MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Sep 29 2016, 9:05 am
regarded as precedent or cited before any
CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Donald R. Shuler Gregory F. Zoeller
Barkes, Kolbus, Rife & Shuler, LLP Attorney General of Indiana
Goshen, Indiana Tyler G. Banks
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Scott L. Wilkins, September 29, 2016
Appellant-Defendant, Court of Appeals Case No.
43A03-1604-CR-778
v. Appeal from the Kosciusko
Superior Court
State of Indiana, The Honorable Joe V. Sutton,
Appellee-Plaintiff. Judge
Trial Court Cause No.
43D03-1412-F4-824
Bailey, Judge.
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Case Summary
[1] Following a jury trial, Scott Wilkins (“Wilkins”) was convicted of (1) Causing
the Death of Another Person When Operating a Vehicle, as a Level 4 Felony1;
and (2) Failure to Comply with Acts Required of a Driver of a Vehicle Involved
in an Accident Resulting in Death, as a Level 5 Felony2. Wilkins now appeals
his sentence. We affirm.
Issues
[2] Wilkins raises two issues for our review:
I. Whether the trial court abused its discretion in sentencing;
and
II. Whether Wilkins’s sentence is inappropriate.
Facts and Procedural History
[3] Around midnight on December 26, 2014, Wilkins was driving in rural
Kosciusko County with passenger Kami Ellis (“Ellis”), who was a friend. The
speed limit was 55mph, but Wilkins was driving between 86mph and 95mph.
As Wilkins drove over a crest on the road, he lost control of the vehicle. The
1
Ind. Code § 9-30-5-5(b) (2014). The relevant code section was modified, effective July 1, 2016. For this
code section and others, we refer to the substantive provisions of the Indiana Code in effect at the time of and
applicable to Wilkins’s offenses.
2
I.C. §§ 9-26-1-1; 9-26-1-8(a)2.
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vehicle struck a tree and then a large stump. The force of the collision caused
the engine to break free, roll through a field, and land 223 feet from where the
vehicle came to rest.
[4] Nearby residents heard the crash. They saw flames. They also heard a man
screaming, and observed someone walking near the flames. When both
residents and responders arrived within minutes, flames had already fully
engulfed the vehicle. They saw Ellis’s remains in the passenger seat, but no one
could locate the driver. Ground and aerial searches ensued.
[5] Meanwhile, Wilkins had left the scene and walked approximately four or five
miles away to his apartment. Wilkins’s neighbor, Kyra Davis (“Davis”), saw
him covered in mud and crouching in the bushes across the street. She believed
Wilkins was waiting for police officers to leave before he entered his apartment.
Davis called Wilkins’s roommate Robert Emerick (“Emerick”) to tell him that
Wilkins had arrived. When Emerick came to the apartment, Davis was in the
hallway with Wilkins’s friend Vicki Simmons (“Simmons”). The car in the
collision belonged to Simmons, who had loaned the vehicle to Wilkins.
[6] When Emerick and Simmons entered the apartment, they found Wilkins
showering in the bathroom. Wilkins had blood on his head, an injured arm,
and a swollen ankle. Emerick and Simmons helped Wilkins get dressed, and
then Wilkins told Simmons that she needed to get him out of there. Wilkins
and Simmons then went downstairs into another of Simmons’s vehicles, where
Wilkins directed Simmons to take him to a hotel. Simmons followed Wilkins’s
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instructions. When they reached the parking lot of a Holiday Inn Express,
Wilkins directed Simmons to pay with cash and use a fake name. Simmons
complied, and then they entered the room she had rented.
[7] Shortly thereafter, police arrived and found Wilkins laying in the bed. They
detected the smell of alcohol on his breath. Wilkins was arrested and taken to a
local hospital where he refused to submit to a chemical test. After law
enforcement secured a search warrant, Wilkins’s blood was drawn
approximately seven hours after the collision. Forensic testing revealed the
presence of a metabolite of marijuana in Wilkins’s blood.
[8] On February 15, 2016, Wilkins was brought to trial on charges of (1) Causing
the Death of Another Person When Operating a Vehicle, as a Level 4 Felony3;
(2) Failure to Comply with Acts Required of a Driver of a Vehicle Involved in
an Accident Resulting in Death4, as a Level 5 felony; and (3) Reckless
Homicide, as a Level 5 Felony5.
[9] Following a jury trial, Wilkins was acquitted of Reckless Homicide but
convicted of the remaining charges. On March 16, 2016, the trial court
sentenced Wilkins to an aggregate sentence of fifteen years, sentencing Wilkins
to nine executed years for the Level 4 felony conviction and six executed years
3
I.C. § 9-30-5-5(b).
4
I.C. §§ 9-26-1-1; 9-26-1-8(a)2.
5
I.C. § 35-42-1-5.
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for the Level 5 conviction, with the sentences to be served consecutively.
Wilkins now appeals.
Discussion and Decision
Abuse of Discretion
[10] Wilkins argues that the trial court abused its discretion in sentencing him.
Specifically, Wilkins contends that the trial court failed to properly consider
certain mitigating factors and aggravating factors in determining his sentence.
[11] The sentencing range for a Level 4 felony conviction is between two and twelve
years, with six years being the advisory sentence. I.C. § 35-50-2-5.5. Wilkins
was sentenced to nine years for his Level 4 felony conviction. The sentencing
range for a Level 5 felony conviction is between one and six years, with three years
being the advisory sentence. I.C. § 35-50-2-6. Wilkins was sentenced to six years
for his Level 5 felony conviction. “So long as the sentence is within the statutory
range, it is subject to review only for abuse of discretion.” Anglemyer v. State, 868
N.E.2d 482, 490 (Ind. 2007), clarified on other grounds, 875 N.E.2d 218 (Ind.
2007).
[12] A trial court abuses its discretion if its sentencing 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. In
sentencing a defendant, the trial court must enter “a sentencing statement that
includes a reasonably detailed recitation of its reasons for imposing a particular
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sentence.” Anglemyer, 868 N.E.2d at 491. Where, as here, a defendant alleges
that the 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. However, the trial court is not obligated to
explain why it did not find a particular circumstance to be significantly
mitigating. Sherwood v. State, 749 N.E.2d 36, 38 (Ind. 2001). We will not
remand unless we “cannot say with confidence that the trial court would have
imposed the same sentence had it properly considered reasons that enjoy
support in the record.” Anglemyer, 868 N.E.2d at 491.
[13] In this case, the trial court, in its written sentencing order, rejected all of
Wilkins’s proffered mitigating factors. Wilkins contends that the trial court
failed to consider his acceptance of responsibility and improperly considered his
remorse6. We observe that an expression of remorse necessarily encompasses a
personal acceptance of responsibility. See Black’s Law Dictionary (10th ed.
2014) (defining remorse as “[a] strong feeling of sincere regret and sadness over
one’s having behaved badly or done harm; intense, anguished self-reproach and
compunction of conscience, esp. for a crime one has committed.”) Moreover, a
consideration of remorse is a credibility determination, which the trial court is
better positioned to make. We will not disturb a trial court’s credibility
6
Wilkins also states, but does not develop argument thereon, that the trial court abused its discretion in
rejecting hardship to his children as an additional mitigating circumstance. This issue is waived for review.
Pierce v. State, 29 N.E.3d 1258, 1267-68 (Ind. 2015).
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determination at sentencing unless there is evidence of an impermissible
consideration. Pickens v. State, 767 N.E.2d 530, 535 (Ind. 2002).
[14] Wilkins suggests that the trial court made impermissible considerations when
evaluating his remorse. In support of his argument, Wilkins points to a portion
of the trial court’s sentencing colloquy where the trial court made statements
relating to Wilkins’s conduct following the collision and the impact on Ellis’s
family. (Sent. Tr. 44-46.) Prior to those additional comments, however, the
trial court stated that with respect to remorse “[it] tend[ed] to agree with the
State.” (Id. at 44.) The State had just argued that Wilkins continued to excuse
and justify his behavior in the statement Wilkins made in his pre-sentence
investigation report. (Id. at 42.) There, Wilkins wrote: “I’ve admitted wrongs.
And although I did leave the scene, I cannot admit to doing it willfully.” (App.
Vol. III, 52.) Even if Wilkins acknowledged wrongdoing with respect to
causing Ellis’s death, he did not take full responsibility for his evasive actions
following the collision.
[15] In reviewing Wilkins’s claim of remorse and acceptance of responsibility, the
trial court could have reasonably given Wilkins’s statements little weight,
finding that Wilkins did not accept responsibility for all of his criminal actions,
much less show full remorse. Here, the trial court did not abuse its discretion.
Moreover, even if the trial court’s comments amounted to an impermissible
consideration, Wilkins has not persuaded us that the trial court would have
imposed a different sentence. Therefore, we decline to remand.
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[16] Wilkins also argues that the trial court abused its discretion in finding that his
criminal history was an aggravating circumstance. “[T]he significance of a
criminal history varies based on the gravity, nature and number of prior
offenses as they relate to the current offense.” McElfresh v. State, 51 N.E.3d 103,
112 (Ind. 2016) (quoting Williams v. State, 838 N.E.2d 1019, 1021 (Ind. 2005)).
[17] Wilkins characterizes his criminal history as minimal, but both the quantity and
quality of Wilkins’s criminal history is well supported by the record. Wilkins
has two prior felony convictions and two prior misdemeanor convictions. Two
of these, a felony conviction for Possession of Marijuana and a misdemeanor
conviction for Operating a Vehicle While Intoxicated Endangering a Person,
substantively relate to his present conviction. Upon review, Wilkins’s criminal
history is a valid aggravating circumstance.
[18] Wilkins further argues that the trial court improperly found as aggravating
circumstances (1) that he was in a position of trust with respect to Ellis and (2)
that he caused significant harm to the victim’s family. We need not reach these
issues. Even a single aggravating circumstance may be sufficient to support an
enhanced sentence and to justify consecutive sentences. Walter v. State, 727
N.E.2d 443, 448 (Ind. 2000); Miller v. State, 716 N.E.2d 367, 371 (Ind. 1999).
We have concluded that Wilkins’s criminal history is a valid aggravating
circumstance. Moreover, Wilkins does not challenge the trial court’s
determination that his being on probation at the time of the offense was an
aggravating circumstance. Accordingly, we find that the trial court did not
abuse its discretion in enhancing Wilkins’s sentence.
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Inappropriate Sentence
[19] Wilkins next requests appellate review and revision of his sentence. Article 7,
Section 4 of the Indiana Constitution grants the authority for appellate review
and revision of criminal sentences, and is implemented through Indiana
Appellate Rule 7(B). Under this rule, this “Court may 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.” In performing our review, we assess “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). The principal role of such review is
to attempt to leaven the outliers. Id. at 1225.
[20] As to the nature of the offenses, Wilkins caused death with a marijuana
metabolite in his system and then engaged in exceedingly evasive actions
following the collision. As to the character of the offender, Wilkins was on
probation for operating a vehicle while intoxicated. In the hours prior to the
crash, as Wilkins admits, he violated his probation by consuming alcohol.
Wilkins’s criminal history shows multiple probation violations.
[21] On balance, the record does not show “compelling evidence portraying in a
positive light the nature of the offense . . . and the defendant’s character” that
would warrant disturbing the trial court’s determination. Stephenson v. State, 29
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N.E.3d 111, 122 (Ind. 2015). Seeing no outliers here, we find that the sentence
imposed by the trial court is not inappropriate under Appellate Rule 7(B).
Conclusion
[22] The trial court did not abuse its discretion in sentencing Wilkins and his
sentence is not inappropriate.
[23] Affirmed.
Riley, J., and Barnes, J., concur.
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