MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this Jul 31 2015, 10:29 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
Cara Schaefer Wieneke Gregory F. Zoeller
Special Asst. to the State Public Defender Attorney General of Indiana
Wieneke Law Office, LLC
Jonathan R. Sichtermann
Plainfield, Indiana
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jason L. Caldwell, July 31, 2015
Appellant-Defendant, Court of Appeals Case No.
28A01-1501-CR-24
v. Appeal from the Greene Superior
Court
State of Indiana, The Honorable Dena A. Martin,
Judge
Appellee-Plaintiff.
Trial Court Cause No.
28D01-1407-MR-2
Pyle, Judge.
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Statement of the Case
[1] Appellant/Defendant, Jason L. Caldwell (“Caldwell”), appeals his sentences
for his convictions of murder1 and Level 1 felony rape.2 He claims that the trial
court abused its discretion in sentencing him because it failed to consider his
remorse as a mitigating factor, and he also asks us to revise his sentence under
Indiana Appellate Rule 7(B). We affirm because we conclude that Caldwell’s
remorse was disputable and we find that Caldwell’s sentence was appropriate in
light of his character and the nature of his offense.
[2] We affirm.
Issues
1. Whether the trial court abused its discretion in sentencing
Caldwell because it failed to consider a mitigating factor.
2. Whether Caldwell’s sentence was inappropriate in light of the
nature of his offense and his character.
Facts
[3] On November 20, 2014, Caldwell pled guilty, pursuant to a plea agreement, to
murder, a felony, and one count of Level 1 felony rape. He also admitted to
being an habitual felony offender. In exchange, the State dismissed the other
charges against him, which included: Level 2 felony burglary, Level 1 felony
1
IND. CODE § 35-42-1-1(1).
2
I.C. § 35-42-4-1(a)(b).
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rape, Level 3 felony criminal confinement, Level 6 felony auto theft, Level 6
felony theft, and two counts of Level 3 felony robbery. The State agreed that
his enhancement for being an habitual offender should be capped at ten (10)
years, but otherwise left sentencing to the trial court’s discretion. During the
guilty plea hearing, Caldwell only discussed the evidence supporting the
elements of his offenses to the minimum extent necessary to establish a factual
basis for his plea.
[4] On December 17, 2014, the trial court held a sentencing hearing. At the
hearing, one of Caldwell’s victims, Fitri Lamm (“Fitri”), recounted her history
with Caldwell and her experiences the night of Caldwell’s offenses. She said
that she and her husband, David Lamm (“David”), had known Caldwell’s
brother, Kevin, prior to meeting Caldwell. They had then met Caldwell when
they had roof problems and Kevin brought Caldwell with him to help fix the
roof. After that point, the Lamms had become friends with Caldwell, and there
were times that David allowed Caldwell to stay in an empty trailer on their
property and gave him food in exchange for help with odd jobs.
[5] As for Caldwell’s offenses, Fitri recounted that on the night of July 18, 2014,
she had arrived home at around 11:00 or 11:30 p.m. When she entered the
residence, Caldwell had been waiting for her, holding one of David’s guns. He
had forced her to kneel down and take her clothes off, and then he had tied her
ankles and hands and raped her at least twice throughout the night. He had
also told Fitri that David was “gone.” (Sentencing Tr. 35).
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[6] According to Fitri, the next morning, Caldwell had taken her debit card,
money, car keys, and car. Fitri said that she also thought she had heard him
carrying other things out of the house, but she could not see from her vantage
point. Before he left the house, Caldwell, had reinforced her ties with duct tape
and rope around her ankles, hand, and mouth “really, really tight” so that it
“really hurt.” (Tr. 39).
[7] Fitri said that after Caldwell left, she had moved around the room and had
found scissors on the floor, which she used to cut the duct tape tying together
her hands and ankles. Then, she had hopped to the middle of her driveway, but
fell and could not get up, so she rolled herself down to the county road.
Eventually, she said, her neighbor had found her and called the police and Fitri
was taken to the hospital.
[8] Detective Brian Smith (“Detective Smith”) with the Indiana State Police
Criminal Investigation Division also testified at the sentencing hearing. He said
that during the course of the investigation of Fitri’s rape, an officer had
discovered David on the property, shot in the face and lying face down by an
abandoned car.
[9] According to Detective Smith, his investigation had revealed that Caldwell had
taken a billfold, guns, debit cards, and some prescription drugs from the Lamm
residence, as well as the Lamms’ car. The police had located Caldwell two
days later in Indianapolis, along with two females with whom he said Caldwell
had been doing drugs during the previous two days. Detective Smith also
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testified that the police had discovered that the females had traded the Lamms’
guns for drugs with a local Indianapolis drug dealer. The police had retrieved
the guns and connected them to David.
[10] Detective Smith further testified that when he picked up Caldwell, he had been
cooperative and had admitted to shooting David and to dragging him over by
the abandoned vehicle. Caldwell also admitted to waiting for Fitri, raping her,
and tying her up. Detective Smith also said that Caldwell had been on parole
for child molesting at the time of the offenses, and that he had removed the
GPS bracelet related to his parole.
[11] During sentencing, Caldwell submitted two documents that the trial court
added to his presentence investigation report (“PSI Report”). One document
was a letter of apology, and one document was a report prepared by a mental
health professional, which stated the professional’s findings that Caldwell had
grown up in an “extremely dysfunctional, violent family, where he was abused
sexually, physically, verbally and emotionally for most of his development[,]”
as well as the professional’s conclusion that Caldwell was “severely,
psychologically wounded.” (Tr. 67).
[12] In addition to these documents, Caldwell’s counsel requested that the trial court
consider multiple mitigating factors, including: (1) his cooperation with law
enforcement; (2) the fact that he was taking responsibility for his actions by
entering into a guilty plea; and (3) his childhood and mental health.
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[13] At the conclusion of the sentencing hearing, the trial court sentenced Caldwell
to sixty-three (63) years for his murder conviction, enhanced by ten (10) years
for his status as an habitual offender, and thirty-eight (38) years for his rape
conviction. The trial court also ordered the sentences served consecutively for a
total of 111 years executed. It found that there were aggravating factors,
including: (1) Caldwell’s extensive criminal history; (2) his involvement in the
justice system starting at age eight; (3) his numerous probation violations; (4)
the position of trust he had held with the Lamms; and (5) the nature and
circumstances of the offenses. The trial court also found that there were
mitigating factors, including that: (1) Caldwell had cooperated with law
enforcement; (2) Caldwell had entered a plea agreement and accepted
responsibility; and (3) Caldwell’s childhood had been “horrible.” (Tr. 72).
Caldwell now appeals.
Decision
[14] On appeal, Caldwell challenges his sentencing in two respects. First, he argues
that the trial court abused its discretion when sentencing him because it
overlooked a potential mitigating factor, his remorse. Second, he argues that
his sentence is inappropriate in light of the nature of his offense and his
character.
1. Mitigating Factor
[15] Sentencing decisions rest within the sound discretion of the trial court.
Anglemyer v. State, 868 N.E.2d 482, 493 (Ind. 2007), clarified on reh’g, 875 N.E.2d
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218 (Ind. 2007). Under Indiana’s advisory sentencing scheme, “once the trial
court has entered a sentencing statement, which may or may not include the
existence of aggravating and mitigating factors, it may then ‘impose any
sentence that is . . . authorized by statute; and . . . permissible under the
Constitution of the State of Indiana.’” Id. at 491 (quoting I.C. § 35-38-1-7.1(d)
(stating that a court may impose any sentence authorized by statute “regardless
of the presence or absence of aggravating or mitigating circumstances”)). As
long as the sentence is within the statutory range, it is subject to review only for
an abuse of discretion. Id. at 490. We will find an abuse of discretion where
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. A trial court may abuse its discretion in a variety of ways,
including: (1) failing to enter a sentencing statement at all; (2) entering a
sentencing statement that includes aggravating and mitigating factors that are
unsupported by the record; (3) entering a sentencing statement that omits
reasons that are clearly supported by the record; or (4) entering a sentencing
statement that includes reasons that are improper as a matter of law. Id. at 490-
91.
[16] Caldwell argues that the trial court abused its discretion in sentencing him
because it overlooked his remorse as a mitigating factor. He claims that the
apology letter he wrote to Fitri and submitted to the trial court at his sentencing
hearing was evidence of this remorse that the trial court failed to consider.
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[17] In order to show that a trial court failed to identify or find a mitigating factor,
the defendant must establish that the mitigating evidence is both significant and
clearly supported by the record. Id. at 493. While a failure to find mitigating
circumstances clearly supported by the record may imply that the sentencing
court improperly overlooked them, the court is obligated neither to credit
mitigating circumstances in the same manner as would the defendant, nor to
explain why it has chosen not to find mitigating circumstances. Roush v. State,
875 N.E.2d 801, 811 (Ind. Ct. App. 2007). Further, if the evidence supporting a
proposed mitigating factor is “‘highly disputable in nature, weight, or
significance[,]’” the trial court does not abuse its discretion by failing to find it.
Henderson v. State, 769 N.E.2d 172, 179 (Ind. 2002) (quoting Smith v. State, 670
N.E.2d 7, 8 (Ind. 1996)).
[18] Here, the evidence regarding Caldwell’s remorse was disputable. The PSI
Report included a finding by the probation officer who prepared the report that
“[t]hroughout the interview, the defendant showed little remorse for his
actions.” (PSI 15).3 Caldwell also admitted that he thought it was “okay to lie”
and that there was a “very high” risk that he would reoffend. (PSI 15). In light
of these factors, we conclude that Caldwell’s remorse was disputable, and the
3
Pursuant to Indiana Administrative Rule 9(G)(2)(b) and INDIANA CODE § 35-38-1-13, the PSI Report must
be excluded from public access. However, in this case, the information contained in the PSI Report is
“essential to the resolution” of Caldwell’s claim. Admin. Rule 9(G)(7)(a)(ii)(c). Accordingly, we have
included confidential information in this decision only to the extent necessary to resolve the appeal.
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trial court therefore did not abuse its discretion in omitting Caldwell’s remorse
as a mitigating factor.
2. Inappropriate Sentence
[19] Next, Caldwell asks us to revise his sentences under Appellate Rule 7(B). He
argues that his sentences were inappropriate because they were the maximum
sentences for murder and a Level 1 felony, and he argues that the maximum
sentences should be reserved for the worst offenders, which he claims he is not.
Specifically, Caldwell again notes that he accepted responsibility for his
offenses, showed remorse, and had an extremely troubled childhood.
[20] Pursuant to Appellate Rule 7(B), a reviewing court may revise a sentence if,
“after due consideration of the trial court’s decision,” it finds that the sentence
is inappropriate in light of the nature of the offense and the character of the
offender. Childress v. State, 848 N.E.2d 1073, 1079-80 (Ind. 2006) (quoting App.
R. 7(B)). Although this Court is not required to use “great restraint,” we
nevertheless give deference to a trial court’s sentencing decision, both because
the Appellate 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 decisions. Stewart v. State, 866 N.E.2d 858, 865-66 (Ind. Ct. App.
2007). The “principal role of appellate 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
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(Ind. 2008). In addition, the defendant bears the burden of persuading this
Court that his sentence is inappropriate. Childress, 848 N.E.2d at 1080.
[21] The sentencing range for murder is forty-five (45) to sixty-five (65) years, with
an advisory sentence of fifty-five (55) years, I.C. § 35-50-2-3, and the sentencing
range for Level 1 felony rape is twenty (20) to forty (40) years, with an advisory
sentence of thirty (30) years. I.C. § 35-50-2-4. Because Caldwell was sentenced
to sixty-three (63) years for his murder conviction and thirty-eight (38) years for
his rape conviction, he received close to the maximum sentence on each
conviction.
[22] However, contrary to Caldwell’s arguments, we conclude that he is one of the
worst offenders. The nature of his crimes were heinous. He killed David, a
man who had offered him opportunities for work, food, and a place to stay, and
was in a position of trust with him. Then, he waited for David’s wife, Fitri, to
come home, bound her hands and ankles, and raped her at least twice before
leaving her tied up naked so that she had to hop and roll to the street to get
help.
[23] As for Caldwell’s character, which is the primary basis for his argument, we
find that the trial court convincingly summarized the evidence. It said:
You have a beyond extensive criminal history. . . . Your criminal
record consists of very serious, violent offenses, including Child
Molesting, Burglary, Battery Resulting in Serious Bodily Injury
and Sexual Battery. Those are just some. The Court [is] also
considering that your involvement in the juvenile justice system
started at age eight, age eight [sic]. And you have received
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multiple opportunities to receive rehabilitation through the
juvenile justice system and then the criminal justice system. And
we [are] sitting here today, and I think we can all agree, with no
success[.] You have violated the terms of probation numerous
times. The Court puts somebody on probation to basically put
them under the supervision of the Court for you to prove that
you can follow the rules. You do [not] follow the rules. You
[have] also, you had just been released from the Department of
Correction on April the 21st of 2014, and then this occurred July
the 18th and 19th. You had just been released from the
Department of Correction. You were still on parole. And we
[had] learned that you removed the GPS monitoring devi[c]e.
Again, you do [not] follow the rules. . . . And looking at the
document that was filed here today, you did have a horrible,
horrible childhood. But just so we understand one another, that
does [not] give anybody the right to kill somebody and rape
somebody.
(Tr. 70-72). Based on these same factors, we conclude that Caldwell’s sentence
was not inappropriate in light of his character, and we will not revise it under
Appellate Rule 7(B).
Affirmed.
Vaidik, C.J., and Robb, J., concur.
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