MEMORANDUM DECISION
                                                                                    FILED
Pursuant to Ind. Appellate Rule 65(D), this
                                                                               Apr 19 2018, 9:20 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the                                  CLERK
                                                                                Indiana Supreme Court
purpose of establishing the defense of res judicata,                               Court of Appeals
                                                                                     and Tax Court
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Mark Small                                                Curtis T. Hill, Jr.
Indianapolis, Indiana                                     Attorney General of Indiana
                                                          Justin F. Roebel
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Timothy Hartwell,                                         April 19, 2018

Appellant-Defendant,                                      Court of Appeals Cause No.
                                                          84A01-1706-CR-1342
        v.                                                Appeal from the Vigo Superior
                                                          Court
State of Indiana,                                         The Honorable Michael Rader,
                                                          Judge
Appellee-Plaintiff.
                                                          Trial Court Cause Nos. 84D05-1405-
                                                          FB-1303 & 84D05-1605-F5-1155




Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 84A01-1706-CR-1342 | April 19, 2018              Page 1 of 6
                                STATEMENT OF THE CASE
[1]   Appellant-Defendant, Timothy Hartwell (Hartwell), appeals his sentence

      following his conviction after pleading guilty to stalking, a Class B felony, Ind.

      Code § 35-45-10-5; and intimidation, a Level 5 felony, I.C. § 35-45-2-1(2).


[2]   We affirm.


                                                    ISSUE
[3]   Hartwell presents a single issue on appeal, which we restate as: Whether

      Hartwell’s sentence is inappropriate in light of the nature of the offenses and his

      character.


                      FACTS AND PROCEDURAL HISTORY
[4]   On May 16, 2014, the State filed an Information in Cause Number 84D06-

      1404-FB-1303 (FB-1303), charging Hartwell with Count I, stalking, a Class D

      felony, and Count II, stalking, a Class B felony. On February 13, 2015,

      Hartwell filed a Motion for Examination to Determine Competency to Stand

      Trial. On March 6, 2015, the trial court ordered Hartwell’s psychiatric

      evaluation to be conducted by two doctors. On May 12, 2015, a competency

      hearing was conducted and Hartwell was found mentally incompetent to stand

      trial and was committed to a mental health facility.


[5]   On September 24, 2015, the Indiana Family and Social Services Administration

      reported to the trial court that Hartwell was competent to stand trial. On

      February 29, 2016, Hartwell again requested a mental health evaluation.

      Court of Appeals of Indiana | Memorandum Decision 84A01-1706-CR-1342 | April 19, 2018   Page 2 of 6
      Again, the trial court appointed two doctors to conduct Hartwell’s psychiatric

      evaluation.


[6]   In April 2016, Hartwell sent death threat letters to the presiding judge in Cause

      Number FB-1303, and also to his attorney. On May 2, 2016, the State filed an

      Information in Cause Number 84D05-1605-F5-1155 (F5-1155), charging

      Hartwell with a Level 5 felony intimidation offense toward the presiding judge

      in FB-1303, and a Level 6 felony intimidation offense toward his attorney. On

      April 20, 2016, the trial judge in FB-1303 recused himself. On May 5, 2016,

      Cause Number FB-1303 was transferred into F5-1155. On May 10, 2016, the

      trial court conducted a competency hearing for both Causes. At the close of the

      hearing, the trial court determined that Hartwell was incompetent to stand trial,

      and he was again transferred to a mental health facility. On January 30, 2017,

      the trial court found that Hartwell had regained competency and set both

      Causes for trial.


[7]   On May 2, 2017, Hartwell and the State entered into a plea agreement, where

      Hartwell agreed to plead guilty but mentally ill to Class B felony stalking under

      FB-1303, and to Level 5 felony intimidation under F5-1155. In exchange, the

      State agreed to dismiss the other Class B stalking charge in FB-1303 and the

      Level 6 felony intimidation charge in F5-1155. The plea agreement capped the

      sentence for the Class B felony stalking charge to twelve years, and four years

      for the Level 5 felony intimidation offense. On the same day, the trial court

      determined that a factual basis existed for Hartwell’s charged offenses, and the

      trial court accepted Hartwell’s plea of guilty but mentally ill. On May 31, 2017,

      Court of Appeals of Indiana | Memorandum Decision 84A01-1706-CR-1342 | April 19, 2018   Page 3 of 6
      the trial court conducted a sentencing hearing and sentenced Hartwell to

      concurrent terms of twelve years for the stalking charge and four years for the

      intimidation charge to be executed in the Department of Correction (DOC).


[8]   Hartwell now appeals. Additional facts will be provided as necessary.


                              DISCUSSION AND DECISION
[9]   Hartwell claims that his sentence is inappropriate in light of the nature of the

      offenses and his character. Indiana Appellate Rule 7(B) empowers us to

      independently review and revise sentences authorized by statute if, after due

      consideration, we find the trial court’s decision inappropriate in light of the

      nature of the offense and the character of the offender. Reid v. State, 876 N.E.2d

      1114, 1116 (Ind. 2007). The “nature of offense” compares the defendant’s

      actions with the required showing to sustain a conviction under the charged

      offense, while the “character of the offender” permits a broader consideration of

      the defendant’s character. Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008);

      Douglas v. State, 878 N.E.2d 873, 881 (Ind. Ct. App. 2007). An appellant bears

      the burden of showing that both prongs of the inquiry favor a revision of his

      sentence. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). 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 a myriad of other considerations that come to light in a given case.

      Cardwell, 895 N.E.2d at 1224. Our court focuses on “the length of the aggregate

      sentence and how it is to be served.” Id.


      Court of Appeals of Indiana | Memorandum Decision 84A01-1706-CR-1342 | April 19, 2018   Page 4 of 6
[10]   The advisory sentence is the starting point the legislature has selected as an

       appropriate sentence for the crime committed. Abbott v. State, 961 N.E.2d 1016,

       1019 (Ind. 2012). For his Class B felony stalking, Hartwell faced a sentencing

       range of six to twenty years, with the advisory sentence being ten. Hartwell

       was sentenced to twelve years. I.C. § 35-50-2-5. Second, for his Level 5 felony

       intimidation, Hartwell faced a sentencing range of one to six years, with the

       advisory sentence being three. I.C. § 35-50-2-6. Hartwell was sentenced to four

       years.


[11]   We first examine the nature of Hartwell’s offenses. The facts of Hartwell’s

       Class B felony stalking conviction under FB-1303 reveal that in separate cause

       numbers, Hartwell had been found guilty but mentally ill in 2013 of a Class C

       felony stalking offense against Megan Loudermilk (Loudermilk). For that Class

       C felony stalking conviction, Hartwell was sentenced to four years in the DOC,

       and a no-contact ordered was issued in favor of Loudermilk. While

       incarcerated, Hartwell had repeated contacts with Loudermilk between

       February of 2013 and May of 2014. Loudermilk reported the contacts which

       prompted the filing of the Class B felony stalking offense against Hartwell in

       FB-1303. Turning to the nature of Hartwell’s Level 5 felony intimidation

       conviction under F5-1155, we find it particularly serious. While incarcerated

       for the stalking offense in FB-1303, Hartwell sent death threat letters to the

       presiding judge and his attorney, and those threats led to the filing of two

       intimidation offenses. Here, we conclude Hartwell’s sentence is not

       inappropriate in light of the egregious nature of his offenses.


       Court of Appeals of Indiana | Memorandum Decision 84A01-1706-CR-1342 | April 19, 2018   Page 5 of 6
[12]   With respect to Hartwell’s character, at his sentencing hearing, the trial court

       noted Hartwell’s prior criminal history which included convictions for reckless

       driving, operating while intoxicated, and auto theft. The trial court also noted

       that the stalking offense under FB-1303 was Hartwell’s third stalking offense.

       Specifically, Hartwell had amassed three stalking convictions between 2000 and

       2012. The last stalking conviction in 2012 related to Loudermilk, who was the

       same victim under FB-1303. After due consideration of the trial court’s

       decision and in light of Hartwell’s criminal history, we cannot say that the

       sentence imposed by the trial court is inappropriate in light of the nature of the

       offenses and the character of the offender.


                                             CONCLUSION
[13]   In sum, we hold that Hartwell’s sentence is not inappropriate in light of the

       nature of the offenses and his character.


[14]   Affirmed.


[15]   May, J. and Mathias, J. concur




       Court of Appeals of Indiana | Memorandum Decision 84A01-1706-CR-1342 | April 19, 2018   Page 6 of 6
