Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not
Jun 27 2013, 7:24 am
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.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
MARIELENA DUERRING GREGORY F. ZOELLER
Duerring Law Offices Attorney General of Indiana
South Bend, Indiana
RYAN D. JOHANNINGSMEIER
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
LEONARD SHAW, )
)
Appellant-Defendant, )
)
vs. ) No. 71A03-1210-CR-433
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE ST. JOSEPH SUPERIOR COURT
The Honorable John M. Marnocha, Judge
Cause No. 71D02-1201-FC-24
June 27, 2013
MEMORANDUM DECISION – NOT FOR PUBLICATION
BARNES, Judge
Case Summary
Leonard Shaw appeals his sentence of three years for Class D felony
counterfeiting. We affirm.
Issue
The issue before us is whether Shaw’s three-year sentence is inappropriate.
Facts
On November 15, 2011, Marilyn Keldsen’s purse, which contained a checkbook
and other personal items, was stolen at a Wal-mart. She filed a police report and
subsequently closed her accounts. On January 26, 2012, Shaw attempted to cash one of
the stolen checks in the amount of $300 at Community Wide Federal Credit Union
(“Community Wide”) in St. Joseph County. The check was written to Shaw from an
account that belonged to Marilyn and Lloyd Keldsen. Andrea Fields, the teller who
assisted Shaw, noticed that the check was over the limit based on a code system used by
the bank. She also noticed that it was the fourth check from the same account that he was
attempting to cash in a short period of time. She notified her supervisor, and they
subsequently contacted the police.
Upon arrival, Officer Kevin Gibbons questioned Shaw regarding the checks; Shaw
told the officer that an individual named “Lee” had given him checks to cash in exchange
for $25.00, but he was unable to give an exact address for “Lee.” Tr. p. 136. During the
court proceedings, Shaw contacted Marilyn and “asked her not to testify.” Id. at 103. He
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further told her that Marilyn’s daughter gave him the check; however, Marilyn testified
that she does not have a daughter.
The State charged Shaw with a Class C felony forgery and after trial, he was
convicted of a lesser offense of Class D felony counterfeiting. The probation department
found him at a moderate risk category to reoffend and recommended that he “serve two
(2) years on community corrections . . . .” App. p. 45. However, the trial court sentenced
Shaw to serve three years executed, minus the days credited for serving time during the
proceedings. Tr. p. 241. Shaw now appeals his sentence.
Analysis
We assess whether Shaw’s sentence is inappropriate under Indiana Appellate Rule
7(B) in light of his character and the nature of the offense. See Anglemyer v. State, 868
N.E.2d 482, 491 (Ind. 2007), clarified on r’hg 875 N.E.2d 218 (Ind. 2007). Although
Rule 7(B) does not require us to be “extremely” deferential to a trial court’s sentencing
decision, we still must give due consideration to that decision. Rutherford v. State, 866
N.E.2d 867, 873 (Ind. Ct. App. 2007). We also understand and recognize the unique
perspective a trial court brings to its sentencing decisions. Id. “Additionally, a defendant
bears the burden of persuading the appellate court that his or her sentence is
inappropriate.” Id.
The principal role of Rule 7(B) review “should be to attempt to leaven the outliers,
and identify some guiding principles for trial courts and those charged with improvement
of the sentencing statutes, but not to achieve a perceived ‘correct’ result in each case.”
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Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). We “should focus on the forest—
the aggregate sentence—rather than the trees—consecutive or concurrent, number of
counts, or length of the sentence on any individual count.” Id. Whether a sentence is
inappropriate ultimately turns on the culpability of the defendant, the severity of the
crime, the damage done to others, and myriad other factors that come to light in a given
case. Id. at 1224. When reviewing the appropriateness of a sentence under Rule 7(B),
we may consider all aspects of the penal consequences imposed by the trial court in
sentencing the defendant, including whether a portion of the sentence was suspended.
Davidson v. State, 926 N.E.2d 1023, 1025 (Ind. 2010).
Shaw first challenges his sentence as being excessive because of the nature of the
offense. He argues that there was no loss when he attempted to cash the check at
Community Wide because Marilyn had closed the account. He also states that
Community Wide has a judgment against him in small claims court related to this
incident. We are not persuaded by this argument. Shaw’s intention was to defraud the
Keldsens and Community Wide by withdrawing funds from an account that did not
belong to him. After the proceedings began, Shaw contacted Marilyn to ask her not to
testify at trial and told her that the checks were from her daughter for work that he had
performed, to which Marilyn testified that she has no daughter. These actions show a
disregard of the law, and an apparent willingness to attempt to “game” the criminal
justice system.
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Shaw next argues that imposing the maximum sentence was excessive in light of
his character. He relies on the recommendation by the probation department, which
indicated that his behavior is at an overall moderate risk to reoffend. Based on his risk
assessment, the probation officer recommended that, instead of incarceration, Shaw serve
in a community corrections program for two years. However, Shaw has an extensive
criminal history. As we have explained:
The significance of a criminal history in assessing a
defendant’s character and an appropriate sentence varies
based on the gravity, nature, and number of prior offenses in
relation to the current offense. A defendant’s age also is
highly relevant in determining the weight to be given to a
defendant's criminal history or lack thereof.
Rutherford, 866 N.E.2d at 874 (emphasis added) (citations omitted).
Shaw has been convicted of three felonies, including the one on appeal, and forty-
four misdemeanors during his lifetime. He is now forty-seven years old and has been in
trouble with the law since he was a juvenile. He has consistently failed to change his
conduct. For example, a ten-year sentence of incarceration was modified to “shock
probation” for a burglary conviction in 1986. App. p. 25. During his probation, he
continued to have run-ins with the law. We note that “the judge [is] not bound by [the
presentence investigation report] recommendation.” Lemond v. State, 878 N.E.2d 384,
394 (Ind. Ct. App. 2007) (quoting Jenkins v. State, 492 N.E.2d 666, 669 (Ind.1986)).
The trial court found that “the best indicator of whether [he is] going to re-offend or not
is [his] past.” Tr. p. 240. As also noted by the trial court, “the only time [Shaw had not]
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committed a crime in the past thirty years [was] when [he] was in custody.” Id. at 241.
Nothing has deterred Shaw from a life of crime. Shaw’s criminal history reflects very
poorly on his character.
Conclusion
Even if we were to assume that the offense here was not egregious, we still find
Shaw’s sentence to be appropriate based on his extremely poor character. We affirm the
trial court’s decision.
Affirmed.
NAJAM, J., and BAILEY, J., concur.
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