MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                          Aug 31 2015, 8:42 am
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
Thomas C. Allen                                          Gregory F. Zoeller
Fort Wayne, Indiana                                      Attorney General of Indiana
                                                         Christina D. Pace
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Shamar D. Shelton,                                       August 31, 2015
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         02A04-1502-CR-56
        v.                                               Appeal from the Allen Superior
                                                         Court
State of Indiana,                                        The Honorable John F. Surbeck,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         02D05-1406-FB-106



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 02A04-1502-CR-56 | August 31, 2015   Page 1 of 8
                                         Statement of the Case
[1]   Appellant/Defendant, Shamar D. Shelton (“Shelton”), appeals his sentence for

      his conviction of Class B felony unlawful possession of a firearm by a serious

      violent felon (“SVF”).1 On appeal, he asks us to revise his sentence under

      Appellate Rule 7(B). Because we conclude that his sentence was not

      inappropriate in light of the nature of his offense and his character, we decline

      to revise his sentence.


[2]   We affirm.


                                                       Issue
              Whether Shelton’s sentence was inappropriate in light of the
              nature of his offense and his character.

                                                       Facts
[3]   On June 11, 2014, Fort Wayne Police Department Officer David Tinsley

      (“Officer Tinsley”) received a dispatch a little after midnight that there was a

      potential burglary in progress at a local residence. He and another officer,

      Officer Tim Hughes (“Officer Hughes”), both responded to the dispatch and

      arrived at the scene at the same time. The residence was a three-bedroom

      house with a detached garage. There was a five to six foot tall privacy fence in




      1
        IND. CODE § 35-47-4-5. This statute was amended effective July 1, 2014, and Shelton’s offense would now
      be considered a Level 4 felony. However, we will apply the version of the statute that was in effect at the
      time of Shelton’s offense.

      Court of Appeals of Indiana | Memorandum Decision 02A04-1502-CR-56 | August 31, 2015             Page 2 of 8
      front of the house and a four to five foot tall chain link fence surrounding the

      backyard.


[4]   When they arrived at the scene, Officer Tinsley approached the garage from the

      west side, and Officer Hughes approached from the east. As Officer Tinsley

      was walking beside the garage, he noticed that there were plastic oil cans by the

      fence at the rear of the house. He later testified that he found this evidence

      significant because frequently when a person breaks into a residence, that

      person will pile items so that they are easier to take.


[5]   After noticing the oil cans, Officer Tinsley saw a man, who was later identified

      as Shelton, in the area between the detached garage and the house. He yelled at

      Shelton to stop and informed him that he was a police officer. Initially, Shelton

      complied with Officer Tinsley’s orders and put his hands above his head.

      However, he then relaxed his hands and jumped over the chain link fence.


[6]   Officer Hughes arrived at the backyard of the residence as Shelton jumped, and

      he followed Shelton over the fence. Shelton then jumped the privacy fence in

      front of the house and ran across the street into the yard of another house.

      Officer Hughes saw an object in Shelton’s hand but could not identify what it

      was. Meanwhile, Officer Tinsley repeatedly yelled at Shelton to stop running

      and that they were the police, but Shelton did not stop. However, as Shelton

      was running, he changed directions quickly, slipped on the wet grass, and fell.


[7]   After Shelton’s fall, the officers approached him and took control of his arms.

      They discovered that there was a little flashlight on the ground by his head, as

      Court of Appeals of Indiana | Memorandum Decision 02A04-1502-CR-56 | August 31, 2015   Page 3 of 8
      well as a gun in a soft fabric holster. The gun did not belong to either of the

      police officers. Officer Tinsley also observed that Shelton was wearing gloves.


[8]   By the point that they apprehended Shelton, several other officers had arrived at

      the scene. A K-9 officer issued commands for anyone remaining in the garage

      to come outside, and another man, later identified as Brandon Kyles, exited.

      Inside, the officers discovered that one of the garage’s bays was empty, except

      for a pile of items in the middle of the floor. Officer Tinsley concluded that the

      pile, like the plastic oil cans, was consistent with preparation for a burglary.

      The officers also discovered that the door frame to the garage was damaged,

      “consistent with having been pushed or kicked in.” (Tr. 141). One officer

      checked Shelton’s record and found that he did not have a permit to carry a

      handgun.


[9]   Subsequently, the officers called the owner of the residence, William Carswell

      (“Carswell”), who was eighty years old and staying at a cottage he owned an

      hour away. Carswell drove back to his residence in Fort Wayne and confirmed

      that when he had left the residence, the house and garage had both been locked

      and that the door jam of the garage had not been damaged. He also observed

      that the items found by the police were not in the condition in which he had left

      them. For example, he did not leave the oil cans in a pile by the back fence

      before he left, and he did not leave his belongings piled on the floor of the

      garage. In addition to the changed condition of his garage, Carswell identified

      that he was missing several items, including three lawn mowers, three chain

      saws, a compressor, a tool box with tools in it, and a battery charger.

      Court of Appeals of Indiana | Memorandum Decision 02A04-1502-CR-56 | August 31, 2015   Page 4 of 8
[10]   On June 17, 2014, the State charged Shelton with Class B felony unlawful

       possession of a firearm by an SVF; Class C felony burglary; and Class A

       misdemeanor resisting law enforcement. The trial court held a jury trial on

       December 3 and 4, 2014, and the jury found Shelton guilty as charged.


[11]   Thereafter, on January 9, 2015, the trial court held a sentencing hearing and

       sentenced Shelton to fifteen (15) years for his unlawful possession of a firearm

       by an SVF conviction, five (5) years for his burglary conviction, and one (1)

       year for his resisting law enforcement conviction. The trial court ordered his

       sentences for unlawful possession of a firearm by an SVF and burglary to run

       consecutively, with his sentence for resisting law enforcement to run

       concurrently. The trial court found that Shelton’s significant criminal history

       and Carswell’s age were aggravating factors. Shelton now appeals his sentence.


                                                         Decision

[12]   On appeal, Shelton argues that we should revise his sentence for his conviction

       of unlawful possession of a firearm by an SVF under Appellate Rule 7(B) based

       on the nature of his offense and his character. 2 First, Shelton argues that the

       circumstances of his offense were not “unusual.” (Shelton’s Br. 10) As for his

       character, Shelton notes that even though he had an extensive criminal history,

       his past convictions were dissimilar in nature to the instant convictions, his

       juvenile convictions were almost fifteen years removed, and he had only had




       2
           Shelton does not appeal his sentences from his other two convictions.


       Court of Appeals of Indiana | Memorandum Decision 02A04-1502-CR-56 | August 31, 2015   Page 5 of 8
       one previous conviction for a violent offense. He also notes that his

       presentence investigation report revealed a “number of positive aspects of his

       general character” because his “Family and Social Support domain level, his

       Peer Association domain level, and his Criminal Attitude and Behavior

       Patterns domain level were all moderate in range” and his “Neighborhood

       Problem domain level was low.” (Shelton’s Br. 13).


[13]   Pursuant to Appellate Rule 7(B), a reviewing court may revise a sentence if,

       “after due consideration of the trial court’s decision,” it finds that the sentence

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

       offender. Childress v. State, 848 N.E.2d 1073, 1079-80 (Ind. 2006) (quoting App.

       R. 7(B)). Although this Court is not required to use “great restraint,” we

       nevertheless exercise deference to a trial court’s sentencing decision, both

       because Appellate Rule 7(B) requires that we give “due consideration” to that

       decision and because we recognize the unique perspective a trial court has when

       making decisions. Stewart v. State, 866 N.E.2d 858, 865-66 (Ind. Ct. App.

       2007). 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.” Cardwell v. State, 895 N.E.2d 1219, 1225

       (Ind. 2008). In addition, the defendant bears the burden of persuading this

       Court that his sentence is inappropriate. Childress, 848 N.E.2d at 1080.


[14]   The sentencing range for a Class B felony is between six (6) and twenty (20)

       years with an advisory sentence of ten (10) years. Accordingly, Shelton’s fifteen

       Court of Appeals of Indiana | Memorandum Decision 02A04-1502-CR-56 | August 31, 2015   Page 6 of 8
       (15) year sentence was five (5) years more than the advisory sentence for a Class

       B felony.


[15]   However, we conclude that Shelton’s sentence was not inappropriate in light of

       the nature of his offense and his character. Although the nature of his offense

       might not have been “unusual,” it was a serious offense for him to possess a

       firearm, as an SVF, and run with the firearm through a neighborhood to escape

       police officers. (Shelton’s Br. 10).


[16]   Moreover, Shelton’s character alone supports his sentence. See Williams v. State,

       891 N.E.2d 621, 633 (Ind. Ct. App. 2008) (stating that revision of a sentence

       under Indiana Appellate Rule 7(B) requires the appellant to demonstrate that

       his sentence is inappropriate in light of both the nature of his offenses and his

       character). As the trial court noted—and contrary to Shelton’s argument—

       Shelton had been convicted of a similar offense of burglary in the past. In

       addition, his criminal history was extensive. He had been adjudicated as a

       juvenile delinquent eight times between the ages of twelve and sixteen. Then,

       as an adult, he had received two felony convictions, including robbery and

       receiving stolen property, and nine misdemeanor convictions, including two

       convictions for resisting law enforcement. At the time of the sentencing

       hearing, Shelton was only thirty years old. As the trial court noted, “it is clear

       the way it continues to arise in almost every conviction here that [Shelton] has

       absolutely no intent of abiding by the rules of this community.” (Sentencing Tr.

       11). In light of this evidence of the nature of Shelton’s offense and his

       character, we decline to revise his sentence under Appellate Rule 7(B).

       Court of Appeals of Indiana | Memorandum Decision 02A04-1502-CR-56 | August 31, 2015   Page 7 of 8
[17]   Affirmed.


       Vaidik, C.J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 02A04-1502-CR-56 | August 31, 2015   Page 8 of 8
