Cody Silvers v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Apr 08 2015, 10:10 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 ATTORNEY FOR APPELLEE
Brooke N. Russell Gregory F. Zoeller
Indianapolis, Indiana Attorney General of Indiana
Chandra K. Hein
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Cody Silvers, April 8, 2015
Appellant-Defendant, Court of Appeals Case No.
47A01-1409-CR-374
v. Appeal from the Lawrence Superior
Court
State of Indiana, The Honorable Michael Robbins,
Judge
Appellee-Plaintiff.
Case No. 47D01-1308-FC-1029
Mathias, Judge.
[1] Cody Silvers (“Silvers”) pleaded guilty in Lawrence Superior Court to Class C
felony leaving the scene of an accident resulting in death. He was ordered to
serve eight years in the Department of Correction and pay restitution in the
amount of $792.25. Silvers appeals and argues that:
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I. The trial court abused its discretion in sentencing him;
II. His sentence is inappropriate in light of the nature of the offense and
the character of the offender; and
III. The trial court abused its discretion in ordering him to pay
restitution.
[2] We affirm.
Facts and Procedural History
[3] On August 16, 2013, Silvers, who had consumed alcohol earlier that day, was
driving on a county road near Bedford, Indiana when he struck a moped with
his pickup truck. The moped’s two passengers were thrown from the moped.
Silvers stopped his truck on an embankment near where the victims were,
exited the vehicle, and approached the victims. He told the victims he would
seek help for them, then left the scene and did not return or call for help. One of
the victims, sixteen-year-old K.Y., was pronounced dead at the scene. The
other passenger, N.B., was airlifted to Riley Hospital with serious injuries.
Evidence collected at the scene, including surveillance video and tire marks,
connected Silvers to the accident. Silvers eventually admitted that he was the
driver of the truck involved in the crash and that he left the scene.
[4] On August 22, 2013, the State charged Silvers with Class C felony failure to
stop after an accident resulting in death and Class D felony failure to stop after
an accident causing serious bodily injury. Silvers pleaded guilty to Class C
felony failure to stop after an accident resulting in death and agreed to pay
restitution in an amount to be determined at sentencing.
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[5] At Silvers’s sentencing hearing, after hearing argument by both parties, the trial
court found no mitigating factors and found the following aggravating factors:
that twenty-one-year-old Silvers had a criminal history including residential
entry and operating while intoxicated; that Silvers had been drinking prior to
crashing into the victims’ moped; that Silvers was on probation at the time of
his crime; and that he was charged with criminal mischief while incarcerated
awaiting sentencing. The trial court ordered Silvers to pay Brown restitution in
the amount of $792.25 for medical expenses not covered by insurance and
sentenced Silvers to eight years executed in the Department of Correction.
[6] Silvers now appeals.
I. Abuse of Discretion
[7] Silvers argues that the trial court abused its discretion by failing to consider as
mitigating factors Silvers’s guilty plea and his expression of remorse. Sentencing
decisions rest within the sound discretion of the trial court. Anglemyer v. State,
868 N.E.2d 482, 490 (Ind. 2007) (“Anglemyer I “). So long as the sentence is
within the statutory range, it is subject to review only for an abuse of discretion.
Id. An abuse of discretion occurs if the 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. at 491. A trial court
may abuse its sentencing discretion in a number of ways, including: (1) failing
to enter a sentencing statement at all; (2) entering a sentencing statement that
includes aggravating and mitigating factors that are unsupported by the record;
(3) entering a sentencing statement that omits reasons that are clearly supported
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by the record; or (4) entering a sentencing statement that includes reasons that
are improper as a matter of law. Id. at 490-91.
[8] In its opinion on rehearing in Anglemyer I, our supreme court noted that:
a defendant who pleads guilty deserves “some” mitigating weight be
given to the plea in return. But an allegation that the trial court failed
to identify or find a mitigating factor requires the defendant to
establish that the mitigating evidence is not only supported by the
record but also that the mitigating evidence is significant. And the
significance of a guilty plea as a mitigating factor varies from case to
case. For example, 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 v. State, 875 N.E.2d 218, 221 (Ind. 2007) (“Anglemyer II “) (citations
omitted).
[9] In this case, the evidence against Silvers was overwhelming. His truck was
recorded by surveillance video cameras and matched the tire tracks at the scene
of the crash, eyewitnesses placed him at the crash scene, and he admitted to the
crime. Furthermore, despite his plea of guilty, Silvers continued to minimize his
responsibility for the crash at his sentencing hearing. See Tr. p. 30. Because
Silvers’s decision to plead guilty was more likely the result of pragmatism than
acceptance of responsibility and because of Silvers’s minimization of his guilt,
we conclude the trial court did not abuse its discretion by omitting reference to
his guilty plea when imposing his sentence.
[10] As for Silvers’s expression of remorse, we note that, while an expression of
remorse may be considered as a mitigating circumstance, the trial court is under
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no obligation to accept a defendant’s alleged remorse as a mitigator. Phelps v.
State, 969 N.E.2d 1009, 1020 (Ind. Ct. App. 2012), trans. denied. The trial court
possesses the ability to directly observe a defendant and can best determine
whether a defendant’s remorse is genuine. Id. Therefore, substantial deference
must be given to the trial court’s evaluation of a defendant’s remorse. Id. Absent
evidence of some impermissible consideration by the trial court, we will accept
its determination as to remorse. Stout v. State, 834 N.E.2d 707, 711 (Ind. Ct.
App. 2005).
[11] Here, Silvers asks that we accept his declaration of remorse, which was clearly
rejected by the trial court. Further, Silvers presents no evidence of any
impermissible aggravator considered by the trial court. We also note that, at
Silvers’s sentencing hearing, he attempted to minimize his blame for the
accident, arguing that the State never proved that he was the person who
caused the crash, just that he left the scene. Tr. p. 30. Under these facts and
circumstances, the trial court was well within its discretion to discredit Silvers’s
self-serving claim of remorse.
II. Inappropriate Sentence
[12] Silvers next argues that his seven-year sentence is inappropriate in light of the
nature of the offense and the character of the offender. Pursuant to Indiana
Appellate Rule 7(B), we may revise a sentence otherwise 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.” In our review of sentences under this rule, “we must and
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should exercise deference to a trial court’s sentencing decision, both because
Rule 7(B) requires us to give ‘due consideration’ to that decision and because
we understand and recognize the unique perspective a trial court brings to its
sentencing decisions.” Trainor v. State, 950 N.E.2d 352, 355 (Ind. Ct. App.
2011), trans. denied.
[13] Although we have the power to review and revise sentences, the principal
purpose of our review should be to attempt to level the outliers and identify
some guiding principles for trial courts and those charged with improvement of
the sentencing statutes, not to achieve what we perceive to be a “correct” result
in each case. Fernbach v. State, 954 N.E.2d 1080, 1089 (Ind. Ct. App. 2011),
trans. denied. Our review under Appellate Rule 7(B) should focus on “the
forest—the aggregate sentence—rather than the trees—consecutive or
concurrent, number of counts, or length of the sentence on any individual
count.” Id. The appropriate question is not whether another sentence is more
appropriate; rather, the question is whether the sentence imposed is
inappropriate. Former v. State, 876 N.E.2d 340, 344 (Ind. Ct. App. 2007). It is
the defendant’s burden on appeal to persuade us that the sentence imposed by
the trial court is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind.
2006).
[14] Silvers argues that his sentence is inappropriate because he showed remorse
during sentencing; because in pleading guilty, he saved the State and the
victims’ families the trouble of having to go to trial; because he experienced
trauma after witnessing this crash as well as a previous crash involving his
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cousin; and because he has endured hardship during his incarceration. We note,
however, that Silvers was on probation for a 2011 residential entry conviction at
the time of the present offense. In 2012, Silvers pleaded guilty to operating a
vehicle with a Schedule I or II controlled substance in a person’s body. Also,
while Silvers was incarcerated awaiting sentencing, he was charged with
criminal mischief. Furthermore, despite his declarations of remorse, he
attempted to minimize his role in the crash at his sentencing hearing.
[15] With regard to the nature of Silvers’s offense, we note that Silvers struck a
moped carrying two young passengers, stopped his vehicle and approached the
gravely injured victims, promised to find help, then never returned.
Furthermore, he later tried to cover up his crime by removing the distinctive
hood from his truck and changing the truck’s damaged front tire.
[16] Under these facts and circumstances, we cannot say that Silvers’s eight-year
sentence is inappropriate in light of the nature of the offense and the character
of the offender.
III. Restitution
[17] Finally, Silvers argues that the trial court abused its discretion in ordering
restitution. Specifically, he argues that there was insufficient evidence to
support the amount of restitution ordered by the trial court.
[18] We reverse a trial court’s order to pay restitution only for an abuse of
discretion. Gil v. State, 988 N.E.2d 1231, 1234 (Ind. Ct. App. 2013). A trial
court abuses its discretion if its “decision is clearly against the logic and effects
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of the facts and circumstances before it” or if it “misinterprets or misapplies the
law.” Id.[19] Indiana Code section 35-50-5-3(a) provides, in relevant part, that “in addition to
any sentence imposed under this article for a felony or misdemeanor, the court
may . . . order the person to make restitution to the victim of the crime[.]”
When such an order is entered, it must be based upon a consideration of:
(1) property damages of the victim incurred as a result of the crime,
based on the actual cost of repair (or replacement if repair is
inappropriate);
(2) medical and hospital costs incurred by the victim (before the date of
sentencing) as a result of the crime;
(3) the cost of medical laboratory tests to determine if the crime has
caused the victim to contract a disease or other medical condition;
(4) earnings lost by the victim (before the date of sentencing) as a result
of the crime including earnings lost while the victim was hospitalized
or participating in the investigation or trial of the crime; and
(5) funeral, burial, or cremation costs incurred by the family or estate
of a homicide victim as a result of the crime.
Id.[20] An order of restitution is as much a part of a criminal sentence as a fine or other
penalty. Kotsopoulos v. State, 654 N.E.2d 44, 46 (Ind. Ct. App. 1995). It is well
established that the restitution order must reflect the actual loss sustained by the
victim. Smith v. State, 471 N.E.2d 1245, 1248 (Ind. Ct. App. 1984), trans. denied.
The amount of actual loss is a factual matter, which can be determined only
upon presentation of evidence. Id.Court of Appeals of Indiana | Memorandum Decision No. 47A01-1409-CR-374 | April 8, 2015 Page 8 of 10
[21] A restitution order must reflect a loss sustained by the victim as a direct and
immediate result of the defendant’s criminal acts, and the trial court may
consider only expenses incurred by the victim prior to the date of sentencing.
Rich v. State, 890 N.E.2d 44 (Ind. Ct. App. 2008), trans. denied.
[22] “Generally, failure to object to an award of restitution constitutes waiver of a
challenge to the award on appeal, unless a defendant argues that the award was
fundamentally erroneous and in excess of statutory authority.” Morris v. State, 2
N.E.3d 7, 9 (Ind. Ct. App. 2013). “[A] defendant’s failure to make a specific
and timely objection to the trial court’s receipt of evidence concerning the
amount of restitution constitutes waiver of the issue on appeal.” Id.[23] Here, as part of his plea agreement, Silvers agreed to “pay restitution to the
victims in an amount to be determined at the Sentencing hearing.” Appellant’s
App. p. 10. When the State entered into evidence invoices denoting the balance
of Brown’s medical expenses, Silvers did not object, nor did he object to the
trial court’s restitution order. Therefore, Silvers waived his claim of error.
[24] Waiver notwithstanding, the trial court did not abuse its discretion in its award
of restitution. The State submitted itemized medical bills detailing the unpaid
balance of Brown’s medical expenses, which totaled $792.25. These bills
provided a reasonable basis for determining Brown’s loss and did not subject
the trial court to speculation or conjecture with regards to the loss. See Guzman
v. State, 985 N.E.2d 1125 (Ind. Ct. App. 2013) (letter from surviving crime
victim’s attorney, setting out victim’s claim for restitution for medical expenses
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incurred as a result of automobile accident which formed basis of defendant’s
conviction for felony reckless homicide, was sufficient to support trial court’s
restitution order; letter broke down total claim by amount and to whom amount
was due, and established exact amount of loss incurred by victim).
Conclusion
[25] For all of these reasons, we conclude that the trial court did not abuse its
discretion in sentencing Silvers and that Silvers’s sentence is not inappropriate
in light of the nature of the offense and the character of the offender. We also
conclude that the trial court did not abuse its discretion in ordering Silvers to
pay $792.25 in restitution to the victim.
[26] Affirmed.
May, J., and Robb, J., concur.
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