      MEMORANDUM DECISION
                                                                       Jun 29 2015, 9:08 am
      Pursuant to Ind. Appellate Rule 65(D), this
      Memorandum Decision shall not be regarded as
      precedent or cited before any court except for the
      purpose of establishing the defense of res judicata,
      collateral estoppel, or the law of the case.



      ATTORNEY FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
      John Andrew Goodridge                                  Gregory F. Zoeller
      Evansville, Indiana                                    Attorney General of Indiana
                                                             Tyler G. Banks
                                                             Deputy Attorney General
                                                             Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Jack Raymond Wirth,                                        June 29, 2015

      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 82A05-1411-CR-513

              v.                                                 Appeal from the Vanderburgh
                                                                 Superior Court
                                                                 The Honorable Robert J. Tornatta,
      State of Indiana,                                          Judge
      Appellee-Plaintiff                                         Trial Court Cause No. 82D02-1402-
                                                                 FC-159




      Bradford, Judge.



                                            Case Summary
[1]   Appellant-Defendant Jack Wirth, believing that Abdul Jihad had stolen from

      him and was attempting flight, found Jihad at a bus station and stabbed him

      Court of Appeals of Indiana | Memorandum Decision 82A05-1411-CR-513 | June 29, 2015      Page 1 of 5
      several times. Appellee-Plaintiff the State of Indiana (“the State”) charged

      Wirth with Class C felony battery with a deadly weapon. A jury found Wirth

      guilty as charged and the trial court sentenced him to six years of incarceration.

      Wirth essentially contends that his mental illness renders his six-year sentence

      inappropriate. Because we conclude that Wirth has failed to establish that his

      sentence is inappropriate, we affirm.



                            Facts and Procedural History
[2]   On February 1, 2014, at approximately 8:00 a.m., Evansville Police Officer

      Blake Hollins responded to a theft report made by Wirth. Wirth told Officer

      Hollins that he had allowed two homeless persons to stay with him, he had told

      them to leave, and that he noticed that his passport, driver’s license, and

      approximately twenty dollars had been taken. One of the individuals was

      Jihad.


[3]   Later that day, Wirth found Jihad at the Greyhound bus station and, without

      warning, stabbed Jihad repeatedly in the neck and back while accusing Jihad of

      stealing from him. After Jihad denied that he had stolen anything from Wirth,

      Wirth apologized, handed the knife to Jihad, and said, “I’ll pay you ten

      thousand dollars to forget about this.” Tr. p. 43. As it happened, Officer

      Hollins responded to the scene. When Officer Hollins arrived, Wirth

      approached him and said, “You can take me now. I did it[.]” Tr. p. 8. Officer

      Hollins noticed Jihad was bleeding “profusely from his shirt and his front

      area[.]” Tr. p. 8.

      Court of Appeals of Indiana | Memorandum Decision 82A05-1411-CR-513 | June 29, 2015   Page 2 of 5
[4]   On February 4, 2014, the State charged Wirth with Class C felony battery with

      a deadly weapon. After a trial on June 23, 2014, a jury found Wirth guilty as

      charged. Prior to sentencing, the trial court ordered a mental health evaluation

      be performed on Wirth. The Indiana Reception Diagnostic Center performed

      an evaluation and filed its report with the trial court. 1 The trial court noted that

      while the report indicated that Wirth was free of mental illness, this conclusion

      was inconsistent with its observations throughout the proceedings. On October

      3, 2014, the trial court sentenced Wirth to six years of incarceration. Wirth

      contends that his six-year sentence is inappropriately harsh.


                                  Discussion and Decision
                                 Appropriateness of Sentence
[5]   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). “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.”




      1
        Wirth’s mental health evaluation is not part of the record on appeal. Wirth’s counsel indicates in Wirth’s
      amended Appellant’s Appendix that, despite meeting with the trial court and the Vanderburgh County
      Superior Court Probation Department, the mental health evaluation cannot be found and is not part of the
      Clerk’s Record.

      Court of Appeals of Indiana | Memorandum Decision 82A05-1411-CR-513 | June 29, 2015                Page 3 of 5
      Shouse v. State, 849 N.E.2d 650, 660 (Ind. Ct. App. 2006), trans. denied (citations

      and quotation marks omitted). “The defendant has the burden of persuading us

      that his sentence is inappropriate.” King v. State, 894 N.E.2d 265, 267 (Ind. Ct.

      App. 2008). As previously mentioned, the trial court sentenced Wirth to six

      years of incarceration for Class C battery with a deadly weapon. The

      sentencing range for a Class C felony is two to eight years, with an advisory of

      four years. Ind. Code § 35-50-2-5.


[6]   The nature of Wirth’s offense justifies an enhanced sentence. Wirth, apparently

      fearful that Jihad was attempting to flee after allegedly stealing from him,

      hunted Jihad down at the bus station and stabbed him repeatedly, without

      warning. The trial court noted that Wirth’s crime was “one of the more serious

      Class C felonies I’ve been involved in [and that t]he facts of what happened

      would fit the next higher up crime which is Aggravated Battery” or perhaps

      even attempted murder. Tr. p. 87. Jihad’s wounds were serious and could have

      been much more serious, with Wirth just missing his carotid artery. Overall,

      we agree with the trial court’s assessment that the nature of Wirth’s offense was

      “far more serious that your run-of-the-mill Class C felony[.]” Tr. p. 89.


[7]   Wirth’s character also justifies an enhanced sentence, albeit to perhaps a lesser

      extent that the nature of his offense. Wirth’s criminal history is admittedly

      minor, with one prior conviction for Class A misdemeanor criminal trespass.

      That said, Wirth’s lack of remorse is notable and does not speak well of his

      character. Wirth testified that his apology to Jihad after the attack was not

      sincere: “I wasn’t really apologizing to him. I’m not sorry for what I did.” Tr.

      Court of Appeals of Indiana | Memorandum Decision 82A05-1411-CR-513 | June 29, 2015   Page 4 of 5
      p. 67. Wirth reiterated at sentencing that “I can’t really say I’m sorry for what I

      did at the time.” Tr. p. 80.


[8]   Wirth’s argument that his sentence is inappropriate focuses on his mental

      health. Factors courts take into account when evaluating a claim of mental

      illness as it relates to sentencing include: “(1) the extent of the defendant's

      inability to control his or her behavior due to the disorder or impairment; (2)

      overall limitations on functioning; (3) the duration of the mental illness; and (4)

      the extent of any nexus between the disorder or impairment and the

      commission of the crime.” Weeks v. State, 697 N.E.2d 28, 30 (Ind. 1998). As

      the State points out, however, Wirth points to very little evidence that any of

      the above four factors weigh in his favor. Significantly, Wirth points to no

      evidence at all (1) that his mental illness deprives him of control over his

      behavior, (2) regarding limitations on functioning, or (3) that his illness played

      any role whatsoever in his attack on Jihad. While there is some indication that

      Wirth received long-term treatment for mental illness in Massachusetts, this

      does not establish a connection between the illness and his brutal attack on

      Jihad. The burden is on Wirth to establish that his mental illness renders his

      sentence inappropriate, and we conclude that he has failed to carry that burden.

      See King, 894 N.E.2d at 267.


[9]   The judgment of the trial court is affirmed.


      Vaidik, C.J., and Kirsch, J., concur.



      Court of Appeals of Indiana | Memorandum Decision 82A05-1411-CR-513 | June 29, 2015   Page 5 of 5
