Shane T. Wilson v. State of Indiana (mem. dec.) ( 2018 )

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Nov 14 2018, 7:55 am
this Memorandum Decision shall not be
CLERK
regarded as precedent or cited before any Indiana Supreme Court
Court of Appeals
court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
R. Patrick Magrath Curtis T. Hill, Jr.
Alcorn Sage Schwartz & Magrath, LLP Attorney General of Indiana
Madison, Indiana
Angela Sanchez
Assistant Section Chief, Criminal
Appeals
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Shane T. Wilson, November 14, 2018
Appellant-Defendant, Court of Appeals Case No.
18A-CR-233
v. Appeal from the Ripley Superior
Court
State of Indiana, The Honorable Jeffrey L. Sharp,
Appellee-Plaintiff. Judge
Trial Court Cause No.
69D01-1707-F6-111
Najam, Judge.
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Statement of the Case
[1] Shane T. Wilson appeals his 830-day sentence following his conviction for
attempted arson, as a Level 6 felony. Wilson raises a single issue for our
review, namely, whether his sentence is inappropriate in light of the nature of
the offense and his character.
[2] We affirm.
Facts and Procedural History
[3] On July 13, 2017, Wilson poured gasoline on Ashley Wilson, his wife of nine
years, while she was in the marital bed and threatened to set her and the bed on
fire. Ashley called police, and officers arrested Wilson. The State charged
Wilson with arson and intimidation, and he pleaded guilty to attempted arson,
as a Level 6 felony.
[4] In January of 2018, the trial court held a sentencing hearing, and Ashley
testified. Following the hearing, the court found as follows:
The Court appreciates both parties’ well-thought out arguments,
but[,] really, when you cut this thing, it is very simple. We have
a situation where a man threatened his wife to set her on fire. I
kind of think that is enough said. The Court does find the
criminal history to be an aggravating factor, two prior OWIs.
The Court gives that the weight the two OWIs get, it is not a
first-time offense and this is his third offense. . . . The Court
considers the impact on the victim[] as a[n] aggravating factor,
that being her own statement that indicates that she constantly
lives in fear with this situation and has constant nightmares and
that it has not only affected her, but it has affected her children.
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The other aggravators the State’s indicated . . . is just the nature
and the circumstance. On[c]e again, you end up with a situation
where you have a domestic situation that escalates to the point
where the Defendant had removed all of the telephones from the
home, disconnected the wires to the battery of the . . . vehicles
and doused the bed with gasoline and threatened her with a
lighter. I honestly can’t think, that is a very terrifying situation
and I think it is a heinous, heinous act, probably one of the worst.
The Court does consider the mitigating factor that Mr. Wilson
ple[aded] guilty with no plea agreement. Balancing the
aggravators and mitigators, the Court finds the aggravators
clearly outweigh the mitigators and sentence[s] Mr. Wilson to
830 days, with all of that time executed . . . .
Sent. Tr. at 28-29. This appeal ensued.
Discussion and Decision
[5] On appeal, Wilson asserts that his sentence is inappropriate in light of the
nature of the offense and his character. Indiana Appellate Rule 7(B) provides
that “[t]he 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 Indiana Supreme Court has recently reiterated that:
The principal role of appellate review should be to attempt to
leaven the outliers . . . but not achieve a perceived “correct”
result in each case. Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.
2008). Defendant has the burden to persuade us that the
sentence imposed by the trial court is inappropriate. Anglemyer v.
State, 868 N.E.2d 482, 494 (Ind.), as amended (July 10, 2007),
decision clarified on reh’g, 875 N.E.2d 218 (Ind. 2007).
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Shoun v. State, 67 N.E.3d 635, 642 (Ind. 2017) (omission in original).
[6] 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, 895 N.E.2d at 1222. 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 factors that come to light in a given case.” Id. at 1224.
Deference to the trial court “prevail[s] unless overcome by compelling evidence
portraying in a positive light the nature of the offense (such as accompanied by
restraint, regard, and lack of brutality) and the defendant’s character (such as
substantial virtuous traits or persistent examples of good character).” Stephenson
v. State, 29 N.E.3d 111, 122 (Ind. 2015).
[7] Again, the trial court ordered Wilson to serve 830 days, about 82 days shy of
two and one-half years. For a Level 6 felony conviction, a sentence may be
between six months and two and one-half years, with an advisory term of one
year. Ind. Code § 35-50-2-7(b) (2018). In support of Wilson’s aggravated
sentence, the court relied on Wilson’s criminal history, the impact of the crime
on his victim, and the nature and circumstances of the offense.
[8] Wilson asserts that his sentence is inappropriate in light of the nature of the
offense because he and Ashley had had marital trouble and the nature and
circumstances of the offense do not exceed the statutory elements of the offense.
He also asserts that, while Ashley was negatively impacted, “[s]he received no
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physical injury.” Appellant’s Br. at 11. And, with respect to his character,
Wilson states that he has a history of mental illnesses, that his prior criminal
history is unrelated and remote in time, that he quickly pleaded guilty without
the benefit of a plea agreement, and that he has abided by the court’s no-contact
order.
[9] We cannot say that Wilson’s 830-day sentence is inappropriate in light of the
nature of the offense. Rather, we agree with the trial court that the nature and
circumstances of the offense reflect its “heinous” and “terrifying” nature. Sent.
Tr. at 28-29. Wilson pleaded guilty to attempted arson under Indiana Code
Section 35-43-1-1(d), which is a Level 6 felony as a property offense, and he
contends that the facts show nothing more than the elements of that offense.
But that is manifestly incorrect. Wilson threatened to set his wife on fire in
their marital bed after he had hidden phones in the residence and disabled the
family vehicles. This was more than a mere property offense. Further, Ashley
and her children continue to suffer from the terrifying nature of Wilson’s act—
Ashley has constant nightmares and the children now fear their former father
figure.
[10] Likewise, we cannot say that his sentence is inappropriate in light of his
character. While his guilty plea is deserving of mitigating weight and his
criminal history is unrelated and remote, the trial court considered those factors
in the first instance and we cannot say that its balancing of them was erroneous.
Instead, we agree with the trial court that the fact that this was Wilson’s third
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criminal offense reflects poorly on his character, as does the domestic nature of
his threatened violence. We affirm Wilson’s 830-day sentence.
[11] Affirmed.
Crone, J., and Pyle, J., concur.
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