MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                     FILED
regarded as precedent or cited before any                            Dec 19 2019, 8:42 am
court except for the purpose of establishing                              CLERK
the defense of res judicata, collateral                               Indiana Supreme Court
                                                                         Court of Appeals
estoppel, or the law of the case.                                          and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
William T. Myers                                         Curtis T. Hill, Jr.
Whitehurst & Myers Law                                   Attorney General of Indiana
Marion, Indiana
                                                         Megan M. Smith
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Steven P. Wheeler,                                       December 19, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-991
        v.                                               Appeal from the Huntington
                                                         Superior Court
State of Indiana,                                        The Honorable Jennifer E.
Appellee-Plaintiff                                       Newton, Judge
                                                         Trial Court Cause No.
                                                         35D01-1709-F2-233



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-991 | December 19, 2019              Page 1 of 8
[1]   Steven P. Wheeler appeals his fifty-two year sentence for Level 3 felony

      aggravated battery, 1 Level 5 felony possession of a handgun without a license,2

      Level 6 felony criminal organization activity, 3 Level 6 felony criminal

      recklessness, 4 and being a habitual offender. 5 Wheeler argues his sentence is

      inappropriate in light of the nature of his offenses and his character. We affirm.



                                Facts and Procedural History
[2]   Wheeler was the leader of the 2-1 F.A.T.A.L. gang. (Tr. Vol. II at 122.)

      Wheeler authorized an “honor fight” between Monte Ness and Joseph

      McAbee, both of whom were members of the gang. (Id. at 133.) The fight was

      to settle a dispute between Ness and McAbee, and the fight was to take place at

      Richard Voght’s home, where Ness lived.


[3]   On September 26, 2017, before Wheeler and McAbee arrived at Voght’s home,

      Ness told Voght about the fight. Voght and others in the residence moved to

      the back porch to wait for Wheeler and his group. When Wheeler came onto

      the property, Voght noticed Wheeler was carrying a gun. Voght heard a click

      sound, similar to a round being racked in the chamber of a gun. Voght told




      1
          Ind. Code § 35-42-2-1.5(1) (2014).
      2
          Ind. Code § 35-47-2-1(e)(2)(B) (2017).
      3
          Ind. Code § 35-45-9-3(c) (2016).
      4
          Ind. Code § 35-42-2-2(b)(1)(A) (2014).
      5
          Ind. Code § 35-50-2-8(a) (2017).


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-991 | December 19, 2019   Page 2 of 8
      Wheeler’s group to take any guns off his property. McAbee and Ness began

      fighting in the street. Some of the people, including Voght’s wife, began to

      gather near the fight. Shortly after the fight began, Ness stopped fighting

      because McAbee was wearing brass knuckles. Ness fled to the back porch and

      into the house.


[4]   One of the men who arrived with Wheeler ran after Ness. Voght, who was still

      on the back porch, threw the man from the porch and told everyone to leave.

      Wheeler then shot his gun into the ground in Voght’s direction. Some people in

      the area fled, but Wheeler’s wife attacked Voght’s wife and the two began to

      fight in the street. Wheeler went toward the two women with his gun drawn.

      Voght saw Wheeler approaching his wife and grabbed a wrench. Voght

      intercepted Wheeler and swung the wrench at him. Wheeler shot Voght in the

      shoulder. After shooting Voght, Wheeler and his group fled from the area.

      Police arrested Wheeler shortly after he fled the scene.


[5]   Voght suffered a chipped collar bone, shattered shoulder blade, a bruised lung,

      and multiple severed nerves and tendons as a result of the gunshot wound.

      Voght also lost his job as a result of the injury, and he still has a limited range of

      motion and loss of grip strength.


[6]   The State charged Wheeler with Level 3 felony aggravated battery inflicting

      injury that causes protracted loss or impairment, Level 3 felony aggravated




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-991 | December 19, 2019   Page 3 of 8
      battery that causes serious permanent disfigurement, 6 Level 5 felony battery

      with a deadly weapon, Level 5 felony possession of a handgun without a

      license, Level 5 felony criminal organization activity, and Level 6 felony

      criminal recklessness. The State also alleged Wheeler was a habitual offender.

      A jury found Wheeler guilty of Level 3 felony aggravated battery that causes a

      protracted loss or impairment, Class A misdemeanor possession of a handgun

      without a license, Level 5 felony criminal organization activity, and Level 6

      felony criminal recklessness. Wheeler admitted being a habitual offender. The

      court imposed an aggregate sentence of fifty-two years.



                                     Discussion and Decision
[7]   Wheeler argues his sentence is inappropriate in light of the nature of his

      offenses and his character. 7 Our standard for reviewing this issue is well settled.


                 We “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.” Ind. Appellate Rule 7(B).




      6
          Ind. Code § 35-42-2-1.5(1) (2014).
      7
        Wheeler also alleges the trial court abused its discretion by failing to consider his self-defense as a mitigating
      factor. However, an “argument must include for each issue a concise statement of the applicable standard of
      review.” Ind. App. R. 46(A)(8)(b). Wheeler failed to provide a standard of review, and therefore the issue is
      waived. See Jackson v. State, 758 N.E.2d 1030, 1037 (Ind. Ct. App. 2001) (argument waived when appellant
      failed to cite appropriate authority). Waiver notwithstanding, the trial court was not required to consider
      Wheeler’s self-defense claim after the jury rejected it. See Wallace v. State, 725 N.E.2d 837, 840 (Ind. 2000)
      (the trial court did not abuse its discretion when it chose to not consider the defendant’s self-defense
      argument as mitigator after a jury rejected the claim).



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-991 | December 19, 2019                        Page 4 of 8
              “Although appellate review of sentences must give due
              consideration to the trial court’s sentence because of the special
              expertise of the trial bench in making sentencing decisions,
              Appellate Rule 7(B) is an authorization to revise sentences when
              certain broad conditions are satisfied.” Shouse v. State, 849
              N.E.2d 650, 660 (Ind. Ct. App. 2006), trans. denied (citations and
              quotation marks omitted). “[W]hether 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 myriad other factors that come to light in a
              given case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008).
              In addition to the “due consideration” we are required to give to
              the trial court’s sentencing decision, “we understand and
              recognize the unique perspective a trial court brings to its
              sentencing decisions.” Rutherford v. State, 866 N.E.2d 867, 873
              (Ind. Ct. App. 2007).


      Couch v. State, 977 N.E.2d 1013, 1017 (Ind. Ct. App. 2012), reh’g denied, trans.

      denied. The appellant bears the burden of demonstrating his sentence is

      inappropriate. Amalfitano v. State, 956 N.E.2d 208, 212 (Ind. Ct. App. 2011),

      trans. denied. “Our review of the sentence 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.” Gleason v. State, 965

      N.E.2d 702, 712 (Ind. Ct. App. 2012).


[8]   When considering the nature of the offense, the advisory sentence is the starting

      point for determining the appropriateness of a sentence. Anglemyer v. State, 868

      N.E.2d 482, 494 (Ind. 2007), clarified on reh’g 875 N.E.2d 218 (Ind. 2007). A

      Level 3 felony is punishable by a fixed term between three and sixteen years,

      with the advisory sentence being ten years. Ind. Code § 35-50-2-5(b) (2014).

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-991 | December 19, 2019   Page 5 of 8
      The trial court sentenced Wheeler to fourteen years; thus, he received a

      sentence between the advisory and maximum sentences for aggravated battery.

      A Level 5 felony is punishable by a fixed term between one and six years, with

      the advisory sentence being three years. Ind. Code § 35-50-2-6(b) (2014). The

      trial court sentenced Wheeler to three years; thus, he received the advisory

      sentence for possessing a handgun without a license. A Level 6 felony is

      punishable by a fixed term between six months and two-and-one-half years.

      Ind. Code § 35-50-2-7(b) (2016). The trial court sentenced Wheeler to two years

      each for criminal organization activity and criminal recklessness; thus, he

      received above the advisory sentence but below the maximum for each of those

      crimes. Wheeler was found to be a habitual offender and, based thereon, the

      trial court enhanced his sentence for aggravated battery by eighteen years. The

      trial court ordered the sentences for criminal recklessness and criminal

      organization activity to be served concurrently, but to run consecutive to his

      convictions for aggravated battery and possession of a handgun without a

      license, giving him a total of fifty-two years in prison.


[9]   Regarding the nature of the offense, Wheeler’s victim suffered serious injuries.

      Voght suffered nerve damage, lost some of his arm’s range of motion, and has

      reduced grip strength as a result of the shooting. Additionally, Wheeler created

      this dangerous situation. As the leader of the 2-1 F.A.T.A.L. gang, Wheeler

      authorized the honor fight and he brought a gun to the fight. Because of

      Wheeler’s recklessness and poor decision making, we cannot hold an

      aggravated sentence is inappropriate for his offenses. See Rowe v. State, 867


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-991 | December 19, 2019   Page 6 of 8
       N.E.2d 262, 270 (Ind. Ct. App. 2007) (victim’s serious injury justified

       aggravated sentence).


[10]   When considering the character of the offender, one relevant fact is the

       defendant’s criminal history. Johnson v. State, 986 N.E.2d 852, 857 (Ind. Ct.

       App. 2013). Wheeler has an extensive criminal history, including a juvenile

       record. 8 Wheeler is also the leader of the 2-1 F.A.T.A.L. gang. Wheeler

       regularly uses drugs including alcohol, marijuana, bath salts, heroin, cocaine,

       methamphetamine, prescription medications, and ecstasy. (App. Vol. II at

       207.) Additionally, Wheeler has a propensity for violence, stating he “never

       walks away from a fight.” (Id. at 214.)


[11]   Given the nature of the offenses, i.e., the severity of Voght’s injuries, and the

       character flaws of the offender, i.e., Wheeler’s repeated violation the law, we

       cannot say Wheeler’s sentence is inappropriate. See Clark v. State, 26 N.E.3d

       615, 619 (Ind. Ct. App. 2014) (defendant’s extensive criminal history showed

       bad character and allowed for aggravated sentence), trans. denied.



                                                Conclusion




       8
        Wheeler’s juvenile record includes adjudication for theft and being a minor in possession of alcohol.
       Wheeler’s adult record includes multiple misdemeanor convictions and felony convictions of: multiple counts
       of theft, receiving stolen property, possession of methamphetamine, and possession of a syringe.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-991 | December 19, 2019                Page 7 of 8
[12]   In light of the nature of Wheeler’s offenses and his character, his fifty-two-year

       sentence is not inappropriate. Accordingly, we affirm.


[13]   Affirmed.


       Najam, J., and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-991 | December 19, 2019   Page 8 of 8
