William Wilbert Ward-Bey v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Sep 16 2016, 7:22 am
regarded as precedent or cited before any CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
P. Jeffrey Schlesinger Gregory F. Zoeller
Crown Point, Indiana Attorney General of Indiana
Richard C. Webster
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
William Wilbert Ward-Bey, September 16, 2016
Appellant-Defendant, Court of Appeals Case No.
45A05-1602-CR-266
v. Appeal from the Lake Superior
Court
State of Indiana, The Honorable Salvador Vasquez,
Appellee-Plaintiff. Judge
Trial Court Cause No.
45G01-1312-FB-126
Bailey, Judge.
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Case Summary
[1] William Ward-Bey (“Ward-Bey”) pled guilty to Robbery, as a Class C felony.1
He now appeals his five-year sentence. We affirm.
Issues
[2] Ward-Bey raises two issues for review:
I. Whether the trial court abused its discretion in sentencing;
and
II. Whether Ward-Bey’s five-year sentence is inappropriate.
Facts and Procedural History
[3] On December 15, 2013, Ward-Bey and Marcus Ervin (“Ervin”) entered the
Portillo’s restaurant in Merrillville, Indiana, pretending to be deliverymen.
While acting in concert, Ward-Bey and Ervin demanded the safe combination
from the store manager, then took approximately $3,500.00 in cash as well as
the store’s panic button. A short distance away, Ward-Bey was apprehended
with the cash and panic button.
1
Ind. Code § 35-42-5-1(1) (2013). Indiana’s criminal statutes were revised in 2013; we refer to the
substantive provisions of the Indiana Code in effect at the time of and applicable to Ward-Bey’s offenses.
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[4] On December 16, 2013, the State charged Ward-Bey with one count of Class B
felony armed robbery,2 one count of Class B felony robbery resulting in a bodily
injury,3 three counts of Class B felony criminal confinement,4 and three counts
of Class C felony criminal confinement.5 The State filed an amended
information on February 7, 2014, which set forth no new counts.
[5] On July 29, 2015, the State filed a second amended information, adding a count
of Class C felony robbery.6 The same day, Ward-Bey and the State entered into
a plea agreement whereby Ward-Bey would plead guilty to the Class C felony
robbery count and, at the time of sentencing, the State would move to dismiss
the remaining eight counts. Under the plea agreement, Ward-Bey and the State
could fully argue an appropriate sentence to the court. The trial court held the
acceptance of plea and sentencing hearing on January 5, 2016.
[6] Following argument at the January 5 hearing, the trial court accepted Ward-
Bey’s plea of guilty and sentenced him to the Department of Correction for a
term of five years.
[7] Ward-Bey now appeals his sentence.
2
I.C. § 35-42-5-1(1).
3
I.C. § 35-42-5-1(1).
4
I.C. §§ 35-42-3-3(a)(1), 35-42-3-3(b)(2)(A).
5
I.C. §§ 35-42-3-1-(a)(1), 35-42-3-3(b)(1)(C).
6
I.C. § 35-42-5-1(1).
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Discussion and Decision
Abuse of Discretion
[8] Ward-Bey argues that the trial court abused its discretion in sentencing him to
five years of incarceration. Ward-Bey first argues that the trial court issued an
inadequate sentencing statement. Ward-Bey next argues that the trial court
failed to consider certain mitigating factors. Chiefly, Ward-Bey advances that
the trial court should have considered his remorse and guilty plea, although
Ward-Bey also cursorily asserts that his stated acceptance of responsibility and
participation in a medical research study warranted additional consideration.
[9] Pursuant to Indiana Code Section 35-50-2-6(a), a person convicted of a Class C
felony shall receive a term of imprisonment of between two years and eight
years, with four years being the advisory sentence. The trial court sentenced
Ward-Bey to five years, within the statutory range. “So long as the sentence is
within the statutory range, it is subject to review only for abuse of discretion.”
Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on other grounds, 875
N.E.2d 218 (Ind. 2007).
[10] A trial court abuses its discretion if its sentencing 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. In
sentencing a defendant, the trial court must enter “a sentencing statement that
includes a reasonably detailed recitation of its reasons for imposing a particular
sentence.” Anglemyer, 868 N.E.2d at 491. Where, as here, a defendant alleges
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that the trial court failed to identify or find a mitigating factor, the defendant
must establish that the mitigating evidence is both significant and clearly
supported by the record. Id. at 493. However, the trial court is not obligated to
explain why it did not find a particular circumstance to be significantly
mitigating. Sherwood v. State, 749 N.E.2d 36, 38 (Ind. 2001).
[11] Here, in its sentencing colloquy, the trial court recounted Ward-Bey’s
significant criminal history, containing seven prior adult felony convictions.
Among Ward-Bey’s prior felony convictions are two burglary convictions and a
conviction for murder in perpetration of robbery. The trial court stated that an
eight-year-sentence—the statutory maximum—was potentially warranted,
given Ward-Bey’s extensive criminal history. However, upon reviewing the
circumstances, the trial court orally observed that it was reducing Ward-Bey’s
sentence from that potentially warranted eight-year sentence down to five years,
due to Ward-Bey’s medical conditions. Ward-Bey admits that the trial court
acknowledged his medical conditions in its sentencing colloquy, but takes issue
with the trial court’s written order, which does not list any mitigating factors
but does contain four aggravating factors: (1) that Ward-Bey was on parole
when the offense occurred; (2) Ward-Bey’s criminal history; (3) that Ward-Bey
was in need of correctional treatment; and (4) that Ward-Bey was dishonest.
Ultimately, Ward-Bey contends that the written order is in conflict with the trial
court’s oral sentencing statements, and invites us to remand.
[12] We could remand this cause to the trial court for clarification of whether it
found Ward-Bey’s poor health to be a significant mitigating factor. See McElroy
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v. State, 865 N.E.2d 584, 591 (Ind. 2007). We decline to do so, however,
because any error here is harmless. Ind. Trial Rule 61; McElroy v. State, 865
N.E.2d at 591. In its oral sentencing order where the trial court found this
mitigating factor, Ward-Bey received a sentence of five years. In the
subsequent written statement that did not mention this mitigating factor, Ward-
Bey received precisely this same sentence.
[13] Ward-Bey also contends that the trial court should have recognized his remorse
and guilty plea as significant mitigating factors. With respect to remorse, the
Indiana Supreme Court has held that a trial court’s determination of a
defendant’s remorse is similar to a determination of credibility. Pickens v. State,
767 N.E.2d 530, 535 (Ind. 2002). Accordingly, without evidence of some
impermissible consideration by the trial court, a reviewing court will accept the
trial court’s determination as to remorse. See id. We find no impermissible
considerations and thus no error.
[14] As to Ward-Bey’s guilty plea, although a trial court should be “inherently aware
of the fact that a guilty plea is a mitigating circumstance,” a guilty plea is not
always a significant mitigating circumstance. Francis v. State, 817 N.E.2d 235,
237 nn.2-3 (Ind. 2004). Indeed, “a guilty plea may not be significantly
mitigating when it does not demonstrate the defendant’s acceptance of
responsibility . . . or when the defendant receives a substantial benefit in return
for the plea.” Anglemyer, 875 N.E.2d at 221 (citing Sensback v. State, 720 N.E.2d
1160, 1165 (Ind. 1999)). Here, in exchange for his guilty plea, the State moved
to dismiss eight of Ward-Bey’s charges, including five Class B felony charges.
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Accordingly, Ward-Bey faced a potential sentence between two and eight years
rather than between six and twenty years. I.C. §§ 35-50-2-5, 35-50-2-6. Thus,
Ward-Bey’s decision to plead guilty could reasonably be considered pragmatic.
[15] Turning to Ward-Bey’s other cursorily argued-for mitigating factors, the trial
court did not abuse its discretion in failing to find mitigation due to Ward-Bey’s
stated acceptance of responsibility and participation in a medical research
study. With respect to Ward-Bey’s proffered acceptance of responsibility, the
trial court observed in its written order that Ward-Bey was dishonest,
diminishing the significance of any acceptance of responsibility on the record.
As to Ward-Bey’s participation in a medical research study that could benefit
others, “[a] court does not err in failing to find mitigation when a mitigation
claim is ‘highly disputable in nature, weight, or significance.’” Henderson v.
State, 769 N.E.2d 172, 179 (Ind. 2002) (quoting Smith v. State, 670 N.E.2d 7, 8
(Ind. 1996)). Although the study could benefit other similarly-situated patients,
Ward-Bey acknowledged that he also could benefit from his participation.
[16] In sum, we find nothing in the record that leads us to conclude that the trial
court abused its sentencing discretion.
Appropriateness of Sentence
[17] Ward-Bey was sentenced to five years, which is within the statutory range set
forth in Indiana Code Section 35-50-2-6(a). Under Indiana Appellate Rule
7(B), this “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
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inappropriate in light of the nature of the offense and the character of the
offender.” In performing our review, we assess “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
1219, 1224 (Ind. 2008). The primary purpose of such review is to attempt to
leaven the outliers. Id. at 1225. A defendant “‘must persuade the appellate
court that his or her sentence has met th[e] inappropriateness standard of
review.” Anglemyer, 868 N.E.2d at 494 (quoting Childress v. State, 848 N.E.2d
1073, 1080 (Ind. 2006)).
[18] Under the stipulated facts, the nature of the offense is not particularly egregious,
although Ward-Bey did work in concert with Ervin to commit the crime. As to
the character of the offender, Ward-Bey has seven prior felony convictions as an
adult. Moreover, Ward-Bey was on parole at the time he committed the
present offense.
[19] Having reviewed the matter, we conclude that Ward-Bey’s sentence was not
inappropriate under Appellate Rule 7(B). Accordingly, we decline to disturb
the sentence imposed by the trial court.
Conclusion
[20] Ward-Bey has not shown that the trial court abused its sentencing discretion or
that his sentence is inappropriate.
[21] Affirmed.
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Riley, J., and Barnes, J., concur.
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