Shelby N. Gray v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Oct 03 2019, 8:53 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Anthony C. Lawrence Curtis T. Hill, Jr.
Anderson, Indiana Attorney General
Emily D. Kopp
Certified Legal Intern
Evan Matthew Comer
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Shelby N. Gray, October 3, 2019
Appellant-Defendant, Court of Appeals Case No.
19A-CR-374
v. Appeal from the
Madison Circuit Court
State of Indiana, The Honorable
Appellee-Plaintiff Angela Warner Sims, Judge
Trial Court Cause No.
48C01-1806-F5-1479
Vaidik, Chief Judge.
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Case Summary
[1] Shelby Nicole Gray pled guilty to two counts of Level 5 felony assisting a
criminal for actions she took after her boyfriend committed murder, and the
trial court sentenced her to six years, with four years executed and two years
suspended to probation. Shelby now appeals her sentence on several grounds.
We affirm.
Facts and Procedural History
[2] In September 2016, Shelby and Nicholas Gray were dating (they later got
married). On September 8, Nicholas shot and killed Jeremy Silvey during a
drug deal in Anderson. See State v. Nicholas Gray, 48C01-1609-MR-1939. Five
days later, on September 13, Shelby and Nicholas drove in Shelby’s car to
Gary, Indiana, where Nicholas exchanged the murder weapon for a different
weapon. On September 15, officers from the Anderson Police Department and
the ATF went to Nicholas and Shelby’s home to execute a warrant. Shelby was
home, and Nicholas was found hiding in the attic (along with the newly
exchanged gun). The State charged Nicholas with murder, among other things.
[3] In June 2018—nearly two years after Silvey’s murder and while Nicholas was
awaiting trial—a warrant was issued for Shelby’s arrest based on her traveling
with Nicholas to get rid of the murder weapon and concealing his location.
Although Shelby had initially cooperated with police, by 2018 she was no
longer cooperating and had taken numerous efforts to evade police, including
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moving in with an acquaintance, changing her phone number, and withdrawing
from social media. Police, however, were able to locate Shelby and arrested her
on June 5. While being arrested, Shelby was “[v]ery hostile” to police and
“yell[ed] obscenities” at them. Tr. p. 13. The State charged Shelby with Count
I: Level 5 felony assisting a criminal (September 13), Count II: Level 5 felony
assisting a criminal (September 15), and Count III: Level 6 felony obstruction of
justice (September 13).1 Nicholas was convicted of murder (and other offenses)
on October 31 and later sentenced to 98 years.2
[4] Shelby’s trial was scheduled for November 14. The day before trial, Shelby
pled guilty to all three charges without the benefit of a plea agreement. At the
sentencing hearing, the trial court vacated the conviction on Count III due to
double-jeopardy concerns. See id. at 77. Shelby, who was still married to
Nicholas, testified that she had made “mistakes” but that “everyone makes
mistakes—nobody’s perfect” and that she “didn’t want that big of a mistake put
on [her].” Id. at 67, 69. Shelby said she was “remorseful” but then explained
that she “never expected that to happen—[she] never even wanted [to] be in
jail” and that she “got put in a place [she] didn’t want to be.” Id. at 66. When
asked what place that was, Shelby responded, “[being a] felon.” Id. at 67. In
addition, Shelby admitted that she did not cooperate with police. Finally,
1
Counts I and II were elevated from Level 6 felonies to Level 5 felonies because Nicholas committed
murder. See Ind. Code § 35-44.1-2-5(a)(2); Appellant’s App. Vol. II p. 13.
2
Nicholas’s appeal is currently pending before this Court. See 19A-CR-33.
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Shelby said that while in jail awaiting trial, she enrolled in several programs,
including Narcotics Anonymous, No More Excuses, and Celebrate Recovery.
[5] In pronouncing sentence, the court found that Shelby’s guilty plea was a
mitigator but that it was not entitled to much weight:
[Shelby] did plead guilty without the benefit of a plea agreement
which the Court does note as mitigation, although based on other
comments the Court intends to make yet as a part of the
sentencing the Court does not give that a lot of weight given that
the Court does not find that [she] accepts full responsibility for
her actions that le[]d to these charges.
Id. at 77-78. The trial court declined to find Shelby’s participation in the jail
programs as a mitigator, explaining:
You can tell m[e] you’ve been [in] No More Excuses, you can
tell m[e] you’ve been in Celebrate Recovery, and doing all these
positive things but until you get a handle on what got you there,
that stuff[’]s not going to carry you forward much further. What
I mean by that is, again, there might be reasons, the drugs, the
relationship, everything that you were involved in probably
spinning out of control, I understand that and I can see that
happening, that got you to the point that le[]d to these charges.
But at some point are you going to use that as an excuse or at
some point are you going to learn from that and do something
about it. And unfortunately your conduct speaks louder than any
words that you explain to this Court today and you being able to
come to terms with that. Meaning that after — [Nicholas] was
charged and jailed you’ve done very little to make [the] situation
better and/or right. As the State pointed out you continued to
avoid process, you didn’t want to be involved, you didn’t want to
come forward and tell what you knew. . . .
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*****
But . . . don’t stand before this Court and tell me that you are on
a path of rehabilitation to do the next right thing when you’ve yet
to show this Court that you are willing to take that step and do
the next right thing. Because you’re still married to Nicholas
Gray, you were not cooperative throughout the case[, and]
you’ve continued to show extreme dis[d]ain and obstinance for
the Court every time you’re before the Court. And quite frankly,
from the Court[’]s view of you in this case and the process, [you]
just continue to play games. And so until you really understand
that and [are] willing to accept your level of responsibility, your
case continues to be really sad.
Id. at 79-80.
[6] For each count, the court sentenced Shelby to the advisory term of three years,
with two years executed and one year suspended to probation. The court
ordered the sentences to be served consecutively given that the events
supporting Counts I and II “occur[ed] on two (2) separate occasions.” Id. at 78.
Thus, Shelby’s total sentence is four years in prison followed by two years of
probation.
[7] Shelby now appeals her sentence.
Discussion and Decision
[8] Shelby contends that the trial court abused its discretion in failing to recognize
several mitigators and in ordering her sentences to be served consecutively. She
also contends that her sentence is inappropriate.
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I. Abuse of Discretion
A. Mitigators
[9] Shelby argues that the trial court failed to recognize the following mitigators: (1)
she pled guilty; (2) she expressed remorse; and (3) she participated in “many”
programs while in jail awaiting trial. Appellant’s Br. p. 9. Sentencing decisions
rest within the sound discretion of the trial court and are reviewed on appeal for
an abuse of discretion. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind.
2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007). One way that a trial court
may abuse its discretion is by not recognizing mitigators that are clearly
supported by the record and advanced for consideration. Id. at 491. The
defendant bears the burden of demonstrating that “the trial court failed to find
or identify a mitigating factor by establishing that the mitigating evidence is
both significant and clearly supported by the record.” McElfresh v. State, 51
N.E.3d 103, 112 (Ind. 2016) (quotation omitted).
[10] As for Shelby’s claim that the trial court failed to consider that she “ple[]d guilty
without the benefit of an agreement with the State,” Appellant’s Br. p. 10, the
trial court did identify this as a mitigator but found that it was not entitled to
much weight. To the extent Shelby claims that the trial court abused its
discretion by failing to accord more weight to this mitigator, her claim is not
available for appellate review. See Anglemyer, 868 N.E.2d at 491 (holding that
relative weight or value assignable to mitigating circumstances found by trial
court is not subject to review).
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[11] Shelby next argues that the trial court failed to consider her expression of
remorse. A trial court’s determination of a defendant’s remorse is similar to a
determination of credibility. Stout v. State, 834 N.E.2d 707, 711 (Ind. Ct. App.
2005), trans. denied. As such, without evidence of some impermissible
consideration by the trial court, we accept its determination as to remorse. Id.
Here, although Shelby claimed to be “remorseful” for what happened, her
testimony did not support this claim. Rather, Shelby appeared to be sorry for
herself and the position that she was put in. Her concern about Silvey and his
family were secondary, at best. See Tr. p. 67 (defense counsel prompting Shelby
that someone had died). As the trial court reminded Shelby, “it’s not about just
you—your actions affect other people, and other lives.” Id. at 81. The trial
court did not abuse its discretion in not recognizing Shelby’s remorse as a
mitigator.
[12] Finally, Shelby argues that the trial court failed to consider that “she
participated in a number of programs” while in jail awaiting trial. Appellant’s
Br. p. 8. While Shelby testified at sentencing that she was participating in
Narcotics Anonymous, No More Excuses, and Celebrate Recovery, her PSI
indicates that she was participating in only one program, Celebrate Recovery.
See Appellant’s App. Vol. II p. 41. In any event, the trial court rejected Shelby’s
participation in these programs as a mitigator:
You can tell m[e] you’ve been [in] No More Excuses, you can
tell m[e] you’ve been in Celebrate Recovery, and doing all these
positive things . . . . [U]nfortunately your conduct speaks louder
than any words that you explain to this Court today and you
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being able to come to terms with that. Meaning that after —
[Nicholas] was charged and jailed you’ve done very little to make
[the] situation better and/or right. As the State pointed out you
continued to avoid process, you didn’t want to be involved, you
didn’t want to come forward and tell what you knew. . . .
Tr. pp. 79-80. Given the totality of her actions, Shelby has failed to prove that
her participation in these programs is a significant mitigator. There is no abuse
of discretion.
B. Consecutive Sentences
[13] Shelby next argues that the trial court erred in ordering her sentences for Counts
I and II to be served consecutively. It is within the trial court’s discretion to
impose consecutive sentences, but the trial court must find at least
one aggravating factor before imposing consecutive sentences. Owens v.
State, 916 N.E.2d 913, 917 (Ind. Ct. App. 2009). Here, the trial court ordered
the sentences to be served consecutively because the events supporting Counts I
and II “occur[ed] on two (2) separate occasions.” In other words, Shelby—with
intent to hinder the apprehension or punishment of Nicholas for the crime of
murder—engaged in two different actions on two different days to harbor,
conceal, or otherwise assist him. Shelby argues—without citation to
authority—that the “fact that the conduct occurred on two separate occasions is
not an appropriate aggravating factor.” Appellant’s Br. p. 10. However, this
Court has held that the serial nature of the offenses committed against a victim
is a valid aggravating circumstance. See Stout, 834 N.E.2d at 711. Accordingly,
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the trial court did not abuse its discretion in ordering the sentences to be served
consecutively.3
II. Inappropriate Sentence
[14] Finally, Shelby contends that her sentence is inappropriate and asks us to revise
it pursuant to Indiana Appellate Rule 7(B), which provides that an appellate
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 inappropriate in
light of the nature of the offense and the character of the offender.” “Whether a
sentence is inappropriate ultimately turns on the culpability of the defendant,
the severity of the crime, the damage done to others, and a myriad of other
factors that come to light in a given case.” Thompson v. State, 5 N.E.3d 383, 391
(Ind. Ct. App. 2014) (citing Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind.
2008)). Because we generally defer to the judgment of trial courts in sentencing
matters, defendants have the burden of persuading us that their sentences
are inappropriate. Schaaf v. State, 54 N.E.3d 1041, 1044-45 (Ind. Ct. App.
2016).
[15] The sentencing range for a Level 5 felony is one to six years, with an advisory
sentence of three years. Ind. Code § 35-50-2-6. Here, for each count, the trial
3
Citing Indiana Code section 35-50-1-2(d)(1), Shelby argues that her felony convictions arose out of an
episode of criminal conduct and that therefore her six-year consecutive sentence improperly exceeds four
years. Even assuming that Shelby’s conduct constituted an episode of criminal conduct, subsection (d)(1)
applies when “the most serious crime for which the defendant is sentenced is a Level 6 felony.” Shelby,
however, was convicted of two Level 5 felonies. The subsection that applies to Shelby, (d)(2), provides that
“[i]f the most serious crime for which the defendant is sentenced is a Level 5 felony, the total of the
consecutive terms of imprisonment may not exceed seven (7) years.”
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court sentenced Shelby to the advisory term of three years, with two years
executed and one year suspended to probation. The court ordered the
sentences to be served consecutively, for a total sentence of four years in prison
followed by two years of probation.
[16] Although there is nothing particularly egregious about the nature of the
offenses, Shelby’s character more than justifies her sentence. As the trial court
explained, Shelby did “very little to make [the] situation better and/or right.”
Among other things, Shelby avoided process by moving, changing her phone
number, and withdrawing from social media; was not “cooperative” and did
not accept “responsibility”; stayed married to Nicholas; and “show[ed] extreme
dis[d]ain and obstinance for the Court every time” she was before it. As the
prosecutor aptly noted at sentencing, “[Shelby has] had an attitude almost every
time we’ve had Court on her cases except for today.” Tr. p. 73. Given the
“games” played by Shelby, she has failed to persuade us that her sentence of
four years in prison followed by two years of probation is inappropriate.
[17] Affirmed.
Riley, J., and Bradford, J., concur.
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