Anthony Eugene Winder v. State of Indiana ( 2013 )

Aug 30 2013, 5:19 am
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
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
GREGORY L. FUMAROLO GREGORY F. ZOELLER
Fort Wayne, Indiana Attorney General of Indiana
MICHAEL GENE WORDEN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
ANTHONY EUGENE WINDER, )
)
Appellant-Defendant, )
)
vs. ) No. 02A03-1212-CR-539
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE ALLEN SUPERIOR COURT
The Honorable John F. Surbeck, Jr., Judge
Cause No. 02D05-1109-FA-56
August 30, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
FRIEDLANDER, Judge
Anthony Winder appeals his conviction of two counts of Robbery Resulting in Serious
Bodily Injury,1 both as class A felonies, and the finding that he is a habitual offender.2
Winder presents the following restated issues for review:
1. Was the evidence sufficient to support Winder’s convictions for
robbery and attempted robbery?
2. Did the convictions for robbery and attempted robbery violate the
Indiana Constitution’s prohibition against double jeopardy?
3. Did the trial court abuse its discretion by allowing the State to add a
habitual offender allegation more than a month after the omnibus date?
4. Did the trial court impose an inappropriate sentence?
We affirm in part, reverse in part, and remand with instructions.
The facts favorable to the convictions are that Alex Palermo lives on the property that
also is the site of his auto sales business, Palermo Auto Sales. He has a tenant, Tyler
Waldrop, who also lives on the property. On September 11, 2011, Palermo returned home at
approximately 9:15 p.m. and went to bed. Waldrop was watching television at approximately
11:00 p.m. when he heard the sound of a saws-all cutting metal. Waldrop looked out to the
car lot and saw sparks coming out from underneath one of the cars. Waldrop telephoned
Palermo and told him what he heard, and Palermo asked him to call 911. Waldrop did so,
and informed the 911 operator that someone was trying to steal catalytic converters.
Meanwhile, Palermo dressed, armed himself with his 9 mm handgun, and went outside to
investigate the sound.
1 Ind. Code Ann. § 35-42-5-1 (West, Westlaw current with all 2013 legislation).
2 Ind. Code Ann. § 35-50-2-8 (West, Westlaw current with all 2013 legislation).
2
Once outside, Palermo saw a small figure standing along a row of cars and walked in
that direction. When he got close enough, Palermo observed a woman holding a flashlight.
The woman was Winder’s twenty-two-year-old daughter, Angela Tate, who was acting as a
lookout for Winder while he cut catalytic converters from vehicles on Palermo’s lot. When
Palermo came close to her, the young woman yelled “Daddy”. Transcript at 158. At that
point, Palermo “felt a thump on [his] left forehead from the side”. Id. Palermo turned and
saw a man, Winder, standing there. Palermo did not know Winder. Palermo tackled Winder
and the two began to struggle. Tate struck Palermo on the back of the head with the saws-all,
knocking him to the ground. As Winder and Palermo struggled, Winder wrested control of
the handgun from Palermo and began punching and smacking Palermo in the head. Palermo
eventually was rendered unconscious. When Palermo regained consciousness, there was
blood everywhere and he was exhausted. He got up and walked towards his house, where he
saw flashing lights and police cars.
Meanwhile, Winder had collected some of his equipment and, armed with Palermo’s
pistol, ran to a nearby ditch to hide. Officer Donald Kidd of the Fort Wayne Police
Department was the first officer to arrive on the scene. He saw Tate walking across the
street, pointed her out to fellow officer Ben Messick, and asked him to apprehend her
because Officer Kidd heard rustling in some nearby bushes. When Officer Kidd approached
the bushes, he saw movement. He drew his Taser and pointed it at the bushes. He ordered
whoever was in the bushes to come out with his hands up. Winder walked out of the bushes,
but refused the officer’s command to get on the ground. At that point, Officer Kidd took
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Winder to the ground and handcuffed him. Officer Kidd looked in the bushes from which
Winder had emerged and discovered “a little black and gray tool bag that had a couple of
extra batteries and extra saws-all blades.” Id. at 281. Police could not find the pistol Winder
had taken from Palermo.
Shortly after the incident, Winder contacted Felicia Tate, who was the mother of two
of Winder’s children, including Angela Tate. Winder told Felicia about his altercation with
Palermo and also told her that he had hidden Palermo’s gun in the bushes near the ditch. He
asked her to retrieve it, but she did not do so. Further investigation at the scene revealed that
several vehicles on the lot were missing catalytic converters. Police also discovered several
catalytic converters that had recently been cut off of vehicles lying in the bed of a pickup
truck parked on the lot.
The State ultimately charged Winder with robbery as A class a felony, battery as a
class C felony, attempted theft as a class D felony, and attempted robbery as a class A felony.
The State also filed a habitual offender allegation. The robbery charge was based upon the
taking of Palermo’s handgun, whereas the attempted-theft charge was based upon Winder’s
attempt to take the catalytic converters. The State dismissed the battery and attempted theft
charges before trial. Following a jury trial, Winder was convicted of the remaining charges
and found to be a habitual offender.
1.
Winder contends the evidence was not sufficient to support his convictions for
robbery and attempted robbery. Specifically, Winder contends there is insufficient evidence
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to prove the “force” element of robbery, i.e., that the physical assault was undertaken with
the intent to take Palermo’s gun. Also, he contends the physical altercation with Palermo
was not undertaken in an attempt to complete the taking of the catalytic converters.
Our standard of reviewing challenges to the sufficiency of the evidence supporting a
criminal conviction is well settled.
When reviewing a challenge to the sufficiency of the evidence underlying a
criminal conviction, we neither reweigh the evidence nor assess the credibility
of witnesses. The evidence—even if conflicting—and all reasonable inferences
drawn from it are viewed in a light most favorable to the conviction. “[W]e
affirm if there is substantial evidence of probative value supporting each
element of the crime from which a reasonable trier of fact could have found
the defendant guilty beyond a reasonable doubt.” Davis v. State, 813 N.E.2d
1176, 1178 (Ind. 2004). A conviction can be sustained on only the
uncorroborated testimony of a single witness, even when that witness is the
victim.
Bailey v. State, 979 N.E.2d 133, 135 (Ind. 2012) (some citations omitted).
To convict Winder of robbery as charged, the State was required to prove that Winder
knowingly or intentionally took property from the person or presence of Palermo by using or
threatening the use of force, and that Winder’s actions resulted in serious bodily injury to
Palermo. I.C. § 35-42-5-1. In essence, Winder claims that the initial struggle with Palermo
was undertaken in defense of his daughter and not undertaken with the intent to take either
the gun or the catalytic converters from Palermo.
In Coleman v. State, 653 N.E.2d 481 (Ind. 1995), the defendant entered a grocery
store, went to a video rental counter, and pocketed five rolls of film. As the defendant was
leaving the store, a customer who had observed Coleman’s action alerted store personnel.
One of the store’s manager’s confronted Coleman outside of the store and asked if he had
5
forgotten to pay for anything. Coleman then pulled a knife and threatened the manager,
whereupon the manager retreated back inside the store. Coleman was later arrested, tried,
and convicted of robbery. Upon appeal, Coleman argued that he did not put the store
manager in fear before or during the taking of the property, and that he had completed the
taking before he was confronted outside the store. Accordingly, he argued, the evidence was
not sufficient to prove that he took the film while using force and therefore not sufficient to
sustain a conviction for robbery. Our Supreme Court affirmed the conviction, holding that
the defendant “was only successful in removing the items from the premises and from [the
manager’s] presence by threatening him with the knife.” Id. at 483. In so holding, the
Supreme Court noted “that a ‘taking’ is not fully effectuated if the person in lawful
possession of the property resists before the thief has removed the property from the premises
or from the person’s presence.” Id. at 482.
In the present case, Winder does not dispute that an altercation occurred between him
and Palermo. But, he contends, his intention in fighting with Palermo was to protect his
daughter. As indicated above, the trial court was not required to believe that claim. There
was evidence that Winder took Palermo’s gun from him during a physical altercation
between the two. The evidence permits a reasonable inference that Winder forcibly wrested
the gun away from Palermo and fled with it, but not before pummeling Palermo to the point
of unconsciousness. Therefore, the evidence was sufficient to sustain the conviction for
robbery based upon the taking of Palermo’s handgun.
Winder offers a similar argument in challenging his conviction of attempted robbery.
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That is, he contends “that the physical altercation with Palermo was not done in an attempt to
complete the taking of the catalytic converters.” Appellant’s Brief at 10. This argument
suffers the same fatal flaw as the argument pertaining to the robbery conviction. As
indicated in Coleman, a taking is not fully effectuated until the property in question is
removed from the owner’s premises or presence. Palermo confronted Winder while Winder
was still on Palermo’s property and, indeed, at about the same time Winder was in the
process of cutting off one of the catalytic converters. Any force exerted by Winder against
Palermo in furtherance of this criminal endeavor before Winder effectuated his escape, i.e.,
removed the catalytic converters from Palermo’s property or from Palermo’s presence,
constitutes “force” within the meaning of I.C. § 35-42-5-1. See Coleman v. State, 653
N.E.2d 481; see also Young v. State, 725 N.E.2d 78, 81 (Ind. Ct. App. 2000) (the defendant
took money from the victim and fled, with the victim giving chase; the victim was later
injured when the defendant ran over the victim’s leg with a car while effectuating his escape;
the Supreme Court rejected the argument that the taking was complete when the defendant
exerted force, reasoning that “the snatching of money, exertion of force, and escape were so
closely connected in time…, place…, and continuity…, that… [the] taking of property
includes [the defendant’s] actions in effecting his escape”). The evidence was sufficient to
support both convictions.
2.
Winder contends that under the “actual evidence test”, the “single larceny rule”, or the
“continuous crime doctrine”, his convictions of both robbery and attempted robbery violate
7
the Indiana Constitution’s prohibition against double jeopardy. A trial court’s legal
conclusions concerning whether convictions violate double jeopardy prohibitions are
reviewed de novo. Sloan v. State, 947 N.E.2d 917 (Ind. 2011).
We begin with Winder’s claim that his convictions of both robbery and attempted
robbery violate double jeopardy under the single larceny rule. Our Supreme Court has
described the “single larceny rule” as follows: “[W]hen several articles of property are taken
from the same person at the same time, from the same place, there is but a single larceny for
which there may be but one judgment and one sentence.” Johnson v. State, 749 N.E.2d 1103,
1110 (Ind. 2001) (quoting Tingle v. State, 632 N.E.2d 345, 350 (Ind. 1994)). The underlying
rationale is that the taking of several articles at the same time from the same place is
undertaken pursuant to a single intent and design. Accordingly, because only one offense has
been committed, there may be only one judgment and one sentence. J.R. v. State, 982 N.E.2d
1037 (Ind. Ct. App. 2013), trans. denied. Our Supreme Court has indicated that our focus in
reviewing these claims should be upon whether “the offenses to be prosecuted and punished
are the same, and not whether the offenses spring from the same act or operative
circumstances. .... The ultimate focus is on the identity of the offenses, not on the identity of
their source.” Id. at 1039 (quoting Elmore v. State, 269 Ind. 532, 539, 382 N.E.2d 893, 897
(1978), abrogated on other grounds by Richardson v. State, 717 N.E.2d 32 (Ind. 1999)).
Winder entered onto Palermo’s property with the intent to steal catalytic converters
from automobiles owned by Palermo’s business. The theft of Palermo’s gun resulted from
the physical altercation that ensued after Palermo discovered and confronted Winder in the
8
process of stealing catalytic converters. Winder stole the gun in the process of his escape.
Therefore, it cannot be said that the theft of the gun was a part of Winder’s intent and design
to steal the catalytic converters.
Moreover, the single larceny rule does not apply where a perpetrator takes property
from two separate people or entities. In McKinley v. State, 272 Ind. 689, 400 N.E.2d 1378
(1980), the defendant entered a pharmacy and ordered the cashier to give him the contents of
the cash register. The defendant then took the wallet and watch of the pharmacy’s owner.
He was subsequently convicted of two counts of robbery, one for taking the store’s money
and one for taking the owner’s personal property. The defendant appealed, arguing that the
two constituted only one robbery under the single larceny doctrine. Our Supreme Court
affirmed the convictions, explaining:
The Norwaldo Pharmacy is a business establishment. The robbery of that
business in the case at bar constituted one count of armed robbery. This is not a
case in which a defendant robbed an individual of various belongings in a
personal setting. Rather, petitioner robbed a business, an impersonal setting to
anyone other than a regular customer. When petitioner relieved the store owner
of his personal wristwatch and wallet, his actions took on a different character.
... We do not find that “stripped down to the basic reality” the robbery of the
pharmacy and Herman Steinkeler “constituted a unitary transaction.”
Id. at 1379 (quoting United States v. Hopkins, 464 F.2d 816, 823 (D.C. Cir. 1972)). The
same rationale applies in the present case. Winder attempted to take property (the catalytic
converters) from Palermo’s business. In addition, he took personal property (the gun) from
Palermo. Those two actions support separate robbery charges.
Winder contends his convictions of both robbery and attempted robbery violate
Indiana’s double jeopardy prohibition pursuant to the “continuous crime doctrine.” “The
9
continuing crime doctrine essentially provides that actions that are sufficient in themselves to
constitute separate criminal offenses may be so compressed in terms of time, place,
singleness of purpose, and continuity of action as to constitute a single transaction.” Walker
v. State, 932 N.E.2d 733, 735 (Ind. Ct. App. 2010). Winder attempted to take catalytic
converters from Palermo’s business. In furtherance of that endeavor, he crawled under
several vehicles and cut the catalytic converters off of the vehicles and then placed them in
the bed of a pickup truck. He did this primarily while Palermo was absent. On the other
hand, the robbery conviction was based upon Winder’s forcible taking of Palermo’s handgun
from Palermo’s person during the struggle that ensued after Palermo arrived on the scene.
This offense was sufficiently distinct from the first offense so that the continuous crime
doctrine does not prevent conviction of both as separate offenses.
Finally, Winder contends that his conviction of both attempted robbery and robbery
run afoul of the Indiana Constitution’s double jeopardy prohibition pursuant to the “actual
evidence test.” Double jeopardy claims of this kind that arise under the Indiana Constitution
are evaluated utilizing a two-part test, pursuant to which multiple offenses are the same
offense in violation of article 1, section 14, “if, with respect to either the statutory elements
of the challenged crimes or the actual evidence used to convict, the essential elements of one
challenged offense also establish the essential elements of another challenged offense.”
Richardson v. State, 717 N.E.2d at 49. To prevail under the actual evidence test, Winder
must demonstrate that there is a reasonable possibility that the evidentiary facts used by the
jury to establish the essential elements of one his offenses may also have been used to
10
establish all of the essential elements of the other. See Davis v. State, 770 N.E.2d 319 (Ind.
2002); Spivey v. State, 761 N.E.2d 831, 833 (Ind. 2002) (“the Indiana Double Jeopardy
Clause is not violated when the evidentiary facts establishing the essential elements of one
offense also establish only one or even several, but not all, of the essential elements of a
second offense”) (emphasis supplied). In applying the actual evidence test, we must
“identify the essential elements of each of the challenged crimes and … evaluate the
evidence from the jury’s perspective.” Lee v. State, 892 N.E.2d 1231, 1234 (Ind. 2008)
(quoting Spivey v. State, 761 N.E.2d at 832). The “reasonable possibility” standard “requires
substantially more than a logical possibility” and “turns on a practical assessment of whether
the jury may have latched on to exactly the same facts for both convictions.” Id. at 1236. “In
determining what facts were used to support each conviction, we will consider the evidence,
charging information, final jury instructions, and arguments of counsel.” Cole v. State, 967
N.E.2d 1044, 1050-51 (Ind. Ct. App. 2012).
The charging information pertaining to Winder’s robbery conviction (Count I) stated,
in relevant part:
On or about the eleventh day of September, 2011, in the County of Allen and
in the State of Indiana, said defendant, Anthony Eugene Winder, did
knowingly or intentionally take property, to wit: a firearm; from the person or
presence of another person, to wit: Alex Palermo, by using or threatening the
use of force or by putting said Alex Palermo in fear, said act resulting in
serious bodily injury to Alex Palermo[.]
Appellant’s Appendix at 15. The charging information for attempted robbery (Count IV)
stated, in relevant part:
On or about the eleventh day of September, 2011, in the County of Allen and
11
in the State of Indiana, said defendant, Anthony Eugene Winder, did attempt to
commit the crime of Robbery, to wit: with intent to take property, to wit:
catalytic converters, from the person or presence of another person, to wit:
Alex Palermo, by using or threatening the use of force or by putting said Alex
Palermo in fear, said Defendant did attempt to remove catalytic converters
from vehicles and used force to try to complete the taking of property, said
conduct constituting a substantial step toward the commission of the crime of
robbery, said act resulting in serious bodily injury to Alex Palermo [.]
Id. at 28. The two charging informations clearly set out separate and distinct acts. Under
Count I, Winder was alleged to have taken a firearm from Palermo’s person. Under Count
IV, Winder was alleged to have attempted to remove catalytic converters from Palermo’s
business’s vehicles. The evidence demonstrated that Winder cut catalytic converters off of
several vehicles and placed them in the bed of a pickup truck. When he was finished or
nearly finished cutting off another one, Palermo appeared on the scene. The two struggled,
with Winder gaining the upper hand and, with Angela Tate’s assistance, rendering Palermo
unconscious. We conclude there is no reasonable possibility that the jury could have “latched
on to exactly the same facts for both convictions.” Lee v. State, 892 N.E.2d at 1236.
Moreover, the two counts involved different victims, as explained above. Conviction of both
did not violate double jeopardy under the Indiana Constitution pursuant to the actual
evidence test.
Although we have concluded that conviction of both robbery and attempted robbery
does not violate double jeopardy, the State concedes that one of Winder’s convictions must
be reduced from a class A felony to a class C felony. This is because both counts were
impermissibly elevated to class A felony status based upon the same serious bodily injury.
See Carrico v. State, 775 N.E.2d 312, 320 (Ind. 2002) (“[e]nhancement of one offense for the
12
very same harm as another is not permissible”). When this occurs, the remedy is to reduce
one of the offenses to a classification that does not include any element of bodily injury. See
Strong v. State, 870 N.E.2d 442 (Ind. 2007). In the present case, this means that the
attempted robbery conviction must be reduced to a class C felony.
3.
Winder’s omnibus date was November 7, 2011. On December 15, 2011, the State
filed its notice of intention to seek a habitual offender enhancement. Winder contends the
trial court abused its discretion by allowing the State to proceed with the habitual offender
allegation because the foregoing notice was filed more than a month after the omnibus date.
Pursuant to the version of Ind. Code Ann. § 35-34-1-5(e) in effect at the time Winder
committed his offenses,3 an amendment to a charging information that includes a habitual
offender enhancement “must be made not later than ten (10) days after the omnibus date.”
That provision also provided, however, that “[u]pon a showing of good cause … the court
may permit the filing of an habitual offender charge at any time before the commencement of
the trial.” Id. Winder contends that because the trial court did not enter a finding of “good
3
In Fields v. State, 888 N.E.2d 304 (Ind. Ct. App. 2008), this court held that the version of I.C. § 35-34-1-5 in
effect at the time the defendant committed the underlying offense applies. I.C. § 35-34-1-5(e) was amended,
effective July 1, 2013, to read as follows:
An amendment of an indictment or information to include a habitual offender charge
under IC 35-50-2-8, IC 35-50-2-8.5, or IC 35-50-2-10 must be made at least thirty (30)
days before the commencement of trial. However, upon a showing of good cause, the
court may permit the filing of a habitual offender charge at any time before the
commencement of the trial if the amendment does not prejudice the substantial rights of
the defendant. If the court permits the filing of a habitual offender charge less than thirty
(30) days before the commencement of trial, the court shall grant a continuance at the
request of the:
(1) state, for good cause shown; or
(2) defendant, for any reason.
13
cause”, it erred in permitting the State to amend the charging information and to include the
habitual offender allegation.
At a December 15, 2011 hearing, the parties discussed the State’s pending notice of
intention to file habitual offender enhancement. At that hearing, Winder argued that the
amendment should not be allowed because the time for filing under I.C. § 35-34-1-5(e) had
passed. The State responded that during the relevant time period, the State and Winder had
engaged in negotiations for a plea agreement. The State extended a plea agreement offer to
Winder in which it agreed not to file a habitual offender count if Winder accepted the offer.
The State informed the attorney representing Winder at the time that it preserved its ability to
file a habitual offender count in the event that the plea negotiations were unsuccessful.
Ultimately, no agreement was reached.
In Land v. State, 802 N.E.2d 45 (Ind. Ct. App. 2004), trans. denied, this court
determined that the trial court did not abuse its discretion in finding good cause under I.C. §
35-34-1-5(e) where the State delayed in filing a habitual offender count during the pendency
of plea negotiations in which the State’s offer included not filing a habitual offender count.
The situation in that case is practically indistinguishable from the present case. There, as
here, the State delayed in filing the habitual offender count because that count was “on the
table” during the bargaining process. Moreover, in Land, it appears that the trial court did
not enter a specific finding of good cause. See id. at 53 (“[b]y permitting the State to file the
habitual offender count, the trial court impliedly found good cause”) (emphasis supplied).
Pursuant to Land, the trial court did not abuse its discretion in impliedly finding good cause
14
to permit the filing as a result of the plea negotiations between Winder and the State.
Lastly, even assuming for the sake of argument that the trial court’s finding was in
error, Winder has failed to demonstrate that he was prejudiced by the late filing of the
habitual offender count. Winder was apprised of the State’s intention to add a habitual
offender count in December 2011. This was approximately ten months before the trial in this
cause. The Land panel found a period of approximately six months sufficient to preclude a
presumption of prejudice. Like the defendant in Land, Winder offers no explanation of how
he was prejudiced by the timing of the habitual offender count, or indeed even make a claim
that he was prejudiced at all. The trial court did not abuse its discretion in permitting the
State to add a habitual offender count more than ten days after the omnibus date.
4.
We begin our review of Winder’s sentence by noting that the trial court found that the
sentencing factors warranted the imposition of the maximum sentence for each of the class A
felonies of which Winder was originally convicted. Accordingly, we conclude that for his
revised conviction of class C felony robbery, as discussed above, the trial court would impose
the maximum authorized sentence, i.e., eight years, to be served concurrently with the fifty-
year sentence imposed for the robbery conviction. See Strong v. State, 870 N.E.2d 442.
In addition, the State directs our attention to an error concerning the habitual offender
enhancement. The trial court imposed the maximum sentence of fifty years for each of
Winder’s class A felony convictions (i.e., Counts I and IV) and ordered that those sentences
were to be served concurrently. The court imposed a habitual offender enhancement of thirty
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years, which it specified enhanced both Counts I and IV. “In the event of simultaneous
multiple felony convictions and a finding of habitual offender status, trial courts must impose
the resulting penalty enhancement upon only one of the convictions and must specify the
conviction to be so enhanced.” Greer v. State, 680 N.E.2d 526, 527 (Ind. 1997). Therefore,
the trial court erred in enhancing both sentences.
Winder contends we should remand with instructions to resentence. We decline to
remand to the trial court for the purpose of specifying which sentence is to be enhanced,
because we think it clear that the trial court would impose the habitual offender enhancement
on the sentence for the class A felony robbery conviction, rather than on the class C felony
attempted robbery conviction. We will proceed with a review of the appropriateness of
Winder’s sentence with these revisions in mind.
Winder contends his sentence was inappropriate in light of his character and the
nature of his offense. Article 7, section 4 of the Indiana Constitution grants our Supreme
Court the power to review and revise criminal sentences. Pursuant to Ind. Appellate Rule 7,
the Supreme Court authorized this court to perform the same task. Cardwell v. State, 895
N.E.2d 1219 (Ind. 2008). Per Indiana Appellate Rule 7(B), we may revise a sentence “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.” Wilkes
v. State, 917 N.E.2d 675, 693 (Ind. 2009), cert. denied, 131 S. Ct. 414 (2010). “[S]entencing
is principally a discretionary function in which the trial court’s judgment should receive
considerable deference.” Cardwell v. State, 895 N.E.2d at 1223. Winder bears the burden on
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appeal of persuading us that his sentence is inappropriate. Childress v. State, 848 N.E.2d
1073 (Ind. 2006).
The determination of whether we regard a sentence as appropriate “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 at
1224. Moreover, “[t]he 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. Accordingly, “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) (emphasis in
original).
In order to assess the appropriateness of a sentence, we first look to the statutory
ranges established for the classification of the relevant offenses. Winder was convicted of
two class A felonies – robbery and attempted robbery. As we have indicated, however, the
attempted robbery conviction must be reduced to a class C felony. The advisory sentence for
a class A felony is thirty years; the maximum sentence is fifty years. The advisory sentence
for a class C felony is four years; the maximum sentence is eight years. In addition, Winder’s
sentence for robbery is enhanced by thirty years based upon his habitual offender status.
Therefore, Winder received an executed sentence totaling eighty years.
With respect to the nature of the offense, Winder contends that he did not
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“contemplate that Palermo would interrupt the theft armed with a handgun.” Appellant’s
Appendix at 25. After observing that Palermo “could have held them at gunpoint until the
police arrived”, he contends that Palermo “ran at Winder armed with the weapon”. Id. He
continues that, “it was only after again gaining an advantage over Winder that Winder’s
daughter hit Palermo from behind, inflicting the injuries on Palermo.” Id. at 25-26. Clearly,
Winder seeks to place some of the blame for Palermo’s injuries upon Palermo himself.
Among other things, we observe that this line of reasoning is premised upon crediting
Winder’s version of what happened during the occurrence. That version is at odds with
Palermo’s. The trial court was not required to believe that the events unfolded as Winder
claimed they did. Neither are we. This argument, weak as it is, is entirely unpersuasive in
light of Palermo’s account of the occurrence. The facts are that while on his own property,
Palermo was struck viciously by a heavy, blunt object and suffered serious injuries as a
result, including a depressed skull fracture that has significantly impacted his life to this
point, and will continue to do so in the future.
Turning now to Winder’s character, Winder’s presentence investigation report reflects
a significant criminal history. Beginning with a juvenile proceeding against him for
shoplifting, and continuing largely unabated ever since, Winder has accumulated two true
findings of juvenile delinquency, eight misdemeanor convictions, and five felony
convictions. The misdemeanor convictions include a conviction for battery. The felony
convictions include three convictions of robbery and one firearms offense. Winder was
evaluated in conjunction with his presentence investigation report pursuant to the Indiana
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Risk Assessment System. He was rated as a “very high risk” to reoffend. Id. at 122. Thus, it
is not surprising that he indicated to the probation department that he “does not have a plan to
abstain from trouble, as he is ‘about to get 80 years and spend the rest of his life in prison.’”
Id. at 120. Finally we note that he has violated probation on one previous occasion, and was
on probation when he committed the present offenses.
The picture that emerges is that of a person who is either unwilling or incapable of
conforming his behavior to live within the boundaries of the law. Indeed, he seems to openly
acknowledge his disregard for the rules of society. Viewed in this light, the lengthy sentence,
revised along the lines set out above, is justifiable as necessary to protect society from
Winder’s criminal proclivities and therefore is not inappropriate.
This matter is remanded to the trial court with instructions to reduce the attempted
robbery conviction to a class C felony and correct the sentencing order along the lines
discussed previously in this opinion.
Judgment affirmed in part, reversed in part, and remanded with instructions.
BAKER, J., and VAIDIK, J., concur.
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