MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this
Feb 16 2016, 9:45 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
Donald C. Swanson, Jr. Gregory F. Zoeller
Deputy Public Defender Attorney General of Indiana
Fort Wayne, Indiana
Lyubov Gore
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Vincent P. Wells, Sr., February 16, 2016
Appellant-Defendant, Court of Appeals Case No.
02A03-1508-CR-1066
v. Appeal from the Allen Superior
Court.
The Honorable Frances C. Gull,
State of Indiana, Judge.
Appellee-Plaintiff. Cause No. 02D06-1501-F6-15
Friedlander, Senior Judge
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[1] Vincent P. Wells, Sr., appeals his sentence for Level 6 felony theft, contending
that his sentence is inappropriate in light of the nature of the offense and the
character of the offender. We affirm.
[2] Wells was released to parole on October 17, 2014 after having been convicted of
Class D felony theft in Cause Number 02D05-1310-FD-1087 and sentenced to
serve one and a half years in the Department of Correction. While on parole
under FD-1087, Wells entered a Wal-Mart in Allen County on December 30,
2014 and took a bottle of liquor and other items without paying for them.
Wells was charged with theft. Seven days before the start of his jury trial, he
pleaded guilty to Level 6 felony theft with a prior conviction.
[3] Wells’ sentencing hearing was held on July 23, 2015. The trial court identified
Wells’ “astonishing” criminal history and failed efforts at rehabilitation as
aggravating circumstances. Tr. p. 19. The trial court noted the mitigating
circumstances of Wells’ guilty plea and his remorse and acceptance of
responsibility. Wells now challenges the trial court’s imposition of a two and
one-half year executed sentence to be served consecutively to his sentence in
FD-1087, contending that the sentence is inappropriate.
[4] The sentencing range for a Level 6 felony is a period of imprisonment from
between six months and two and one-half years, with the advisory sentence
1
Ind. Code § 35-43-4-2 (West, Westlaw current with all 2015 Public Laws of the 2015 First Regular Session
of the 119th General Assembly).
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being one year. Ind. Code Ann. § 35-50-2-7(b) (West, Westlaw current with all
2015 Public Laws of the 2015 First Regular Session of the 119th General
Assembly). Indiana Appellate Rule 7(B) permits an Indiana appellate court to
“revise a sentence authorized by statute 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.” 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 (Ind. Ct. App. 2006). The principal role of
appellate review is to attempt to “leaven the outliers.” Cardwell v. State, 895
N.E.2d 1219, 1225 (Ind. 2008). A defendant must persuade the appellate court
that his or her sentence has met the inappropriateness standard of review.
Roush v. State, 875 N.E.2d 801 (Ind. Ct. App. 2007). The question is not
whether another sentence is more appropriate, but whether the sentence
imposed is inappropriate. King v. State, 894 N.E.2d 265 (Ind. Ct. App. 2008).
[5] “When considering the nature of the offense, the advisory sentence is the
starting point to determine the appropriateness of a sentence.” Johnson v. State,
986 N.E.2d 852, 856 (Ind. Ct. App. 2013). “One factor we consider when
determining the appropriateness of a deviation from the advisory sentence is
whether there is anything more or less egregious about the offense committed
by the defendant that makes it different from the ‘typical’ offense accounted for
by the legislature when it set the advisory sentence.” Holloway v. State, 950
N.E.2d 803, 806-07 (Ind. Ct. App. 2011).
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[6] When reviewing the sentence with respect to the character of the offender, we
engage in a broad consideration of a defendant’s qualities. Aslinger v. State, 2
N.E.3d 84 (Ind. Ct. App. 2014), clarified on other grounds on reh’g, 11 N.E.3d 571.
[7] The advisory sentence for a Level 6 felony theft is one year. With respect to the
nature of the offense, Wells committed this offense two months after being
released from the Department of Correction for a sentence imposed on a Class
D felony theft conviction. One of the items Wells took from Wal-Mart was
liquor, which is troubling given his history of substance abuse.
[8] With respect to the character of the offender, we note that the trial court found
Wells’ criminal history to be “astonishing.” Tr. p. 19. The significance of a
criminal history in assessing a defendant’s character and an appropriate
sentence varies based on the gravity, nature, proximity, and number of prior
offenses in relation to the current offense. Bryant v. State, 841 N.E.2d 1154 (Ind.
2006). As a juvenile, Wells was adjudicated a delinquent four times; once each
for Class B felony arson, Class C felony burglary, vandalism, and shoplifting.
As an adult, Wells has accumulated twenty-seven arrests, sixteen misdemeanor
convictions, and sixteen felony convictions. Wells has committed theft ten
times and has committed conversion four times. He was on parole for the same
offense when he committed this new offense.
[9] Wells has not carried his burden of persuading us that his sentence is
inappropriate in light of the nature of the offense and the character of the
offender.
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[10] Judgment affirmed.
Barnes, J., and Crone, J., concur.
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