Michael Gay v. State of Indiana (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
Jan 31 2020, 9:29 am
regarded as precedent or cited before any
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
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
Marjorie Lawyer-Smith
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Michael Gay, January 31, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-2204
v. Appeal from the Ripley Superior
Court
State of Indiana, The Honorable Jeffrey Sharp,
Appellee-Plaintiff Judge
Trial Court Cause No.
69D01-1805-F6-122
Crone, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2204 | January 31, 2020 Page 1 of 6
Case Summary
[1] Michael Gay appeals the two-year executed sentence imposed by the trial court
following his guilty plea to level 6 felony criminal recklessness and level 6
felony failure to appear. He contends that the sentence is inappropriate in light
of the nature of the offenses and his character. Concluding that he has not met
his burden to demonstrate that his sentence is inappropriate, we affirm.
Facts and Procedural History
[2] On May 2, 2018, Gay used methamphetamine, which he had done two to three
times per week for many years. On that day, Gay got into an argument
regarding property lines with Matthew Werner, his neighbor’s nephew, as
Werner was operating a tractor on his aunt’s property, which was adjacent to
Gay’s property. Werner was using a planting attachment to plant grass in an
open field. During Werner’s first planting pass, Gay accused him of crossing
onto Gay’s property. Werner told Gay to move out of the way and continued
to plant. Gay continued to yell at Werner every time Werner passed in the
tractor. At some point during the verbal altercation, Gay announced that he
was “going to get [his] pistol” and left the field. Tr. Vol. 2 at 46. Five hours
later, at around 10:00 p.m., Werner was operating the tractor approximately
fifty yards from Gay’s property line when Gay fired a BB gun toward the
tractor. One of the tractor windows exploded and shattered, with the broken
glass hitting Werner and frightening him. Werner had no idea what had
happened. He called the police. Werner was unable to operate the tractor for
more than two weeks as he waited for over $1300 in repairs to be completed.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2204 | January 31, 2020 Page 2 of 6
Werner now “duck[s]” or “cringe[s] up” out of fear when he hears loud booms
or noises. Id. at 36.
[3] The State charged Gay with level 6 felony criminal recklessness. After he failed
to appear at the pretrial conference, the trial court issued a bench warrant for
his arrest. Thereafter, the State also charged Gay with level 6 felony failure to
appear.
[4] On August 22, 2019, the parties entered into a plea agreement which provided
for Gay to plead guilty to both level 6 felonies and for consecutive sentences of
a maximum of two years for each felony. The trial court accepted the plea and
imposed a two-year executed sentence on the criminal recklessness count and a
consecutive eighteen-month suspended sentence on the failure to appear count.
The court also ordered Gay to pay restitution in the amount of $1354.78. Gay
now appeals the two-year executed sentence imposed for level 6 felony criminal
recklessness.
Discussion and Decision
[5] Gay requests that we reduce his sentence pursuant to Indiana Appellate Rule
7(B), which provides that we may revise a sentence authorized by statute if,
after due consideration of the trial court’s decision, we find that the sentence “is
inappropriate in light of the nature of the offense and the character of the
offender.” The defendant bears the burden to persuade this Court that his or her
sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).
Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2204 | January 31, 2020 Page 3 of 6
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. “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.” Fonner v. State, 876 N.E.2d 340, 344
(Ind. Ct. App. 2007).
[6] Regarding the nature of the offense, the advisory sentence is the starting point
that the legislature has selected as an appropriate sentence for the crime
committed. Fuller v. State, 9 N.E.3d 653, 657 (Ind. 2014). The sentencing range
for a level 6 felony is between six months and two and a half years, with an
advisory sentence of one year. Ind. Code § 35-50-2-7. The trial court here
imposed a two-year executed sentence for criminal recklessness and an
eighteen-month suspended sentence for failure to appear. The two-year
executed sentence imposed for criminal recklessness that is the subject of this
appeal is above the advisory but below the maximum for that count, and we
additionally note that the aggregate sentence for both of Gay’s crimes is well
below the four-year fully executed sentence he could have received pursuant to
the plea agreement.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2204 | January 31, 2020 Page 4 of 6
[7] When reviewing the nature of the offense, this Court considers “the details and
circumstances of the commission of the offense.” Washington v. State, 940
N.E.2d 1220, 1222 (Ind. Ct. App. 2011), trans. denied. Here, the trial court
highlighted the following details and circumstances: Gay used
methamphetamine, got involved in a heated verbal altercation about what
would have been a minor, if any, encroachment, on his property, threatened
Werner, and then came back five hours later and shot a “deadly weapon,”
albeit a BB gun, in the dark directly at the large piece of farm machinery
Werner was operating, shattering its window. Tr. Vol. 2 at 102. The trial court
noted that the results of Gay’s actions could have been much worse and
considered this “a very serious offense” and “an extreme overreaction” to the
situation that “probably had something to do with [Gay’s] methamphetamine
use on that day.” Id. The nature of Gay’s offense does not lead us to conclude
that the trial court’s imposition of a sentence above the advisory sentence but
below the maximum was inappropriate.
[8] Turning to his character, we note that the character of the offender is found in
what we learn of the offender’s life and conduct. Croy v. State, 953 N.E.2d 660,
664 (Ind. Ct. App. 2011). Included in that assessment is a review of an
offender’s criminal history. Garcia v. State, 47 N.E.3d 1249, 1251 (Ind. Ct. App.
2015), trans. denied (2016). Although remote, Gay does have a criminal history
which includes two misdemeanor convictions, one of which was originally
entered as a class D felony. While we agree with Gay that his history is not
significantly aggravating, we find it noteworthy that while out on bond for the
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2204 | January 31, 2020 Page 5 of 6
criminal recklessness charge, Gay failed to appear for a hearing and was then
charged with level 6 felony failure to appear. The record further reveals that
while he was out on bond in the current case, Gay was arrested in another
county for possession of methamphetamine, and those charges were still
pending at the time of sentencing. Gay admits that he has been using
methamphetamine weekly for several years and that he has been using
marijuana weekly for the last twenty-five years. Gay’s recent criminal behavior
and long-standing pattern of illegal drug use does not reflect favorably on his
character. Under the circumstances, Gay has not persuaded us that a sentence
reduction is warranted based upon his character. In sum, he has not met his
burden to establish that the two-year executed sentence imposed by the trial
court is inappropriate in light of the nature of his offenses and his character.
[9] Affirmed.
May, J., and Pyle, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2204 | January 31, 2020 Page 6 of 6