William Wilbert Ward-Bey v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: September 16, 2016
• Docket: 45A05-1602-CR-266
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Sep 16 2016, 7:22 am

regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE P. Jeffrey Schlesinger Gregory F. Zoeller Crown Point, Indiana Attorney General of Indiana Richard C. Webster Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

William Wilbert Ward-Bey, September 16, 2016 Appellant-Defendant, Court of Appeals Case No. 45A05-1602-CR-266 v. Appeal from the Lake Superior Court State of Indiana, The Honorable Salvador Vasquez, Appellee-Plaintiff. Judge Trial Court Cause No. 45G01-1312-FB-126

Bailey, Judge.

Court of Appeals of Indiana | Memorandum Decision 45A05-1602-CR-266 | September 16, 2016 Page 1 of 9 Case Summary [1] William Ward-Bey (“Ward-Bey”) pled guilty to Robbery, as a Class C felony.1

He now appeals his five-year sentence. We affirm.

Issues [2] Ward-Bey raises two issues for review:

I. Whether the trial court abused its discretion in sentencing; and

II. Whether Ward-Bey’s five-year sentence is inappropriate.

Facts and Procedural History [3] On December 15, 2013, Ward-Bey and Marcus Ervin (“Ervin”) entered the

Portillo’s restaurant in Merrillville, Indiana, pretending to be deliverymen.

While acting in concert, Ward-Bey and Ervin demanded the safe combination

from the store manager, then took approximately $3,500.00 in cash as well as

the store’s panic button. A short distance away, Ward-Bey was apprehended

with the cash and panic button.

1 Ind. Code § 35-42-5-1(1) (2013). Indiana’s criminal statutes were revised in 2013; we refer to the substantive provisions of the Indiana Code in effect at the time of and applicable to Ward-Bey’s offenses.

Court of Appeals of Indiana | Memorandum Decision 45A05-1602-CR-266 | September 16, 2016 Page 2 of 9 [4] On December 16, 2013, the State charged Ward-Bey with one count of Class B

felony armed robbery,2 one count of Class B felony robbery resulting in a bodily

injury,3 three counts of Class B felony criminal confinement,4 and three counts

of Class C felony criminal confinement.5 The State filed an amended

information on February 7, 2014, which set forth no new counts.

[5] On July 29, 2015, the State filed a second amended information, adding a count

of Class C felony robbery.6 The same day, Ward-Bey and the State entered into

a plea agreement whereby Ward-Bey would plead guilty to the Class C felony

robbery count and, at the time of sentencing, the State would move to dismiss

the remaining eight counts. Under the plea agreement, Ward-Bey and the State

could fully argue an appropriate sentence to the court. The trial court held the

acceptance of plea and sentencing hearing on January 5, 2016.

[6] Following argument at the January 5 hearing, the trial court accepted Ward-

Bey’s plea of guilty and sentenced him to the Department of Correction for a

term of five years.

[7] Ward-Bey now appeals his sentence.

2 I.C. § 35-42-5-1(1). 3 I.C. § 35-42-5-1(1). 4 I.C. §§ 35-42-3-3(a)(1), 35-42-3-3(b)(2)(A). 5 I.C. §§ 35-42-3-1-(a)(1), 35-42-3-3(b)(1)(C). 6 I.C. § 35-42-5-1(1).

Court of Appeals of Indiana | Memorandum Decision 45A05-1602-CR-266 | September 16, 2016 Page 3 of 9 Discussion and Decision Abuse of Discretion [8] Ward-Bey argues that the trial court abused its discretion in sentencing him to

five years of incarceration. Ward-Bey first argues that the trial court issued an

inadequate sentencing statement. Ward-Bey next argues that the trial court

failed to consider certain mitigating factors. Chiefly, Ward-Bey advances that

the trial court should have considered his remorse and guilty plea, although

Ward-Bey also cursorily asserts that his stated acceptance of responsibility and

participation in a medical research study warranted additional consideration.

[9] Pursuant to Indiana Code Section 35-50-2-6(a), a person convicted of a Class C

felony shall receive a term of imprisonment of between two years and eight

years, with four years being the advisory sentence. The trial court sentenced

Ward-Bey to five years, within the statutory range. “So long as the sentence is

within the statutory range, it is subject to review only for abuse of discretion.”

Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on other grounds, 875

N.E.2d 218 (Ind. 2007).

[10] A trial court abuses its discretion if its sentencing decision is clearly against the

logic and effect of the facts and circumstances before the court, or the

reasonable, probable, and actual deductions to be drawn therefrom. Id. In

sentencing a defendant, the trial court must enter “a sentencing statement that

includes a reasonably detailed recitation of its reasons for imposing a particular

sentence.” Anglemyer, 868 N.E.2d at 491. Where, as here, a defendant alleges

Court of Appeals of Indiana | Memorandum Decision 45A05-1602-CR-266 | September 16, 2016 Page 4 of 9 that the trial court failed to identify or find a mitigating factor, the defendant

must establish that the mitigating evidence is both significant and clearly

supported by the record. Id. at 493. However, the trial court is not obligated to

explain why it did not find a particular circumstance to be significantly

mitigating. Sherwood v. State, 749 N.E.2d 36, 38 (Ind. 2001).

[11] Here, in its sentencing colloquy, the trial court recounted Ward-Bey’s

significant criminal history, containing seven prior adult felony convictions.

Among Ward-Bey’s prior felony convictions are two burglary convictions and a

conviction for murder in perpetration of robbery. The trial court stated that an

eight-year-sentence—the statutory maximum—was potentially warranted,

given Ward-Bey’s extensive criminal history. However, upon reviewing the

circumstances, the trial court orally observed that it was reducing Ward-Bey’s

sentence from that potentially warranted eight-year sentence down to five years,

due to Ward-Bey’s medical conditions. Ward-Bey admits that the trial court

acknowledged his medical conditions in its sentencing colloquy, but takes issue

with the trial court’s written order, which does not list any mitigating factors

but does contain four aggravating factors: (1) that Ward-Bey was on parole

when the offense occurred; (2) Ward-Bey’s criminal history; (3) that Ward-Bey

was in need of correctional treatment; and (4) that Ward-Bey was dishonest.

Ultimately, Ward-Bey contends that the written order is in conflict with the trial

court’s oral sentencing statements, and invites us to remand.

[12] We could remand this cause to the trial court for clarification of whether it

found Ward-Bey’s poor health to be a significant mitigating factor. See McElroy

Court of Appeals of Indiana | Memorandum Decision 45A05-1602-CR-266 | September 16, 2016 Page 5 of 9 v. State, 865 N.E.2d 584, 591 (Ind. 2007). We decline to do so, however,

because any error here is harmless. Ind. Trial Rule 61; McElroy v. State, 865

N.E.2d at 591. In its oral sentencing order where the trial court found this

mitigating factor, Ward-Bey received a sentence of five years. In the

subsequent written statement that did not mention this mitigating factor, Ward-

Bey received precisely this same sentence.

[13] Ward-Bey also contends that the trial court should have recognized his remorse

and guilty plea as significant mitigating factors. With respect to remorse, the

Indiana Supreme Court has held that a trial court’s determination of a

defendant’s remorse is similar to a determination of credibility. Pickens v. State,

767 N.E.2d 530, 535 (Ind. 2002). Accordingly, without evidence of some

impermissible consideration by the trial court, a reviewing court will accept the

trial court’s determination as to remorse. See id. We find no impermissible

considerations and thus no error.

[14] As to Ward-Bey’s guilty plea, although a trial court should be “inherently aware

of the fact that a guilty plea is a mitigating circumstance,” a guilty plea is not

always a significant mitigating circumstance. Francis v. State, 817 N.E.2d 235,

237 nn.2-3 (Ind. 2004). Indeed, “a guilty plea may not be significantly

mitigating when it does not demonstrate the defendant’s acceptance of

responsibility . . . or when the defendant receives a substantial benefit in return

for the plea.” Anglemyer, 875 N.E.2d at 221 (citing Sensback v. State, 720 N.E.2d

1160, 1165 (Ind. 1999)). Here, in exchange for his guilty plea, the State moved

to dismiss eight of Ward-Bey’s charges, including five Class B felony charges.

Court of Appeals of Indiana | Memorandum Decision 45A05-1602-CR-266 | September 16, 2016 Page 6 of 9 Accordingly, Ward-Bey faced a potential sentence between two and eight years

rather than between six and twenty years. I.C. §§ 35-50-2-5, 35-50-2-6. Thus,

Ward-Bey’s decision to plead guilty could reasonably be considered pragmatic.

[15] Turning to Ward-Bey’s other cursorily argued-for mitigating factors, the trial

court did not abuse its discretion in failing to find mitigation due to Ward-Bey’s

stated acceptance of responsibility and participation in a medical research

study. With respect to Ward-Bey’s proffered acceptance of responsibility, the

trial court observed in its written order that Ward-Bey was dishonest,

diminishing the significance of any acceptance of responsibility on the record.

As to Ward-Bey’s participation in a medical research study that could benefit

others, “[a] court does not err in failing to find mitigation when a mitigation

claim is ‘highly disputable in nature, weight, or significance.’” Henderson v.

State, 769 N.E.2d 172, 179 (Ind. 2002) (quoting Smith v. State, 670 N.E.2d 7, 8

(Ind. 1996)). Although the study could benefit other similarly-situated patients,

Ward-Bey acknowledged that he also could benefit from his participation.

[16] In sum, we find nothing in the record that leads us to conclude that the trial

court abused its sentencing discretion.

Appropriateness of Sentence [17] Ward-Bey was sentenced to five years, which is within the statutory range set

forth in Indiana Code Section 35-50-2-6(a). Under Indiana Appellate Rule

7(B), this “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

Court of Appeals of Indiana | Memorandum Decision 45A05-1602-CR-266 | September 16, 2016 Page 7 of 9 inappropriate in light of the nature of the offense and the character of the

offender.” In performing our review, we assess “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.” Cardwell v. State, 895 N.E.2d

1219, 1224 (Ind. 2008). The primary purpose of such review is to attempt to

leaven the outliers. Id. at 1225. A defendant “‘must persuade the appellate

court that his or her sentence has met th[e] inappropriateness standard of

review.” Anglemyer, 868 N.E.2d at 494 (quoting Childress v. State, 848 N.E.2d

1073, 1080 (Ind. 2006)).

[18] Under the stipulated facts, the nature of the offense is not particularly egregious,

although Ward-Bey did work in concert with Ervin to commit the crime. As to

the character of the offender, Ward-Bey has seven prior felony convictions as an

adult. Moreover, Ward-Bey was on parole at the time he committed the

present offense.

[19] Having reviewed the matter, we conclude that Ward-Bey’s sentence was not

inappropriate under Appellate Rule 7(B). Accordingly, we decline to disturb

the sentence imposed by the trial court.

Conclusion [20] Ward-Bey has not shown that the trial court abused its sentencing discretion or

that his sentence is inappropriate.

[21] Affirmed.

Court of Appeals of Indiana | Memorandum Decision 45A05-1602-CR-266 | September 16, 2016 Page 8 of 9 Riley, J., and Barnes, J., concur.

Court of Appeals of Indiana | Memorandum Decision 45A05-1602-CR-266 | September 16, 2016 Page 9 of 9