                                                                                 FILED
                                                                             Nov 09 2018, 8:55 am

                                                                                 CLERK
                                                                             Indiana Supreme Court
                                                                                Court of Appeals
                                                                                  and Tax Court




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Donald C. Swanson, Jr.                                    Curtis T. Hill, Jr.
      Deputy Public Defender                                    Attorney General of Indiana
      Fort Wayne, Indiana
                                                                Lyubov Gore
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Anthony Ward, Sr.,                                        November 9, 2018
      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                18A-CR-1589
              v.                                                Appeal from the Allen Superior
                                                                Court
      State of Indiana,                                         The Honorable John F. Surbeck,
      Appellee-Plaintiff.                                       Judge
                                                                Trial Court Cause No.
                                                                02D06-1803-F5-93



      Najam, Judge.


                                        Statement of the Case
[1]   Anthony Ward, Sr. appeals his sentence following his guilty plea to auto theft,

      as a Level 5 felony. He raises a single issue for our review, namely, whether the

      trial court abused its discretion when it sentenced him.

      Court of Appeals of Indiana | Opinion 18A-CR-1589 | November 9, 2018                           Page 1 of 7
[2]   We affirm.


                                  Facts and Procedural History
[3]   On March 20, 2018, Officer A. Maurer with the Fort Wayne Police

      Department escorted Ward out of a liquor store. Later that day, Ward stole a

      vehicle from the parking lot of the same liquor store. The owner of the vehicle,

      Decarla Davis, witnessed Ward enter her vehicle and drive away while she was

      inside the store. Davis then contacted the police to report that her car had been

      stolen. Officer Maurer responded to the call. Once he arrived, Davis described

      Ward to Officer Maurer. And an employee of the liquor store told Officer

      Maurer that the person who had stolen Davis’ vehicle was the same person who

      Officer Maurer had escorted off of the property earlier in the day.


[4]   Soon thereafter, officers located Davis’ vehicle in a driveway. The officers saw

      Ward and ordered him to stop, but he did not. Rather, he entered a residence.

      Officers then pursued Ward into the residence where they arrested him. The

      officers were able to recover the keys to Davis’ vehicle from inside the

      residence. Davis, who had arrived at the scene, was able to identify Ward as

      the man who had stolen her vehicle.


[5]   On March 26, the State charged Ward with one count of auto theft, as a Level 5

      felony (“Count 1”), and one count of resisting law enforcement, as a Class A

      misdemeanor (“Count 2”). On May 7, Ward pleaded guilty as charged. The

      trial court accepted Ward’s guilty plea and sentenced him to the advisory

      sentence of three years executed in the Department of Correction for Count 1

      Court of Appeals of Indiana | Opinion 18A-CR-1589 | November 9, 2018       Page 2 of 7
      and one year executed for Count 2. Then, based on Ward’s “extraordinary

      criminal history,” trial court ordered the sentences to run consecutively, for an

      aggregate sentence of four years. Tr. Vol. II at 10. This appeal ensued.


                                       Discussion and Decision
[6]   Ward contends that the trial court abused its discretion when it sentenced him

      on his Level 5 felony conviction because it did not enter a sentencing

      statement.1 Indiana Code Section 35-38-1-1.3 (2018) provides: “After a court

      has pronounced a sentence for a felony conviction, the court shall issue a

      statement of the court’s reasons for selecting the sentence that it imposes unless

      the court imposes the advisory sentence for the felony.” (Emphasis added.)

      Accordingly, under the plain language of the statute, a trial court is not required

      to issue a sentencing statement where, as here, it imposes the advisory sentence

      for a felony conviction.


[7]   Again, Ward pleaded guilty to auto theft, as a Level 5 felony. The sentencing

      range for a Level 5 felony is one year to six years, with an advisory sentence of

      three years. I.C. § 35-50-2-6(b). The trial court sentenced Ward to the advisory

      sentence of three years. Because the trial court sentenced Ward to the advisory




      1
        Ward only challenges whether the trial court erred when it sentenced him on the Level 5 felony because it
      did not issue a sentencing statement. He does not challenge his sentence for the Class A misdemeanor, and
      he concedes that the trial court was not required to enter a sentencing statement for that conviction. Further,
      he does not challenge the trial court’s imposition of consecutive sentences.

      Court of Appeals of Indiana | Opinion 18A-CR-1589 | November 9, 2018                                Page 3 of 7
       sentence for his felony conviction, the court was not required to issue a

       sentencing statement. I.C. § 35-38-1-1.3.


[8]    Although Ward acknowledges that the trial court was not required by statute to

       enter a sentencing statement, he contends that the statute is incompatible with

       our Supreme Court’s holding in Anglemyer v. State, 868 N.E.2d 482 (Ind.),

       clarified on reh’g on other grounds, 875 N.E.2d 218 (Ind. 2007). In Anglemyer,

       which was decided in 2007, the Indiana Supreme Court held in relevant part

       that our “trial courts are required to enter sentencing statements whenever

       imposing [a] sentence for a felony offense.” Id. at 490.


[9]    Our Supreme Court’s landmark opinion in Anglemyer has greatly facilitated

       sentencing in our trial courts as well as appellate review of those sentences.

       However, in 2014, seven years after our Supreme Court decided Anglemyer, the

       Indiana General Assembly amended the statute that requires a trial court to

       enter a sentencing statement. As we have noted, the statute now expressly

       provides that a trial court must issue a sentencing statement “unless the court

       imposes the advisory sentence for the felony.” I.C. § 35-38-1-1.3. Thus, insofar

       as sentencing statements for felony advisory sentences are concerned, the

       statute enacted by our legislature has superseded Anglemyer’s sentencing regime.


[10]   Still, Ward contends that “Anglemyer’s requirement of a sentencing statement,

       and the importance of that statement, remain a cornerstone of Indiana

       sentencing law even after I.C. § 35-38-1-1.3 was passed by the legislature.”

       Appellant’s Br. at 12. Thus, he maintains that, despite the statute, the court


       Court of Appeals of Indiana | Opinion 18A-CR-1589 | November 9, 2018        Page 4 of 7
       was still required to follow the dictates of Anglemyer. To support his contention,

       Ward relies on Jackson v. State, 45 N.E.3d 1249 (Ind. Ct. App. 2015), and Prater

       v. State, 59 N.E.3d 314 (Ind. Ct. App. 2016), which were decided after the

       Indiana General Assembly amended Indiana Code Section 35-38-1-1.3 and

       which cite Anglemyer.


[11]   In Jackson, the trial court sentenced Jackson to the maximum sentence for a

       Class B felony conviction. 45 N.E.3d at 1250. On appeal, this court cited

       Anglemyer and held that the trial court abused its discretion when it sentenced

       Jackson because it did not issue an adequate sentencing statement. Id. at 1251-

       52. But that case considered whether the trial court had complied with the

       requirement that it issue an adequate sentencing statement when it sentenced

       the defendant to the maximum sentence. Accordingly, Jackson does not support

       Ward’s contention that a trial court abuses its discretion if it does not enter a

       sentencing statement when it imposes an advisory sentence.


[12]   And in Prater, the trial court sentenced Prater to the advisory sentence for a

       Level 6 felony, which sentence Prater appealed to this court. Prater, 59 N.E.3d

       at 316. On appeal, we cited Anglemyer and its rule that a trial court may be

       found to have abused its discretion in a number of ways, including if it fails to

       enter a sentencing statement. Id. at 317. However, the issue on appeal was not

       whether the trial court had abused its discretion when it failed to enter a




       Court of Appeals of Indiana | Opinion 18A-CR-1589 | November 9, 2018          Page 5 of 7
       sentencing statement for Prater’s advisory sentence.2 Rather, the issue was

       whether, in light of an amendment to Indiana Code Section 35-38-3-3, the trial

       court erred when it ordered Prater to serve his term in the Department of

       Correction. Id. Thus, Ward’s reliance on Prater is misplaced.


[13]   Ward further contends that, if Indiana Code Section 35-38-1-1.3 “is construed

       so as to do away with the sentencing statement requirement in the case of

       advisory sentences, then it becomes unclear how those sentences are to be

       reviewed.” Appellant’s Br. at 12. Ward also contends that “[t]he statute

       effectively treats advisory sentences as per se outside the scope of an abuse of

       discretion review,” id., and that “the advisory sentences [would] be per se within

       the trial court’s discretion, regardless of the individual factors of the case[.]” Id.

       at 13. Ward continues that our “Supreme Court has stated that, while the

       advisory sentence is the starting point, ‘the trial court ultimately imposes a

       sentence based upon the aggravating and mitigating circumstances it finds.’”

       Id. at 12 (quoting Fuller v. State, 9 N.E.3d 653, 657 (Ind. 2014)).3 But we agree

       with the State that the statute is clear and unambiguous. The Indiana General

       Assembly has declared that a trial court is not required to issue a sentencing

       statement that addresses aggravating and mitigating circumstances when it

       imposes the advisory sentence for a felony conviction.




       2
           Indeed, this Court did not discuss whether the trial court had issued a sentencing statement.
       3
        Our Supreme Court decided Fuller on June 2, 2014, which was approximately one month before the
       amendment to Indiana Code Section 35-38-1-1.3 became effective.

       Court of Appeals of Indiana | Opinion 18A-CR-1589 | November 9, 2018                                Page 6 of 7
[14]   And, contrary to Ward’s assertion, a court on appeal can still review an

       individual’s sentence when a trial court does not enter a sentencing statement.

       Indeed, it is well settled that, “[e]ven where a trial court has not abused its

       discretion in sentencing, the Indiana Constitution authorizes independent

       appellate review and revision of a trial court’s sentencing decision.” Ecklebarger

       v. State, 51 N.E.3d 169, 170 (Ind. 2016). Appellate courts implement that

       authority through Indiana Appellate Rule 7(B), which provides that “[t]he

       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.” Thus, while

       a trial court is not required to enter a sentencing statement when it imposes the

       advisory sentence for a felony conviction, this court can still review an

       appellant’s sentence on appeal under Indiana Appellate Rule 7(B).


[15]   In sum, a trial court is not required to enter a sentencing statement if it imposes

       the advisory sentence for a felony conviction. See I.C. § 35-38-1-1.3. Here,

       because the trial court sentenced Ward to the advisory sentence of three years

       for a Level 5 felony, the trial court was not required to enter a sentencing

       statement. Thus, the trial court did not abuse its discretion when it sentenced

       Ward, and we affirm Ward’s sentence.


[16]   Affirmed.


       Crone, J., and Pyle, J., concur.



       Court of Appeals of Indiana | Opinion 18A-CR-1589 | November 9, 2018        Page 7 of 7
