MEMORANDUM DECISION
                                                                            FILED
Pursuant to Ind. Appellate Rule 65(D),                                 Oct 12 2018, 6:33 am

this Memorandum Decision shall not be                                       CLERK
regarded as precedent or cited before any                               Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court
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
Donald C. Swanson, Jr.                                   Curtis T. Hill, Jr.
Fort Wayne, Indiana                                      Attorney General of Indiana
                                                         Michael G. Worden
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Marquel Wattley,                                         October 12, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-651
        v.                                               Appeal from the Allen Superior
                                                         Court
State of Indiana,                                        The Honorable John F. Surbeck,
Appellee-Plaintiff.                                      Jr., Judge
                                                         Trial Court Cause No.
                                                         02D04-1606-F4-41



Tavitas, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-651 | October 12, 2018                 Page 1 of 13
                                             Case Summary
[1]   Marquel Wattley appeals his sentence for arson, a Level 4 felony; attempted

      arson, a Level 4 felony; resisting law enforcement resulting in bodily injury to

      an officer, a Level 6 felony; and resisting law enforcement by fleeing, a Class A

      misdemeanor. We affirm.


                                                     Issues
[2]   The two issues before us are as follows:


              I.       Whether the trial court erred in failing to enter a
                       sentencing statement.


              II.      Whether Wattley’s sentence is inappropriate in light of the
                       nature of his offenses and his character.


                                                     Facts
[3]   Wattley regularly frequented the Burger King restaurant located in Fort

      Wayne’s Southgate Plaza (“the Plaza”), which was owned and operated by

      Kellams Enterprises. On May 29, 2016, in the presence of other patrons,

      Wattley “tr[ied] to light [the] computer monitor in [the Burger King restaurant]

      dining room on fire” with a cigarette lighter. Tr. Vol. I pp. 10-11. A Burger

      King employee and at least one patron observed Wattley’s actions. The

      employee reported the incident to the store manager, Bryan Yoder, and

      described Wattley as a black male in a red shirt and jeans, who was carrying a

      backpack.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-651 | October 12, 2018   Page 2 of 13
[4]   Wattley left the Burger King restaurant and later set multiple trashcan fires in

      the Plaza, including the most serious fire, which was set in front of Peerless

      Cleaners. Fire officials responded to the combined fires in front of the Peerless

      Cleaners and Eyes by India establishments, as well as to several smaller fires.

      In all, Wattley started six fires. Fire responders extinguished several fires in

      front of Peerless Cleaners, Eyes by India, in front of the Citilink bus hut, near

      the dialysis center, and the Sally Beauty Supply located in the Plaza.

      Investigators also found evidence of a fire that was ignited, but quickly burned

      out, in front of the Plasma Center business establishment in the Plaza.


[5]   Peerless Cleaners’s video surveillance system captured footage of a black male,

      dressed in a red shirt and wearing a backpack. The man hovered for

      approximately thirty seconds around the trashcan before the trashcan was

      engulfed in flames.


[6]   Amid the commotion, Yoder approached and provided Wattley’s physical

      description to a fire investigator. Approximately twenty minutes later, Wattley

      returned to the Burger King restaurant. Yoder flagged down uniformed Officer

      Geoff Norton of the Fort Wayne Police Department, who approached and

      asked to speak with Wattley. Wattley walked away. Officer Norton then

      grabbed Wattley, who backed away and tried to break free from Officer

      Norton’s grip. Officer David Boles entered the Burger King restaurant to assist

      Officer Norton. Wattley “pull[ed] away,” “yank[ed] away,” punched,

      “wrestl[ed],” and “broke away from” the officers and ignored the officers’

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-651 | October 12, 2018   Page 3 of 13
      multiple orders to “stop” and to “come here.” Id. at 15, 16, 22, 27, 28. Officer

      Norton sprayed Wattley with pepper spray, but Wattley “continued to fight.”

      Id. at 23.


[7]   Wattley eventually fled the building, and the officers pursued him. Wattley

      continued to fight the officers in the parking lot. Officer Norton issued two

      warnings before deploying his taser. “After the [taser] cycle stopped, [Wattley]

      was still trying to fight officers while they’re [sic] trying to put him into cuffs[.]”

      Id. at 24. The officers placed Wattley under arrest. At the time of his arrest,

      Wattley was wearing a red shirt and shorts and was carrying a backpack. A

      search incident to arrest yielded three cigarette lighters on Wattley’s person. In

      the course of detaining and arresting Wattley, Officer Boles suffered a

      laceration, bruises, and scrapes.


[8]   Subsequently, the Fort Wayne Fire Department District Fire Chief, Marc

      Schroeder, conducted a videotaped interview of Wattley. 1 During the

      interview, Wattley admitted that he: (1) tried to set fire to the computer monitor

      in the Burger King restaurant; (2) set multiple trashcan fires in the Plaza; and

      (3) wrestled away from Officers Norton and Boles despite knowing that they

      were police officers. Wattley blamed homelessness, frustration, and boredom

      for his actions in setting the fires.




      1
          Wattley waived his right to counsel and consented to the interview.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-651 | October 12, 2018   Page 4 of 13
[9]    The Fort Wayne Police Department determined that the six fires were

       “intentionally set,” were similar in nature, and were all set by a single

       individual. 2 Id. at 80, 81. In all, Wattley’s fires necessitated approximately

       $7,500 in damage repairs and replacement costs in the Plaza.


[10]   On June 3, 2016, the State charged Wattley with arson, a Level 4 felony

       (“Count I”); attempted arson, a Level 4 felony (“Count II”); arson, a Level 6

       felony (“Count III”); resisting law enforcement, a Level 6 felony (“Count IV”);

       and resisting law enforcement, a Class A misdemeanor (“Count V”).


[11]   In September 2016, Wattley filed a notice of defense of mental disease or defect,

       and the trial court appointed “two disinterested” mental health professionals to

       “determine [Wattley’s] competency to stand trial and his sanity at the time of

       the alleged offense[s].” App. Vol. II p. 28. On March 3, 2017, the parties

       stipulated to the examining physicians’ reports and to Wattley’s mental

       competency to stand trial.


[12]   On the eve of Wattley’s trial, the State dismissed Count III. On June 13, 2017,

       the trial court conducted a bench trial. Witnesses for the State testified to the

       foregoing facts, and the State published Wattley’s videotaped interview to the




       2
         As a fire investigator testified at trial, “There was no accelerant used. It was common
       combustibles ignited in a trash receptacle. The trash receptacles were all identical, and they were
       all within a close geographical distance.” Tr. Vol. I pp. 80, 81.



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-651 | October 12, 2018                       Page 5 of 13
       Court. The State also introduced into evidence the surveillance video from

       Peerless Cleaners. See State’s Ex. 17. The footage depicts a black male subject,

       dressed in a red shirt and carrying a backpack, as he approaches Peerless

       Cleaners’s trashcan with an object in his hand. The subject bends at the waist

       and extends his arm into the trashcan for several seconds. The subject then

       squats beside the trashcan and, again, extends his hand into the trashcan. The

       subject then walks away and attempts to set fire to a decal on Peerless

       Cleaners’s door. As the subject tries to set fire to the decal, flames appear inside

       and underneath the trashcan. The subject exits the camera view and, within

       moments, the trashcan is engulfed in flames and the awning above Peerless

       Cleaners is filled with billowing smoke. At the close of the evidence, the parties

       rested. The trial court found Wattley guilty of Counts I, II, IV, and V.


[13]   On March 9, 2018, the trial court conducted Wattley’s sentencing hearing.

       Jeannette Wattley (“Jeannette”), Wattley’s mother, testified that Wattley has

       mental health challenges and that medical providers have previously

       recommended that Wattley be assessed for a host of mental conditions. 3




       3
           Jeannette, whom the record identifies as both “Janet” and “Jeannette,” testified as follows:

                  . . . [Wattley]’s not this monster that, you know, he’s being painted as. [Wattley] has
                  never been arrested. [Wattley] has never even been suspended from school, and prior to
                  the episodes [Wattley] was in school full time, working a full time job and a part time job,
                  and then [Wattley] had a car accident, and pretty much from that point on it just kinda
                  [sic] went down-hill from there. * * * * * This wasn’t normal for [Wattley].



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-651 | October 12, 2018                      Page 6 of 13
       Wattley presented no evidence, however, that he was diagnosed with any

       mental condition.


[14]   Wattley also testified at the sentencing hearing. Wattley testified that, at the

       time of the fires, he was not enrolled in school and was recently fired from his

       job. Initially, Wattley appeared to admit his wrongdoing and to attribute his

       actions to a lack of focus and direction. In subsequent testimony, however,

       Wattley stated:


                [T]he prosecutor is – has been lying this entire time. She says
                that I said I – she said that I said I was just bored and didn’t have
                nothing [sic] to do. I actually said, I never did it, and that’s what
                I tell my Public Defender all the time, I tell my mom. I tell my
                mom I’m innocent, you know, I told you I’m innocent. That’s
                all that needs to be said. * * * * * Every witness, you know,
                couldn’t identify me as the criminal. The Battery on the officer, I
                ain’t never [sic] threw a punch.


       Tr. Vol. I p. 106.


[15]   Without first entering a sentencing statement, the trial court sentenced Wattley

       as follows: on Counts I and II, consecutive six-year sentences in the

       Department of Correction (“DOC”), with two years suspended to probation on

       each sentence; and on Counts IV and V, concurrent one-year sentences in the




       See Tr. Vol. I p. 101; App. p. 34; Tr. Vol. I p. 103.



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-651 | October 12, 2018   Page 7 of 13
       DOC. 4 The trial court ordered Wattley’s sentences on Counts IV and V to be

       served concurrently with the sentences on Counts I and II. Wattley now

       appeals his aggregate sentence of twelve years, with four years suspended to

       probation.


                                                          Analysis
[16]   Wattley contends that the trial court abused its discretion in failing to enter a

       sentencing statement. Sentencing is a discretionary function of the trial court,

       and we afford considerable deference to the trial court’s judgment. Stephenson v.

       State, 29 N.E.3d 111, 122 (Ind. 2015). Deference to the trial court “prevail[s]

       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).” Id.


[17]   When sentencing a defendant for a felony, the trial court must enter a

       sentencing statement “including reasonably detailed reasons or circumstances

       for imposing a particular sentence.” Ackerman v. State, 51 N.E.3d 171, 193 (Ind.

       2016) (citing Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on

       reh’g, 875 N.E.2d 218). “[E]ven if the trial court is found to have abused its

       discretion in the process it used to sentence the defendant, the error is harmless




       4
           It appears from the record that different judges presided over the bench trial and the sentencing hearing.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-651 | October 12, 2018                       Page 8 of 13
       if the sentence imposed was not inappropriate.” Williams v. State, 997 N.E.2d

       1154, 1165 (Ind. Ct. App. 2013).


[18]   Although the trial court was not required to enter a sentencing statement

       regarding Wattley’s misdemeanor conviction, the trial court’s failure to enter a

       sentencing statement as to Wattley’s three felony convictions and to explain the

       court’s sentencing reasoning is an abuse of discretion. See Anglemyer, 868

       N.E.2d at 490.


[19]   When we encounter a trial court’s sentencing order that does not meet the

       requirements of the law, we have several options. Williams, 997 N.E.2d at

       1165. We may remand for clarification or a new sentencing determination; we

       may affirm the sentence, if the error is harmless; or we may exercise our

       authority to review and revise the sentence pursuant to Indiana Appellate Rule

       7(B). Brown v. State, 783 N.E.2d 1121, 1129 (Ind. 2003). Under the

       circumstances of this case, we will address whether Wattley’s sentence is

       inappropriate under Indiana Appellate Rule 7(B).


[20]   Indiana Appellate Rule 7(B) provides that we may revise a sentence authorized

       by statute if, after due consideration of the trial court’s decision, we find that the

       sentence “is inappropriate in light of the nature of the offense and the character

       of the offender.” McCain v. State, 88 N.E.3d 1066, 1067 (Ind. 2018). The

       defendant bears the burden to persuade this court that his or her sentence is

       inappropriate. Phipps v. State, 90 N.E.3d 1190, 1198 (Ind. 2018). Indiana’s


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-651 | October 12, 2018   Page 9 of 13
       flexible sentencing scheme allows trial courts to tailor an appropriate sentence

       to the circumstances presented, and the trial court’s judgment “should receive

       considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008).

       The principal role of appellate review is to attempt to “leaven the outliers.”

       Shoun v. State, 67 N.E.3d 635, 642 (Ind. 2017). Whether we regard a sentence

       as inappropriate 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 facts that come to light in a given case.” Cardwell, 895 N.E.2d at 1224.


[21]   We consider all aspects of the penal consequences imposed by the trial court in

       sentencing the defendant, including whether a portion of the sentence is ordered

       suspended “or otherwise crafted using any of the variety of sentencing tools

       available to the trial judge.” Davidson v. State, 926 N.E.2d 1023, 1025 (Ind.

       2010). In conducting our review, we do not look to see whether the defendant’s

       sentence is appropriate or “if another sentence might be more appropriate;

       rather, the question is whether the sentence imposed is inappropriate.” Fonner

       v. State, 876 N.E.2d 340, 344 (Ind. Ct. App. 2007).


[22]   To assess the appropriateness of a sentence, we first look to the statutory ranges

       established for the classification of the relevant offense: the sentence for a Level

       4 felony ranges from two to twelve years, with an advisory sentence of six

       years. Here, on each of Wattley’s Level 4 felony convictions, the trial court

       imposed advisory six-year sentences, with two years suspended to probation.

       The sentence for a Level 6 felony ranges from six months to two and one-half

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-651 | October 12, 2018   Page 10 of 13
       years, with an advisory sentence of one year. Here, the trial court imposed the

       advisory one-year sentence on Wattley’s Level 6 felony conviction. The

       maximum sentence for a Class A misdemeanor is one year. The trial court

       imposed the maximum sentence on Wattley’s Class A misdemeanor

       conviction.


[23]   The trial court then ordered the sentences on Counts I and II served

       consecutively to each other; the sentences on counts IV and V served

       concurrently to each other; and ordered counts IV and V served concurrently

       with the sentences on Counts I and II. Although Wattley faced a maximum

       sentence of twenty-seven and one-half years, he received an aggregate twelve-

       year sentence, with four years suspended to probation.


[24]   Regarding the nature of the offenses, Wattley attempted to set fire to a

       computer monitor inside a Burger King restaurant and set a total of six trashcan

       fires in the Plaza. After witnesses identified Wattley as the arson suspect,

       Wattley “yank[ed] away,” punched, “wrestl[ed],” “broke away from”

       investigating officers, ignored the officers’ orders that he should “stop,” and ran

       from the officers. Tr. Vol. I pp. 15, 16, 22, 27, 28. Officer Boles suffered

       scrapes, bruises, and a laceration in the scuffle with Wattley. As a result of

       Wattley’s actions, Kellams Industries incurred approximately $7,500 in repair

       and replacement costs to the business premises or property of Peerless Cleaners,

       Eyes by India, CSL Plasma, Sally’s Beauty Supply, Citi Link, and Burger King.



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-651 | October 12, 2018   Page 11 of 13
[25]   Regarding Wattley’s character, the record indicates that he attributed his crimes

       to boredom and lack of direction. Wattley’s poor character was apparent when

       he committed arson, destroyed property, and wasted police and fire department

       resources in an apparent effort to occupy and amuse himself. Moreover,

       despite being observed by witnesses and captured on video as he committed the

       instant offenses, Wattley insists he was “falsely accused.” App. Vol. II p. 38.


[26]   We further note that Wattley alludes to “a history of bi-polar disorder,

       schizophrenia, panic attacks” and an “impulsivity control issue,” however,

       Wattley presented no evidence of a mental health diagnosis that may warrant

       imposition of a lesser sentence. See Appellant’s Br. p. 9; Tr. p. 98.


[27]   In light of the foregoing, and given the determination of Wattley’s mental

       fitness to stand trial, Wattley has failed to establish that his sentence—which

       consists of suspended, advisory, and concurrent sentences—is inappropriate in

       light of the nature of his offenses and his character. Accordingly, we deem the

       trial court’s omission of a sentencing statement to be harmless error. See

       Mendoza, 869 N.E.2d at 556.


                                                 Conclusion
[28]   Wattley’s sentence is not inappropriate in light of the nature of his offenses and

       his character. The trial court’s abuse of discretion in failing to enter a

       sentencing statement is, therefore, harmless error. We affirm.


[29]   Affirmed.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-651 | October 12, 2018   Page 12 of 13
Brown, J., and Altice, J., concur.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-651 | October 12, 2018   Page 13 of 13
