MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this Jan 28 2015, 9:38 am
Memorandum Decision shall not 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
William A. Gray Gregory F. Zoeller
Jeffersonville, Indiana Attorney General of Indiana
Christina D. Pace
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Shelby Makowsky, January 28, 2015
Appellant-Defendant, Court of Appeals Cause No.
22A04-1406-CR-295
v. Appeal from the Floyd Circuit Court
The Honorable J. Terrence Cody,
Judge
State of Indiana, Cause No. 22C01-1402-FA-286
Appellee-Plaintiff
Crone, Judge.
Case Summary
[1] Shelby Makowsky appeals the twenty-year sentence imposed by the trial court
following her guilty plea to class B felony conspiracy to commit arson. She
claims that her sentence is inappropriate in light of the nature of her offense and
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her character. Finding that Makowsky has not met her burden to demonstrate
that her sentence is inappropriate, we affirm.
Facts and Procedural History
[2] On January 4, 2014, eighteen-year-old Makowsky and two of her friends were
driving around shooting flares from a flare gun at the houses of people they
were mad at or had a “beef” with. Tr. at 67. Makowsky and her friends were
angry with an individual named Jonathon Stewart because they had tried to sell
stolen electronics to Stewart and Stewart took the items but did not pay for
them. As the friends drove by Stewart’s house, one of them shot a flare at the
house. Stewart’s house caught fire. Stewart was not home at the time. Four
young children and their mother were at the house using Stewart’s laundry
machines. Three of the children, ages two, four, and six, died in the fire. The
other child, age five, suffered extensive burns to thirty-five percent of her body.
[3] The State charged Makowsky with class A felony conspiracy to commit arson.
On April 22, 2014, Makowsky pled guilty to class B felony conspiracy to
commit arson. The plea agreement left sentencing to the trial court’s discretion.
Following a hearing, the trial court imposed an executed sentence of twenty
years. This appeal ensued.
Discussion and Decision
[4] Makowsky invites this Court to reduce her twenty-year sentence pursuant to
Indiana Appellate Rule 7(B), which provides that we may revise a sentence
authorized by statute if, after due consideration of the trial court’s decision, we
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find that the sentence “is inappropriate in light of the nature of the offense and
the character of the offender.” The defendant bears the burden to persuade this
Court that his or her sentence is inappropriate. Childress v. State, 848 N.E.2d
1073, 1080 (Ind. 2006). “[W]hether we regard a sentence as appropriate 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 factors that
come to light in a given case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind.
2008). We recognize that the “principal role of appellate review should be to
attempt to leaven the outliers and to 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.” Id. at 1225. Indeed, “[t]he
question under Appellate Rule 7(B) is not whether another sentence is more
appropriate: rather, the question is whether the sentence imposed is
inappropriate.” King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008).
[5] The sentencing range for a class B felony is between six and twenty years with
the advisory sentence being ten years. Ind. Code § 35-50-2-5. The trial court
imposed the maximum twenty-year executed sentence for Makowsky’s offense,
and she believes that this sentence is inappropriate. We disagree.
[6] As for the nature of her offense, Makowsky admitted to conspiring with at least
two other individuals to shoot a flare gun at Stewart’s house in order to get
revenge against him because she was angry at him for stealing stolen electronics
from her and her friends. Her crime ultimately resulted in the death of three
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innocent young children and serious and life-altering injuries to a fourth child.1
The “damage done to others” as a result of this crime supports imposition of
the maximum twenty-year sentence. See Cardwell, 895 N.E.2d at 1224. The
nature of this offense does not warrant a sentence reduction.
[7] As for her character, Makowsky fares no better. When considering the
character of the offender, one relevant fact is the defendant’s criminal history.
Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct. App. 2007). Although
Makowsky committed the current offense shortly after she turned eighteen and
therefore this was her first felony as an adult, she has two prior misdemeanor
convictions as an adult and her juvenile criminal history is extensive, including
several crimes of physical violence. This history demonstrates Makowsky’s
clear and utter disdain for authority. Nevertheless, Makowsky urges us to
revise her sentence to provide for a partially suspended sentence rather than the
fully executed sentence imposed by the trial court. However, we consider
significant that Makowsky committed the current offense while on probation.
Her refusal to modify her behavior despite being given the opportunity with a
1
We note that, although she pled guilty to the lesser class B felony conspiracy to commit arson, Makowsky’s
actions would have clearly supported a conviction for class A felony conspiracy to commit arson. See Ind.
Code § 35-42-5-2 (effective until July 1, 2014) (conspiracy to commit a felony is a felony of the same class as
the underlying offense); Ind. Code § 35-43-1-1 (effective until July 1, 2014) (arson is a class A felony if it
results in either bodily injury or serious bodily injury to any person other than a defendant).
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prior grant of leniency neither reflects positively on her character nor convinces
us that her fully-executed sentence is too harsh. In sum, Makowsky has not
met her burden to demonstrate that her twenty-year sentence is inappropriate in
light of the nature of her offense or her character, and we decline her invitation
for sentence reduction.
[8] Affirmed.
Friedlander, J., and Kirsch, J., concur.
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