MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any                             Jan 22 2019, 6:17 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
Leanna Weissmann                                         Curtis T. Hill, Jr.
Lawrenceburg, Indiana                                    Attorney General of Indiana
                                                         Monika Prekopa Talbot
                                                         Supervising Deputy
                                                         Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jack Wonderly,                                           January 22, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-1888
        v.                                               Appeal from the LaGrange
                                                         Superior Court
State of Indiana,                                        The Honorable Lisa Bowen-
Appellee-Plaintiff.                                      Slaven, Judge
                                                         Trial Court Cause No.
                                                         44D01-1710-F4-18



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1888 | January 22, 2019               Page 1 of 7
                                Case Summary and Issue
[1]   Jack Wonderly pleaded guilty to burglary, a Level 4 felony, and was sentenced

      to eight years in the Indiana Department of Correction with two years

      suspended to probation. Wonderly now appeals his sentence, raising the sole

      issue of whether his sentence is inappropriate in light of the nature of his offense

      and his character. Concluding the sentence is not inappropriate, we affirm.



                            Facts and Procedural History
[2]   On October 20, 2017, Wonderly and at least one other individual drove to the

      home of Michael and Karen Strawser. Wonderly and his companion gained

      entry to the detached garage of the home by kicking in the back door. Once

      inside, the two attached a log chain from a truck to a gun safe containing

      fourteen firearms and pulled the safe out of the garage and across the lawn,

      eventually lifting the safe into the back of the truck. A coin collection valued at

      $7,000 and three briefcases were also stolen.


[3]   On October 24, 2017, the State charged Wonderly with burglary, a Level 4

      felony; two counts of theft, both Level 6 felonies; and possession of marijuana,

      a Class B misdemeanor. Wonderly pleaded guilty to burglary, a Level 4 felony,

      in exchange for the State dismissing the remaining counts.


[4]   At the sentencing hearing, Wonderly apologized to the victims but explained

      that at the time he went to their residence, he did not know that he would be

      participating in a crime. The trial court found Wonderly’s acceptance of

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1888 | January 22, 2019   Page 2 of 7
      responsibility as a mitigating factor but stated that the court did “not find it

      credible that [Wonderly] didn’t know what [he] [was] doing that night or that

      day.” Transcript of Evidence, Volume II at 15. The trial court noted

      Wonderly’s “extensive criminal history” as an aggravating factor. Id.


[5]   Wonderly argued for a sentence of six years executed with four years

      suspended. The State countered with a sentence of ten years executed with two

      years suspended. The trial court accepted Wonderly’s guilty plea, entered

      judgment of conviction, and sentenced Wonderly to eight years executed in the

      Indiana Department of Correction with two years suspended to probation. The

      trial court also recommended that Wonderly receive a substance abuse

      assessment and complete all recommended treatment while he is incarcerated.

      Wonderly now appeals.



                                 Discussion and Decision
                                     I. Standard of Review
[6]   Article 7, Section 6 of the Indiana Constitution provides this court with the

      authority to review and revise a criminal sentence. Indiana Appellate Rule 7(B)

      provides this court with the authority to revise a sentence “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.” Because a trial court’s judgment “should receive considerable

      deference[,]” our principal role is simply to “leaven the outliers[.]” Cardwell v.

      State, 895 N.E.2d 1219, 1222-25 (Ind. 2008). “Such deference should prevail
      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1888 | January 22, 2019   Page 3 of 7
      unless overcome by compelling evidence portraying in a positive light the

      nature of the offense (such as accompanied by restraint, regard, and lack of

      brutality) and the defendant’s character (such as substantial virtuous traits or

      persistent examples of good character).” Stephenson v. State, 29 N.E.3d 111, 122

      (Ind. 2015). The defendant bears the burden to persuade this court that his or

      her sentence is inappropriate, Childress v. State, 848 N.E.2d 1073, 1080 (Ind.

      2006), and we may rely on any factors appearing in the record, Stokes v. State,

      947 N.E.2d 1033, 1038 (Ind. Ct. App. 2011), trans. denied.


                                  II. Inappropriate Sentence
                                    A. Nature of the Offense
[7]   First, Wonderly asserts that his sentence is inappropriate in light of the nature

      of his offense. The nature of the offense compares the defendant’s actions with

      the required showing to sustain a conviction under the charged offense.

      Anderson v. State, 989 N.E.2d 823, 827 (Ind. Ct. App. 2013), trans. denied. As

      always, 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 (2007). The sentencing range for a

      Level 4 felony is two to twelve years, with an advisory sentence of six years.

      Ind. Code § 35-50-2-5.5. Thus, Wonderly’s ten-year sentence is two years less

      than the maximum sentence but four years greater than the advisory sentence.


[8]   The nature of the offense is found in the details and circumstances surrounding

      the offense and the defendant’s participation therein. Perry v. State, 78 N.E.3d

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1888 | January 22, 2019   Page 4 of 7
      1, 13 (Ind. Ct. App. 2017). Here, Wonderly and a companion kicked in the

      door of a detached garage and stole three brief cases, a valuable coin collection,

      and a gun safe housing fourteen firearms. We observe that apparently neither

      Wonderly nor his companion were armed at the time of the burglary and that

      they broke into a detached garage as opposed to a residence. See Frye v. State,

      837 N.E.2d 1012, 1014 (Ind. 2005) (noting that similar facts “decreased the

      likelihood of violence.”). However, the “absence of physical harm is not an

      automatic mitigating circumstance such that it would require a lesser sentence

      than would otherwise be imposed.” Neale v. State, 826 N.E.2d 635, 638 (Ind.

      2005).


[9]   Citing his long-time addiction issues, Wonderly argues that “[i]n his intoxicated

      state, [he] had not been completely attuned to the real activity his friend

      intended.” Brief of Appellant at 7. Even if Wonderly had not been aware of

      his companion’s true motives at the onset, as the trial court noted, he surely

      became aware of the criminal nature of their conduct as they kicked down a

      door and proceeded to attach a log chain to a gun safe. See Tr., Vol. II at 15.

      Moreover, while we have recognized that a history of substance abuse may be a

      mitigating circumstance, Field v. State, 843 N.E.2d 1008, 1012 (Ind. Ct. App.

      2006), trans. denied, we have also held that when a defendant is aware of a

      substance abuse problem but has not taken appropriate steps to treat it, the trial

      court does not abuse its discretion by rejecting it as a mitigating circumstance,

      Bryant v. State, 802 N.E.2d 486, 501 (Ind. Ct. App. 2004), trans. denied. And

      here, there was no evidence that Wonderly has taken substantial steps to


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1888 | January 22, 2019   Page 5 of 7
       address his substance abuse problem. In sum, although we do not view the

       nature of Wonderly’s offense as particularly egregious, we are unconvinced that

       it renders his sentence inappropriate.


                                  B. Character of the Offender
[10]   Next, Wonderly argues that his sentence is inappropriate because of his

       character. We first recognize that Wonderly pleaded guilty and that the trial

       court found him remorseful. However, in exchange for his guilty plea, the State

       dismissed two felony charges relating to the instant offense and a misdemeanor

       charge relating to the time of his arrest. Under these circumstances then,

       Wonderly’s guilty plea has little impact on our analysis of his character. See,

       e.g., Fields v. State, 852 N.E.2d 1030, 1034 (Ind. Ct. App. 2006) (noting that the

       defendant “received a significant benefit from the plea, and therefore it does not

       reflect as favorably upon his character as it might otherwise”), trans. denied.


[11]   Turning to Wonderly’s criminal history, we note that his record dates to 1977

       and includes felony convictions for possession of chemical reagents with intent

       to manufacture a controlled substance as well as multiple counts of possession

       of methamphetamine. Wonderly’s misdemeanor convictions include multiple

       counts of operating while intoxicated, criminal conversion, disorderly conduct,

       possession of marijuana, public intoxication, and multiple counts of resisting

       law enforcement. “Even a minor criminal record reflects poorly on a

       defendant’s character,” Reis v. State, 88 N.E.3d 1099, 1105 (Ind. Ct. App. 2017),

       and the trial court correctly described Wonderly’s criminal history as


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1888 | January 22, 2019   Page 6 of 7
       “extensive[.]” Tr., Vol. II at 15. Particularly in light of his criminal history,

       nothing about Wonderly’s character leads us to conclude his ten-year sentence

       was inappropriate.1



                                                 Conclusion
[12]   The crux of Wonderly’s argument is that “[b]ecause a six-year sentence would

       sufficiently punish [him] for his misdeeds, the ten-year sentence is

       inappropriate.” Br. of Appellant at 6. The question, however, is not whether

       another sentence is more appropriate, but whether the sentence imposed is

       inappropriate. Fonner v. State, 876 N.E.2d 320, 344 (Ind. Ct. App. 2007).

       Because Wonderly has failed to satisfy his burden of demonstrating that his ten-

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

       character, we affirm his sentence accordingly.


[13]   Affirmed.


       Riley, J., and Kirsch, J., concur.




       1
         We note our supreme court’s recent decision in Hoak v. State, No. 195-CR-17 (Ind. Jan. 11, 2018). There,
       our supreme court granted transfer and remanded to the trial court with instructions to determine whether the
       defendant was eligible for “substance abuse treatment in a Community Corrections placement; and if she is
       eligible, to order half of her sentence to be executed in Community Corrections.” Id. at *2. The facts
       presented here differ from those presented in Hoak in that Wonderly did not argue his placement was
       inappropriate, but rather his sentence as a whole, and the trial court recommended Wonderly receive a
       substance abuse assessment and complete any recommended treatment while incarcerated. Furthermore,
       Wonderly’s “extensive criminal history[,]” Tr., Vol. II at 15, includes numerous convictions which appear to
       be unrelated to his history of substance abuse. For these reasons we conclude Hoak is not controlling on the
       facts before us.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1888 | January 22, 2019                 Page 7 of 7
