Steve Allen Sherron v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any Dec 21 2017, 9:03 am
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. Brian Woodward Curtis T. Hill, Jr.
Crown Point, Indiana Attorney General of Indiana
Caroline G. Templeton
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Steve Allen Sherron, December 21, 2017
Appellant-Defendant, Court of Appeals Case No.
45A04-1708-CR-1831
v. Appeal from the Lake Superior
Court
State of Indiana, The Honorable Natalie Bokota,
Appellee-Plaintiff. Judge, Pro Tem
Trial Court Cause No.
45G01-1609-F4-32
Pyle, Judge.
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Statement of the Case
[1] Steve Sherron (“Sherron”) appeals the sentence imposed after he pled guilty to
Level 5 felony stalking.1 He specifically argues that the trial court abused its
discretion in sentencing him and that his five and one-half-year sentence is
inappropriate in light of the nature of the offense and his character. Because we
conclude that the trial court did not abuse its discretion in sentencing Sherron
and that Sherron’s sentence is not inappropriate in light of the nature of the
offense and Sherron’s character, we affirm Sherron’s sentence.
[2] We affirm.
Issues
1. Whether the trial court abused its discretion in sentencing
Sherron.
2. Whether Sherron’s sentence is inappropriate.
Facts
[3] Sherron and J.D. (“J.D.”) were married in 1990. Their marriage was dissolved
the following year shortly after their daughter was born. In 2014, a non-
expiring protective order was issued that prohibited Sherron from
communicating with J.D. by any means that would be likely to cause her
1
IND. CODE 35-45-10-5.
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annoyance or alarm. The protective order also prohibited Sherron from
possessing weapons.
[4] In August 2016, Sherron placed a sex toy and dirty shirts on J.D.’s doorstep
and threw a pile of trash into her yard. Also that month, police officers found
Sherron in J.D.’s backyard with a knife. The State charged Sherron with four
counts of stalking as a Level 5 felony, four counts of invasion of privacy as a
Level 6 felony, and one count of stalking as a Level 4 felony. Pursuant to the
terms of a plea agreement, Sherron pled guilty to one count of stalking as a
Level 5 felony, and the State dismissed the other eight felony charges. There
was no agreement with respect to sentencing.
[5] J.D.’s cousin, D.H. (“D.H.”), testified at the sentencing hearing. D.H. testified
that Sherron had “set his daughter up” by giving her a car and then calling the
police department to report that the car had been stolen. (Tr. 14). D.H. further
testified that she was familiar with Sherron’s previous convictions for invasion
of privacy and harassment because she was “involved in a lot of them.” (Tr.
15). D.H. specifically explained that Sherron had previously “dropp[ed] off
packages with feces all smeared on it” at her place of employment. (Tr. 15).
According to D.H., Sherron had also hid in the bushes, telephoned D.H.
seventy-two (72) times in one night, and threatened to “open fire in the place
[she worked].” (Tr. 15).
[6] Sherron’s counsel did not object to D.H.’s testimony. Rather, when given the
opportunity to question D.H., defense counsel asked her if she had filed a
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petition for a restraining order against Sherron, if she had an active restraining
order against him, and if he had ever been charged with violating a restraining
order pertaining to her. D.H. responded affirmatively to all of defense counsel’s
questions. Responding to questions from defense counsel, D.H. further testified
that Sherron had lunged at her when she reminded him that he had been
ordered to stay away from her. She also testified that he had thrown coffee in
the face of a man that had attempted to help her.
[7] Testimony at the sentencing hearing further revealed that Sherron has one
felony and seven misdemeanor convictions. Sherron’s misdemeanor
convictions are for harassment, intimidation, and invasion of privacy. He also
has misdemeanor convictions for battery by bodily waste, failure to report his
mother’s dead body, and resisting law enforcement. Sherron’s felony
conviction is for battery against a child under fourteen years of age. Sherron
had been on probation five times. The State asked the trial court to sentence
Sherron to the maximum sentence.
[8] In its oral sentencing statement, the trial court assessed Sherron’s character as
being “predatory, disturbing, dangerous, as evidenced by his repeated acts of
the invasions of privacy, harassment and the instant crime of stalking.” (Tr.
32). The trial court pointed out that Sherron had “been given the benefit of
probation five times in the past, but he continues to break the law. And so we
consider that response to show that he has disdain for the law and hold other
people’s concerns in contempt, quite frankly.” (Tr. 32-33). The trial court
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found no mitigating factors and sentenced Sherron to five and one-half years for
his Level 5 felony conviction.
Decision
1. Abuse of Discretion
[9] Sherron first argues that the trial court abused its discretion in sentencing him.
Sentencing decisions rest within the sound discretion of the trial court.
Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007). 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 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
by the record; or (4) entering a sentencing statement that includes reasons that
are improper as a matter of law. Id. at 490-91.
[10] Here, Sherron contends that the trial court abused its discretion in failing to
consider his guilty plea as a mitigating factor. A finding of a mitigating factor is
not mandatory but is within the discretion of the trial court. Page v. State, 878
N.E.2d 404, 408 (Ind. Ct. App. 2007), trans. denied. In order to show that the
trial court abused its discretion in failing to find a mitigating factor, the
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defendant must establish that the mitigating evidence is both significant and
clearly supported by the record. Rogers v. State, 958 N.E.2d 4, 9 (Ind. Ct. App.
2011). A guilty plea is not necessarily a mitigating factor where the defendant
receives a substantial benefit from the plea. Barker v. State, 994 N.E.2d 306, 312
(Ind. Ct. App. 2013), trans. denied. Here, in exchange for Sherron’s guilty plea
to one Level 5 felony, the State dismissed eight additional felony charges.
Sherron received a substantial benefit from his plea, and the trial court did not
abuse its discretion in failing to consider his guilty plea as a mitigating factor.
[11] Sherron also contends that the trial court abused its discretion in considering
D.H.’s sentencing hearing testimony, which he alleges was hearsay. Sherron
has waived appellate review of this issue because he failed to object to D.H.’s
testimony at the sentencing hearing. See McClendon v. State, 671 N.E.2d 486,
489 (Ind. Ct. App. 1996) (explaining that a party cannot raise an issue for the
first time on appeal). Waiver notwithstanding, the strict rules of evidence do
not apply in a sentencing hearing, and hearsay testimony is therefore
admissible. Indiana Evidence Rule 101(d)(2); Dillon v. State, 492 N.E.2d 661,
664 (Ind. 1986). We find no abuse of the trial court’s discretion.
[12] 2. Inappropriate Sentence
[13] Sherron further argues that his sentence is inappropriate. Indiana Appellate
Rule 7(B) 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
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offender. The defendant bears the burden of persuading this Court that his
sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).
Whether we regard a sentence as inappropriate turns on 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).
[14] The Indiana Supreme Court has further explained that “[s]entencing is
principally a discretionary function in which the trial court’s judgment should
receive considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind.
2008). “Such deference should prevail unless overcome by compelling evidence
portraying in a positive light the nature of the offense (such as accompanied by
restraint, regard, and lack of brutality) and the defendant’s character (such as
substantial virtuous traits or persistent examples of good character).” Stephenson
v. State, 29 N.E.3d 111, 122 (Ind. 2015).
[15] When determining whether a sentence is inappropriate, the advisory sentence is
the starting point the Legislature has selected as an appropriate sentence for the
crime committed. Childress, 848 N.E.2d at 1081. Here, Sherron was convicted
of one level 5 felony. The sentencing range for a Level 5 felony is between one
and six years, with an advisory sentence of three years. See I.C. § 35-50-2-6.
The trial court sentenced Sherron to five and one-half years, which is less than
the maximum sentence and more than the advisory sentence.
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[16] With regard to the nature of the offense, Sherron stalked J.D., his ex-wife, while
there was a non-expiring protective order in place that prohibited Sherron from
communicating with J.D. by any means that would be likely to cause her
annoyance or alarm. With regard to the nature of Sherron’s character, he has
five misdemeanor convictions and one felony conviction. Several of the
misdemeanor convictions are similar to the stalking conviction in this case.
Sherron has also been on probation five times. His former contacts with the
law have not caused him to reform himself. See Jenkins v. State, 909 N.E.2d
1080, 1086 (Ind. Ct. App. 2009), trans. denied. Further, as the trial court pointed
out, Sherron’s repeated invasions of privacy, stalking, and harassment reveal a
predatory, dangerous, and disturbing character.
[17] Sherron has failed to meet his burden to persuade this Court that his five and
one-half-year sentence for his Level 5 Felony stalking conviction is
inappropriate.
[18] Affirmed.
Kirsch, J., and Bailey, J., concur.
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