MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                             FILED
this Memorandum Decision shall not be                         Sep 16 2016, 7:22 am

regarded as precedent or cited before any                          CLERK
court except for the purpose of establishing                   Indiana Supreme Court
                                                                  Court of Appeals
                                                                    and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
P. Jeffrey Schlesinger                                   Gregory F. Zoeller
Crown Point, Indiana                                     Attorney General of Indiana
                                                         Richard C. Webster
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

William Wilbert Ward-Bey,                                September 16, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         45A05-1602-CR-266
        v.                                               Appeal from the Lake Superior
                                                         Court
State of Indiana,                                        The Honorable Salvador Vasquez,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         45G01-1312-FB-126



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 45A05-1602-CR-266 | September 16, 2016   Page 1 of 9
                                             Case Summary
[1]   William Ward-Bey (“Ward-Bey”) pled guilty to Robbery, as a Class C felony.1

      He now appeals his five-year sentence. We affirm.



                                                       Issues
[2]   Ward-Bey raises two issues for review:


                 I.     Whether the trial court abused its discretion in sentencing;
                        and


                II.     Whether Ward-Bey’s five-year sentence is inappropriate.


                              Facts and Procedural History
[3]   On December 15, 2013, Ward-Bey and Marcus Ervin (“Ervin”) entered the

      Portillo’s restaurant in Merrillville, Indiana, pretending to be deliverymen.

      While acting in concert, Ward-Bey and Ervin demanded the safe combination

      from the store manager, then took approximately $3,500.00 in cash as well as

      the store’s panic button. A short distance away, Ward-Bey was apprehended

      with the cash and panic button.




      1
        Ind. Code § 35-42-5-1(1) (2013). Indiana’s criminal statutes were revised in 2013; we refer to the
      substantive provisions of the Indiana Code in effect at the time of and applicable to Ward-Bey’s offenses.

      Court of Appeals of Indiana | Memorandum Decision 45A05-1602-CR-266 | September 16, 2016           Page 2 of 9
[4]   On December 16, 2013, the State charged Ward-Bey with one count of Class B

      felony armed robbery,2 one count of Class B felony robbery resulting in a bodily

      injury,3 three counts of Class B felony criminal confinement,4 and three counts

      of Class C felony criminal confinement.5 The State filed an amended

      information on February 7, 2014, which set forth no new counts.


[5]   On July 29, 2015, the State filed a second amended information, adding a count

      of Class C felony robbery.6 The same day, Ward-Bey and the State entered into

      a plea agreement whereby Ward-Bey would plead guilty to the Class C felony

      robbery count and, at the time of sentencing, the State would move to dismiss

      the remaining eight counts. Under the plea agreement, Ward-Bey and the State

      could fully argue an appropriate sentence to the court. The trial court held the

      acceptance of plea and sentencing hearing on January 5, 2016.


[6]   Following argument at the January 5 hearing, the trial court accepted Ward-

      Bey’s plea of guilty and sentenced him to the Department of Correction for a

      term of five years.


[7]   Ward-Bey now appeals his sentence.




      2
          I.C. § 35-42-5-1(1).
      3
          I.C. § 35-42-5-1(1).
      4
          I.C. §§ 35-42-3-3(a)(1), 35-42-3-3(b)(2)(A).
      5
          I.C. §§ 35-42-3-1-(a)(1), 35-42-3-3(b)(1)(C).
      6
          I.C. § 35-42-5-1(1).


      Court of Appeals of Indiana | Memorandum Decision 45A05-1602-CR-266 | September 16, 2016   Page 3 of 9
                                  Discussion and Decision
                                        Abuse of Discretion
[8]    Ward-Bey argues that the trial court abused its discretion in sentencing him to

       five years of incarceration. Ward-Bey first argues that the trial court issued an

       inadequate sentencing statement. Ward-Bey next argues that the trial court

       failed to consider certain mitigating factors. Chiefly, Ward-Bey advances that

       the trial court should have considered his remorse and guilty plea, although

       Ward-Bey also cursorily asserts that his stated acceptance of responsibility and

       participation in a medical research study warranted additional consideration.


[9]    Pursuant to Indiana Code Section 35-50-2-6(a), a person convicted of a Class C

       felony shall receive a term of imprisonment of between two years and eight

       years, with four years being the advisory sentence. The trial court sentenced

       Ward-Bey to five years, within the statutory range. “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).


[10]   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

       sentence.” Anglemyer, 868 N.E.2d at 491. Where, as here, a defendant alleges

       Court of Appeals of Indiana | Memorandum Decision 45A05-1602-CR-266 | September 16, 2016   Page 4 of 9
       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).


[11]   Here, in its sentencing colloquy, the trial court recounted Ward-Bey’s

       significant criminal history, containing seven prior adult felony convictions.

       Among Ward-Bey’s prior felony convictions are two burglary convictions and a

       conviction for murder in perpetration of robbery. The trial court stated that an

       eight-year-sentence—the statutory maximum—was potentially warranted,

       given Ward-Bey’s extensive criminal history. However, upon reviewing the

       circumstances, the trial court orally observed that it was reducing Ward-Bey’s

       sentence from that potentially warranted eight-year sentence down to five years,

       due to Ward-Bey’s medical conditions. Ward-Bey admits that the trial court

       acknowledged his medical conditions in its sentencing colloquy, but takes issue

       with the trial court’s written order, which does not list any mitigating factors

       but does contain four aggravating factors: (1) that Ward-Bey was on parole

       when the offense occurred; (2) Ward-Bey’s criminal history; (3) that Ward-Bey

       was in need of correctional treatment; and (4) that Ward-Bey was dishonest.

       Ultimately, Ward-Bey contends that the written order is in conflict with the trial

       court’s oral sentencing statements, and invites us to remand.


[12]   We could remand this cause to the trial court for clarification of whether it

       found Ward-Bey’s poor health to be a significant mitigating factor. See McElroy

       Court of Appeals of Indiana | Memorandum Decision 45A05-1602-CR-266 | September 16, 2016   Page 5 of 9
       v. State, 865 N.E.2d 584, 591 (Ind. 2007). We decline to do so, however,

       because any error here is harmless. Ind. Trial Rule 61; McElroy v. State, 865
N.E.2d at 591. In its oral sentencing order where the trial court found this

       mitigating factor, Ward-Bey received a sentence of five years. In the

       subsequent written statement that did not mention this mitigating factor, Ward-

       Bey received precisely this same sentence.


[13]   Ward-Bey also contends that the trial court should have recognized his remorse

       and guilty plea as significant mitigating factors. With respect to remorse, the

       Indiana Supreme Court has held that a trial court’s determination of a

       defendant’s remorse is similar to a determination of credibility. Pickens v. State,

       767 N.E.2d 530, 535 (Ind. 2002). Accordingly, without evidence of some

       impermissible consideration by the trial court, a reviewing court will accept the

       trial court’s determination as to remorse. See id. We find no impermissible

       considerations and thus no error.


[14]   As to Ward-Bey’s guilty plea, although a trial court should be “inherently aware

       of the fact that a guilty plea is a mitigating circumstance,” a guilty plea is not

       always a significant mitigating circumstance. Francis v. State, 817 N.E.2d 235,

       237 nn.2-3 (Ind. 2004). Indeed, “a guilty plea may not be significantly

       mitigating when it does not demonstrate the defendant’s acceptance of

       responsibility . . . or when the defendant receives a substantial benefit in return

       for the plea.” Anglemyer, 875 N.E.2d at 221 (citing Sensback v. State, 720 N.E.2d
1160, 1165 (Ind. 1999)). Here, in exchange for his guilty plea, the State moved

       to dismiss eight of Ward-Bey’s charges, including five Class B felony charges.

       Court of Appeals of Indiana | Memorandum Decision 45A05-1602-CR-266 | September 16, 2016   Page 6 of 9
       Accordingly, Ward-Bey faced a potential sentence between two and eight years

       rather than between six and twenty years. I.C. §§ 35-50-2-5, 35-50-2-6. Thus,

       Ward-Bey’s decision to plead guilty could reasonably be considered pragmatic.


[15]   Turning to Ward-Bey’s other cursorily argued-for mitigating factors, the trial

       court did not abuse its discretion in failing to find mitigation due to Ward-Bey’s

       stated acceptance of responsibility and participation in a medical research

       study. With respect to Ward-Bey’s proffered acceptance of responsibility, the

       trial court observed in its written order that Ward-Bey was dishonest,

       diminishing the significance of any acceptance of responsibility on the record.

       As to Ward-Bey’s participation in a medical research study that could benefit

       others, “[a] court does not err in failing to find mitigation when a mitigation

       claim is ‘highly disputable in nature, weight, or significance.’” Henderson v.

       State, 769 N.E.2d 172, 179 (Ind. 2002) (quoting Smith v. State, 670 N.E.2d 7, 8

       (Ind. 1996)). Although the study could benefit other similarly-situated patients,

       Ward-Bey acknowledged that he also could benefit from his participation.


[16]   In sum, we find nothing in the record that leads us to conclude that the trial

       court abused its sentencing discretion.


                                 Appropriateness of Sentence
[17]   Ward-Bey was sentenced to five years, which is within the statutory range set

       forth in Indiana Code Section 35-50-2-6(a). Under Indiana Appellate Rule

       7(B), 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

       Court of Appeals of Indiana | Memorandum Decision 45A05-1602-CR-266 | September 16, 2016   Page 7 of 9
       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 primary purpose of such review is to attempt to

       leaven the outliers. Id. at 1225. A defendant “‘must persuade the appellate

       court that his or her sentence has met th[e] inappropriateness standard of

       review.” Anglemyer, 868 N.E.2d at 494 (quoting Childress v. State, 848 N.E.2d
1073, 1080 (Ind. 2006)).


[18]   Under the stipulated facts, the nature of the offense is not particularly egregious,

       although Ward-Bey did work in concert with Ervin to commit the crime. As to

       the character of the offender, Ward-Bey has seven prior felony convictions as an

       adult. Moreover, Ward-Bey was on parole at the time he committed the

       present offense.


[19]   Having reviewed the matter, we conclude that Ward-Bey’s sentence was not

       inappropriate under Appellate Rule 7(B). Accordingly, we decline to disturb

       the sentence imposed by the trial court.



                                               Conclusion
[20]   Ward-Bey has not shown that the trial court abused its sentencing discretion or

       that his sentence is inappropriate.


[21]   Affirmed.

       Court of Appeals of Indiana | Memorandum Decision 45A05-1602-CR-266 | September 16, 2016   Page 8 of 9
Riley, J., and Barnes, J., concur.




Court of Appeals of Indiana | Memorandum Decision 45A05-1602-CR-266 | September 16, 2016   Page 9 of 9