his sentence is inappropriate in light of the nature of the
offenses and his character. Indiana Appellate Rule 7(B) empowers us to
independently review and revise sentences authorized by statute if, after due
consideration, we find the trial court’s decision inappropriate in light of the
nature of the offense and the character of the offender. Reid v. State, 876 N.E.2d
1114, 1116 (Ind. 2007). The “nature of offense” compares the defendant’s
actions with the required showing to sustain a conviction under the charged
offense, while the “character of the offender” permits a broader consideration of
the defendant’s character. Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008);
Douglas v. State, 878 N.E.2d 873, 881 (Ind. Ct. App. 2007). An appellant bears
the burden of showing that both prongs of the inquiry favor a revision of his
sentence. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). Whether we
regard a sentence as appropriate 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 a myriad of other considerations that come to light in a given case.
Cardwell, 895 N.E.2d at 1224. Our court focuses on “the length of the aggregate
sentence and how it is to be served.” Id.
Court of Appeals of Indiana | Memorandum Decision 84A01-1706-CR-1342 | April 19, 2018 Page 4 of 6 [10] The advisory sentence is the starting point the legislature has selected as an
appropriate sentence for the crime committed. Abbott v. State, 961 N.E.2d 1016,
1019 (Ind. 2012). For his Class B felony stalking, Hartwell faced a sentencing
range of six to twenty years, with the advisory sentence being ten. Hartwell
was sentenced to twelve years. I.C. § 35-50-2-5. Second, for his Level 5 felony
intimidation, Hartwell faced a sentencing range of one to six years, with the
advisory sentence being three. I.C. § 35-50-2-6. Hartwell was sentenced to four
years.
[11] We first examine the nature of Hartwell’s offenses. The facts of Hartwell’s
Class B felony stalking conviction under FB-1303 reveal that in separate cause
numbers, Hartwell had been found guilty but mentally ill in 2013 of a Class C
felony stalking offense against Megan Loudermilk (Loudermilk). For that Class
C felony stalking conviction, Hartwell was sentenced to four years in the DOC,
and a no-contact ordered was issued in favor of Loudermilk. While
incarcerated, Hartwell had repeated contacts with Loudermilk between
February of 2013 and May of 2014. Loudermilk reported the contacts which
prompted the filing of the Class B felony stalking offense against Hartwell in
FB-1303.
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MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this Apr 19 2018, 9:20 am Memorandum Decision shall not be regarded as precedent or cited before any court except for the CLERK Indiana Supreme Court purpose of establishing the defense of res judicata, Court of Appeals and Tax Court collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Mark Small Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana Justin F. Roebel Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Timothy Hartwell, April 19, 2018
Appellant-Defendant, Court of Appeals Cause No. 84A01-1706-CR-1342 v. Appeal from the Vigo Superior Court State of Indiana, The Honorable Michael Rader, Judge Appellee-Plaintiff. Trial Court Cause Nos. 84D05-1405- FB-1303 & 84D05-1605-F5-1155
Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision 84A01-1706-CR-1342 | April 19, 2018 Page 1 of 6 STATEMENT OF THE CASE [1] Appellant-Defendant, Timothy Hartwell (Hartwell), appeals his sentence
following his conviction after pleading guilty to stalking, a Class B felony, Ind.
Code § 35-45-10-5; and intimidation, a Level 5 felony, I.C. § 35-45-2-1(2).
[2] We affirm.
ISSUE [3] Hartwell presents a single issue on appeal, which we restate as: Whether
Hartwell’s sentence is inappropriate in light of the nature of the offenses and his
character.
FACTS AND PROCEDURAL HISTORY [4] On May 16, 2014, the State filed an Information in Cause Number 84D06-
1404-FB-1303 (FB-1303), charging Hartwell with Count I, stalking, a Class D
felony, and Count II, stalking, a Class B felony. On February 13, 2015,
Hartwell filed a Motion for Examination to Determine Competency to Stand
Trial. On March 6, 2015, the trial court ordered Hartwell’s psychiatric
evaluation to be conducted by two doctors. On May 12, 2015, a competency
hearing was conducted and Hartwell was found mentally incompetent to stand
trial and was committed to a mental health facility.
[5] On September 24, 2015, the Indiana Family and Social Services Administration
reported to the trial court that Hartwell was competent to stand trial. On
February 29, 2016, Hartwell again requested a mental health evaluation.
Court of Appeals of Indiana | Memorandum Decision 84A01-1706-CR-1342 | April 19, 2018 Page 2 of 6 Again, the trial court appointed two doctors to conduct Hartwell’s psychiatric
evaluation.
[6] In April 2016, Hartwell sent death threat letters to the presiding judge in Cause
Number FB-1303, and also to his attorney. On May 2, 2016, the State filed an
Information in Cause Number 84D05-1605-F5-1155 (F5-1155), charging
Hartwell with a Level 5 felony intimidation offense toward the presiding judge
in FB-1303, and a Level 6 felony intimidation offense toward his attorney. On
April 20, 2016, the trial judge in FB-1303 recused himself. On May 5, 2016,
Cause Number FB-1303 was transferred into F5-1155. On May 10, 2016, the
trial court conducted a competency hearing for both Causes. At the close of the
hearing, the trial court determined that Hartwell was incompetent to stand trial,
and he was again transferred to a mental health facility. On January 30, 2017,
the trial court found that Hartwell had regained competency and set both
Causes for trial.
[7] On May 2, 2017, Hartwell and the State entered into a plea agreement, where
Hartwell agreed to plead guilty but mentally ill to Class B felony stalking under
FB-1303, and to Level 5 felony intimidation under F5-1155. In exchange, the
State agreed to dismiss the other Class B stalking charge in FB-1303 and the
Level 6 felony intimidation charge in F5-1155. The plea agreement capped the
sentence for the Class B felony stalking charge to twelve years, and four years
for the Level 5 felony intimidation offense. On the same day, the trial court
determined that a factual basis existed for Hartwell’s charged offenses, and the
trial court accepted Hartwell’s plea of guilty but mentally ill. On May 31, 2017,
Court of Appeals of Indiana | Memorandum Decision 84A01-1706-CR-1342 | April 19, 2018 Page 3 of 6 the trial court conducted a sentencing hearing and sentenced Hartwell to
concurrent terms of twelve years for the stalking charge and four years for the
intimidation charge to be executed in the Department of Correction (DOC).
[8] Hartwell now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION [9] Hartwell claims that his sentence is inappropriate in light of the nature of the
offenses and his character. Indiana Appellate Rule 7(B) empowers us to
independently review and revise sentences authorized by statute if, after due
consideration, we find the trial court’s decision inappropriate in light of the
nature of the offense and the character of the offender. Reid v. State, 876 N.E.2d
1114, 1116 (Ind. 2007). The “nature of offense” compares the defendant’s
actions with the required showing to sustain a conviction under the charged
offense, while the “character of the offender” permits a broader consideration of
the defendant’s character. Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008);
Douglas v. State, 878 N.E.2d 873, 881 (Ind. Ct. App. 2007). An appellant bears
the burden of showing that both prongs of the inquiry favor a revision of his
sentence. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). Whether we
regard a sentence as appropriate 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 a myriad of other considerations that come to light in a given case.
Cardwell, 895 N.E.2d at 1224. Our court focuses on “the length of the aggregate
sentence and how it is to be served.” Id.
Court of Appeals of Indiana | Memorandum Decision 84A01-1706-CR-1342 | April 19, 2018 Page 4 of 6 [10] The advisory sentence is the starting point the legislature has selected as an
appropriate sentence for the crime committed. Abbott v. State, 961 N.E.2d 1016,
1019 (Ind. 2012). For his Class B felony stalking, Hartwell faced a sentencing
range of six to twenty years, with the advisory sentence being ten. Hartwell
was sentenced to twelve years. I.C. § 35-50-2-5. Second, for his Level 5 felony
intimidation, Hartwell faced a sentencing range of one to six years, with the
advisory sentence being three. I.C. § 35-50-2-6. Hartwell was sentenced to four
years.
[11] We first examine the nature of Hartwell’s offenses. The facts of Hartwell’s
Class B felony stalking conviction under FB-1303 reveal that in separate cause
numbers, Hartwell had been found guilty but mentally ill in 2013 of a Class C
felony stalking offense against Megan Loudermilk (Loudermilk). For that Class
C felony stalking conviction, Hartwell was sentenced to four years in the DOC,
and a no-contact ordered was issued in favor of Loudermilk. While
incarcerated, Hartwell had repeated contacts with Loudermilk between
February of 2013 and May of 2014. Loudermilk reported the contacts which
prompted the filing of the Class B felony stalking offense against Hartwell in
FB-1303. Turning to the nature of Hartwell’s Level 5 felony intimidation
conviction under F5-1155, we find it particularly serious. While incarcerated
for the stalking offense in FB-1303, Hartwell sent death threat letters to the
presiding judge and his attorney, and those threats led to the filing of two
intimidation offenses. Here, we conclude Hartwell’s sentence is not
inappropriate in light of the egregious nature of his offenses.
Court of Appeals of Indiana | Memorandum Decision 84A01-1706-CR-1342 | April 19, 2018 Page 5 of 6 [12] With respect to Hartwell’s character, at his sentencing hearing, the trial court
noted Hartwell’s prior criminal history which included convictions for reckless
driving, operating while intoxicated, and auto theft. The trial court also noted
that the stalking offense under FB-1303 was Hartwell’s third stalking offense.
Specifically, Hartwell had amassed three stalking convictions between 2000 and
2012. The last stalking conviction in 2012 related to Loudermilk, who was the
same victim under FB-1303. After due consideration of the trial court’s
decision and in light of Hartwell’s criminal history, we cannot say that the
sentence imposed by the trial court is inappropriate in light of the nature of the
offenses and the character of the offender.
CONCLUSION [13] In sum, we hold that Hartwell’s sentence is not inappropriate in light of the
nature of the offenses and his character.
[14] Affirmed.
[15] May, J. and Mathias, J. concur
Court of Appeals of Indiana | Memorandum Decision 84A01-1706-CR-1342 | April 19, 2018 Page 6 of 6