MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                             FILED
this Memorandum Decision shall not be                         Jun 24 2016, 8:45 am

regarded as precedent or cited before any                          CLERK
                                                               Indiana Supreme Court
court except for the purpose of establishing                      Court of Appeals
                                                                    and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke                                    Gregory F. Zoeller
Wieneke Law Office, LLC                                  Attorney General of Indiana
Brooklyn, Indiana                                        Tyler G. Banks
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Willis G. Heck,                                          June 24, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         84A01-1601-CR-126
        v.                                               Appeal from the Vigo Superior
                                                         Court
State of Indiana,                                        The Honorable John T. Roach,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         84D01-1508-F5-1837



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 84A01-1601-CR-126 | June 24, 2016    Page 1 of 5
                                             Case Summary
[1]   Willis G. Heck appeals the five-year sentence imposed by the trial court

      following his guilty plea to level 5 felony burglary. He argues that his sentence

      is inappropriate in light of the nature of his offense and his character.

      Concluding that he has not met his burden to show that his sentence is

      inappropriate, we affirm.


                                 Facts and Procedural History
[2]   In August 2015, Heck burglarized a retail store. Heck and an accomplice stole

      a computer monitor and a cash register. The State charged Heck with level 5

      felony burglary. Heck entered into a plea agreement with the State which

      provided for a maximum executed sentence of five years. All other aspects of

      sentencing were left to the trial court’s discretion.


[3]   A sentencing hearing was held in December 2015. The trial court found Heck’s

      significant criminal history and repeated probation violations as aggravating

      circumstances. Although the trial court found no statutory mitigating factors,

      the court considered Heck’s “acceptance of responsibility to be of some

      mitigating weight.” Appellant’s App. at 67. The trial court sentenced Heck to

      five years on work release with the opportunity to petition to modify the last

      year of his sentence to formal probation. This appeal ensued.


                                     Discussion and Decision
[4]   Heck invites this court to reduce his five-year work release sentence pursuant to

      Indiana Appellate Rule 7(B), which provides that we may revise a sentence
      Court of Appeals of Indiana | Memorandum Decision 84A01-1601-CR-126 | June 24, 2016   Page 2 of 5
      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.” 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). “[W]hether we regard a sentence as appropriate 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 factors that

      come to light in a given case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind.

      2008). We recognize that the “principal role of appellate review should be to

      attempt to leaven the outliers, and identify some guiding principles for trial

      courts and those charged with improvement of the sentencing statutes, but not

      to achieve a perceived ‘correct’ result in each case.” Id. at 1225. Indeed, “[t]he

      question under Appellate Rule 7(B) is not whether another sentence is more

      appropriate; rather, the question is whether the sentence imposed is

      inappropriate. King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008).


[5]   Regarding the nature of the offense, “the advisory sentence is the starting point

      the Legislature selected as appropriate for the crime committed.” Fuller v. State,

      9 N.E.3d 653, 657 (Ind. 2014). Heck pled guilty to a level 5 felony. The

      sentencing range for a level 5 felony is between one and six years, with an

      advisory sentence of three years. Ind. Code § 35-50-2-6(b). The maximum

      allowable executed sentence pursuant to his plea agreement was five years.

      Heck received a five-year sentence on work release with an opportunity to

      request formal probation in the last year of his sentence.


      Court of Appeals of Indiana | Memorandum Decision 84A01-1601-CR-126 | June 24, 2016   Page 3 of 5
[6]   Heck contends that this sentence is inappropriate because the nature of his

      offense is minor. While we do not disagree with Heck that the nature of his

      offense was not particularly egregious, we would not characterize his offense as

      minor. Nevertheless, his poor character justifies the sentence imposed by the

      trial court.


[7]   Heck is only twenty-seven years old and has a significant criminal history

      which includes two felony convictions and four misdemeanor convictions. One

      of his prior felony convictions is for theft, which is similar to his current crime

      of burglary. See Williams v. State, 838 N.E.2d 1019, 1021 (Ind. 2005)

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

      of prior offenses as they relate to the current offense). In addition, Heck’s prior

      theft conviction was committed within three years of his current crime, which

      does not reflect favorably upon his character.


[8]   Moreover, the record indicates that Heck has previously been granted the grace

      of probation only to then violate it repeatedly. Indeed, the court placed Heck

      on probation after his most recent conviction and, during that placement, four

      petitions to revoke his probation were filed, three of which were granted.

      Heck’s consistent history of failure to abide by the terms of probation does

      nothing to convince us that his five-year sentence on work release is

      unwarranted. In sum, Heck has not shown that the sentence imposed by the

      trial court is inappropriate and therefore we affirm.




      Court of Appeals of Indiana | Memorandum Decision 84A01-1601-CR-126 | June 24, 2016   Page 4 of 5
[9]   Affirmed.


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




      Court of Appeals of Indiana | Memorandum Decision 84A01-1601-CR-126 | June 24, 2016   Page 5 of 5
