MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Mar 07 2017, 9:44 am
this Memorandum Decision shall not be
CLERK
regarded as precedent or cited before any Indiana Supreme Court
Court of Appeals
court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Kristin A. Mulholland Curtis T. Hill, Jr.
Appellate Public Defender Attorney General of Indiana
Crown Point, Indiana
Angela N. Sanchez
Supervising Deputy Attorney
General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Warren Curtis, III, March 7, 2017
Appellant-Defendant, Court of Appeals Case No.
45A04-1610-CR-2360
v. Appeal from the Lake Superior
Court
State of Indiana, The Honorable Samuel L. Cappas,
Appellee-Plaintiff. Judge
Trial Court Cause No.
45G04-1604-F4-13
Robb, Judge.
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Case Summary and Issue
[1] Warren Curtis, III, pleaded guilty to burglary, a Level 5 felony, and was
sentenced to six years, with five years executed at the Indiana Department of
Correction and one year served in community corrections. Curtis appeals his
sentence, contending it is inappropriate in light of the nature of the offense and
his character. Concluding Curtis’ sentence is not inappropriate, we affirm.
Facts and Procedural History
[2] The agreed factual basis for Curtis’ plea to burglary reveals that on March 30,
2016, Curtis was out with a friend and consumed what he thought to be
cocaine. The pair then found their way to Octavia Wilson’s home. Wilson was
a friend of Curtis’ girlfriend, Brianna Hodge, and Hodge was at Wilson’s home
at the time. Without Wilson’s permission, Curtis and his friend entered
Wilson’s home. Curtis assisted his friend in taking Wilson’s car keys without
her permission, and the friend left in Wilson’s car, again without her
permission.1 Based on all that occurred that night, the State charged Curtis
1
The State’s statement of facts is more extensive, including information from the probable cause affidavit
about all the crimes with which Curtis was charged. The affidavit was attached to the pre-sentence
investigation report (“PSI”) which Curtis affirmed he had reviewed and was true and accurate. Curtis objects
to the State’s use of “facts” from the probable cause affidavit as support for its argument that his sentence is
not inappropriate. See Reply Brief of Appellant at 5-6. A probable cause affidavit is a mere accusation
against the defendant and no evidence whatsoever of his guilt. Anderson v. State, 396 N.E.2d 960, 962 (Ind.
Ct. App. 1979). It is hard to imagine that a defendant, when he states the PSI is accurate during a sentencing
hearing after pleading guilty to less than all the charges against him, is intending to concede the truth of any
additional allegations contained in a probable cause affidavit the probation officer may have chosen to attach
to the PSI. We therefore do not include any additional information from the probable cause affidavit in our
recitation of the facts. However, although prior arrests and pending charges not reduced to a conviction do
not establish the fact that the defendant committed a criminal offense and may not be considered part of the
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with nine crimes under this cause number: burglary, a Level 4 felony;
residential entry, two counts of strangulation, battery with moderate bodily
injury, intimidation, and auto theft, all Level 6 felonies; domestic battery, a
Class A misdemeanor; and criminal mischief, a Class B misdemeanor.2
[3] On August 17, 2016, the parties appeared in the trial court and filed a written
plea agreement. As part of the plea agreement, the State amended the charging
information to add a count of burglary (with intent to commit auto theft), a
Level 5 felony, and Curtis agreed to plead guilty to that charge in exchange for
the State dismissing the remaining charges, as well as charges pending in two
additional cases.3 Sentencing was left to the trial court’s discretion. A factual
basis for Curtis’ guilty plea was established and the trial court took the plea
under advisement.
[4] The parties returned to court on September 13, 2016, for a sentencing hearing.
At the outset, Curtis’ counsel advised the court:
defendant’s criminal history, such information may properly be considered in assessing the defendant’s
character in terms of the risk he may commit another crime. Cotto v. State, 829 N.E.2d 520, 526 (Ind. 2005).
To the extent the fullness of the incident reflects on Curtis’ character, use of information contained in the
probable cause affidavit is permissible and will be considered accordingly.
2
Three weeks after these charges were filed, the State filed an information in a separate cause number (“F5-
42”) alleging Curtis committed criminal confinement resulting in bodily injury, a Level 5 felony; criminal
confinement, a Level 6 felony; strangulation, a Level 6 felony; and battery resulting in bodily injury, a Class
A misdemeanor, all on March 30, 2016, the same date as the original charges. It is unclear exactly what
these charges stem from.
3
These two cases were F5-42, described in footnote 2, supra, and “CM-2,” a charge of resisting law
enforcement alleged to have occurred on April 5, 2016.
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Miss Hodge was one of the victims. Octavia Wilson was the
other victim. The factual basis for the plea for burglary was Mr.
Curtis and his codefendant forcibly entered Miss Octavia
Wilson’s home, forcibly took her car keys from her, and left with
her vehicle. Miss Hodge was a named victim in some of the
other conduct, but not one of the matters pled to.
Transcript, Volume 2 at 21-22. Hodge then testified on Curtis’ behalf, telling
the court that although they are not married, she and Curtis have been together
for several years. They have three children together and are expecting twins.
She explained that although paternity has never been established and support
has never been ordered, Curtis works and financially supports her and the
children and he is “an active father. . . . He have [sic] the children most of the
time because he will be the one watching them while I am working.” Id. at 23.
Hodge acknowledged that when Curtis was younger, he was “just a little on the
wild side,” but said she has seen him mature since having children. Id. at 25.
Moreover, she testified his behavior on March 30, 2016, was out of character.
Curtis noted for the court that he has only one prior misdemeanor conviction as
an adult and advocated for a “sentence in the mitigated range to be suspended
or served on probation . . . .” Id. at 42.
[5] The State informed the court that Wilson had been notified of the plea
agreement and court date but was not in attendance; nonetheless, the State
noted it had spoken with her several times and she had been “traumatized” by
Curtis’ crime. Id. at 37. The State argued for a sentence of four years in the
Department of Correction with no more than one year suspended to probation.
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[6] Curtis’ juvenile history includes arrests in August of 2008; April and August of
2009; March, May, and September of 2011; and September of 2013, resulting in
six delinquency adjudications. The allegations of these juvenile cases included
auto theft, intimidation, burglary, and multiple instances of resisting law
enforcement. Curtis turned eighteen in January of 2014. As an adult, he has
one misdemeanor driving conviction, and at the time of sentencing, a pending
charge for driving while suspended. He was also arrested in April of 2015 for
resisting law enforcement, but that charge was dismissed as part of the plea
agreement in this case. In addition, Curtis has committed three rule violations
while incarcerated awaiting trial.
[7] In announcing Curtis’ sentence, the trial court found the following aggravating
circumstances: Curtis’ juvenile history, his disrespect or disdain for authority,
that he is need of correctional rehabilitative treatment that can only be provided
by a penal facility, the nature and circumstances of his crime, a pattern of
violence indicating Curtis is a danger to society, and an “unrelenting” pattern of
criminal activity for the last eight years. Appendix of the Appellant, Volume
Two at 29-30. In mitigation, the court found Curtis is twenty years of age, he
admitted his guilt and saved the time and expense of a trial in exchange for a
substantial benefit, and has three dependent children who “may suffer undue
hardship” during his incarceration. Id. at 30. Finding the aggravators
outweighed the mitigators, the trial court sentenced Curtis to six years, the
maximum sentence for a Level 5 felony. As to how the sentence was to be
served, the trial court stated,
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I will suspend – I really didn’t want to suspend any of it, but it’s
better for you to have the dropdown. I will suspend the last year
and allow you to serve that on probation. No, I don’t think so. I
will order you to spend the last year in Community Corrections.
Court costs will be entered as a matter of record. That is your
sentence. If you ever come back here again, I am going to reject
a plea like this and give you the maximum amount I can. . . .
State moves to dismiss short cause number CM-2 [and] F5-42,
that is granted. Counts I, II, III, IV, V, VI, VII, IX, X in [this]
cause [are dismissed]. It should have been more of like fifteen
years for you at least.
Id. at 48-49. Curtis now appeals his sentence.
Discussion and Decision
I. Standard of Review
[8] Curtis requests we exercise our authority to revise his sentence, arguing that the
nature of his offense and his character renders a maximum sentence, which
should be reserved for the “worst of the worst,” inappropriate. See Brief of
Appellant at 8 (quoting Hamilton v. State, 955 N.E.2d 723, 727 (Ind. 2011)).
Even when a trial court has imposed a sentence within statutory guidelines, we
may independently review a sentence under Indiana Rule of Appellate
Procedure 7(B), which provides, “The 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.” Under this rule, the burden is on the defendant to
persuade us his or her sentence is inappropriate. Childress v. State, 848 N.E.2d
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1073, 1080 (Ind. 2006). Though we exercise our independent judgment in
assessing an inappropriate sentence claim, sentencing is principally a
discretionary function in which the trial court’s judgment should receive
considerable deference. Hines v. State, 30 N.E.3d 1216, 1225 (Ind. 2015). We
may look to any factors appearing in the record in examining the nature of the
offense and the character of the offender. Spitler v. State, 908 N.E.2d 694, 696
(Ind. Ct. App. 2009), trans. denied. “Whether 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.” Hines, 30 N.E.3d at 1225
(citation omitted).
II. Inappropriate Sentence
[9] The advisory sentence is the starting point the legislature has selected as the
appropriate sentence for the crime committed. Childress, 848 N.E.2d at 1081.
Curtis pleaded guilty to a Level 5 felony. The sentencing range for a Level 5
felony is one to six years, with the advisory sentence being three years. Ind.
Code § 35-50-2-6(b). The trial court sentenced Curtis to six years. He therefore
received the maximum sentence allowed by statute for his offense. 4
4
The State argues that Curtis’ sentence is not inappropriate in part because the facts he admitted at the guilty
plea hearing would have supported a conviction of Level 4 residential burglary, and therefore, his six-year
sentence “is the advisory sentence for the highest offense that he admitted committing despite being the
maximum for the lower Level of non-residential burglary that his deal allowed him to plead guilty to.” Brief
of Appellee at 13. This argument is not well-taken. At the trial court, the State offered and Curtis accepted a
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[10] First, we consider the nature of Curtis’ offense. When reviewing the nature of
the offense, a relevant factor is whether there is anything more or less egregious
about the offense which distinguishes it from a “typical” offense accounted for
by the advisory sentence set by the legislature. Wells v. State, 2 N.E.3d 123, 131
(Ind. Ct. App. 2014), trans. denied. Curtis pleaded guilty to breaking and
entering Wilson’s home with intent to commit auto theft. He also admitted that
he had taken drugs before the crime, and it appears Wilson was a family friend
and was home at the time of the entry, which left her traumatized. Given the
personal nature of the intrusion, the facts of the crime to which Curtis pleaded
guilty are slightly more egregious than the typical burglary.
[11] Next, we consider Curtis’ character. Curtis contends his actions on the night in
question “were not in keeping with his character.” Br. of Appellant at 8. He
points to his active presence in his children’s lives, his financial support of them
even though under no court order to do so, his remorse for his actions, and his
single misdemeanor conviction as an adult. When considering the character of
the offender, one relevant factor is the defendant’s criminal history. Wells, 2
N.E.3d at 131. As Curtis notes, he has only one adult conviction, a
plea agreement to a Level 5 felony. Whatever the reasons for that offer, Curtis is entitled to the benefit of the
bargain he and the State made, and we will not weigh his sentence in the manner the State suggests.
In a similar vein, Curtis argues his sentence is inappropriate in part because it appears from the “overall
tenor” of the trial court’s sentencing statement that it likely gave Curtis the maximum sentence for “improper
reasons[,]” including its consideration of the allegations behind all the charges in the current case, even those
which were to be dismissed. Brief of Appellant at 9-10. It is true that a trial court should not accept a plea
agreement and then punish the defendant at sentencing for the perceived leniency granted to him by the
State, Nybo v. State, 799 N.E.2d 1146, 1152 (Ind. Ct. App. 2003); however, we are independently reviewing
Curtis’ sentence rather than assessing the trial court’s exercise of its discretion.
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misdemeanor driving offense. However, he is only twenty years old. As a
juvenile, Curtis had numerous run-ins with the law, including adjudications for
auto theft and burglary, the same offenses implicated by this case. See Harris v.
State, 897 N.E.2d 927, 930 (Ind. 2008) (noting the significance of a defendant’s
criminal history varies based upon the gravity, nature, and number of prior
offenses in relation to the current offense). The trial court correctly observed
that despite his limited adult criminal history, Curtis has been regularly
committing crimes for the past eight years, including the use of an illegal drug
on the night in question. Further, although Curtis would have us believe this
crime was an isolated incident, since it occurred, he has been arrested for
resisting law enforcement and has been written up for several rule violations
while in jail. As for other aspects of Curtis’ character, we note that although
Hodge indicated he is a good father and financially supports the family, he has
never established paternity of the children. Also, Hodge was present on the
night Curtis committed this offense and was the victim of one or more of the
offenses that were dismissed as part of the plea bargain.
[12] “The question under Appellate Rule 7(B) is not whether another sentence is
more appropriate; rather, the question is whether the sentence imposed is
inappropriate.” Helsley v. State, 43 N.E.3d 225, 228 (Ind. 2015). Deference to
the trial court’s sentencing decision “should prevail unless overcome by
compelling evidence portraying in a positive light the nature of the offense (such
as accompanied by restraint, regard, and lack of brutality) and the defendant’s
character (such as substantial virtuous traits or persistent examples of good
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character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015). Curtis has not
convinced us that the nature of his offense was so innocuous or that his
character is so virtuous that a six-year sentence is inappropriate.
Conclusion
[13] Based on our independent review of the nature of Curtis’ offense and his
character, we hold his six-year sentence is not inappropriate. The judgment of
the trial court is affirmed.
[14] Affirmed.
Kirsch, J., and Barnes, J., concur.
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