Willis G. Heck v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: June 24, 2016
• Docket: 84A01-1601-CR-126
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Jun 24 2016, 8:45 am

regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing 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 Cara Schaefer Wieneke Gregory F. Zoeller Wieneke Law Office, LLC Attorney General of Indiana Brooklyn, Indiana Tyler G. Banks Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Willis G. Heck, June 24, 2016 Appellant-Defendant, Court of Appeals Case No. 84A01-1601-CR-126 v. Appeal from the Vigo Superior Court State of Indiana, The Honorable John T. Roach, Appellee-Plaintiff Judge Trial Court Cause No. 84D01-1508-F5-1837

Crone, Judge.

Court of Appeals of Indiana | Memorandum Decision 84A01-1601-CR-126 | June 24, 2016 Page 1 of 5 Case Summary [1] Willis G. Heck appeals the five-year sentence imposed by the trial court

following his guilty plea to level 5 felony burglary. He argues that his sentence

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

Concluding that he has not met his burden to show that his sentence is

inappropriate, we affirm.

Facts and Procedural History [2] In August 2015, Heck burglarized a retail store. Heck and an accomplice stole

a computer monitor and a cash register. The State charged Heck with level 5

felony burglary. Heck entered into a plea agreement with the State which

provided for a maximum executed sentence of five years. All other aspects of

sentencing were left to the trial court’s discretion.

[3] A sentencing hearing was held in December 2015. The trial court found Heck’s

significant criminal history and repeated probation violations as aggravating

circumstances. Although the trial court found no statutory mitigating factors,

the court considered Heck’s “acceptance of responsibility to be of some

mitigating weight.” Appellant’s App. at 67. The trial court sentenced Heck to

five years on work release with the opportunity to petition to modify the last

year of his sentence to formal probation. This appeal ensued.

Discussion and Decision [4] Heck invites this court to reduce his five-year work release sentence pursuant to

Indiana Appellate Rule 7(B), which provides that we may revise a sentence Court of Appeals of Indiana | Memorandum Decision 84A01-1601-CR-126 | June 24, 2016 Page 2 of 5 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.” The defendant bears the burden to persuade this

Court that his or her sentence is inappropriate. Childress v. State, 848 N.E.2d

1073, 1080 (Ind. 2006). “[W]hether 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 myriad other factors that

come to light in a given case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind.

2008). We recognize that 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 a perceived ‘correct’ result in each case.” Id. at 1225. Indeed, “[t]he

question under Appellate Rule 7(B) is not whether another sentence is more

appropriate; rather, the question is whether the sentence imposed is

inappropriate. King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008).

[5] Regarding the nature of the offense, “the advisory sentence is the starting point

the Legislature selected as appropriate for the crime committed.” Fuller v. State,

9 N.E.3d 653, 657 (Ind. 2014). Heck pled guilty to a level 5 felony. The

sentencing range for a level 5 felony is between one and six years, with an

advisory sentence of three years. Ind. Code § 35-50-2-6(b). The maximum

allowable executed sentence pursuant to his plea agreement was five years.

Heck received a five-year sentence on work release with an opportunity to

request formal probation in the last year of his sentence.

Court of Appeals of Indiana | Memorandum Decision 84A01-1601-CR-126 | June 24, 2016 Page 3 of 5 [6] Heck contends that this sentence is inappropriate because the nature of his

offense is minor. While we do not disagree with Heck that the nature of his

offense was not particularly egregious, we would not characterize his offense as

minor. Nevertheless, his poor character justifies the sentence imposed by the

trial court.

[7] Heck is only twenty-seven years old and has a significant criminal history

which includes two felony convictions and four misdemeanor convictions. One

of his prior felony convictions is for theft, which is similar to his current crime

of burglary. See Williams v. State, 838 N.E.2d 1019, 1021 (Ind. 2005)

(significance of criminal history varies based on the gravity, nature and number

of prior offenses as they relate to the current offense). In addition, Heck’s prior

theft conviction was committed within three years of his current crime, which

does not reflect favorably upon his character.

[8] Moreover, the record indicates that Heck has previously been granted the grace

of probation only to then violate it repeatedly. Indeed, the court placed Heck

on probation after his most recent conviction and, during that placement, four

petitions to revoke his probation were filed, three of which were granted.

Heck’s consistent history of failure to abide by the terms of probation does

nothing to convince us that his five-year sentence on work release is

unwarranted. In sum, Heck has not shown that the sentence imposed by the

trial court is inappropriate and therefore we affirm.

Court of Appeals of Indiana | Memorandum Decision 84A01-1601-CR-126 | June 24, 2016 Page 4 of 5 [9] Affirmed.

Najam, J., and Robb, J., concur.

Court of Appeals of Indiana | Memorandum Decision 84A01-1601-CR-126 | June 24, 2016 Page 5 of 5