Davis v. State

173 N.E.3d 700

Stephen M. DAVIS, Appellant-Defendant,

v.STATE of Indiana, Appellee-Plaintiff.

Court of Appeals Case No. 21A-CR-52

Court of Appeals of Indiana.

FILED July 15, 2021

Attorney for Appellant: David W. Stone, IV, Anderson, Indiana

Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, Evan Matthew Comer, Deputy Attorney General, Indianapolis, Indiana

Najam, Judge.

Statement of the Case

[1] Stephen M. Davis appeals his sentence after he pleaded guilty to attempted overpass mischief, as a Level 5 felony. Davis raises two issues for our review:

1. Whether the trial court abused its discretion when it sentenced him.

2. Whether his sentence is inappropriate in light of the nature of the offense and his character.

[2] We affirm.

Facts and Procedural History

[3] At approximately 5:45 p.m. on November 4, 2019, Davis threw a bicycle off an overpass onto Interstate-69 in Anderson. Davis then called 9-1-1, reported his actions, and waited for officers to come. Once an officer arrived, Davis admitted that he had thrown the bicycle off the overpass in "an attempt to make a vehicle crash and cause death." Appellant's App. Vol. 2 at 15. He further reported that he "regretted" that the bicycle had not caused "a ten car pile up and bodies on the ground." Id. And Davis informed the officer that he had thrown another bicycle off the overpass earlier that day, which struck a vehicle. Davis then told the officer that he wanted to get arrested so that he would be guaranteed "housing and food." Id. The State arrested Davis and charged him with one count of attempted overpass mischief, as a Level 5 felony.

[4] Following his arrest, Davis was initially placed in the custody of the Madison County Sheriff's Department. However, while there, Davis threw feces on staff and destroyed more than seven thousand dollars’ worth of electronics. See id. at 27. As a result, Davis was moved to the Department of Correction.

[5] Davis ultimately pleaded guilty as charged without the benefit of a plea agreement. Specifically, Davis admitted that he had attempted to cause bodily injury by throwing a bicycle from the overpass. See Tr. at 11. He further admitted that he had thrown a second bicycle off the overpass earlier that same day. The trial court accepted Davis’ guilty plea and entered judgment of conviction accordingly.

[6] At a sentencing hearing, the court identified as aggravating factors Davis’ criminal history, the statements Davis had made to the officer following the offense, and that the facts of the offense were more than what was necessary to find him guilty. And the court identified as mitigating factors Davis’ guilty plea and his history of mental health issues. However, the court noted that Davis had failed to seek treatment for those mental health issues. As such, the court sentenced Davis to five years executed in the Department of Correction. This appeal ensued.

Discussion and Decision

Issue One: Abuse of Discretion in Sentencing

[7] Davis first contends that the trial court abused its discretion when it sentenced him. Sentencing decisions lie within the sound discretion of the trial court. Cardwell v. State , 895 N.E.2d 1219, 1222 (Ind. 2008). An abuse of discretion occurs if 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." Gross v. State , 22 N.E.3d 863, 869 (Ind. Ct. App. 2014) (citation omitted).

[8] A trial court abuses its discretion in sentencing if it does any of the following:

(1) fails "to enter a sentencing statement at all;" (2) enters "a sentencing statement that explains reasons for imposing a sentence—including a finding of aggravating and mitigating factors if any—but the record does not support the reasons;" (3) enters a sentencing statement that "omits reasons that are clearly supported by the record and advanced for consideration;" or (4) considers reasons that "are improper as a matter of law."

Id. (quoting Anglemyer v. State , 868 N.E.2d 482, 490-91 (Ind.), clarified on reh'g on other grounds , 875 N.E.2d 218 (Ind. 2007) ).

[9] The sentencing range for a Level 5 felony is one year to six years, with an advisory sentence of three years. Ind. Code § 35-50-2-6(b) (2020). Here, at sentencing, the court identified as an aggravating factor Davis’ criminal history, which includes seven juvenile adjudications and nine convictions as an adult,¹ as well as two failed attempts at probation. The court also identified as aggravating factors the comments that Davis had made to the officer following the offense and that the facts of the offense exceeded those needed to prove the elements of the crime. The court identified as mitigating factors Davis’ guilty plea and his history of mental health issues. The court then sentenced Davis to an aggravated term of five years executed.

[10] On appeal, Davis contends that the trial court abused its discretion when it failed to identify a mitigating factor that he contends was "clearly ... shown" by the record. Appellant's Br. at 7. It is well settled that the finding of mitigating circumstances is within the discretion of the trial court. Rascoe v. State , 736 N.E.2d 246, 248-49 (Ind. 2000). An allegation that the trial court failed to identify or find a mitigating circumstance requires the defendant to establish that the mitigating evidence is both significant and clearly supported by the record. Id. at 249. The trial court is not obligated to accept the defendant's contentions as to what constitutes a mitigating circumstance. Id.

[11] Davis maintains that the court should have found as mitigating the fact that he "called in and reported what he did and then waited nearby to be arrested." Appellant's Br. at 7. However, Davis did not make any argument at the sentencing hearing regarding that alleged mitigator. Indeed, Davis argued in favor of a lenient sentence based only on his mental health issues, his remorse, that he pleaded guilty, and that he had only committed the offense to obtain shelter. Because Davis did not advance his act of self-reporting as a mitigator for consideration by the trial court, he has waived it for appeal. See Webb v. State , 941 N.E.2d 1082, 1089 (Ind. Ct. App. 2011).

[12] Waiver notwithstanding, Davis has not demonstrated that that mitigator is significant. Davis’ only argument on this issue is that he "saved the [S]tate the trouble of trying to identify who threw the bike and then finding him." Appellant's Br. at 7. But Davis does not acknowledge that he admitted that he wanted to be arrested to obtain "housing and food." Appellant's App. Vol. 2 at 15. Nor does he suggest how this purported mitigator would add weight not already accounted for by the trial court's assessment that Davis’ acceptance of responsibility and mental health issues entitled him to mitigating weight. Further, at only thirty-three years old, Davis’ criminal history includes seven adjudications as a juvenile and nine convictions as an adult, and Davis has had his probation revoked twice. And, as the trial court found, Davis threw a bicycle off an overpass onto a busy interstate during rush hour, which amounted to more than what was needed to convict him of attempted overpass mischief. We cannot say that the trial court abused its discretion when it did not identify as a mitigator the fact that Davis reported his crime to police.

Issue Two: Inappropriateness of Sentence

[13] Davis also contends that his sentence is inappropriate in light of the nature of the offense and his character. However, Davis’ argument on this issue is as follows:

There was nothing in this case which made it more serious than any other case involving overpass mischief. The [S]tate argued that the crime was more serious because it happened just after rush hour as opposed to the wee hours of the morning. Given the speed at which traffic moves on interstates at night, it would seem to be unlikely that at night a driver would have time to spot a relatively low profiled item like a bike in his headlights, recognize the danger and take evasive action. At 70 miles per hour a driver is covering over 100 feet a second.

Appellant's Br. at 8 (citation omitted). In other words, Davis’ argument is simply that his five-year executed sentence is inappropriate only in light of the nature of the offense. He makes no argument that his sentence is inappropriate in light of his character.

[14] However, that argument, by itself, is not sufficient to invoke this Court's authority to revise a sentence under Indiana Appellate Rule 7(B). As this Court has previously explained, revision of a sentence under Rule 7(B) "requires the appellant to demonstrate that his sentence is inappropriate in light of the nature of the offense and the character of the offender." Sanders v. State , 71 N.E.3d 839, 843 (Ind. Ct. App. 2017) (quotation marks omitted, emphasis in original), trans. denied. The language of that rule plainly requires "the appellant to demonstrate that his sentence is inappropriate in light of both the nature of the offenses and his character." Id. (quotation marks omitted, emphasis in original). Because Davis’ argument on appeal does not address his sentence in relation to his character, he has waived our review of the appropriateness of his sentence. See id.

[15] There is a split of opinion on how to apply Appellate Rule 7(B). For example, this Court has previously held that we can review and revise a sentence based only on a consideration of both prongs without requiring the appellant to prove both. See, e.g., Connor v. State , 58 N.E.3d 215, 219 (Ind. Ct. App. 2016). But Rule 7(B) is not written in the disjunctive. Rather, that rule uses the word "and" not "or." "And" is a coordinating conjunction, which connects words that are of equal importance in the sentence. Indeed, as our Supreme Court has pointed out, the current version of the rule was drafted to permit appellate review of...