MEMORANDUM DECISION
                                                                               FILED
Pursuant to Ind. Appellate Rule 65(D),
                                                                           Jun 26 2018, 8:22 am
this Memorandum Decision shall not be
regarded as precedent or cited before any                                      CLERK
                                                                           Indiana Supreme Court
court except for the purpose of establishing                                  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
Derick W. Steele                                         Curtis T. Hill, Jr.
Kokomo, Indiana                                          Attorney General of Indiana
                                                         Evan Matthew Comer
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Paul W. Calloway,                                        June 26, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-186
        v.                                               Appeal from the
                                                         Howard Superior Court
State of Indiana,                                        The Honorable
Appellee-Plaintiff.                                      George A. Hopkins, Judge.
                                                         Trial Court Cause No.
                                                         34D04-1605-F1-83



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-186 | June 26, 2018                       Page 1 of 7
Paul W. Calloway (“Calloway”) pled guilty to attempted aggravated battery1 as

a Level 3 felony and was sentenced to twelve years in the Indiana Department

of Correction (“DOC”). He now appeals his sentence contending that it is

inappropriate in light of the nature of the offense and the character of the

offender.


We affirm.


                                   Facts and Procedural History
At 2:13 a.m., on May 1, 2016, Sergeant Mark Miller (“Sgt. Miller”) and Officer

Ryan Shuey (“Officer Shuey”) of the Kokomo Police Department were

dispatched to investigate a report of a man attempting to break into a shed.

Appellant’s App. Vol. 2 at 19. Approximately thirty minutes prior to this, another

officer had been called to that same area following a report that gunshots had

been heard, but no suspect was found by the investigating officer at that time.

Id. at 19, 21. The shed in question was located behind a house in a populated

area where apartments and other homes were also located. Id. at 21. A tree

line wrapped along the eastern and northern boundaries of the property. Id. at

19. After arriving on scene, the officers parked their vehicle, and Sgt. Miller

entered the tree line in order to seek cover as he approached the shed. Id. As

he did so, Sgt. Miller noticed what appeared to be a cellphone screen glowing



1
    See Ind. Code § 35-42-2-1.5.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-186 | June 26, 2018   Page 2 of 7
near the ground. Id. at 20. Sgt. Miller walked towards the glowing light and

found Calloway hidden beneath a bush, lying on his side and facing the

opposite direction. Id.

Sgt. Miller ordered Calloway to roll over and to show his hands. Id. As

Calloway turned, Sgt. Miller could see that Calloway was holding a gun. Id.

As Sgt. Miller began to move away, Calloway fired the weapon at him four

times. Id. Sgt. Miller ran approximately twenty feet away from the place where

Calloway was lying before firing his own gun and then seeking cover behind a

nearby tree. Id. Officer Shuey also discharged his firearm several times. Id. at

21. Of the shots that were fired, none hit any of the individuals involved, and

no one was physically injured. Id. at 20-21.


From his shelter behind the tree, Sgt. Miller began to negotiate with Calloway

in an effort to keep him from firing additional rounds. Id. at 20. Other officers

arrived on the scene and set up a horseshoe perimeter around Calloway’s

location. Id. Officers placed a light on Calloway, and he was observed pointing

his gun at his head. Id. Sgt. Miller talked with Calloway for forty-five minutes,

and Calloway told Sgt. Miller that he had recently been released from prison

after serving a twenty-four-year sentence for child molestation and that he had

recently been accused of reoffending. Id. at 20, 55. Because of this, Calloway

told Sgt. Miller, he wanted the police to kill him. Id. at 20; Tr. Vol. II at

16.Throughout the standoff, Calloway refused to relinquish his gun. Appellant’s

App. Vol. 2 at 20; Tr. Vol. II at 17. At times, Calloway would sit up, put his gun

Court of Appeals of Indiana | Memorandum Decision 18A-CR-186 | June 26, 2018    Page 3 of 7
in his mouth, and then lay back down again. Appellant’s App. Vol. 2 at 20.

Eventually, the Kokomo SWAT Team arrived on the scene and took over the

negotiations. Id.


Calloway surrendered at 6:23 a.m., approximately four hours after Sgt. Miller

and Officer Shuey first arrived on the scene. Id. at 20-21. The State charged

Calloway with one count of Level 1 felony attempted murder and one count of

Level 6 felony resisting law enforcement. Id. at 15-16. Calloway pleaded guilty

to Level 3 felony attempted aggravated battery and was sentenced to twelve

years all to be executed in the DOC. Id. at 9, 47-51. Calloway now appeals.


                               Discussion and Decision
For his Level 3 felony attempted aggravated battery conviction, the trial court

sentenced Calloway to twelve years with no time suspended. Calloway now

argues that his sentence is an inappropriate sentence in light of the nature of the

offense and his character and contends that his sentence should be what the

probation sentencing report suggested: nine years, with three years executed,

and the balance suspended to supervised probation, with credit for time already

served.


Pursuant to 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 inappropriate in light of the nature of the offense

and the character of the offender.” Our Supreme Court has explained that the

principal role of appellate review should be to attempt to leaven the outliers,

Court of Appeals of Indiana | Memorandum Decision 18A-CR-186 | June 26, 2018   Page 4 of 7
“not to achieve a perceived ‘correct’ result in each case.” Cardwell v. State, 895
N.E.2d 1219, 1225 (Ind. 2008). We independently examine the nature of

Calloway’s offense and his character under Appellate Rule 7(B) with substantial

deference to the trial court’s sentence. Satterfield v. State, 33 N.E.3d 344, 355

(Ind. 2015). In conducting our review, the test is whether the sentence is

inappropriate, and we do not look to see whether another sentence might be

more appropriate. Barker v. State, 994 N.E.2d 306, 315 (Ind. Ct. App. 2013),

trans. denied. Calloway bears the burden of persuading us that his sentence is

inappropriate. Id.


“As to the nature of the offense, the advisory sentence is the starting point the

legislature has selected as an appropriate sentence for the crime committed.”

Kunberger v. State, 46 N.E.3d 966, 973 (Ind. Ct. App. 2015). The advisory

sentence for a Level 3 felony conviction is nine years, with a range of between

three and sixteen years. Ind. Code § 35-50-2-5.


The nature of the offense is found in the details and circumstances of the

commission of the offense and the defendant’s participation. Croy v. State, 953
N.E.2d 660, 664 (Ind. Ct. App. 2011). Here, Calloway highlights that, at the

time of the offense, he was suffering from an extreme mental illness and did not

intend to injure a police officer, but instead, wanted to end his own life.

Calloway indicates that he was suicidal for many reasons: he had several

health problems; he had lost his health insurance; and he had recently suffered

the loss of his fiancée.



Court of Appeals of Indiana | Memorandum Decision 18A-CR-186 | June 26, 2018   Page 5 of 7
Our review of the record reveals that the circumstances of the offense are that

police were called to investigate a report of an individual attempting to break

into a shed. Sgt. Miller found Calloway in a wooded area hidden beneath a

bush, lying on his side and facing the opposite direction. After being instructed

to roll over and show his hands, Calloway displayed a gun and fired four shots

at Sgt. Miller. Sgt. Miller returned fire. Calloway was initially charged with

one count of Level 1 felony attempted murder and one count of Level 6 felony

resisting law enforcement and eventually pleaded guilty to Level 3 felony

attempted aggravated battery. We agree with the State that “Calloway accepted

a plea agreement at substantial benefit to himself. Had he elected not to plead

guilty, he would have faced a trial for Level 1 felony attempted murder, which

carried a minimum sentence of [twenty] years if convicted.2” Appellee’s Br. at 9.

Nothing about the nature of the offense warrants a reduction in the imposed

sentence.


“The character of the offender is found in what we learn of the offender’s life

and conduct.” Croy, 953 N.E.2d at 664. Calloway argues that his prior

criminal history was not the most heinous. He contends that his character did

not warrant the twelve-year sentence. Calloway has two prior felony

convictions, burglary and criminal sexual conduct, and a misdemeanor,

operating a vehicle while intoxicated. Calloway was required to register as a

sex offender because of his criminal sexual conduct felony conviction. At the



2
    See Ind. Code § 35-50-2-4(b)

Court of Appeals of Indiana | Memorandum Decision 18A-CR-186 | June 26, 2018   Page 6 of 7
time of this offense, Calloway was out on bond for the misdemeanor charge.

Based on the record before us, we cannot say that his character warrants

revision of his sentence.


Calloway has failed to carry his burden of establishing that his sentence is

inappropriate in light of the nature of the offense and his character.


Affirmed.


Baker, J., and Bradford, J., concur.




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