David A. Bowe v. State of Indiana ( 2012 )

Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
FILED
Mar 06 2012, 8:41 am
regarded as precedent or cited before any
court except for the purpose of
CLERK
establishing the defense of res judicata, of the supreme court,
court of appeals and
tax court
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
LEANNA WEISSMANN GREGORY F. ZOELLER
Lawrenceburg, Indiana Attorney General of Indiana
AARON J. SPOLARICH
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
DAVID A. BOWE, )
)
Appellant-Defendant, )
)
vs. ) No. 40A01-1108-CR-375
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE JENNINGS CIRCUIT COURT
The Honorable Jon W. Webster, Judge
Cause No. 40C01-0804-FC-113
March 6, 2012
MEMORANDUM DECISION – NOT FOR PUBLICATION
BAKER, Judge
Appellant-defendant David A. Bowe appeals his eleven-year aggregate sentence
that was imposed following his convictions for Burglary,1 a class C felony and Theft,2 a
class D felony, arguing that his sentence is inappropriate in light of the nature of the
offenses and his character. Finding that Bowe has failed to demonstrate that his sentence
is inappropriate, we affirm the decision of the trial court.
FACTS
On January 13, 2008, Bowe broke into the Bon-a-Fide Screen Printing business in
North Vernon and stole computer equipment, credit cards, checks, and sweatshirts. On
January 18, 2008, a police officer observed Bowe and his son break into the old forge
building in North Vernon and remove electric motor parts, control boxes, and various
aluminum items from within the building. The police subsequently arrested Bowe. On
April 23, 2008, the State charged Bowe with two counts of burglary as class C felonies,
two counts of theft as class D felonies, and being a habitual offender.
On August 2, 2011, Bowe pleaded guilty to one count each of burglary and theft,
and the State dismissed the remaining counts as well as a count under a separate cause
number for what appears to be “unlawful possession of legend drug.” Appellant‟s App. p.
33, 54. That same day, the trial court conducted a sentencing hearing. The State
presented evidence via Bowe‟s presentence report that Bowe has ten felony and ten
1
Ind. Code § 35-43-2-12
I.C. § 35-43-4-2
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misdemeanor convictions. More particularly, Bowe‟s criminal history prior to the instant
offense consists of the following convictions:
Date Entered Conviction
November 12, 1986 Five counts: Burglary, class B felony
December 23, 1987 Two counts: Burglary, class C felony
February 18, 1993 One count: Criminal Conversion, class A
misdemeanor
April 8, 1993 One count: Criminal Trespass, class A
misdemeanor
July 21, 1997 One count: Burglary, class B felony
One count: Theft, class D felony
August 20, 1997 One count: Theft, class A misdemeanor
September 18, 2002 One count Public Intoxication, class B
misdemeanor
November 25, 2003 One count: Driving with Suspended License,
class A misdemeanor
November 18, 2004 One count: Driving with Suspended License,
class A misdemeanor
December 28, 2005 One count: Possession of Marijuana, class A
misdemeanor
December 7, 2006 One count: Resisting Law Enforcement, class A
misdemeanor
May 14, 2007 One count: Possession of Paraphernalia, class A
misdemeanor.
Appellant‟s App. p. 51-53. Additionally, after committing the instant offense, Bowe was
convicted of class C misdemeanor disorderly conduct and class C felony forgery. The
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State also submitted a victim impact statement from the owner of Bon-a-Fide Screen
Printing at the sentencing hearing. The owner stated that his business has been “taken
away from [him]” because seven years of his design work was lost as a result of damage
done to one of the stolen computers. Appellant‟s App. p. 62.
At the conclusion of the hearing, the trial court found Bowe‟s substantial criminal
history and the impact his theft had on the victim as aggravating factors. It found Bowe‟s
decision to plead guilty and his high school Graduation Equivalency Diploma as
mitigating factors, but it determined that the mitigating factors did not outweigh the
aggravating factors. The trial court sentenced Bowe to eight years in the Indiana
Department of Correction (DOC) with one year suspended to probation for the burglary
conviction and three years in the DOC, to run consecutively, with six months suspended
to probation for the theft convictions. All together, the trial court sentenced Bowe to nine
and one-half years executed in the DOC and one and a half-years probation. Bowe now
appeals.
DECISION AND DISCUSSION
Bowe argues that his sentence is inappropriate in light of the nature of his offenses
and his character.3 Article VII, Sections 4 and 6 of the Indiana Constitution “„authorize[ ]
independent appellate review and revision of a sentence imposed by the trial court.‟”
Anglemyer v. State, 868 N.E.2d, 482 491 (Ind. 2007) (quoting Childress v. State, 848
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Bowe also argues that “making him serve his entire sentence and not suspending time to probation was
an abuse of discretion.” Appellant‟s Br. p. 3. The trial court suspended one year of his sentence for
burglary and six months of his sentence for theft to probation. Appellant‟s App. p. 35. Thus, contrary to
Bowe‟s assertion, the trial court did not order that he execute his entire sentence.
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N.E.2d 1073, 1080 (Ind. 2006)). 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.
Bowe pleaded guilty to a class C felony and a class D felony. “A person who
commits a Class C felony shall be imprisoned for a fixed term of between two (2) and
eight (8) years, with the advisory sentence being four (4) years.” Ind. Code § 35-50-2-6.
“A person who commits a Class D felony shall be imprisoned for a fixed term of between
six (6) months and three (3) years, with the advisory sentence being one and one-half (1
½ ) years.” I.C. § 35-50-2-7.
As to the nature of Bowe‟s offenses, the trial court specifically found that the theft
had a “serious impact” on the owner of Bon-a-Fide Screen Printing. Appellant‟s App. p.
35. The trial court heard evidence that the theft caused the loss of seven years worth of
the business‟s design work, appellant‟s app. p. 62-63, and we conclude that the trial court
properly considered this as an aggravating factor when sentencing Bowe to more than the
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advisory sentence. See Hart v. State, 829 N.E. 2d 541, 544 (Ind. Ct. App. 2005) (holding
that an enhancement is appropriate due to impact on victim only if it is demonstrated that
the crime had a destructive impact not normally associated with the offense).
As to the character of the offender, the trial court specifically observed Bowe‟s
extensive criminal history as an aggravating factor. Tr. p. 44; Appellant‟s App. p. 35.
Our Supreme Court has determined that the significance of a defendant‟s criminal history
depends “on the gravity, nature and number of prior offenses as they relate to the current
offense.” Prickett v. State, 856 N.E.2d 1203, 1209 (Ind. 2006). Bowe has accumulated
ten felonies and ten misdemeanors over a twenty-five year period; of those convictions,
ten are related to the instant offenses in that eight were for burglary and two were for
theft. Appellant‟s App. p. 51-53. His criminal record reflects a continued inability to
conform to the law. Thus, we conclude that Bowe failed to show that the eleven-year
aggregate sentence was inappropriate under Indiana Appellate Rule 7(B).
The judgment of the trial court is affirmed.
DARDEN, J., and BAILEY, J., concur.
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