MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                 FILED
this Memorandum Decision shall not be
                                                                  Jun 24 2016, 8:58 am
regarded as precedent or cited before any
court except for the purpose of establishing                           CLERK
                                                                   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
Kristin A. Mulholland                                    Gregory F. Zoeller
Appellate Public Defender                                Attorney General of Indiana
Crown Point, Indiana
                                                         Marjorie Lawyer-Smith
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Calvin Wayne Howard, Jr.,                                June 24, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         45A05-1512-CR-2360
        v.                                               Appeal from the Lake Superior
                                                         Court
State of Indiana,                                        The Honorable Samuel L. Cappas,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         45G04-1505-FC-8



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 45A05-1512-CR-2360 | June 24, 2016       Page 1 of 8
                                            Case Summary
[1]   Calvin Wayne Howard, Jr. challenges the appropriateness of his nine-year

      sentence imposed by the trial court following his guilty plea to class C felony

      battery, level 5 felony stalking, and class D felony theft. Finding that he has

      failed to meet his burden of establishing that his sentence is inappropriate in

      light of the nature of the offenses and his character, we affirm.


                              Facts and Procedural History
[2]   In June 2014, Howard was at the home of his ex-girlfriend Sharonne Haley.

      When Haley received a text message from a male friend, she left the room and

      Howard followed. He struck her repeatedly in the face with a closed fist,

      causing extreme swelling and bruising to both of her eyes. She blacked out and

      suffered contusions on the front and back of her head. On his way out of the

      house, Howard stole $180 from a box on top of Haley’s refrigerator.


[3]   Shortly thereafter, Haley obtained a protective order against Howard from the

      Lake County Superior Court, effective July 1, 2014 through April 30, 2015.

      She also obtained a no-contact order from the Gary City Court, which Howard

      violated, and which resulted in a one-year sentence for invasion of privacy, half

      of which was to be served in the Lake County Jail. He phoned Haley

      repeatedly from the jail in violation of the protective and no-contact orders. In

      all, Howard left Haley approximately thirty voicemail messages, numerous

      cards, and multiple text messages in which he threatened her and her children,

      warned that he was watching her, and threatened to burn down or blow up her

      Court of Appeals of Indiana | Memorandum Decision 45A05-1512-CR-2360 | June 24, 2016   Page 2 of 8
      house. He also made in-person contact with her at least once during the

      prohibited time.


[4]   The State charged Howard with class C felony battery resulting in serious

      bodily injury, two counts of level 5 felony stalking, level 6 felony stalking, class

      D felony theft, class A misdemeanor battery, and class B misdemeanor

      harassment. On the day of trial, Howard pled guilty as charged. The trial court

      established a factual basis for each offense, convicted him as charged, merged

      four of the counts, and entered judgment on the class C felony battery, level 5

      felony stalking, and class D felony theft. The court subsequently imposed

      concurrent five- and two-year sentences on the battery and theft convictions, to

      run consecutive to a four-year term for stalking, for an aggregate sentence of

      nine years. Howard was to serve seven and one-half years in the Department of

      Correction (“DOC”) and one and one-half years in community corrections.


[5]   Howard now challenges the appropriateness of his sentence. Additional facts

      will be provided as necessary.


                                   Discussion and Decision
[6]   Howard asks that we reduce his nine-year sentence pursuant to Indiana

      Appellate Rule 7(B), which states that we “may revise a sentence authorized by

      statute if, after due consideration of the trial court’s decision, [this] Court finds

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

      character of the offender.” When a defendant requests appellate review and

      revision of his sentence, we have the power to affirm or reduce the sentence.

      Court of Appeals of Indiana | Memorandum Decision 45A05-1512-CR-2360 | June 24, 2016   Page 3 of 8
      Akard v. State, 937 N.E.2d 811, 813 (Ind. 2010). In conducting our review, we

      may consider all aspects of the penal consequences imposed by the trial court in

      sentencing, i.e., whether it consists of executed time, probation, suspension,

      home detention, or placement in community corrections, and whether the

      sentences run concurrently or consecutively. Davidson v. State, 926 N.E.2d

      1023, 1025 (Ind. 2010). We do not look to see whether the defendant’s

      sentence is appropriate or if another sentence might be more appropriate; rather,

      the test is whether the sentence is “inappropriate.” Fonner v. State, 876 N.E.2d

      340, 344 (Ind. Ct. App. 2007). A defendant bears the burden of persuading this

      Court that his sentence meets the inappropriateness standard. Anglemyer v.

      State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218.


[7]   In considering the nature of the offenses, “the advisory sentence is the starting

      point the Legislature has selected as an appropriate sentence.” Id. at 494.

      Howard pled guilty to class C felony battery, which carries a sentencing range

      of two to eight years with a four-year advisory term; level 5 felony stalking,

      which carries a sentencing range of one to six years with a three-year advisory

      term; and class D felony theft, which carries a sentencing range of six months to

      three years with a one and one-half year advisory term. Ind. Code §§ 35-50-2-6,

      -7. His aggregate nine-year term is well below the seventeen-year maximum

      aggregate sentence exposure and only two years above the aggregate advisory

      terms for the three offenses. When determining the appropriateness of a

      sentence that deviates from an advisory sentence, we consider whether there is

      anything more or less egregious about the offense as committed by the


      Court of Appeals of Indiana | Memorandum Decision 45A05-1512-CR-2360 | June 24, 2016   Page 4 of 8
      defendant that “makes it different from the typical offense accounted for by the

      legislature when it set the advisory sentence.” Holloway v. State, 950 N.E.2d

      803, 807 (Ind. Ct. App. 2011).


[8]   Here, Howard characterizes his offenses, particularly the theft offense, as

      merely typical in nature. We disagree. The record shows that he committed

      the theft while he was inside Haley’s house, right after he had battered her so

      severely that she blacked out. See Tr. at 97 (“THE COURT: [Y]ou knocked

      her out and took some money from her, right? [Howard:] Yes.”). The violent

      circumstances immediately preceding the theft are similar to those characteristic

      to the offense of robbery. Moreover, the threat did not end after the battery and

      theft. Howard continued to stalk, intimidate, and threaten Haley and her

      children, all in disregard of the protective and no-contact orders in effect during

      the ensuing months and even when incarcerated for his previous violations of

      those orders. He called her so many times from the phone at the jail that she

      asked the prosecutor to have him blocked from calling her number. Simply put,

      Howard’s offenses are more egregious than the typical offenses for which the

      legislature set the advisory terms. As such, we conclude that he has failed to

      carry his burden of demonstrating that his sentence, two years above the

      aggregate advisory term, is inappropriate based on the nature of his offenses.


[9]   As for his character, Howard cites his decision to plead guilty, his apology to

      Haley, and his limited criminal history as favorable circumstances. We review

      a defendant’s character by engaging in a broad consideration of his qualities.

      Aslinger v. State, 2 N.E.3d 84, 95 (Ind. Ct. App. 2014), clarified on other grounds on

      Court of Appeals of Indiana | Memorandum Decision 45A05-1512-CR-2360 | June 24, 2016   Page 5 of 8
       reh’g, 11 N.E.3d 571. First, with respect to Howard’s guilty plea, we agree with

       the trial court that his decision to plead guilty merits mitigating consideration in

       that he conferred a benefit on the State and saved taxpayers the expense of a

       full-blown trial. See Francis v. State, 817 N.E.2d 235, 237-38 (Ind. 2004)

       (recognizing that defendant’s guilty plea extends a benefit to the State and

       victims by avoiding a full-blown trial). Even so, here, Howard had declined the

       State’s previous plea offer and did not make his request for a change of plea

       until the day of trial. In fact, the record shows that the jury was ready to walk

       into the courtroom for trial when Howard indicated his intent to change his

       plea. In short, the benefit conferred by his guilty plea was minimized due to its

       last-minute timing.


[10]   Similarly, Howard emphasizes his apology to Haley in open court as evidence

       of his strong character and willingness to take responsibility. However, his in-

       court apology is laced with accusations toward his victim and insinuations

       about the trial court’s motives:

               I want to apologize to the victim but you know, the Court
               making me look like I’m the biggest monster, but all the time I
               was provoked …. Like I say, I was provoked. I ain’t the biggest
               monster like the Court’s trying to put me out to be, you know?
               …. [I]t was not just me doing everything, that’s why I made the
               phone calls. I just wanted to call and just make a bunch of
               threatening phone calls to her for just no reason. I said I was
               provoked, this isn’t just a one-way thing. But I apologize to the
               victim, that’s all I can say …. But I’m the one that’s sitting here
               doing time and I’m a little crazy while she’s out there just
               partying and doing whatever she wants to do …. So Your Honor,
               I apologize to the victim and I apologize to the Court for you

       Court of Appeals of Indiana | Memorandum Decision 45A05-1512-CR-2360 | June 24, 2016   Page 6 of 8
               know, for wasting y’all time because I know everybody got
               important stuff to do, and I’m asking, you know, could I do
               Work Release time?


       Tr. at 95-98. Simply put, Howard’s apology does not reflect a full acceptance of

       responsibility but rather, a pragmatic, yet inartfully stated, attempt to garner

       leniency.


[11]   With respect to Howard’s criminal history, we agree that it is neither extensive

       nor violent. His juvenile record includes true findings for what would have

       been class A misdemeanor intimidation and class B misdemeanor criminal

       mischief if committed by an adult, with one probation failure. His adult record

       includes convictions for class C misdemeanor criminal conversion and class A

       misdemeanor trafficking with an inmate. What we find much more disturbing

       is his general disrespect for the law, as evidenced by his numerous, knowing

       violations of the protective and no-contact orders. Even when he was

       incarcerated at the county jail for invasion of privacy based on these violations,

       he continued to disregard the orders by repeatedly calling Haley from the jail’s

       phone.


[12]   Moreover, the trial court found Howard to be “threatening and vindictive …

       [with] anger issues. Appellant’s App. at 69. The record confirms this

       assessment, as the trial court had to admonish him more than once during

       sentencing for his deflections of blame and disparagement of those present in

       the courtroom. In short, Howard has not shown that his nine-year aggregate

       sentence is unwarranted based upon his character. Accordingly, he has failed

       Court of Appeals of Indiana | Memorandum Decision 45A05-1512-CR-2360 | June 24, 2016   Page 7 of 8
       to meet his burden of demonstrating that the sentence imposed by the trial court

       is inappropriate. Therefore, we affirm.


[13]   Affirmed.


       Najam, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 45A05-1512-CR-2360 | June 24, 2016   Page 8 of 8
