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this Memorandum Decision shall not be FILED
regarded as precedent or cited before Jun 08 2012, 8:31 am
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ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
CHRIS P. FRAZIER GREGORY F. ZOELLER
Indianapolis, Indiana Attorney General of Indiana
JOSEPH Y. HO
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
WILLIAM A. WILEY, )
)
Appellant-Defendant, )
)
vs. ) No. 48A02-1111-CR-1072
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MADISON CIRCUIT COURT
The Honorable Rudolph R. Pyle, III, Judge
Cause Nos. 48C01-1105-FB-944, 48C01-1106-FD-999 & 48C01-1108-FC-1574
June 8, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
VAIDIK, Judge
Case Summary
After entering into a plea agreement covering three cause numbers, William A.
Wiley now appeals his aggregate sentence of fifteen years for one Class B felony and two
Class A misdemeanors. Wiley contends that the trial court abused its discretion when
sentencing him and that his sentence is inappropriate. We affirm.
Facts and Procedural History
This appeal involves three separate cases concerning Wiley. On May 23, 2011,
the State charged Wiley with Class B felony robbery resulting in bodily injury under
Cause No. 48C01-1105-FB-944. On June 1, 2011, the State charged Wiley with Class D
felony theft under Cause No. 48C01-1106-FD-999. On August 29, 2011, the State
charged Wiley with Class C felony battery resulting in serious bodily injury under Cause
No. 48-C01-1108-FC-1574.
In September 2011, Wiley pled guilty in all three cause numbers in an oral plea
agreement. Pursuant to that agreement, Wiley pled guilty to Class B felony robbery
resulting in bodily injury, and the State agreed not to file habitual-offender charges and to
reduce the felonies in the other cause numbers to Class A misdemeanors, specifically,
Class A misdemeanor criminal conversion and Class A misdemeanor battery.
A sentencing hearing was held in October 2011 for all three cause numbers.
Wiley’s Presentence Investigation Report reveals that as a juvenile Wiley had numerous
adjudications including: battery, burglary, theft (three times), criminal conversion, and
aiding, inducing, or causing burglary. As an adult, Wiley has pled guilty to six felonies:
two burglaries and four thefts. In addition, Wiley has served time on in-home detention,
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work release, and probation, has served time in the Indiana Department of Correction,
and was on probation at the time of the instant offenses. Wiley also enjoyed the benefit
of participating in the Madison County Drug Court program and the Madison County Re-
Entry Court program, though he did not successfully complete either program. Wiley
testified that he made a lot of mistakes for which he deserved punishment, and that he
needed treatment for his drug addiction. He admitted receiving treatment before but said,
“it wasn’t in such a structured environment to where I really put forth in it so much.” Tr.
p. 10. Wiley further explained, “I’m tired of this. I’m tired of it. And I know, I know
it’s, I know it’s my actions that put’s [sic] me in this positions [sic].” Id. at 12.
In sentencing Wiley, the trial court made numerous observations about him.
Specifically, the trial court observed that Wiley was twenty-two years old, was before the
court for sanctions in two unrelated probation-violation cases and three serious felonies,
and had a serious substance-abuse problem. The court noted that the most serious
criminal act had occurred with co-defendant, Joshua Wiley-Rumback. The trial court
stated, “I know you say today that you uh, want to take care of your son. Uhm, you’re
tired of this life. And to some degree I believe you but I also remember the testimony in
Joshua Wiley-Rumback’s case.” Id. at 15-16. Defense counsel objected, reminding the
trial court that Wiley was given immunity for his testimony in that case. The trial court
explained that the State could not use that testimony, but the court could when talking
about Wiley’s character. The trial court continued:
[Wiley] has made certain statements here today about him being sorry and
tired and as I remember what you said, you didn’t want [to] acknowledge
your wrong doing with Mr. Wiley-Rumback. You didn’t want come clean
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about that. And people who are seriously tired of their past mistakes don’t
try to cover up for other people.
Id. at 16-17. The court went on to note that the aggravators and mitigators were the same
for all three cause numbers. As for aggravators, the trial court identified Wiley’s prior
criminal history and that he was under court supervision at the time of each of the three
crimes. As for mitigators, the trial court noted Wiley’s plea of guilty and acceptance of
responsibility. Concluding that the aggravators outweighed the mitigators, the trial court
sentenced Wiley to fifteen years for robbery and one year each for criminal conversion
and battery, to be served concurrently. The trial court recommended that Wiley be placed
in a therapeutic community. The trial court also revoked Wiley’s probation in two
unrelated cause numbers and ordered those sentences to be served consecutively to his
sentences in this case.
Wiley now appeals.
Discussion and Decision
Wiley makes two arguments on appeal. First, he contends that the trial court
abused its discretion when sentencing him because it considered as an aggravating factor
his previous testimony in a proceeding against his co-defendant when he had been given
immunity. Second, he contends that his fifteen-year sentence is inappropriate in light of
his character.
I. Abuse of Discretion
Sentencing decisions rest within the sound discretion of the trial court and are
reviewed on appeal only for an abuse of discretion. Anglemyer v. State, 868 N.E.2d 482,
490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007). An abuse of discretion
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occurs if the decision is clearly against the logic and effect of the facts and circumstances
before the court, or the reasonable, probable, and actual deductions to be drawn
therefrom. Id. If the recitation includes a finding of aggravating or mitigating
circumstances, then the statement must identify all significant mitigating and aggravating
circumstances and explain why each circumstance has been determined to be mitigating
or aggravating. Id. A trial court may also abuse its discretion by entering 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, or
the sentencing statement omits reasons that are clearly supported by the record and
advanced for consideration, or the reasons given are improper as a matter of law. Id. at
490-91. Under those circumstances, remand for resentencing may be the appropriate
remedy if we cannot say with confidence that the trial court would have imposed the
same sentence had it properly considered reasons that have support in the record. Id. at
491.
Wiley argues that the trial court abused its discretion in using his immunized
testimony during his co-defendant’s trial to support the increased sentence in this case.
Indiana Code section 35-37-3-3 provides for the grant of use and derivative use immunity
for a witness in a trial. Brown v. State, 725 N.E.2d 823, 826 (Ind. 2000). Once
immunized, “any evidence that the witness gives, or evidence derived from that evidence,
may not be used in any criminal proceeding against that witness . . . .” Ind. Code § 35-
37-3-3. Even if the trial court improperly considered Wiley’s immunized testimony
when sentencing him in this case, we find any error to be harmless because the trial court
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based its sentencing decision on other factors not gleaned from his immunized testimony.
Specifically, the trial court noted Wiley’s young age, extensive criminal history, and that
he was under court supervision at the time he committed the crimes in this case. In light
of all the factors considered by the lower court, we are confident that the trial court would
have imposed the same sentence even if it had not considered Wiley’s immunized
testimony in his co-defendant’s trial.
Inappropriate Sentence
Wiley also contends that his aggregate sentence of fifteen years is inappropriate in
light of his character. Our rules authorize revision of a sentence “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.” Ind.
Appellate Rule 7(B). “[A] defendant must persuade the appellate court that his or her
sentence has met this inappropriate standard of review.” Childress v. State, 848 N.E.2d
1073, 1080 (Ind. 2006).
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.”
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
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crime, the damage done to others, and a myriad of other factors that come to light in a
given case. Id. at 1224.
Wiley pled guilty to a Class B felony and two Class A misdemeanors. “A person
who commits a Class B felony shall be imprisoned for a fixed term of between six (6)
and twenty (20) years, with the advisory sentence being ten (10) years.” Ind. Code § 35-
50-2-5. “A person who commits a Class A misdemeanor shall be imprisoned for a fixed
term of not more than (1) year.” Ind. Code § 35-50-3-2. The trial court sentenced Wiley
to fifteen years for the Class B felony and one year each for the Class A misdemeanors,
to be served concurrently.
On appeal, Wiley does not argue that the nature of the offenses renders his
sentence inappropriate; rather, he focuses on his character. Specifically, Wiley contends
that his immunized testimony in a different case cannot be used as negative evidence of
his character in this case. As for Wiley’s argument, his criminal record speaks for itself.
He has numerous juvenile adjudications and as an adult, has pled guilty to six felonies.
And in this case, Wiley was before the court for two probation-violation sanctions and
three serious felonies. In addition, he has a serious substance-abuse problem. Wiley
repeatedly asked the trial court for help with his drug-addiction issues, and the trial court
responded to his pleas by recommending that he be placed in a therapeutic community.
Accordingly, Wiley has failed to persuade us that his aggregate sentence of fifteen years
for Class B felony robbery, Class A misdemeanor criminal conversion, and Class A
misdemeanor battery is inappropriate.
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Affirmed.
CRONE, J., and BRADFORD, J., concur.
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