Vincent P. Wells, Sr. v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: March 6, 2018
• Docket: 02A04-1709-CR-2126
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Mar 06 2018, 9:32 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 Anthony S. Churchward Curtis T. Hill, Jr. Fort Wayne, Indiana Attorney General of Indiana Lee M. Stoy, Jr. Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Vincent P. Wells, Sr., March 6, 2018 Appellant-Defendant, Court of Appeals Case No. 02A04-1709-CR-2126 v. Appeal from the Allen Superior Court State of Indiana, The Honorable Frances C. Gull, Appellee-Plaintiff. Judge Trial Court Cause No. 02D05-1705-F5-118

Riley, Judge.

Court of Appeals of Indiana | Memorandum Decision 02A04-1709-CR-2126 | March 6, 2018 Page 1 of 10 STATEMENT OF THE CASE [1] Appellant-Defendant, Vincent P. Wells, Sr. (Wells), appeals his sentence

following his conviction for domestic battery, a Level 5 felony, Ind. Code § 35-

42-2-1.3(c).

[2] We affirm.

ISSUE [3] Wells raises one issue on appeal, which we restate as: Whether Wells’ sentence

is inappropriate in light of the nature of the offense and his character.

FACTS AND PROCEDURAL HISTORY [4] Wells and Ladonna Hinton (Hinton) have been married since September 21,

2013. Wells and Hinton have one child together, B.H. Wells also has several

adult children from prior relationships, including Kayasha Wells (Kayasha).

[5] In approximately January of 2017, Wells and Hinton, along with five-year-old

B.H., moved into Kayasha’s apartment in Fort Wayne, Allen County, Indiana.

Sometime in March of 2017, Kayasha and her pastor, Cynthia Bennett (Pastor

Bennett), traveled to Arkansas for “a revival.” (Tr. Vol. II, p. 127). Wells

offered to care for Kayasha’s three children, ages nine, six, and five, and Pastor

Bennett’s three grandchildren, ages three, two and one, during their absence.

[6] On March 17, 2017, at 6:30 a.m., Hinton awoke to the sound of Wells “yelling

and shouting throughout the house,” followed by him hitting her on the “lower

back and legs” with his belt. (Tr. Vol. II, p. 27). Hinton subsequently got out

Court of Appeals of Indiana | Memorandum Decision 02A04-1709-CR-2126 | March 6, 2018 Page 2 of 10 of bed, readied B.H. for preschool, and walked with B.H. to the bus stop. A

short time later, Kayasha’s children walked themselves to their bus stop. Pastor

Bennett’s grandchildren remained inside the apartment, sleeping or playing in

their bedrooms.

[7] When Hinton returned to the apartment, she informed Wells that she had a

meeting at B.H.’s school at 11:00 a.m.; however, Wells told her “no . . . that

[she] had to stay and watch [Pastor Bennett’s grandchildren because] there’s

nobody to watch them.” (Tr. Vol. II, pp. 30-31). Wells purportedly had plans

that morning to repair someone’s vehicle, but Hinton was suspicious that Wells

was actually engaging in extramarital activity with another female.

Furthermore, Hinton had no interest in babysitting Pastor Bennett’s

grandchildren. Thus, a shouting match ensued, which escalated to a “tussle”

consisting of them “pushing each other back and forth.” (Tr. Vol. II, p. 32).

Hinton ripped Wells’ shirt, and he pushed her so that she “fell back onto the

couch,” at which time Wells had “one hand [grabbing Hinton’s hair] and the

other hand, he [used to] hit[] [Hinton] upside [her] head.” (Tr. Vol. II, p. 32).

By then, Hinton “was doing everything that [she] could to get away from

[Wells].” (Tr. Vol. II, p. 32). Wells eventually stopped hitting, but the arguing

persisted. Hinton began “calling him names,” including telling “him he was the

devil.” (Tr. Vol. II, p. 36). Then, when Hinton said, “Shut up, you child

molester,” Wells responded by punching her in the nose. (Tr. Vol. II, p. 36).

Blood immediately began “dripping,” and Hinton was crying and shaking and

Court of Appeals of Indiana | Memorandum Decision 02A04-1709-CR-2126 | March 6, 2018 Page 3 of 10 “couldn’t breathe.” (Tr. Vol. II, p. 37). She asked Wells to get a towel before

she “just blacked out.” (Tr. Vol. II, p. 37).

[8] After Hinton “came to,” she began packing up her belongings, and those of

B.H., with the intention of leaving. (Tr. Vol. II, p. 37). However, after

gathering her bags, Wells stood in front of the door to block her. Wells called

Pastor Bennett, who convinced Wells to allow Hinton to leave. As Hinton

walked away from the building, she called the police.

[9] On May 2, 2017, the State filed an Information, charging Wells with Count I,

domestic battery resulting in serious bodily injury, a Level 5 felony, I.C. § 35-

42-2-1.3(c); Count II, domestic battery in the presence of a child under sixteen

years of age, a Level 6 felony, I.C. § 35-42-2-1.3(b); and Count III, criminal

confinement, a Level 6 felony, I.C. § 35-42-3-3(a). On May 5, 2017, the trial

court issued a no-contact order against Wells, prohibiting him from contacting

Hinton “in person, by telephone or letter, through an intermediary, or in any

other way, directly or indirectly . . . while released from custody pending trial.

This includes, but is not limited to, acts of harassment, stalking, intimidation,

threats, and physical force of any kind.” (Appellant’s Conf. App. Vol. II, p.

23). On May 24, 2017, the State filed notice of its intent to seek a habitual

offender sentencing enhancement based on Wells’ prior felony convictions.

[10] On July 25 and 26, 2017, the trial court conducted a bifurcated jury trial.

Despite Wells’ claim of self-defense, at the close of the evidence, the jury

returned a guilty verdict as to Counts I and II, the domestic battery charges.

Court of Appeals of Indiana | Memorandum Decision 02A04-1709-CR-2126 | March 6, 2018 Page 4 of 10 The jury found Wells not guilty of Count III, criminal confinement. Thereafter,

additional evidence was presented, and the jury found Wells to be a habitual

offender. The trial court entered judgments of conviction and acquittal in

accordance with the verdict. On August 22, 2017, the trial court held a

sentencing hearing. The trial court merged Count II into Count I and imposed

a six-year sentence for domestic battery as a Level 5 felony. The trial court then

added a six-year habitual offender enhancement, resulting in an aggregate, fully

executed sentence of twelve years.

[11] Wells now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION [12] Wells claims that his twelve-year sentence is inappropriate. Pursuant to

Indiana Appellate Rule 7(B), our court may revise a sentence that is otherwise

authorized by statute if, “after due consideration of the trial court’s decision,

[we] find[] that the sentence is inappropriate in light of the nature of the offense

and the character of the offender.” “‘[S]entencing is principally a discretionary

function in which the trial court’s judgment should receive considerable

deference.’” Parks v. State, 22 N.E.3d 552, 555 (Ind. 2014) (quoting Cardwell v.

State, 895 N.E.2d 1219, 1222 (Ind. 2008)).

[13] Appellate Rule 7(B) provides for sentence review in an “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, 895 N.E.2d at 1225. “[W]hether we

Court of Appeals of Indiana | Memorandum Decision 02A04-1709-CR-2126 | March 6, 2018 Page 5 of 10 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 myriad other factors that come to light in a given case.” Id. at 1224.

Our court focuses on “the length of the aggregate sentence and how it is to be

served.” Id. Wells bears the burden of persuading this court that his sentence is

inappropriate. Corbally v. State, 5 N.E.3d 463, 471 (Ind. Ct. App. 2014).

[14] With respect to the nature of the offense, “the advisory sentence is the starting

point [that] our legislature has selected as [an] appropriate sentence for the

crime committed.” Richardson v. State, 906 N.E.2d 241, 247 (Ind. Ct. App.

2009). In this case, Wells was convicted of Level 5 felony domestic battery

resulting in serious bodily injury, which is punishable by “a fixed term of

between one (1) and six (6) years, with the advisory sentence being three (3)

years.” I.C. § 35-50-2-6(b). In addition, Wells was found to be a habitual

offender, which allows the trial court to impose “an additional fixed term that is

between . . . two (2) years and six (6) years[] for a person convicted of a Level 5

. . . felony.” I.C. § 35-50-2-8(i)(2). Thus, the trial court imposed the maximum

sentence allowed by the law—i.e., twelve years.

[15] The evidence establishes that Wells battered his wife, who is also the mother of

his child. He grabbed her by the hair while he repeatedly hit her in the head,

and in response to her name-calling, he punched her in the nose and caused her

to lose consciousness. Wells now argues that “the nature and circumstances of

this offense cannot be considered the absolute worst, and are simply the acts

necessary to commit the crimes with which . . . Wells was charged and

Court of Appeals of Indiana | Memorandum Decision 02A04-1709-CR-2126 | March 6, 2018 Page 6 of 10 convicted.” (Appellant’s Br. p. 16). Thus, he insists that the maximum

sentence is inappropriate, as it “should generally be reserved for the worst

offenses and offenders.” (Appellant’s Br. p. 16).

[16] Our supreme court has observed that “the maximum possible sentences are

generally most appropriate for the worst offenders.” Buchanan v. State, 767

N.E.2d 967, 973 (Ind. 2002). “This is not, however, a guideline to determine

whether a worse offender could be imagined. Despite the nature of any

particular offense and offender, it will always be possible to identify or

hypothesize a significantly more despicable scenario.” Id. Thus, “we refer

generally to the class of offenses and offenders that warrant the maximum

punishment. But such class encompasses a considerable variety of offenses and

offenders.” Id.

[17] Notwithstanding whether Wells’ conduct was more or less heinous than other

domestic abusers, we find that a review of his character warrants the sentence

imposed by the trial court. We first consider that he has amassed, as described

by the trial court, an “astonishing criminal record,” dating back to 1970. (Tr.

Vol. II, p. 244). As a minor, Wells incurred four delinquency adjudications,

two of which would have been felonies if committed by an adult (arson and

burglary). As an adult, Wells accumulated sixteen misdemeanor convictions

(for crimes that include battery, resisting law enforcement, disorderly conduct,

criminal conversion, operating while suspended, visiting a common nuisance,

criminal trespass, and possession of paraphernalia) and seventeen felony

convictions (for crimes that include burglary, theft, dealing in cocaine,

Court of Appeals of Indiana | Memorandum Decision 02A04-1709-CR-2126 | March 6, 2018 Page 7 of 10 possession of cocaine, and failure to return to lawful detention). At the time of

the present offense, Wells was on parole.

[18] Wells acknowledges his lengthy criminal history but attempts to minimize its

significance by arguing that “many of his felony convictions were the result of

multiple [t]heft charges for which he was sentenced at the same time.”

(Appellant’s Br. p. 15). Wells also argues that “the vast majority of [his prior

convictions] amounted to non-violent property, driving or drug related crimes.”

(Appellant’s Br. pp. 15-16). We first note that the fact that sentencing

proceedings may have been combined does not negate the fact that Wells has

been convicted of eleven separate instances of felony theft. Furthermore, when

this court examines a criminal history as part of Appellate Rule 7(B) review, we

consider not just the severity of past and present crimes, but also, importantly,

whether the defendant’s past encounters with the criminal justice system have

served to rehabilitate him and deter future criminal conduct. See, e.g., Atwood v.

State, 905 N.E.2d 479, 488 (Ind. Ct. App. 2009), trans. denied.

[19] As the trial court described, Wells has “been given short jail sentences, longer

jail sentences, short terms of probation[,] longer terms of probation, short terms

in the Department of Correction, and longer terms in the Department of

Correction. [He has] been give[n] the benefit of parole, Community Control

Program, the Re-Entry Court Program, Criminal Division Services, and

substance abuse treatment.” (Tr. Vol. II, p. 245). He has had “one suspended

sentence modified, one felony sentence modified, . . . [his] probation modified

once and revoked once, and . . . parole revoked once. Nothing has worked.”

Court of Appeals of Indiana | Memorandum Decision 02A04-1709-CR-2126 | March 6, 2018 Page 8 of 10 (Tr. Vol. II, p. 245). In fact, Wells has previously been convicted of battery, but

the consequences of that conviction failed to dissuade Wells from committing

the instant offense. Simply, Wells has refused to lead a law-abiding life.

[20] Further reflective of his poor character and perpetual refusal to abide by the

court’s authority is that, while incarcerated, Wells—despite the no-contact

order—called Hinton. In at least one phone call, he repeatedly instructed

Hinton to contact the prosecutor and declare that she had decided not to

“press[] any charges.” (State’s Exh. 17). Wells had been informed of his

pending felony charges and realized that he was going to “miss out on

everything.” (State’s Exh. 17). Wells thus directed Hinton to inform the

prosecutor that “it was fake” and that she “made it up” so that the State could

not take the matter to trial. (State’s Exh. 17). Attempts to interfere with the

criminal justice process and to bully victims of domestic violence are not well-

taken by this court.

[21] We are also unpersuaded by Wells’ request to consider his “mental health

issues” as a reason for reducing his sentence because he has failed to

demonstrate a nexus between the crime committed and his self-reported

diagnoses of “depression, generalized anxiety, post-traumatic stress disorder

and paranoid schizophrenia.” (Appellant’s Br. p. 16); see, e.g., Steinberg v. State,

941 N.E.2d 515, 534-35 (Ind. Ct. App. 2011), trans. denied. The record

establishes that Wells has repeatedly failed to take advantage of the court’s past

leniency and reform his criminal mindset. Wells is the very definition of a

habitual offender, and his sentence is not inappropriate.

Court of Appeals of Indiana | Memorandum Decision 02A04-1709-CR-2126 | March 6, 2018 Page 9 of 10 CONCLUSION [22] Based on the foregoing, we conclude that Wells’ twelve-year sentence is not

inappropriate in light of the nature of the offense and his character.

[23] Affirmed.

[24] Baker, J. and Brown, J. concur

Court of Appeals of Indiana | Memorandum Decision 02A04-1709-CR-2126 | March 6, 2018 Page 10 of 10