MEMORANDUM DECISION
                                                                        FILED
Pursuant to Ind. Appellate Rule 65(D),                            Jun 16 2016, 10:29 am
this Memorandum Decision shall not be
regarded as precedent or cited before any                               CLERK
                                                                    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
P. Stephen Miller                                         Gregory F. Zoeller
Fort Wayne, Indiana                                       Attorney General of Indiana

                                                          Tyler F. Banks
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                           IN THE
     COURT OF APPEALS OF INDIANA

Edward G. Shell,                                          June 16, 2016

Appellant-Defendant,                                      Court of Appeals Cause No.
                                                          02A04-1511-CR-2025
        v.                                                Appeal from the Allen Superior
                                                          Court
State of Indiana,                                         The Honorable Frances M.
Appellee-Plaintiff.                                       Gull, Judge
                                                          Trial Court Cause No.
                                                          02D06-1411-F6-426



Barnes, Judge.



Court of Appeals of Indiana | Memorandum Decision 02A04-1511-CR-2025 | June 16, 2016        Page 1 of 6
                                              Case Summary
[1]   Edward Shell appeals his two-and-a-half year sentence following his conviction

      for Level 6 felony theft. We affirm.


                                                      Issue
[2]   The issue before us is whether Shell’s two-and-a-half year sentence is

      inappropriate.


                                                      Facts
[3]   On November 15, 2014, Shell was observed in a Wal-Mart in Fort Wayne

      hiding items, primarily washcloths, sheets, and toiletries, in his coat. Shell fled

      the store with these items, which were valued at $12.00. He was later arrested

      and charged with Level 6 felony theft due to his prior convictions for

      conversion. Shell stated that he had intended to purchase the items he took, but

      that he had been drinking alcoholic beverages, and that he “Does stupid s***”

      when he’s been drinking and stole the items instead. App. p. 17. On January

      26, 2015, Shell pled guilty to theft. Shell’s sentence was deferred pending his

      successful completion of the Allen Superior Drug Court Program.


[4]   Following his hearing, Shell started the Allen Superior Drug Court Program.

      Over the course of the program, he accumulated one diluted drug screen and

      eight positive drug screens for cocaine. In June 2015, Shell was discharged

      from a treatment facility for failing to return home. He was then transported to

      a different treatment facility. After again testing positive for cocaine, a trial

      court hearing regarding Shell was scheduled. When Shell failed to appear in
      Court of Appeals of Indiana | Memorandum Decision 02A04-1511-CR-2025 | June 16, 2016   Page 2 of 6
      court for the hearing, a warrant was issued for him. The trial court revoked

      Shell’s placement in the Allen Superior Drug Court Program. On October 21,

      2015, the trial court sentenced Shell to two-and-a-half years at the Indiana

      Department of Correction.


                                                   Analysis
[5]   Shell’s argument is that his two-and-a-half year sentence is inappropriate under

      Indiana Appellate Rule 7(B) in light of his character and the nature of the

      offense. Although Rule 7(B) does not require us to be “extremely” deferential

      to a trial court’s sentencing decision, we still must give due consideration to that

      decision. Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007). We

      also understand and recognize the unique perspective a trial court brings to its

      sentencing decisions. Id. “Additionally, a defendant bears the burden of

      persuading the appellate court that his or her sentence is inappropriate.” Id.


[6]   The principal role of Rule 7(B) review “should be to attempt to leaven the

      outliers, and identify some guiding principles for trial courts and those charged

      with improvement of the sentencing statutes, but not to achieve a perceived

      ‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.

      2008). We “should focus on the forest—the aggregate sentence—rather than

      the trees—consecutive or concurrent, number of counts, or length of the

      sentence on any individual count.” Id. Whether a sentence is inappropriate

      ultimately turns on 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


      Court of Appeals of Indiana | Memorandum Decision 02A04-1511-CR-2025 | June 16, 2016   Page 3 of 6
      given case. Id. at 1224. When reviewing the appropriateness of a sentence

      under Rule 7(B), we may consider all aspects of the penal consequences

      imposed by the trial court in sentencing the defendant, including whether a

      portion of the sentence was suspended. Davidson v. State, 926 N.E.2d 1023,

      1025 (Ind. 2010).


[7]   Pursuant to the statute in effect at the time Shell committed his offense, the

      sentencing range for a Level 6 felony is between six months and two-and-a-half

      years, with an advisory term of one year. Ind. Code § 35-50-2-7(b). Regarding

      the nature of Shell’s offense, we concede that his crime was not egregious.

      While intoxicated, Shell stole merchandise that was valued at $12.00.

      However, Shell’s character amply justifies his maximum sentence for theft.

      Shell had the opportunity to have his sentence deferred pending his successful

      completion of the Allen Superior Drug Court Program. Shell failed to

      successfully complete the Drug Court Program due to his diluted drug screen,

      eight positive drug screens for cocaine, failing to return home, and again testing

      positive for cocaine.


[8]   Shell also has an extensive criminal history. Sentencing courts may consider

      the fact that “[t]he person has a history of criminal or delinquent activity” as

      either an aggravating circumstance or as favoring consecutive sentences. I.C. §

      35-38-1-7.1(b)(2). The significance of a defendants criminal history in

      determining whether to impose a sentence enhancement will vary “based on the

      gravity, nature and number of prior offenses as they relate to the current

      offense.” Smith v. State, 889 N.E.2d 261, 263 (Ind. 2008). Beginning in 1989,

      Court of Appeals of Indiana | Memorandum Decision 02A04-1511-CR-2025 | June 16, 2016   Page 4 of 6
       Shell has been convicted of sixteen misdemeanors and six felonies. He has

       been convicted of theft, criminal deception, non-support of a dependent,

       operating while suspended twice, carrying a handgun without a license twice,

       criminal conversion five times, operating a vehicle as a habitual traffic violator

       three times, and driving while suspended six times. The extent and number of

       Shell’s prior convictions, specifically his conversion and theft convictions, are,

       in part, what caused his current conviction to be raised from a misdemeanor to a

       Level 6 felony. But his criminal history extends well beyond that. Shell has also

       had suspended sentences revoked three times and felony probation revoked

       three times.


[9]    Shell contends that much of his criminal history is for crimes that are now less

       serious than they were before, particularly his driving offenses. But it is well

       established that “[t]he sentencing statute in effect at the time a crime is

       committed governs the sentence for that crime.” Harris v. State, 897 N.E.2d 927,

       928–29 (Ind. 2008). Indiana Code Section 1-1-5.5-22(b) explicitly states

       that “[t]he general assembly does not intend the doctrine of amelioration ... to

       apply to any SECTION of [the new criminal code].” We have also recognized

       that the new criminal code does not apply retroactively. Ellis v. State, 29 N.E.3d

       792, 801 (Ind. Ct. App. 2015), trans. denied. We will not give retroactive effect

       to the new criminal code in considering Shell’s criminal history.


[10]   Given Shell’s poor character and extensive criminal history, we conclude that

       the two-and-a-half-year sentence is not inappropriate.



       Court of Appeals of Indiana | Memorandum Decision 02A04-1511-CR-2025 | June 16, 2016   Page 5 of 6
                                                  Conclusion
[11]   We find that Shell’s two-and-a-half year sentence is not inappropriate. We

       affirm.


[12]   Affirmed.



       Vaidik, C.J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 02A04-1511-CR-2025 | June 16, 2016   Page 6 of 6
