MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                        Jul 31 2015, 10:29 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke                                     Gregory F. Zoeller
Special Asst. to the State Public Defender                Attorney General of Indiana
Wieneke Law Office, LLC
                                                          Jonathan R. Sichtermann
Plainfield, Indiana
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Jason L. Caldwell,                                        July 31, 2015

Appellant-Defendant,                                      Court of Appeals Case No.
                                                          28A01-1501-CR-24
        v.                                                Appeal from the Greene Superior
                                                          Court
State of Indiana,                                         The Honorable Dena A. Martin,
                                                          Judge
Appellee-Plaintiff.
                                                          Trial Court Cause No.
                                                          28D01-1407-MR-2




Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 28A01-1501-CR-24 | July 31, 2015         Page 1 of 11
                                        Statement of the Case
[1]   Appellant/Defendant, Jason L. Caldwell (“Caldwell”), appeals his sentences

      for his convictions of murder1 and Level 1 felony rape.2 He claims that the trial

      court abused its discretion in sentencing him because it failed to consider his

      remorse as a mitigating factor, and he also asks us to revise his sentence under

      Indiana Appellate Rule 7(B). We affirm because we conclude that Caldwell’s

      remorse was disputable and we find that Caldwell’s sentence was appropriate in

      light of his character and the nature of his offense.


[2]   We affirm.


                                                     Issues
                 1. Whether the trial court abused its discretion in sentencing
                 Caldwell because it failed to consider a mitigating factor.

                 2. Whether Caldwell’s sentence was inappropriate in light of the
                 nature of his offense and his character.

                                                     Facts
[3]   On November 20, 2014, Caldwell pled guilty, pursuant to a plea agreement, to

      murder, a felony, and one count of Level 1 felony rape. He also admitted to

      being an habitual felony offender. In exchange, the State dismissed the other

      charges against him, which included: Level 2 felony burglary, Level 1 felony




      1
          IND. CODE § 35-42-1-1(1).
      2
          I.C. § 35-42-4-1(a)(b).


      Court of Appeals of Indiana | Memorandum Decision 28A01-1501-CR-24 | July 31, 2015   Page 2 of 11
      rape, Level 3 felony criminal confinement, Level 6 felony auto theft, Level 6

      felony theft, and two counts of Level 3 felony robbery. The State agreed that

      his enhancement for being an habitual offender should be capped at ten (10)

      years, but otherwise left sentencing to the trial court’s discretion. During the

      guilty plea hearing, Caldwell only discussed the evidence supporting the

      elements of his offenses to the minimum extent necessary to establish a factual

      basis for his plea.


[4]   On December 17, 2014, the trial court held a sentencing hearing. At the

      hearing, one of Caldwell’s victims, Fitri Lamm (“Fitri”), recounted her history

      with Caldwell and her experiences the night of Caldwell’s offenses. She said

      that she and her husband, David Lamm (“David”), had known Caldwell’s

      brother, Kevin, prior to meeting Caldwell. They had then met Caldwell when

      they had roof problems and Kevin brought Caldwell with him to help fix the

      roof. After that point, the Lamms had become friends with Caldwell, and there

      were times that David allowed Caldwell to stay in an empty trailer on their

      property and gave him food in exchange for help with odd jobs.


[5]   As for Caldwell’s offenses, Fitri recounted that on the night of July 18, 2014,

      she had arrived home at around 11:00 or 11:30 p.m. When she entered the

      residence, Caldwell had been waiting for her, holding one of David’s guns. He

      had forced her to kneel down and take her clothes off, and then he had tied her

      ankles and hands and raped her at least twice throughout the night. He had

      also told Fitri that David was “gone.” (Sentencing Tr. 35).



      Court of Appeals of Indiana | Memorandum Decision 28A01-1501-CR-24 | July 31, 2015   Page 3 of 11
[6]   According to Fitri, the next morning, Caldwell had taken her debit card,

      money, car keys, and car. Fitri said that she also thought she had heard him

      carrying other things out of the house, but she could not see from her vantage

      point. Before he left the house, Caldwell, had reinforced her ties with duct tape

      and rope around her ankles, hand, and mouth “really, really tight” so that it

      “really hurt.” (Tr. 39).


[7]   Fitri said that after Caldwell left, she had moved around the room and had

      found scissors on the floor, which she used to cut the duct tape tying together

      her hands and ankles. Then, she had hopped to the middle of her driveway, but

      fell and could not get up, so she rolled herself down to the county road.

      Eventually, she said, her neighbor had found her and called the police and Fitri

      was taken to the hospital.


[8]   Detective Brian Smith (“Detective Smith”) with the Indiana State Police

      Criminal Investigation Division also testified at the sentencing hearing. He said

      that during the course of the investigation of Fitri’s rape, an officer had

      discovered David on the property, shot in the face and lying face down by an

      abandoned car.


[9]   According to Detective Smith, his investigation had revealed that Caldwell had

      taken a billfold, guns, debit cards, and some prescription drugs from the Lamm

      residence, as well as the Lamms’ car. The police had located Caldwell two

      days later in Indianapolis, along with two females with whom he said Caldwell

      had been doing drugs during the previous two days. Detective Smith also


      Court of Appeals of Indiana | Memorandum Decision 28A01-1501-CR-24 | July 31, 2015   Page 4 of 11
       testified that the police had discovered that the females had traded the Lamms’

       guns for drugs with a local Indianapolis drug dealer. The police had retrieved

       the guns and connected them to David.


[10]   Detective Smith further testified that when he picked up Caldwell, he had been

       cooperative and had admitted to shooting David and to dragging him over by

       the abandoned vehicle. Caldwell also admitted to waiting for Fitri, raping her,

       and tying her up. Detective Smith also said that Caldwell had been on parole

       for child molesting at the time of the offenses, and that he had removed the

       GPS bracelet related to his parole.


[11]   During sentencing, Caldwell submitted two documents that the trial court

       added to his presentence investigation report (“PSI Report”). One document

       was a letter of apology, and one document was a report prepared by a mental

       health professional, which stated the professional’s findings that Caldwell had

       grown up in an “extremely dysfunctional, violent family, where he was abused

       sexually, physically, verbally and emotionally for most of his development[,]”

       as well as the professional’s conclusion that Caldwell was “severely,

       psychologically wounded.” (Tr. 67).


[12]   In addition to these documents, Caldwell’s counsel requested that the trial court

       consider multiple mitigating factors, including: (1) his cooperation with law

       enforcement; (2) the fact that he was taking responsibility for his actions by

       entering into a guilty plea; and (3) his childhood and mental health.




       Court of Appeals of Indiana | Memorandum Decision 28A01-1501-CR-24 | July 31, 2015   Page 5 of 11
[13]   At the conclusion of the sentencing hearing, the trial court sentenced Caldwell

       to sixty-three (63) years for his murder conviction, enhanced by ten (10) years

       for his status as an habitual offender, and thirty-eight (38) years for his rape

       conviction. The trial court also ordered the sentences served consecutively for a

       total of 111 years executed. It found that there were aggravating factors,

       including: (1) Caldwell’s extensive criminal history; (2) his involvement in the

       justice system starting at age eight; (3) his numerous probation violations; (4)

       the position of trust he had held with the Lamms; and (5) the nature and

       circumstances of the offenses. The trial court also found that there were

       mitigating factors, including that: (1) Caldwell had cooperated with law

       enforcement; (2) Caldwell had entered a plea agreement and accepted

       responsibility; and (3) Caldwell’s childhood had been “horrible.” (Tr. 72).

       Caldwell now appeals.


                                                   Decision
[14]   On appeal, Caldwell challenges his sentencing in two respects. First, he argues

       that the trial court abused its discretion when sentencing him because it

       overlooked a potential mitigating factor, his remorse. Second, he argues that

       his sentence is inappropriate in light of the nature of his offense and his

       character.


       1. Mitigating Factor

[15]   Sentencing decisions rest within the sound discretion of the trial court.

       Anglemyer v. State, 868 N.E.2d 482, 493 (Ind. 2007), clarified on reh’g, 875 N.E.2d


       Court of Appeals of Indiana | Memorandum Decision 28A01-1501-CR-24 | July 31, 2015   Page 6 of 11
       218 (Ind. 2007). Under Indiana’s advisory sentencing scheme, “once the trial

       court has entered a sentencing statement, which may or may not include the

       existence of aggravating and mitigating factors, it may then ‘impose any

       sentence that is . . . authorized by statute; and . . . permissible under the

       Constitution of the State of Indiana.’” Id. at 491 (quoting I.C. § 35-38-1-7.1(d)

       (stating that a court may impose any sentence authorized by statute “regardless

       of the presence or absence of aggravating or mitigating circumstances”)). As

       long as the sentence is within the statutory range, it is subject to review only for

       an abuse of discretion. Id. at 490. We will find an abuse of discretion where

       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. Id. A trial court may abuse its discretion in a variety of ways,

       including: (1) failing to enter a sentencing statement at all; (2) entering a

       sentencing statement that includes aggravating and mitigating factors that are

       unsupported by the record; (3) entering a sentencing statement that omits

       reasons that are clearly supported by the record; or (4) entering a sentencing

       statement that includes reasons that are improper as a matter of law. Id. at 490-

       91.


[16]   Caldwell argues that the trial court abused its discretion in sentencing him

       because it overlooked his remorse as a mitigating factor. He claims that the

       apology letter he wrote to Fitri and submitted to the trial court at his sentencing

       hearing was evidence of this remorse that the trial court failed to consider.




       Court of Appeals of Indiana | Memorandum Decision 28A01-1501-CR-24 | July 31, 2015   Page 7 of 11
[17]   In order to show that a 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. While a failure to find mitigating

       circumstances clearly supported by the record may imply that the sentencing

       court improperly overlooked them, the court is obligated neither to credit

       mitigating circumstances in the same manner as would the defendant, nor to

       explain why it has chosen not to find mitigating circumstances. Roush v. State,

       875 N.E.2d 801, 811 (Ind. Ct. App. 2007). Further, if the evidence supporting a

       proposed mitigating factor is “‘highly disputable in nature, weight, or

       significance[,]’” the trial court does not abuse its discretion by failing to find it.

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

       N.E.2d 7, 8 (Ind. 1996)).


[18]   Here, the evidence regarding Caldwell’s remorse was disputable. The PSI

       Report included a finding by the probation officer who prepared the report that

       “[t]hroughout the interview, the defendant showed little remorse for his

       actions.” (PSI 15).3 Caldwell also admitted that he thought it was “okay to lie”

       and that there was a “very high” risk that he would reoffend. (PSI 15). In light

       of these factors, we conclude that Caldwell’s remorse was disputable, and the




       3
         Pursuant to Indiana Administrative Rule 9(G)(2)(b) and INDIANA CODE § 35-38-1-13, the PSI Report must
       be excluded from public access. However, in this case, the information contained in the PSI Report is
       “essential to the resolution” of Caldwell’s claim. Admin. Rule 9(G)(7)(a)(ii)(c). Accordingly, we have
       included confidential information in this decision only to the extent necessary to resolve the appeal.

       Court of Appeals of Indiana | Memorandum Decision 28A01-1501-CR-24 | July 31, 2015          Page 8 of 11
       trial court therefore did not abuse its discretion in omitting Caldwell’s remorse

       as a mitigating factor.


       2. Inappropriate Sentence

[19]   Next, Caldwell asks us to revise his sentences under Appellate Rule 7(B). He

       argues that his sentences were inappropriate because they were the maximum

       sentences for murder and a Level 1 felony, and he argues that the maximum

       sentences should be reserved for the worst offenders, which he claims he is not.

       Specifically, Caldwell again notes that he accepted responsibility for his

       offenses, showed remorse, and had an extremely troubled childhood.


[20]   Pursuant to Appellate Rule 7(B), a reviewing court may revise a sentence if,

       “after due consideration of the trial court’s decision,” it finds that the sentence

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

       offender. Childress v. State, 848 N.E.2d 1073, 1079-80 (Ind. 2006) (quoting App.

       R. 7(B)). Although this Court is not required to use “great restraint,” we

       nevertheless give deference to a trial court’s sentencing decision, both because

       the Appellate Rule 7(b) requires that we give “due consideration” to that

       decision and because we recognize the unique perspective a trial court has when

       making decisions. Stewart v. State, 866 N.E.2d 858, 865-66 (Ind. Ct. App.

       2007). The “principal role of appellate 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



       Court of Appeals of Indiana | Memorandum Decision 28A01-1501-CR-24 | July 31, 2015   Page 9 of 11
       (Ind. 2008). In addition, the defendant bears the burden of persuading this

       Court that his sentence is inappropriate. Childress, 848 N.E.2d at 1080.


[21]   The sentencing range for murder is forty-five (45) to sixty-five (65) years, with

       an advisory sentence of fifty-five (55) years, I.C. § 35-50-2-3, and the sentencing

       range for Level 1 felony rape is twenty (20) to forty (40) years, with an advisory

       sentence of thirty (30) years. I.C. § 35-50-2-4. Because Caldwell was sentenced

       to sixty-three (63) years for his murder conviction and thirty-eight (38) years for

       his rape conviction, he received close to the maximum sentence on each

       conviction.


[22]   However, contrary to Caldwell’s arguments, we conclude that he is one of the

       worst offenders. The nature of his crimes were heinous. He killed David, a

       man who had offered him opportunities for work, food, and a place to stay, and

       was in a position of trust with him. Then, he waited for David’s wife, Fitri, to

       come home, bound her hands and ankles, and raped her at least twice before

       leaving her tied up naked so that she had to hop and roll to the street to get

       help.


[23]   As for Caldwell’s character, which is the primary basis for his argument, we

       find that the trial court convincingly summarized the evidence. It said:


               You have a beyond extensive criminal history. . . . Your criminal
               record consists of very serious, violent offenses, including Child
               Molesting, Burglary, Battery Resulting in Serious Bodily Injury
               and Sexual Battery. Those are just some. The Court [is] also
               considering that your involvement in the juvenile justice system
               started at age eight, age eight [sic]. And you have received

       Court of Appeals of Indiana | Memorandum Decision 28A01-1501-CR-24 | July 31, 2015   Page 10 of 11
        multiple opportunities to receive rehabilitation through the
        juvenile justice system and then the criminal justice system. And
        we [are] sitting here today, and I think we can all agree, with no
        success[.] You have violated the terms of probation numerous
        times. The Court puts somebody on probation to basically put
        them under the supervision of the Court for you to prove that
        you can follow the rules. You do [not] follow the rules. You
        [have] also, you had just been released from the Department of
        Correction on April the 21st of 2014, and then this occurred July
        the 18th and 19th. You had just been released from the
        Department of Correction. You were still on parole. And we
        [had] learned that you removed the GPS monitoring devi[c]e.
        Again, you do [not] follow the rules. . . . And looking at the
        document that was filed here today, you did have a horrible,
        horrible childhood. But just so we understand one another, that
        does [not] give anybody the right to kill somebody and rape
        somebody.


(Tr. 70-72). Based on these same factors, we conclude that Caldwell’s sentence

was not inappropriate in light of his character, and we will not revise it under

Appellate Rule 7(B).


Affirmed.


Vaidik, C.J., and Robb, J., concur.




Court of Appeals of Indiana | Memorandum Decision 28A01-1501-CR-24 | July 31, 2015   Page 11 of 11
