Jun 14, 2011 ... Following a guilty plea, Appellant-Defendant Richard Williams was ... Upon
appeal, Williams challenges the trial court‟s imposition of ...
FILED
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.
Jun 14 2011, 8:51 am
CLERK
of the supreme court, court of appeals and tax court
ATTORNEY FOR APPELLANT:
ATTORNEYS FOR APPELLEE:
WARREN C. MATHIES Long & Mathies Law Firm Boonville, Indiana
GREGORY F. ZOELLER Attorney General of Indiana ANGELA N. SANCHEZ Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA RICHARD D. WILLIAMS, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff.
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No. 87A05-1101-CR-42
APPEAL FROM THE WARRICK SUPERIOR COURT The Honorable Keith A. Meier, Judge Cause No. 87D01-1004-FC-57
June 14, 2011
MEMORANDUM DECISION - NOT FOR PUBLICATION
BRADFORD, Judge
Following a guilty plea, Appellant-Defendant Richard Williams was convicted of Forgery,1 a Class C felony; Fraud,2 a Class D felony; and Receiving Stolen Property,3 a Class D felony, for which he was sentenced to an aggregate ten years in the Department of Correction. Upon appeal, Williams challenges the trial court‟s imposition of enhanced consecutive sentences and the appropriateness of his sentence. Concluding that the trial court acted within its discretion in sentencing Williams to ten years, and that this sentence is not inappropriate, we affirm. FACTS AND PROCEDURAL HISTORY4 On February 25, 2010, Williams, with the intent to defraud, did make, utter or possess a written instrument in such a manner that it purported to have been made by another person, at another time, with different provisions, and/or by authority of one who did not give authority. Also on February 25, 2010, Williams, with intent to defraud, did knowingly or intentionally obtain property using a credit/check card knowing that the card was unlawfully obtained and/or using, without consent, a card that was issued to another person and/or representing, without the consent of the card holder, that he was the authorized holder of the card. Again on February 25, 2010, Williams knowingly or intentionally received, retained or disposed of a PayPal Mastercard that had been the subject of theft from Tamara Boris. 1
Ind. Code § 35-43-5-2(b) (2009).
2
Ind. Code § 35-43-5-4 (2009).
3
Ind. Code § 35-43-4-2 (b) (2009).
4
Williams pled guilty to the facts alleged in the charging information and the probable cause affidavit. Neither the guilty plea hearing transcript nor the probable cause affidavit is part of the record on appeal. Accordingly, we rely upon the facts in the charging information.
2
The State charged Williams on April 13, 2010, with Class C felony forgery and Class D felonies fraud and receiving stolen property. On September 13, 2010, Williams pled guilty to all three counts. On October 4, 2010, the trial court sentenced Williams to seven years for his forgery conviction and thirty-one months for each of his fraud and receiving stolen property convictions. The trial court further ordered the sentences to be served consecutively, but capped the sentence at ten years pursuant to Indiana Code section 35-50-1-2(c) (2009).5 In imposing its sentence, the trial court considered, inter alia, Williams‟s criminal history, which consisted almost entirely of felonies; his history of probation revocations; the fact that he was on parole at the time of the instant offenses; and his affiliation with the Aryan Brotherhood. The trial court additionally considered Williams‟s guilty plea as a mitigating circumstance. This appeal follows. DISCUSSION AND DECISION I. Abuse of Discretion On appeal, Williams challenges the trial court‟s imposition of enhanced consecutive sentences. Under the current sentencing scheme, “the trial court must enter a statement including reasonably detailed reasons or circumstances for imposing a particular sentence.” Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007), modified on other grounds on reh’g, 875 N.E.2d 218 (Ind. 2007). We review the sentence for an
5
Indiana Code section 35-50-1-2(c), which permits a trial court to impose consecutive sentences, provides that, except for crimes of violence, the total of the consecutive terms of imprisonment to which the defendant is sentenced for felony convictions arising out of an episode of criminal conduct shall not exceed the advisory sentence for a felony which is one class of felony higher than the most serious of the felonies for which the defendant has been convicted.
3
abuse of discretion. Id. at 490. An abuse of discretion occurs if “the decision is clearly against the logic and effect of the facts and circumstances.” Id. A trial court abuses its discretion if it (1) fails “to enter a sentencing statement at all[,]” (2) enters “a sentencing statement that explains reasons for imposing a sentence— including a finding of aggravating and mitigating factors if any—but the record does not support the reasons,” (3) enters a sentencing statement that “omits reasons that are clearly supported by the record and advanced for consideration,” or (4) considers reasons that “are improper as a matter of law.” Id. at 490-91. Under the new statutory scheme, the relative weight or value assignable to reasons properly found is not subject to review for abuse of discretion. Id. We may review both oral and written statements in order to identify the findings of the trial court. See McElroy v. State, 865 N.E.2d 584, 589 (Ind. 2007). Furthermore, in order to impose consecutive sentences, the trial court must find at least one aggravator. Morgan v. State, 675 N.E.2d 1067, 1073 (Ind. 1996). In this case, the trial court found multiple aggravating factors supporting the enhancement of all three sentences and the consecutive order of the sentences. The Court noted Williams‟s extensive felony criminal history, consisting of Class B felony burglary and four counts of theft; his repeated probation violations and revocations; and the fact that he was on parole at the time of the instant offense. In addition, the trial court observed Williams‟s involvement in the Aryan Brotherhood, his illegal drug use in prison, and his tattoo business in prison. The trial court was well within its discretion to impose enhanced consecutive sentences. 4
Williams suggests that the trial court, which did not articulate its weighing of the above aggravating circumstances against the mitigating factor of his guilty plea, did not enter an adequate sentencing statement. “[T]he trial court no longer has any obligation to „weigh‟ aggravating and mitigating factors against each other[.]” Anglemyer, 868 N.E.2d 491. To the extent Williams‟s challenge is to the weight of his guilty plea, this is no larger a viable avenue for appeal. See id. We find no abuse of discretion in the trial court‟s imposition of enhanced consecutive sentences. II.
Appropriateness
Williams also challenges the appropriateness of his sentence.
Article VII,
Sections 4 and 6 of the Indiana Constitution “„authorize[] independent appellate review and revision of a sentence imposed by the trial court.‟” Id. (quoting Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006) (emphasis and internal quotations omitted)). Such appellate authority is implemented through Indiana Appellate Rule 7(B), which provides that the “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.” We exercise deference to a trial court‟s sentencing decision, both because Rule 7(B) requires that we give “due consideration” to that decision and because we recognize the unique perspective a trial court has when making sentencing decisions. Stewart v. State, 866 N.E.2d 858, 866 (Ind. Ct. App. 2007).
It is the defendant‟s burden to demonstrate that his sentence is
inappropriate. Childress, 848 N.E.2d at 1080.
5
In seeking a reduced sentence, Williams argues that the victim was someone with whom he had a relationship and that he merely used her credit card to incur just over $200 in charges from Wal-Mart and a Marathon gas station. As the State points out, we are unable to review the nature of Williams‟s offenses because Williams failed to provide the necessary documentation, namely the guilty plea transcript and/or probable cause affidavit used to establish the factual basis for his plea. Even assuming that Williams‟s offenses were not remarkably egregious, his serious criminal history and affiliation with the Aryan Brotherhood demonstrate his lack of moral character. We cannot conclude that his ten-year sentence is inappropriate. The judgment of the trial court is affirmed. BAKER, J., and MAY, J., concur.
6
