Zaccheus Ryan Ward v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: August 15, 2017
• Docket: 79A05-1702-CR-371
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Aug 15 2017, 5:42 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Timothy P. Broden Curtis T. Hill, Jr. Lafayette, Indiana Attorney General of Indiana Christina D. Pace Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Zaccheus Ryan Ward, August 15, 2017 Appellant-Defendant, Court of Appeals Case No. 79A05-1702-CR-371 v. Appeal from the Tippecanoe Superior Court State of Indiana, The Honorable Appellee-Plaintiff. Steven P. Meyer, Judge Trial Court Cause No. 79D02-1611-F5-158

Kirsch, Judge.

Court of Appeals of Indiana | Memorandum Decision 79A05-1702-CR-371 | August 15, 2017 Page 1 of 8 [1] Zaccheus Ryan Ward (“Ward”) entered a plea of guilty to intimidation1 as a

Level 5 felony and battery2 as a Class B misdemeanor and admitted to being a

habitual offender.3 The trial court ordered an aggregate eight year sentence, of

which one year was suspended to probation and seven years were ordered

executed at the Department of Correction—with the last two years to be served

with Tippecanoe County Community Corrections. On appeal, Ward contends

that his sentence is inappropriate in light of the nature of the offense and the

character of the offender. Concluding that his sentence is not inappropriate, we

affirm.

Facts and Procedural History [2] In November 2016, Ward entered a laundromat located in Lafayette, Indiana,

and encountered Samantha Deck (“Deck”), Aryn Muller (“Muller”), and

William Robinson (“Robinson”), who were doing their laundry. Ward went up

to Deck, put his arm around her, touched her buttocks, put his hand between

her legs, and touched her genital area. Deck told Ward to leave, which he did.

Soon thereafter, Ward returned and stood very close to Deck, who again told

him to leave. Ward left the laundromat just for a moment, and when he

returned, he asked Deck to fold a sweater for him. To appease Ward, Deck

folded the sweater. As Ward continued to get ever closer to Deck, she pointed

1 See Ind. Code § 35-45-2-1(a)(2). 2 See Ind. Code § 35-42-2-1(c)(l). 3 See Ind. Code § 35-50-2-8.

Court of Appeals of Indiana | Memorandum Decision 79A05-1702-CR-371 | August 15, 2017 Page 2 of 8 her finger at him and told him to get away from her. Ward slapped Deck in the

face. This prompted Robinson to approach Ward, who pulled out a knife and

began walking around the laundromat, holding the knife up. Directing his

comments to Deck, Muller, and Robinson, Ward said “I’ll cut you.” Appellant’s

App. Vol. II at 38.

[3] After Ward left the laundromat, Deck went outside to smoke a cigarette.

Ward, who was just down the street, saw Deck and walked over to where she

was smoking, took the cigarette from her mouth, and squeezed her face. Ward

then slapped Deck in the face and walked away. Officers of the Lafayette

Police Department responded to the scene and, while searching the area around

the laundromat, found Ward in the middle of the road. Ward was arrested for

obstructing traffic, and during a search incident to his arrest, officers found on

his person a pocket knife and a utility tool with a knife blade.

[4] The State filed an information charging Ward with Level 5 felony intimidation,

Level 6 felony criminal recklessness, Class B misdemeanor battery, and Class B

misdemeanor obstruction of traffic. The State also alleged that Ward was a

habitual offender. At the time of charging, Ward was on probation for battery

of a public safety official and false informing, crimes for which he had been

convicted and sentenced just the week before. In December 2016, pursuant to

the terms of a written plea agreement, Ward agreed to plead guilty to

intimidation and battery and to admit to being a habitual offender. The State

also agreed to dismiss the remaining counts at sentencing.

Court of Appeals of Indiana | Memorandum Decision 79A05-1702-CR-371 | August 15, 2017 Page 3 of 8 [5] During sentencing, the trial court found the following as mitigating factors,

Ward’s guilty plea, his remorse, and his issues with drug and alcohol abuse. Tr.

Vol. II at 50. However, the trial court tempered the mitigating weight of Ward’s

substance abuse issues because he had numerous opportunities to get treatment

while incarcerated as both a juvenile and an adult and had not been successful.

Id. at 50-51. As to aggravating factors, the court found the following: Ward’s

criminal history; Ward was on probation at the time of the commission of the

offense; he committed this offense within a week of being sentenced on prior

criminal charges; he has been unsuccessfully released from probation; the

repetitive nature of this offense with prior acts of violence; and prior attempts at

rehabilitation have failed. The trial court also noted a finding of the probation

department—that Ward was a high risk to reoffend. Id. at 38, 52.

[6] The trial court found the aggravating factors outweighed the mitigating factors

and sentenced Ward to a term of six years for intimidation and 180 days for

battery, and ordered those sentences to run concurrent with each other. Upon

Ward’s admission to being a habitual offender, the trial court enhanced the

intimidation sentence by two years, for an aggregate sentence of eight years, of

which one year was suspended to probation and seven years were ordered

executed at the Department of Correction—with the last two years to be served

with Tippecanoe County Community Corrections. Appellant’s App. Vol. II at 15.

Ward now appeals.

Court of Appeals of Indiana | Memorandum Decision 79A05-1702-CR-371 | August 15, 2017 Page 4 of 8 Discussion and Decision [7] Article VII, Sections 4 and 6 of the Indiana Constitution authorize independent

appellate review and revision of criminal sentences. Trainor v. State, 950 N.E.2d

352, 355 (Ind. Ct. App. 2011), trans. denied. This authority is implemented by

Indiana Appellate Rule 7(B) which provides, “The 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 inappropriate in light of the nature of the offense

and the character of the offender.” The 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). It is the defendant’s burden on appeal to persuade the

reviewing court that the sentence imposed by the trial court is inappropriate.

Chappell v. State, 966 N.E.2d 124, 133 (Ind. Ct. App. 2012), trans. denied.

[8] Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate

sentence to the circumstances presented, and the trial court’s judgment “should

receive considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind.

2008). The principal role of appellate review is to attempt to “leaven the

outliers.” Id. at 1225. Whether we regard a sentence as inappropriate 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 facts that

come to light in a given case.” Id. at 1224.

Court of Appeals of Indiana | Memorandum Decision 79A05-1702-CR-371 | August 15, 2017 Page 5 of 8 [9] Ward argues that his sentence was inappropriate in light of the nature of his

offenses and his character. Review of a sentence for inappropriateness begins

with a comparison between the advisory sentence and the defendant’s actual

sentence. Anglemyer v. State, 868 N.E.2d 482, 494 (Ind. 2007), clarified on reh’g

875 N.E.2d 218 (2007). A Level 5 felony’s sentencing range is between one and

six years with a three-year advisory sentence. Ind. Code § 35-50-2-6. The

habitual offender enhancement increases a Level 5 felony sentence by two to six

years. I.C. § 35-50-2-8. A Class B misdemeanor battery sentence is limited to

not more than 180 days. I.C. § 35-50-3-3. Thus, Ward faced a maximum

sentence exposure of twelve and a half years, not taking into account the

charges that were dismissed by agreement because he pleaded guilty pursuant to

a plea agreement. The trial court sentenced Ward to an aggregate term of eight

years, and suspended one of those years to probation. The remaining seven

years were ordered executed at the Department of Correction—with the last

two years to be served with Tippecanoe County Community Corrections.

Thus, not only is Ward’s sentence well under the maximum sentencing range of

twelve and a half years, it is also not fully executed and two years of it are to be

served in Community Corrections.4 See Jenkins v. State, 909 N.E.2d 1080, 1084-

4 In 2009, this court “was not in full agreement regarding whether to review [a defendant’s] partially- suspended advisory sentence the same as if it were a fully-executed advisory sentence.” Davidson v. State, 926 N.E.2d 1023, 1024 (Ind. 2010). Subsequently, our Supreme Court decided that, since a sentence can include probation, home detention, placement in community corrections, among other options, “[t]hese other penal tools form an integral part of the actual aggregate penalty faced by a defendant and are thus properly considered as part of the sentence subject to appellate review and revision.” Sharp v. State, 970 N.E.2d 647, 650 (Ind. 2012).

Court of Appeals of Indiana | Memorandum Decision 79A05-1702-CR-371 | August 15, 2017 Page 6 of 8 86 (Ind. Ct. App. 2009) (finding that a sentence including alternatives to prison

is less harsh than a fully-executed sentence), trans. denied.

[10] As to the nature of the offense, Ward contends that his conduct was no more

than that needed to establish the essential elements of the crimes to which he

pleaded guilty. Appellant’s Br. at 6. We disagree. Proof of intimidation requires

that the defendant communicate a threat to another individual to place the

individual in fear of retaliation for a prior lawful act, and the offense is

enhanced to a Class 5 felony if the defendant draws or uses a deadly weapon

while making the threat. See I.C. § 35-45-2-1. Ward threatened three people

with a knife in retaliation for them asking to be left alone. He did not just draw

the knife, but waved it around and, directing his conversation to Deck, Muller,

and Robinson, said, “I’ll cut you.” Appellant’s App. Vol. II at 38. A Class B

misdemeanor battery requires that Ward touch another person in a rude

insolent, or angry manner. I.C. § 35-42-2-1. Here, Ward touched Deck’s

buttocks and genital area when he first approached her and slapped her twice in

the face, once inside the laundromat and once outside. Ward also walked up to

Deck, removed a cigarette from her mouth, and grabbed her face. Appellant’s

App. Vol. II at 38. Ward committed battery against Deck multiple times. Thus,

the nature of Ward’s offenses was far more egregious than necessary to just

prove the offenses. The nature of the offenses does not warrant a revision of

Ward’s sentence.

[11] “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.

Court of Appeals of Indiana | Memorandum Decision 79A05-1702-CR-371 | August 15, 2017 Page 7 of 8 App. 2015), trans. denied. “The significance of criminal history varies based on

the gravity, nature, and number of prior offenses in relation to the current

offense.” Id. Ward, who was twenty-five years old at the time of sentencing,

was on probation at the time he committed the instant offenses, having been

convicted of and sentenced for two other offenses just one week prior. In all,

Ward had at least six juvenile delinquency adjudications, four misdemeanor

convictions, and three felony convictions, which were used to support his

habitual offender enhancement. Ward’s adjudications as a delinquent child

included fraud, escape, habitual disobedience of parent or guardian, theft,

delinquency alcohol violation, and burglary. Ward’s misdemeanor convictions

included conversion, public intoxication, disorderly conduct, and false

informing. Finally, his felony convictions included burglary, residential entry,

and battery against a public safety official. Furthermore, numerous petitions to

revoke probation had been filed against Ward, five of which were found to be

true and two of which were pending at the time of sentencing. Ward’s sentence

was not inappropriate in light of his character. Ward has not met his burden of

persuading us that his sentence is inappropriate in light of the nature of his

offenses or his character.

[12] Affirmed.

Najam, J., and Brown, J., concur.

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