FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
LORINDA MEIER YOUNGCOURT GREGORY F. ZOELLER
Lawrence County Public Defender Attorney General of Indiana
Bedford, Indiana
KATHERINE MODESITT COOPER
Deputy Attorney General
Indianapolis, Indiana
FILED
Oct 31 2012, 9:31 am
IN THE
COURT OF APPEALS OF INDIANA CLERK
of the supreme court,
court of appeals and
tax court
LARRY MICHAEL CARAWAY, )
)
Appellant-Defendant, )
)
vs. ) No. 47A04-1205-CR-265
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE LAWRENCE CIRCUIT COURT
The Honorable Andrea K. McCord, Judge
Cause No. 47C01-0910-MR-620
October 31, 2012
OPINION – FOR PUBLICATION
NAJAM, Judge
STATEMENT OF THE CASE
Larry Michael Caraway appeals his sentence for murder, a felony, following an
open guilty plea. Caraway asks that we review and revise his sentence taking into
consideration his remorse, guilty plea, and history of alcoholism. He presents a single
issue for review: whether his sentence is inappropriate in light of the nature of the
offense and his character. We affirm.
FACTS AND PROCEDURAL HISTORY
The facts underlying Caraway’s conviction are set out in his first appeal of his
sentence:
On October 7, 2009, Caraway shot Denise Caraway, his wife of almost
twenty-six years, seven times resulting in her death in their home in
Lawrence County, Indiana. That day, Caraway had been drinking “very
heavily,” having consumed “15-18 beers” by about 4:00 pm, then drinking
“a few beers and some Ja[e]germeister at another bar, then drinking “a
couple of beers when [he] got home.” Appellant’s Appendix at 58.
Caraway also “ate 4 Valiums at 4:10 pm” on the day he killed Denise. Id.
On October 9, 2009, Caraway was charged with Count I, murder;
and Count II, altering the scene of death[,] as a class D felony. On April 6,
2010, Caraway and the State filed a plea agreement in which the State
agreed to dismiss Count II in exchange for his guilty plea. After a number
of continuances, on February 11, 2011, the trial court took Caraway’s guilty
plea, and in doing so instructed him that the sentencing range for murder is
forty-five to sixty-five years, with fifty-five years being the advisory
sentence and forty-five years being a non-suspendible minimum.
On March 8, 2011, the court held a sentencing hearing and identified
Caraway’s criminal history consisting mainly of alcohol-related incidents
as an aggravating circumstance because it considered his drinking on the
night of the incident to have “aggravated the whole evening” and that it
“was probably part of the main reason this occurred,” and therefore it
directly related to this crime. Transcript at 26. The court also identified
Caraway’s position of trust with his wife and the nature and circumstances
of the crime, in which Denise was shot “several times in the stomach, once
in the face, and once . . . in the arm,” at close range by a person “she loved
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behind the weapon,” which the court found “very disturbing,” as
aggravators. Id. at 28. The court found as a mitigator that Caraway
showed some remorse, found that the aggravators clearly outweighed the
mitigators, and sentenced him to sixty-five years in the Department of
Correction.
Caraway v. State, 959 N.E.2d 847, 849 (Ind. Ct. App. 2011), trans. denied (“Caraway I”).
Caraway appealed his sentence, arguing that it was inappropriate under Appellate Rule
7(B). On appeal we reversed and remanded, holding that the trial court had abused its
discretion when it had not acknowledged his guilty plea as a mitigator. Id. at 854.
On remand, the trial court resentenced Caraway, again ordering that he serve
sixty-five years in the Department of Correction. The trial court’s order provides in
relevant part:
The court adopts all of its prior aggravating and mitigating circumstances
from the previous sentencing hearing, along with the sentencing statement
it made orally on the record. The court further adds and acknowledges the
mitigating circumstance that the defendant did enter a plea of guilty in this
matter. The court[,] however, gives little weight to this mitigating factor
for the following reasons:
1.) The defendant did receive some benefit from this plea by having the
class D felony altering the scene of a death dismissed[. A]lthough not
highly substantial, it is a felony and to be taken [into] account when
considering the totality of this mitigating factor.
2.) The plea agreement was signed on April 6th, 2010[,] however the
actual plea of guilty was not entered into until February 11, 2011. The
record shows that the court had originally set this matter for change of plea
on May 17th, 2010. It was then continued by the defendant to June 22,
2010. This matter was then reset for trial as a number one setting on
November 9, 2010[,] which was continued by the defendant. Again reset
for trial as a number one setting on February 15, 2011[,] as a number one
setting [sic] and again continued by the defendant. The court then reset the
matter for jury trial on March 7th, 2011[,] as a number one setting with a
hearing set on all final motions on March 1[,] 2011. The judge was
informed, while out of town, that the defendant had decided to follow
through with the plea agreement he had entered into on April 6, 2010. The
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court arranged for Judge Sleva to act as pro tem and accept the plea on
February 11, 2011[,] in order to ensure the hearing took place. Any prior
observation that the plea agreement was filed six months after the crime
was committed, and that the defendant did not plead on the eve of trial,
although somewhat true, is not an accurate reflection of the record and the
lengthy process, number of continuances and number of other matters that
were moved in order to deal with this case that was set as a number one
trial on three different occasions.
3.) I also reference Wells v. State, 836 N.E.2d 475, 479 (Ind. Ct. App.
2005)[, trans. denied,] holding that a guilty plea does not rise to the level of
a significant mitigat[or] where the evidence against the defendant is such
that the decision to plead guilty is merely a pragmatic one. Here the
defendant admitted that he shot his unarmed wife multiple times in the face
and abdomen killing her. They were alone in the home. The wounds were
not self[-]inflicted.
Therefore, the court finds there is additional mitigation to the defendant’s
sentence in that he did enter a plea of guilty, but does not give it significant
weight. Further, the court’s original finding that the aggravators outweigh
the mitigators still remains and the court finds it[s] original sentence on the
charge of murder to 65 years in the Indiana Department of Correction is
still appropriate.
Appellant’s Brief at 10-11.1 Caraway now appeals.
DISCUSSION AND DECISION
Caraway argues that his sixty-five-year sentence is inappropriate and seeks a
revision to the advisory sentence of fifty-five years. Although a trial court may have
acted within its lawful discretion in determining a 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.” Roush v. State, 875 N.E.2d 801, 812 (Ind. Ct. App.
2007) (alteration original). This appellate authority is implemented through Indiana
Appellate Rule 7(B). Id. Revision of a sentence under Appellate Rule 7(B) requires the
1
Caraway correctly included a copy of the order appealed in his Appellant’s Brief pursuant to
Appellate Rule 46(A)(10). However, Caraway should have also included a copy of the appealed order or
judgment in the Appellant’s Appendix pursuant to Appellate Rule 50(2)(b).
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appellant to demonstrate that his sentence is inappropriate in light of the nature of his
offense and his character. See Ind. Appellate Rule 7(B); Rutherford v. State, 866 N.E.2d
867, 873 (Ind. Ct. App. 2007). We assess the trial court’s recognition or non-recognition
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).
However, “a defendant must persuade the appellate court that his or her sentence has met
th[e] inappropriateness standard of review.” Roush, 875 N.E.2d at 812 (alteration
original).
Moreover, “sentencing 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). Indiana’s flexible sentencing scheme allows trial courts to tailor
an appropriate sentence to the circumstances presented. See id. at 1224. The principal
role of appellate review is to attempt to “leaven the outliers.” Id. at 1225. Whether we
regard a sentence as inappropriate at the end of the day turns on “our sense of the
culpability of the defendant, the severity of the crime, the damage done to others, and
myriad other facts that come to light in a given case.” Id. at 1224.
We first consider whether Caraway’s sentence is inappropriate in light of the
nature of the offense. The State contends that Caraway waived any argument that the
nature of the offense warrants revision of his sentence because he made no specific
argument to that effect. However, Caraway acknowledges in his brief that he shot his
wife several times, causing her death and afterward tried to cover it up. We reject the
State’s waiver argument.
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That said, Caraway has not shown that his sentence is an outlier given the nature
of the offense. After drinking all day and ingesting Valium, Caraway was home alone
with his wife of twenty-six years when they began to argue about an unpaid utility bill.
During the argument, Caraway shot his wife several times in the abdomen, once in the
face, and once in the arm, continuing to shoot her even after she had collapsed from the
initial shots. His wife died as a result of her wounds. And after the shooting he put the
gun in his wife’s hand to make it look like the wounds were self-inflicted. Caraway’s
sixty-five-year sentence is not inappropriate in light of the nature of the offense.
Caraway also contends that his sentence is inappropriate in light of his character.
In particular, he contends that his remorse, his guilty plea, and his addiction to alcohol
require review and revision of his sentence. We cannot agree. At sentencing the trial
court acknowledged Caraway’s remorse and his longstanding problem with alcohol. The
court assigned aggravating weight to the drinking, noting it was the basis for much of his
criminal history, including the murder of his wife. The trial court also observed that,
despite a history of thirty years of drinking and offenses dating back to 1980, there was
no evidence that Caraway had ever sought treatment.
On remand the trial court acknowledged Caraway’s guilty plea. But the court
found the weight of the guilty plea to be diminished by three factors. First, while
Caraway had signed the plea agreement in April 2010, his actual guilty plea was not
entered for another ten months, in February 2011. Caraway’s failure to enter his guilty
plea and his multiple requests for continuances required several first choice trial settings
and significantly delayed the actual entry of his plea. Also, the decision to plead guilty
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was likely a pragmatic one, given the weight of the evidence against Caraway. See Wells
v. State, 836 N.E.2d 475, 479 (Ind. Ct. App. 2005), trans. denied. And finally, Caraway
received a small benefit from his guilty plea when the State dismissed the charge of
altering the scene of a death, a Class D felony.
After acknowledging the guilty plea on remand and assigning it little weight, the
trial court again found that the aggravators, namely Caraway’s drunken state at the time
of the offense and that he was in a position of trust, outweighed the mitigators and
sentenced him to sixty-five years. We agree. Caraway has not shown that his sentence is
an outlier given the nature of the offense or his character. As such, we affirm his
sentence.
Affirmed.
KIRSCH, J., and MAY, J., concur.
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Larry Michael Caraway v. State of Indiana
Combined Opinion