Walik L. Whiteside v. State of Indiana

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Gregory L. Fumarolo Curtis T. Hill, Jr.
Fort Wayne, Indiana Attorney General of Indiana
Katherine Cooper
Deputy Attorney General
Indianapolis, Indiana
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FILED
In the Jun 29 2017, 2:26 pm
Indiana Supreme Court CLERK
Indiana Supreme Court
Court of Appeals
_________________________________ and Tax Court
No. 02S05-1706-CR-441
WALIK L. WHITESIDE,
Appellant (Defendant below),
v.
STATE OF INDIANA,
Appellee (Plaintiff below).
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Appeal from the Allen Superior Court, No. 02D04-1503-FB-3
The Honorable Frances C. Gull, Judge
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On Petition to Transfer from the Indiana Court of Appeals, No. 02A05-1607-CR-1659
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June 29, 2017
Per Curiam.
During the morning hours of September 22, 2012, then-fifteen-year-old Walik Whiteside
attacked A.B. as she went for a run along the River Greenway in Fort Wayne. Whiteside grabbed
A.B. from behind and placed his arm around her neck. After they fell to the ground, Whiteside
removed his pants, attempted to insert his penis into A.B.’s vagina, inserted his fingers into her
vagina, touched her breasts underneath her bra, and forced his penis into her mouth. When another
runner approached, Whiteside fled. He was not apprehended, but the State took DNA swabs from
A.B. At that time, no match for the DNA was found. Whiteside subsequently committed another
crime and was convicted of Class A felony robbery and sentenced to twenty-five years
incarceration. During his incarceration for that crime, the State collected a DNA sample from
Whiteside, which matched the sample taken from A.B.’s body.
In 2015, the State charged Whiteside with Class B felony attempted rape, two counts of
Class B felony criminal deviate conduct, and Class D felony sexual battery. Whiteside was waived
into adult court where a jury convicted him on all counts. The trial court vacated the sexual battery
conviction based on double jeopardy concerns, and sentenced Whiteside to twenty years on each
of the remaining counts, to be served consecutively to each other and to the sentence for his robbery
conviction. In the instant case, Whiteside received an aggregate sentence of sixty years
imprisonment.
Citing Indiana Appellate Rule 7(B), a majority of the Court of Appeals revised Whiteside’s
sentence to three consecutive ten-year terms, for an aggregate sentence of thirty years, to be served
consecutively to the robbery sentence. Whiteside v. State, No. 02A05-1607-CR-1659 (Ind. Ct.
App. March 30, 2017). Judge Pyle dissented, believing Whiteside’s sentence not inappropriate.
Id. at 14-16 (Pyle, J., dissenting). The State seeks transfer.
The authority granted by article 7, section 4 of the Indiana Constitution permitting appellate
review and revision of criminal sentences is implemented through Indiana Appellate Rule 7(B).
Under this rule and as interpreted by case law, appellate courts may revise sentences—after due
consideration of the trial court’s decision—if the sentence is found to be inappropriate in light of
the nature of the offense and the character of the offender. See Cardwell v. State, 895 N.E.2d
1219, 1222-25 (Ind. 2008); Serino v. State, 798 N.E.2d 852, 856-57 (Ind. 2003). The principal
role of such review is to attempt to leaven the outliers. Cardwell, 895 N.E.2d at 1225.
Our collective judgment is that the sentence imposed by the trial court in this case is not
inappropriate under Appellate Rule 7(B) and does not warrant appellate revision. Accordingly,
we grant transfer, affirm the sentence imposed by the trial court, and summarily affirm the decision
of the Court of Appeals in all other respects. See Ind. Appellate Rule 58(A).
All Justices concur.