MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                  FILED
this Memorandum Decision shall not be                              Sep 29 2016, 9:05 am
regarded as precedent or cited before any
                                                                        CLERK
court except for the purpose of establishing                        Indiana Supreme Court
                                                                       Court of Appeals
the defense of res judicata, collateral                                  and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Donald R. Shuler                                         Gregory F. Zoeller
Barkes, Kolbus, Rife & Shuler, LLP                       Attorney General of Indiana
Goshen, Indiana                                          Tyler G. Banks
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Scott L. Wilkins,                                        September 29, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         43A03-1604-CR-778
        v.                                               Appeal from the Kosciusko
                                                         Superior Court
State of Indiana,                                        The Honorable Joe V. Sutton,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         43D03-1412-F4-824



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 43A03-1604-CR-778 | September 29, 2016    Page 1 of 10
                                             Case Summary
[1]   Following a jury trial, Scott Wilkins (“Wilkins”) was convicted of (1) Causing

      the Death of Another Person When Operating a Vehicle, as a Level 4 Felony1;

      and (2) Failure to Comply with Acts Required of a Driver of a Vehicle Involved

      in an Accident Resulting in Death, as a Level 5 Felony2. Wilkins now appeals

      his sentence. We affirm.



                                                       Issues
[2]   Wilkins raises two issues for our review:

                   I.     Whether the trial court abused its discretion in sentencing;
                          and


                  II.     Whether Wilkins’s sentence is inappropriate.


                                 Facts and Procedural History
[3]   Around midnight on December 26, 2014, Wilkins was driving in rural

      Kosciusko County with passenger Kami Ellis (“Ellis”), who was a friend. The

      speed limit was 55mph, but Wilkins was driving between 86mph and 95mph.

      As Wilkins drove over a crest on the road, he lost control of the vehicle. The




      1
        Ind. Code § 9-30-5-5(b) (2014). The relevant code section was modified, effective July 1, 2016. For this
      code section and others, we refer to the substantive provisions of the Indiana Code in effect at the time of and
      applicable to Wilkins’s offenses.
      2
          I.C. §§ 9-26-1-1; 9-26-1-8(a)2.


      Court of Appeals of Indiana | Memorandum Decision 43A03-1604-CR-778 | September 29, 2016           Page 2 of 10
      vehicle struck a tree and then a large stump. The force of the collision caused

      the engine to break free, roll through a field, and land 223 feet from where the

      vehicle came to rest.


[4]   Nearby residents heard the crash. They saw flames. They also heard a man

      screaming, and observed someone walking near the flames. When both

      residents and responders arrived within minutes, flames had already fully

      engulfed the vehicle. They saw Ellis’s remains in the passenger seat, but no one

      could locate the driver. Ground and aerial searches ensued.


[5]   Meanwhile, Wilkins had left the scene and walked approximately four or five

      miles away to his apartment. Wilkins’s neighbor, Kyra Davis (“Davis”), saw

      him covered in mud and crouching in the bushes across the street. She believed

      Wilkins was waiting for police officers to leave before he entered his apartment.

      Davis called Wilkins’s roommate Robert Emerick (“Emerick”) to tell him that

      Wilkins had arrived. When Emerick came to the apartment, Davis was in the

      hallway with Wilkins’s friend Vicki Simmons (“Simmons”). The car in the

      collision belonged to Simmons, who had loaned the vehicle to Wilkins.


[6]   When Emerick and Simmons entered the apartment, they found Wilkins

      showering in the bathroom. Wilkins had blood on his head, an injured arm,

      and a swollen ankle. Emerick and Simmons helped Wilkins get dressed, and

      then Wilkins told Simmons that she needed to get him out of there. Wilkins

      and Simmons then went downstairs into another of Simmons’s vehicles, where

      Wilkins directed Simmons to take him to a hotel. Simmons followed Wilkins’s


      Court of Appeals of Indiana | Memorandum Decision 43A03-1604-CR-778 | September 29, 2016   Page 3 of 10
      instructions. When they reached the parking lot of a Holiday Inn Express,

      Wilkins directed Simmons to pay with cash and use a fake name. Simmons

      complied, and then they entered the room she had rented.


[7]   Shortly thereafter, police arrived and found Wilkins laying in the bed. They

      detected the smell of alcohol on his breath. Wilkins was arrested and taken to a

      local hospital where he refused to submit to a chemical test. After law

      enforcement secured a search warrant, Wilkins’s blood was drawn

      approximately seven hours after the collision. Forensic testing revealed the

      presence of a metabolite of marijuana in Wilkins’s blood.


[8]   On February 15, 2016, Wilkins was brought to trial on charges of (1) Causing

      the Death of Another Person When Operating a Vehicle, as a Level 4 Felony3;

      (2) Failure to Comply with Acts Required of a Driver of a Vehicle Involved in

      an Accident Resulting in Death4, as a Level 5 felony; and (3) Reckless

      Homicide, as a Level 5 Felony5.


[9]   Following a jury trial, Wilkins was acquitted of Reckless Homicide but

      convicted of the remaining charges. On March 16, 2016, the trial court

      sentenced Wilkins to an aggregate sentence of fifteen years, sentencing Wilkins

      to nine executed years for the Level 4 felony conviction and six executed years




      3
          I.C. § 9-30-5-5(b).
      4
          I.C. §§ 9-26-1-1; 9-26-1-8(a)2.
      5
          I.C. § 35-42-1-5.


      Court of Appeals of Indiana | Memorandum Decision 43A03-1604-CR-778 | September 29, 2016   Page 4 of 10
       for the Level 5 conviction, with the sentences to be served consecutively.

       Wilkins now appeals.



                                  Discussion and Decision
                                        Abuse of Discretion
[10]   Wilkins argues that the trial court abused its discretion in sentencing him.

       Specifically, Wilkins contends that the trial court failed to properly consider

       certain mitigating factors and aggravating factors in determining his sentence.


[11]   The sentencing range for a Level 4 felony conviction is between two and twelve

       years, with six years being the advisory sentence. I.C. § 35-50-2-5.5. Wilkins

       was sentenced to nine years for his Level 4 felony conviction. The sentencing

       range for a Level 5 felony conviction is between one and six years, with three years

       being the advisory sentence. I.C. § 35-50-2-6. Wilkins was sentenced to six years

       for his Level 5 felony conviction. “So long as the sentence is within the statutory

       range, it is subject to review only for abuse of discretion.” Anglemyer v. State, 868

       N.E.2d 482, 490 (Ind. 2007), clarified on other grounds, 875 N.E.2d 218 (Ind.

       2007).


[12]   A trial court abuses its discretion if its sentencing 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. In

       sentencing a defendant, the trial court must enter “a sentencing statement that

       includes a reasonably detailed recitation of its reasons for imposing a particular

       Court of Appeals of Indiana | Memorandum Decision 43A03-1604-CR-778 | September 29, 2016   Page 5 of 10
       sentence.” Anglemyer, 868 N.E.2d at 491. Where, as here, a defendant alleges

       that the 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. However, the trial court is not obligated to

       explain why it did not find a particular circumstance to be significantly

       mitigating. Sherwood v. State, 749 N.E.2d 36, 38 (Ind. 2001). We will not

       remand unless we “cannot say with confidence that the trial court would have

       imposed the same sentence had it properly considered reasons that enjoy

       support in the record.” Anglemyer, 868 N.E.2d at 491.


[13]   In this case, the trial court, in its written sentencing order, rejected all of

       Wilkins’s proffered mitigating factors. Wilkins contends that the trial court

       failed to consider his acceptance of responsibility and improperly considered his

       remorse6. We observe that an expression of remorse necessarily encompasses a

       personal acceptance of responsibility. See Black’s Law Dictionary (10th ed.

       2014) (defining remorse as “[a] strong feeling of sincere regret and sadness over

       one’s having behaved badly or done harm; intense, anguished self-reproach and

       compunction of conscience, esp. for a crime one has committed.”) Moreover, a

       consideration of remorse is a credibility determination, which the trial court is

       better positioned to make. We will not disturb a trial court’s credibility




       6
         Wilkins also states, but does not develop argument thereon, that the trial court abused its discretion in
       rejecting hardship to his children as an additional mitigating circumstance. This issue is waived for review.
       Pierce v. State, 29 N.E.3d 1258, 1267-68 (Ind. 2015).

       Court of Appeals of Indiana | Memorandum Decision 43A03-1604-CR-778 | September 29, 2016           Page 6 of 10
       determination at sentencing unless there is evidence of an impermissible

       consideration. Pickens v. State, 767 N.E.2d 530, 535 (Ind. 2002).


[14]   Wilkins suggests that the trial court made impermissible considerations when

       evaluating his remorse. In support of his argument, Wilkins points to a portion

       of the trial court’s sentencing colloquy where the trial court made statements

       relating to Wilkins’s conduct following the collision and the impact on Ellis’s

       family. (Sent. Tr. 44-46.) Prior to those additional comments, however, the

       trial court stated that with respect to remorse “[it] tend[ed] to agree with the

       State.” (Id. at 44.) The State had just argued that Wilkins continued to excuse

       and justify his behavior in the statement Wilkins made in his pre-sentence

       investigation report. (Id. at 42.) There, Wilkins wrote: “I’ve admitted wrongs.

       And although I did leave the scene, I cannot admit to doing it willfully.” (App.

       Vol. III, 52.) Even if Wilkins acknowledged wrongdoing with respect to

       causing Ellis’s death, he did not take full responsibility for his evasive actions

       following the collision.


[15]   In reviewing Wilkins’s claim of remorse and acceptance of responsibility, the

       trial court could have reasonably given Wilkins’s statements little weight,

       finding that Wilkins did not accept responsibility for all of his criminal actions,

       much less show full remorse. Here, the trial court did not abuse its discretion.

       Moreover, even if the trial court’s comments amounted to an impermissible

       consideration, Wilkins has not persuaded us that the trial court would have

       imposed a different sentence. Therefore, we decline to remand.



       Court of Appeals of Indiana | Memorandum Decision 43A03-1604-CR-778 | September 29, 2016   Page 7 of 10
[16]   Wilkins also argues that the trial court abused its discretion in finding that his

       criminal history was an aggravating circumstance. “[T]he significance of a

       criminal history varies based on the gravity, nature and number of prior

       offenses as they relate to the current offense.” McElfresh v. State, 51 N.E.3d 103,

       112 (Ind. 2016) (quoting Williams v. State, 838 N.E.2d 1019, 1021 (Ind. 2005)).


[17]   Wilkins characterizes his criminal history as minimal, but both the quantity and

       quality of Wilkins’s criminal history is well supported by the record. Wilkins

       has two prior felony convictions and two prior misdemeanor convictions. Two

       of these, a felony conviction for Possession of Marijuana and a misdemeanor

       conviction for Operating a Vehicle While Intoxicated Endangering a Person,

       substantively relate to his present conviction. Upon review, Wilkins’s criminal

       history is a valid aggravating circumstance.


[18]   Wilkins further argues that the trial court improperly found as aggravating

       circumstances (1) that he was in a position of trust with respect to Ellis and (2)

       that he caused significant harm to the victim’s family. We need not reach these

       issues. Even a single aggravating circumstance may be sufficient to support an

       enhanced sentence and to justify consecutive sentences. Walter v. State, 727

       N.E.2d 443, 448 (Ind. 2000); Miller v. State, 716 N.E.2d 367, 371 (Ind. 1999).

       We have concluded that Wilkins’s criminal history is a valid aggravating

       circumstance. Moreover, Wilkins does not challenge the trial court’s

       determination that his being on probation at the time of the offense was an

       aggravating circumstance. Accordingly, we find that the trial court did not

       abuse its discretion in enhancing Wilkins’s sentence.

       Court of Appeals of Indiana | Memorandum Decision 43A03-1604-CR-778 | September 29, 2016   Page 8 of 10
                                      Inappropriate Sentence
[19]   Wilkins next requests appellate review and revision of his sentence. Article 7,

       Section 4 of the Indiana Constitution grants the authority for appellate review

       and revision of criminal sentences, and is implemented through Indiana

       Appellate Rule 7(B). Under this rule, this “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.” In performing our review, we assess “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). The principal role of such review is

       to attempt to leaven the outliers. Id. at 1225.


[20]   As to the nature of the offenses, Wilkins caused death with a marijuana

       metabolite in his system and then engaged in exceedingly evasive actions

       following the collision. As to the character of the offender, Wilkins was on

       probation for operating a vehicle while intoxicated. In the hours prior to the

       crash, as Wilkins admits, he violated his probation by consuming alcohol.

       Wilkins’s criminal history shows multiple probation violations.


[21]   On balance, the record does not show “compelling evidence portraying in a

       positive light the nature of the offense . . . and the defendant’s character” that

       would warrant disturbing the trial court’s determination. Stephenson v. State, 29




       Court of Appeals of Indiana | Memorandum Decision 43A03-1604-CR-778 | September 29, 2016   Page 9 of 10
       N.E.3d 111, 122 (Ind. 2015). Seeing no outliers here, we find that the sentence

       imposed by the trial court is not inappropriate under Appellate Rule 7(B).



                                               Conclusion
[22]   The trial court did not abuse its discretion in sentencing Wilkins and his

       sentence is not inappropriate.


[23]   Affirmed.


       Riley, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 43A03-1604-CR-778 | September 29, 2016   Page 10 of 10
