William Belew v. State of Indiana (mem. dec.) ( 2018 )


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  • MEMORANDUM DECISION
    Pursuant to Ind. Appellate Rule 65(D),
    FILED
    this Memorandum Decision shall not be
    regarded as precedent or cited before any                             Dec 26 2018, 8:49 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
    Cara Schaefer Wieneke                                   Curtis T. Hill, Jr.
    Wieneke Law Office, LLC                                 Attorney General of Indiana
    Brooklyn, Indiana
    Angela N. Sanchez
    Assistant Section Chief, Criminal
    Appeals
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    William Belew,                                          December 26, 2018
    Appellant-Defendant,                                    Court of Appeals Case No.
    18A-CR-1564
    v.                                              Appeal from the Vigo Superior
    Court
    State of Indiana,                                       The Honorable John T. Roach,
    Appellee-Plaintiff.                                     Judge
    Trial Court Cause No.
    84D01-1712-F4-4056
    Najam, Judge.
    Court of Appeals of Indiana | Memorandum Decision 18A-CR-1564 | December 26, 2018             Page 1 of 6
    Statement of the Case
    [1]   William Belew appeals his sentence following his conviction for stalking, as a
    Level 5 felony. Belew raises a single issue for our review, namely, whether his
    placement in the Department of Correction is inappropriate in light of the
    nature of the offense and his character. We affirm.
    Facts and Procedural History
    [2]   On December 2, 2017, Vigo County Sheriff’s Deputy and member of the Terre
    Haute Fire Department William Roberts responded to a report of an attempted
    arson at the residence of Vicki Bowen. Upon his arrival at Bowen’s residence,
    Deputy Roberts observed damage to the property from an “axe type blade” and
    also observed a burned napkin near paneling that had been ripped from a wall
    covering. Appellant’s App. Vol. 2 at 18-19. Deputy Roberts spoke with
    Bowen, and she informed him that she suspected that Belew had damaged the
    property and placed the napkin because she “had ended a relationship” with
    him and, since doing so, she “has been receiving threatening messages” from
    him. 
    Id. at 19.
    [3]   A few days later, Bowen followed up with Deputy Roberts and provided him
    with a voicemail and two audio recordings from Belew. In the voicemail,
    Belew admitted to damaging Bowen’s property and attempting to burn it down.
    In the two audio recordings, Belew threatened to kill Bowen and her family.
    [4]   The State charged Belew with attempted arson, as a Level 4 felony; burglary, as
    a Level 5 felony; stalking, as a Level 5 felony; and two counts of Class A
    Court of Appeals of Indiana | Memorandum Decision 18A-CR-1564 | December 26, 2018   Page 2 of 6
    misdemeanor intimidation. Thereafter, Belew agreed to plead guilty to
    stalking, as a Level 5 felony, and in exchange the State agreed to dismiss the
    remaining counts. Pursuant to his plea agreement, Belew would not “be
    sentenced to an executed term of imprisonment greater than five (5) years.” 
    Id. at 46.
    [5]   The trial court accepted Belew’s plea agreement and held a sentencing hearing.
    After that hearing, the court entered the following sentencing statement:
    The following statutory aggravating factor is established:
    defendant has a lengthy criminal history including eight (8)
    felonies and nine (9) misdemeanors. The evidence before the
    court does not establish any statutory mitigating factors.
    Defendant’s mother is on a fixed income . . . and needs help
    around the house. She is getting assistance from other family
    members. The court does not find that imprisonment will work
    an undue hardship. Defendant does not fully accept
    responsibility for his actions as he continues to place blame on
    one of the victims herein. There is no evidence to support a
    finding defendant would be successful on probation or as a direct
    placement. The proposed residence, and source of funds, for In
    Home detention would be his mother, and she does not believe
    defendant has committed any of the offenses for which he has
    been convicted. There is some evidence she maintains a
    relationship with defendant’s ex-girlfriend, one of the victims
    herein.
    The court finds an aggravated sentence of four (4) years is
    appropriate. The defendant is sentenced to the Indiana
    Department of Correction for four (4) years. Three (3) years of
    the sentence shall be executed and one (1) year is suspended to
    formal probation . . . .
    Court of Appeals of Indiana | Memorandum Decision 18A-CR-1564 | December 26, 2018   Page 3 of 6
    
    Id. at 72.
    This appeal ensued.
    Discussion and Decision
    [6]   On appeal, Belew asserts that his sentence is inappropriate. As we have
    explained:
    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).
    Robinson v. State, 
    61 N.E.3d 1226
    , 1228 (Ind. Ct. App. 2016). Belew pleaded
    guilty to one Level 5 felony. A Level 5 felony carries a fixed term between one
    and six years with an advisory term of three years. Ind. Code § 35-50-2-6(b)
    (2018).
    [7]   Belew “recognizes that a term of 4 years was not inappropriate.” Appellant’s
    Br. at 8. Instead, he asserts that his sentence is inappropriate in that his
    placement is in the Department of Correction rather than on home detention.
    “The place that a sentence is to be served is an appropriate focus for application
    of our review and revise authority.” Biddinger v. State, 
    868 N.E.2d 407
    , 414
    Court of Appeals of Indiana | Memorandum Decision 18A-CR-1564 | December 26, 2018   Page 4 of 6
    (Ind. 2007). “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.” King
    v. State, 
    894 N.E.2d 265
    , 267 (Ind. Ct. App. 2008). “This is because the
    question under Appellate Rule 7(B) is not whether another sentence is more
    appropriate” but “whether the sentence imposed is inappropriate.” 
    Id. at 268
    (emphasis in original).
    [8]   According to Belew, his placement in the Department of Correction is
    inappropriate because “he was found to be a suitable candidate for home
    detention.” Appellant’s Br. at 8. Belew asserts that “there is nothing
    particularly remarkable about” the nature of his stalking offense. 
    Id. He further
    asserts that, while he “has a prior criminal history,” most of his prior offenses
    “were lower-level offenses that occurred nearly a decade before the instant
    offense.” 
    Id. at 9.
    Belew also argues that the trial court’s rationale for his
    placement was based on undue emphasis given to the testimony of Belew’s
    mother.
    [9]   We cannot say that Belew’s placement in the Department of Correction is
    inappropriate. While he pleaded guilty to a single Level 5 offense of stalking,
    the nature of the offense demonstrates that Belew had broken into Bowen’s
    residence with an axe and attempted to burn it down. The nature of the offense
    also demonstrates that Belew had, on at least two other occasions, physically
    threatened Bowen and her family. And Belew’s character reveals an extensive
    criminal history, which includes eight prior felonies. Accordingly, we cannot
    say that his placement in the Department of Correction instead of a less-
    Court of Appeals of Indiana | Memorandum Decision 18A-CR-1564 | December 26, 2018   Page 5 of 6
    restrictive placement is inappropriate in light of the nature of the offense or
    Belew’s character. Thus, we affirm his sentence.
    [10]   Affirmed.
    Pyle, J., and Altice, J., concur.
    Court of Appeals of Indiana | Memorandum Decision 18A-CR-1564 | December 26, 2018   Page 6 of 6