Timothy Fulbright 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 Nov 22 2017, 6:03 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
Jeffery A. Earl Curtis T. Hill, Jr.
Danville, Indiana Attorney General
Henry A. Flores
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Timothy Fulbright, November 22, 2017
Appellant-Defendant, Court of Appeals Case No.
32A01-1706-CR-1340
v. Appeal from the Hendricks
Superior Court
State of Indiana, The Honorable Karen M. Love,
Appellee-Plaintiff Judge
Trial Court Cause No.
32D03-1607-F4-28
Crone, Judge.
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Case Summary
[1] Timothy Fulbright appeals his six-year sentence imposed following his guilty
plea to level 4 felony burglary. He argues that his placement in the Department
of Correction (“DOC”) for the executed portion of his sentence is inappropriate
in light of the nature of the offense and his character. Finding that Fulbright
has not met his burden to show that his sentence is inappropriate, we affirm.
Facts and Procedural History
[2] In July 2016, a fire broke out in Tami Morris’s apartment when she was away
and caused substantial damage. When Morris returned to her apartment, she
discovered that some of her personal property was missing. Fulbright admitted
to police that he was in Morris’s apartment at the time of the fire, but he said
that he went in to try to put out the fire. Police obtained a search warrant for
Fulbright’s apartment and found Morris’s property in his apartment and on his
person. The State charged Fulbright with level 4 felony burglary, level 4 felony
arson, and level 6 felony theft.
[3] On May 2, 2017, a change of plea hearing was held. Pursuant to a plea
agreement, Fulbright pled guilty to level 4 felony burglary and agreed to a six-
year sentence with three years executed and three years suspended. Fulbright’s
placement during the executed portion of the sentence was left to the trial
court’s discretion. Fulbright also agreed to pay Morris restitution of $7210.14.
The State agreed to dismiss the other charges.
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[4] Also on May 2, the trial court ordered that Fulbright be transferred from the
Hendricks County Jail to the Work Release Center for the remainder of his
pretrial detention. While on work release, Fulbright obtained employment at
Integrity Rotational Molding and began training to be a machine operator. On
May 20, Fulbright received a pass to go to his father’s house. A friend drove
him there, but on the way back, the friend allegedly had a panic attack and
began swerving off the road. After the friend pulled over, Fulbright decided to
drive back to work release. On the way, a police officer stopped him for
speeding, gave him a speeding ticket, and charged him with driving with a
suspended license. On May 22, the work release director filed a petition and
notice of work release violation requesting that Fulbright be remanded to
Hendricks County Jail.
[5] On May 23, the trial court held Fulbright’s sentencing hearing. Pursuant to the
plea agreement, the trial court imposed a six-year sentence, with three years
executed and three years suspended. As for Fulbright’s placement during the
executed portion of the sentence, the trial court observed that the burglary was
“very substantial”; that within three weeks of being placed on work release he
was charged with driving while suspended; and that his criminal history was
“not insignificant” for his age and included juvenile admissions to battery,
disorderly conduct, criminal mischief, and child molesting, as well as adult
convictions for receiving stolen property and driving while suspended. Tr. at
56, 58. The trial court also noted that Fulbright had pending charges for two
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counts of battery. The trial court ordered that Fulbright serve the executed
portion of his sentence in the DOC. This appeal ensued.
Discussion and Decision
[6] Fulbright challenges his placement in the DOC. Indiana Appellate Rule 7(B)
states that his 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.” Fulbright asserts that placement in the DOC is inappropriate and
asks that we revise his placement to work release. We have explained that
[t]he location where a sentence is to be served is an appropriate
focus for application of our review and revise authority....
Nonetheless, we note that it will be quite difficult for a defendant
to prevail on a claim that the placement of his sentence is
inappropriate. This is because the question under Appellate Rule
7(B) is not whether another sentence is more appropriate; rather,
the question is whether the sentence imposed is inappropriate. A
defendant challenging the placement of a sentence must convince
us that the given placement is itself inappropriate.
Webb v. State, 941 N.E.2d 1082, 1090 (Ind. Ct. App. 2011) (quoting King v.
State, 894 N.E.2d 265, 267-68 (Ind. Ct. App. 2008)), trans. denied.
“[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
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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). As we assess
the nature of the offense and character of the offender, “we may look to any
factors appearing in the record.” Boling v. State, 982 N.E.2d 1055, 1060 (Ind.
Ct. App. 2013).
[7] Fulbright contends that he is an “excellent candidate” for work release and
“does not present a danger to society.” Appellant’s Br. at 8. We are
unpersuaded. As for the nature of the offense, Fulbright argues that his offense
was nonviolent because he committed it when no one was home. However,
Fulbright either set fire to Morris’s apartment or used the fire as an opportunity
to commit a burglary. Although he told the police that he went into her
apartment to put out the fire, police discovered Morris’s stolen items in his
apartment and on his person. As a result of Fulbright’s crime, Morris suffered
substantial losses of more than $7000. Fulbright contends that it was an
isolated incident motivated by his unemployment and need for money, but his
criminal history as discussed below shows otherwise.
[8] As for Fulbright’s character, he contends that his adult criminal history is
minor. However, Fulbright was only twenty-three years old at the time he
committed the instant offense and already had convictions for receiving stolen
property, for which he received alternative misdemeanor sentencing, and
driving while suspended. At the time of sentencing, he had pending charges for
class A misdemeanor battery resulting in bodily injury and class B
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misdemeanor battery. His juvenile criminal history includes two admissions to
battery, two admissions to disorderly conduct, one admission to criminal
mischief, and one admission to child molesting. Further, within three weeks of
being placed on work release, he allegedly broke the law again and was charged
with driving while suspended. Fulbright testified that the reason he was driving
was because his friend had a panic attack. However, it is the trial court’s
prerogative to weigh the credibility of witnesses, and the trial court did not find
his explanation credible. Fulbright’s criminal history shows a consistent pattern
of breaking the law while the seriousness of his offenses is accelerating.
[9] Fulbright places great emphasis on his need to earn an income to support his
two children and make restitution and provides some examples to illustrate his
strong work ethic. Although we commend his efforts and acknowledge that
work release would enable him to earn an income, his criminal history
demonstrates that previous attempts at leniency have failed. We conclude that
Fulbright has failed to carry his burden to show that his sentence is
inappropriate in light of the nature of the offense and his character.
[10] Affirmed.
Vaidik, C.J., and Mathias, J., concur.
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