Walter Ward, III v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Oct 14 2016, 10:42 am
this Memorandum Decision shall not be
CLERK
regarded as precedent or cited before any Indiana Supreme Court
Court of Appeals
court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Gregory L. Fumarolo Gregory F. Zoeller
Fort Wayne, Indiana Attorney General of Indiana
Paula J. Beller
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Walter Ward, III, October 14, 2016
Appellant-Defendant, Court of Appeals Case No.
02A05-1604-CR-755
v. Appeal from the Allen Superior
Court
State of Indiana, The Honorable Frances C. Gull,
Appellee-Plaintiff. Judge
Trial Court Cause No.
02D05-1506-F5-172
Najam, Judge.
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Statement of the Case
[1] Walter Ward, III, appeals his sentence following his convictions for possession
of cocaine, as a Level 5 felony; resisting law enforcement, as a Level 6 felony;
being a habitual traffic violator, a Level 6 felony; and possession of
paraphernalia, as a Class A misdemeanor; pursuant to a guilty plea. Ward
presents a single issue for our review, namely, whether his sentence is
inappropriate in light of the nature of the offenses and his character. We affirm.
Facts and Procedural History
[2] On June 4, 2015, Detective M. Deshaies of the Fort Wayne Police Department
attempted to initiate a traffic stop of Ward’s Dodge Durango. Instead of
stopping his vehicle, Ward attempted to evade Detective Deshaies by traveling
at a high rate of speed. During the ensuing chase, Detective Deshaies saw
Ward throw a baggie out of the vehicle. At some point, Ward, with some
difficulty, exited the moving vehicle and attempted to flee Detective Deshaies
on foot. Detective Deshaies ultimately stopped Ward by using a taser gun.
[3] On July 6, Ward pleaded guilty as charged to possession of cocaine, as a Level
5 felony; resisting law enforcement, as a Level 6 felony; being a habitual traffic
violator, a Level 6 felony; and possession of paraphernalia, as a Class A
misdemeanor. Ward was accepted into drug court, and his successful
completion of that program would have resulted in the dismissal of his charges.
But after approximately seven months, Ward violated the conditions of the
program, and the State filed a petition to terminate Ward’s participation in drug
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court. Following a hearing, Ward was terminated from drug court, and the trial
court conducted a sentencing hearing on March 8, 2016. At the conclusion of
the sentencing hearing, the trial court sentenced Ward to an aggregate five-year
term. This appeal ensued.
Discussion and Decision
[4] Ward asserts that his sentence is inappropriate in light of the nature of the
offenses and his character. Indiana Appellate Rule 7(B) permits an Indiana
appellate court to “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.” We assess the trial court’s recognition or nonrecognition of
aggravators and mitigators as an initial guide to determining whether the
sentence imposed was inappropriate. Gibson v. State, 856 N.E.2d 142, 147 (Ind.
Ct. App. 2006). The principal role of appellate review is to “leaven the
outliers.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). A defendant
must persuade the appellate court that his or her sentence has met the
inappropriateness standard of review. Roush v. State, 875 N.E.2d 801, 812 (Ind.
Ct. App. 2007).
[5] Here, Ward pleaded guilty to possession of cocaine, as a Level 5 felony;
resisting law enforcement, as a Level 6 felony; being a habitual traffic violator, a
Level 6 felony; and possession of paraphernalia, as a Class A misdemeanor. A
Level 5 felony carries a sentencing range of one to six years’ imprisonment,
with an advisory term of three years. Ind. Code § 35-50-2-6(b) (2015). A Level
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6 felony carries a sentencing range of six months to two and one-half years’
imprisonment, with an advisory term of one year. I.C. § 35-50-2-7(b). And a
Class A misdemeanor carries a maximum one-year term. I.C. § 35-50-3-2. In
ordering Ward to serve an aggregate five-year term, the trial court relied on the
following aggravating circumstances: the nature and circumstances of the
offenses and Ward’s criminal history, which includes sixteen misdemeanor
convictions, eight prior felony convictions, and “failed efforts at rehabilitation.”
Sent. tr. at 13. The court also identified the following mitigating circumstances:
Ward’s guilty plea; his show of remorse; and his acceptance of responsibility for
his conduct.
[6] Ward has not met his burden on appeal to demonstrate that his sentence is
inappropriate. Regarding the nature of his offenses, Ward points out that he
“possessed only .3 grams of crack cocaine,” and he alleges that he was “up[-]
charged and convicted of a Level 5 felony based on a prior drug dealing
conviction from 1997.” Appellant’s Br. at 18. Ward asserts that, “[g]iven the
small quantity of crack cocaine involved and the age of the felony (which
increased the level of offense from a Level 6 to a Level 5),” the offenses warrant
a lesser sentence. Id. We cannot agree.
[7] As the State points out, Ward “showed no regard for public safety when he led
Detective Deshaies on a high speed chase through Fort Wayne.” Appellee’s Br.
at 7. And he further endangered the public when he exited the vehicle while it
was still moving. These circumstances go beyond a typical possession offense.
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We cannot say that Ward’s sentence is inappropriate in light of the nature of his
offenses.
[8] Neither is Ward’s sentence inappropriate in light of his character. On this
point, Ward emphasizes his acceptance into the drug court program and his
“somewhat successful” participation in that program before being terminated.
Appellant’s Br. at 17. But, as Ward acknowledges, his criminal history is
extensive, spanning decades and including eight prior felony convictions and
failed attempts at rehabilitation. We cannot say that Ward’s five-year sentence
is inappropriate in light of his character. We affirm Ward’s sentence.
[9] Affirmed.
Vaidik, C.J., and Baker, J., concur.
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