Zaccheus Ryan Ward v. State of Indiana (mem. dec.) ( 2017 )

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.
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[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.
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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.
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[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.
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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.
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[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).
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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.
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Ohio 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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