Kenton T. Winder v. State of Indiana ( 2014 )

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of Apr 15 2014, 6:22 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
WILLIAM A. GRAY GREGORY F. ZOELLER
Jeffersonville, Indiana Attorney General of Indiana
LARRY D. ALLEN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
KENTON T. WINDER, )
)
Appellant-Defendant, )
)
vs. ) No. 10A04-1309-CR-461
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE CLARK CIRCUIT COURT
The Honorable Daniel E. Moore, Judge
Cause No. 10C01-1206-FB-98
April 15, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
NAJAM, Judge
STATEMENT OF THE CASE
Kenton T. Winder appeals his sentence following his convictions for robbery, as a
Class B felony; criminal confinement, as a Class B felony; and carrying a handgun
without a license, as a Class A misdemeanor. Winder raises four issues for our review,
which we restate as the following two issues:
1. Whether the trial court abused its discretion when it sentenced him.
2. Whether Winder’s sentence is inappropriate in light of the nature of
the offenses and his character.
We affirm Winder’s sentence but we remand with instructions that the trial court correct
the abstract of judgment.
FACTS AND PROCEDURAL HISTORY
On June 4, 2012, Winder entered Sally’s Beauty Supply in Clarksville, asked for a
job, and then left. He then came back into the store brandishing a firearm, grabbed one of
the two female store employees around the neck, and then confined both women in a
back room while ordering them to disrobe, which they did. Winder then robbed one of
the women. Both employees eventually escaped their confinement by fleeing into nearby
public places while still disrobed. Police officers apprehended Winder later that day.
On June 6, the State charged Winder with robbery, as a Class B felony; criminal
confinement, as a Class B felony; and carrying a handgun without a license, as a Class A
misdemeanor. On July 11, 2013, Winder entered into a plea agreement in which he
pleaded guilty to all three charges. The plea agreement called for a fourteen-year cap on
Winder’s maximum potential sentence.
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On August 19, the trial court accepted Winder’s plea agreement and held a
sentencing hearing. Following the arguments of counsel, the court stated as follows:
In my mind there are a lot of unanswered questions here. I don’t see a lot
of things tied up. Okay. The presentence report officer and Dr.
Galligan . . . both told [the court] that you’re very active in your children’s
lives as you should be. That’s your responsibility . . . but I don’t see that as
a consistent thing and I hear evidence that you’re actually living someplace
else and I know your family supports you, but how old are you sir?
DEFENDANT: I’m 29.
THE COURT: 29. Okay.
DEFENDANT: Yes, sir.
THE COURT: All right. And so I’m glad you’re making progress on
the addictions and medication issues, but I have to tell you that [Indiana
law] does not limit what the Court may consider. . . . And I certainly am
considering and finding that this was a reckless crime of violence. Walking
into a store with a gun is totally unacceptable, placing people in fear is
totally unacceptable and what you did to that woman is something at the
age of 29 you should know you don’t treat women that way. . . . You have
daughters. . . . [T]hat certainly is something that maybe you’ll never tell
them about . . . and certainly being a father of daughters, I can’t explain
why you made th[ose] wom[e]n undress. You can’t explain it to me. You
stammered and you stuttered and I didn’t hear you telling me that you were
dead drunk or something like that. I don’t understand it, but I wouldn’t
have found that to be an excuse either when you walk into a retail outlet
with a gun. Guns kill people. So on the crime of Robbery, I’m going to
sentence you to a ten year term of imprisonment and find . . . that
aggravating circumstances outweigh mitigating circumstances and I’m
going to add two years to that sentence. . . . I’m going to sentence you on
Count II to the offense of Criminal Confinement for a term of ten years,
which will be run concurrent with the Robbery charge. On Count III I’m
going to sentence you for Carrying a Handgun without a license to a one
year term of imprisonment that will . . . run concurrent with the other two
charges. So your total sentence to be executed is twelve years. . . . I’m
going to suspend[] three of those years, but you’re going to have to serve an
executed sentence of eight years. I’m going to allow you to serve that last
year of your sentence on . . . our Community Corrections Program . . . .
Transcript at 71-75. This appeal ensued.
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DISCUSSION AND DECISION
Issue One: Abuse of Discretion in Sentencing
Winder contends that the trial court abused its discretion when it sentenced him.
Sentencing decisions rest within the sound discretion of the trial court and are reviewed
on appeal only for an abuse of discretion. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind.
2007), clarified on other grounds on reh’g, 875 N.E.2d 218 (Ind. 2007). An abuse of
discretion occurs if the 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.
One way in which a trial court may abuse its discretion is failing to enter a
sentencing statement at all. Other examples include entering a sentencing
statement that explains reasons for imposing a sentence—including a
finding of aggravating and mitigating factors if any—but the record does
not support the reasons, or the sentencing statement omits reasons that are
clearly supported by the record and advanced for consideration, or the
reasons given are improper as a matter of law . . . .
[However, b]ecause the trial court no longer has any obligation to
“weigh” aggravating and mitigating factors against each other when
imposing a sentence, . . . a trial court cannot now be said to have abused its
discretion in failing to “properly weigh” such factors.
Id. at 490-91.
Winder assets that the trial court abused its discretion when it sentenced him for
several reasons. First, Winder argues that the trial court failed to consider the undue
hardship his incarceration would have on his family. Winder is incorrect. The trial court
considered and expressly rejected this proffered mitigator, stating that Winder was “very
active” in the lives of his children but that that was not “a consistent thing.” Transcript at
71-72. The court also noted that Winder is twenty-nine years old yet is being supported
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by his family. Winder’s argument that the trial court failed to consider this proffered
mitigator is without merit.
Winder next argues that the trial court failed to consider the significance of his
employment history and Winder’s successful daily reporting to community corrections
while on bond for the instant offense. But, again, the finding of mitigating factors is
within the discretion of the trial court, and the court is not obligated to accept the
defendant’s contentions as to what constitutes a significant mitigating factor. McCann v.
State, 749 N.E.2d 1116, 1121 (Ind. 2001) (citing Legue v. State, 688 N.E.2d 408, 411
(Ind. 1997)). “‘An allegation that the trial court failed to identify or find a mitigating
[factor] requires the defendant to establish that the mitigating evidence is both significant
and clearly supported by the record.’” Id. (quoting Carter v. State, 711 N.E.2d 835, 838
(Ind. 1999)). And Winder acknowledges that “post-incident conduct may not be
especially weighty as a mitigating factor.” Appellant’s Br. at 13. Winder’s arguments on
appeal do not demonstrate that these proffered mitigators were significant or clearly
supported by the record, and we cannot say that the trial court abused its discretion when
it did not find otherwise.
Third, Winder asserts that the trial court abused its discretion when it declined to
accept the probation department’s recommended sentence in the presentence
investigation report. The probation department recommended Winder receive a twelve
year sentence, with six years executed, two years on work release, and the remainder
suspended to probation. The State asked the court to “at a mini[m]um” follow that
recommendation, which the State recognized as “very fair.” Transcript at 66.
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The trial court is under no obligation to base its sentencing determination on the
presentence investigation report or on the probation department’s sentencing
recommendation. Fugate v. State, 516 N.E.2d 75, 80 (Ind. Ct. App. 1987). And, in any
event, here the trial court sentenced Winder to twelve years, with eight years executed,
one year in community corrections, and three years suspended. Thus, the court’s
deviation from the sentence recommended by the probation department was not
significant. We cannot say the trial court abused its discretion on this issue.
Finally, Winder asserts that the trial court’s abused its discretion when it sentenced
him because it “fail[ed] to consider Indiana Constitution Article 1[,] Section 18” in
crafting Winder’s sentence. Appellant’s Br. at 15. This argument is not supported by
cogent reasoning and is waived. Ind. Appellate Rule 46(A)(8)(a); see also Lindsey v.
State, 888 N.E.2d 319, 322 (Ind. Ct. App. 2008) (“Section 18 applies only to the penal
code as a whole and not to individual sentences.”) (quotation omitted), trans. denied. The
trial court did not abuse its discretion when it sentenced Winder.
Issue Two: Indiana Appellate Rule 7(B)
Winder also asserts that his sentence is inappropriate. Article VII, Sections 4 and
6 of the Indiana Constitution “authorize[] independent appellate review and revision of a
sentence imposed by the trial court.” Roush v. State, 875 N.E.2d 801, 812 (Ind. Ct. App.
2007) (alteration original). This appellate authority is implemented through Indiana
Appellate Rule 7(B). Id. Revision of a sentence under Appellate Rule 7(B) requires the
appellant to demonstrate that his sentence is inappropriate in light of the nature of his
offenses and his character. See App. R. 7(B); Rutherford v. State, 866 N.E.2d 867, 873
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(Ind. Ct. App. 2007). We assess the trial court’s recognition or non-recognition of
aggravators and mitigators as an initial guide to determining whether the sentence
imposed was inappropriate. Gibson v. State, 856 N.E.2d 142, 147 (Ind. Ct. App. 2006).
However, “a defendant must persuade the appellate court that his or her sentence has met
th[e] inappropriateness standard of review.” Roush, 875 N.E.2d at 812 (alteration
original).
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, 1224 (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.
Winder’s sentence is not inappropriate. On this issue, Winder’s only argument is
that his character—in particular, his educational background and his work history—
justifies a less onerous sentence. But Winder ignores less favorable aspects of his
character, namely, that shortly before June 4, 2012, he had gambled away an entire
paycheck; that he has a history of problems with controlled substances, including illegal
substances and prescription substances; that he has two prior felony convictions for
possession of marijuana; and that he has twice had prior terms of probation revoked.
Winder’s argument on appeal also wholly ignores the nature of the offenses. See
Ind. Appellate Rule 46(A)(8)(a). As explained above, after casing the store by asking for
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a job application Winder reentered while brandishing a firearm, a decision the trial court
referred to as “reckless.” See Transcript at 72. He physically assaulted one of the two
female workers before confining both of them and then ordering them to disrobe. After
each of the disrobed women escaped his confinement—fleeing into public without
clothing to seek assistance—Winder himself fled the scene.
Further, Winder faced a potential term of forty-one years incarceration for two
Class B felonies and a Class A misdemeanor. The trial court ordered him to serve twelve
years, with eight years executed, one year in community corrections, and three years
suspended. We cannot say that Winder’s sentence is inappropriate in light of the nature
of the offenses or his character.
Finally, we note that the abstract of judgment mistakenly suggests that Winder
may have to serve nine years executed in the Department of Correction. As such, we
remand this matter to the trial court with instructions that it correct this mistake and enter
an abstract of judgment that accurately reflects Winder’s sentence. See Mendoza v.
State, 869 N.E.2d 546, 560 (Ind. Ct. App. 2007), trans. denied.
Affirmed and remanded with instructions.
VAIDIK, C.J., and BROWN, J., concur.
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