                                                                                                 FILED
                                                                                            Apr 11 2019, 10:22 am

                                                                                                 CLERK
                                                                                             Indiana Supreme Court
                                                                                                Court of Appeals
                                                                                                  and Tax Court




      ATTORNEY FOR APPELLANT                                      ATTORNEYS FOR APPELLEE
      Kimberly A. Jackson                                         Curtis T. Hill, Jr.
      Indianapolis, Indiana                                       Attorney General
                                                                  Lauren A. Jacobsen
                                                                  Deputy Attorney General
                                                                  Indianapolis, Indiana



                                                   IN THE
           COURT OF APPEALS OF INDIANA

      Trevor Wert,                                                April 11, 2019
      Appellant-Defendant,                                        Court of Appeals Case No.
                                                                  19A-CR-92
              v.                                                  Appeal from the
                                                                  Noble Superior Court
      State of Indiana,                                           The Honorable
      Appellee-Plaintiff                                          Robert E. Kirsch, Judge
                                                                  Trial Court Cause No.
                                                                  57D01-1811-MR-4



      Vaidik, Chief Judge.



                                            Case Summary
[1]   Trevor Wert appeals his sixty-five-year murder sentence for beating to death a

      two-year-old child in his care. We affirm Wert’s sentence but remand for the

      trial court to correct an error in its written sentencing order.

      Court of Appeals of Indiana | Opinion 19A-CR-92 | April 11, 2019                          Page 1 of 12
                             Facts and Procedural History
[2]   In October 2018, forty-two-year-old Wert and his ex-wife, Samantha, lived

      together in Noble County with their young son. Misty Matson had two

      daughters, K.M. and two-year-old Railee Ewing. Misty worked third shift at a

      factory, and Samantha watched K.M. and Railee overnight two or three times a

      week while Misty worked. On October 28, Samantha started working with

      Misty at the factory, thereby making Wert the sole caregiver for K.M. and

      Railee when Misty and Samantha were at work.


[3]   On October 31, Misty dropped off her daughters at Wert’s house and went to

      work. Wert and his young son were home. When Misty arrived at Wert’s

      house to pick up her daughters on the morning of November 1, Wert told her

      that Railee had been injured “during the night” when she fell and hit her face

      on the bathtub. Appellant’s App. Vol. II p. 43. Misty called 911 to say that she

      was driving Railee, who was limp, to the hospital. EMS met Misty on the way

      and transported Railee the rest of the way to the hospital, where she was

      pronounced dead at 7:47 a.m. See Ex. 1 (hospital records stating that Railee

      was “clearly dead on arrival”). The emergency-room physician observed

      “extensive bruising over [Railee’s] entire body” and noted that the bruising was

      “to[o] extensive” to even document. Id. The physician also observed blood in

      Railee’s diaper and that there “appear[ed] to be oozing and lacerations to both

      the vaginal orifice and anus.” Id.




      Court of Appeals of Indiana | Opinion 19A-CR-92 | April 11, 2019       Page 2 of 12
[4]   Wert was interviewed by detectives several times on November 1 and 2. Wert

      told the detectives that in the early-morning hours of November 1, he was

      awakened by Railee crying and found her in the bathroom running bath water.

      According to Wert, he became “enraged” and struck Railee multiple times with

      his “fists” and “legs.” Tr. p. 16; Appellant’s App. Vol. II p. 44. When Railee

      tried to leave the bathroom, Wert kicked her in the buttocks, slamming her into

      the door frame. Railee fell silent. Wert then changed Railee’s diaper and

      covered her body and head with a bathrobe.


[5]   An autopsy was performed on November 2. Because of the injuries to Railee’s

      vagina and anus, a sexual-assault nurse attended the autopsy. According to the

      nurse, Railee’s injuries included “everything under the sun,” such as

      “significant anal injury,” “significant vaginal injury,” abrasions, lacerations,

      bruising, petechiae, and blunt-force trauma. Tr. pp. 23-24. The nurse said she

      had “never seen anything like this ever.” Id. at 23. According to the forensic

      pathologist, the cause of Railee’s death was multiple blunt-force traumatic

      injuries. Ex. 1.


[6]   On November 5, the State charged Wert with murder and Level 1 felony child

      molesting. Exactly one month later, Wert and the State entered into a plea

      agreement. According to the agreement, Wert would plead guilty to murder,

      and the State would dismiss the child-molesting charge. Wert’s sentence was

      left to the discretion of the trial court as follows:




      Court of Appeals of Indiana | Opinion 19A-CR-92 | April 11, 2019          Page 3 of 12
              Upon the Defendant’s plea . . . to [murder], the parties shall be
              free to argue to the Court as to the appropriate sentence deemed
              appropriate [sic], subject to the following:


              The parties agree that the sentencing range must, by law, be
              between 45 and 65 years, and that no portion of the sentence less
              than 45 years may be suspended. The State agrees that neither
              the death penalty nor life without parole shall be imposed. Any
              other terms of the sentence, including any special terms and
              conditions of probation (if probation is Ordered), restitution,
              fines, and Court costs, shall be to the Court’s discretion.


      Appellant’s App. Vol. II pp. 30-31; see also Ind. Code § 35-50-2-3(a) (“A person

      who commits murder shall be imprisoned for a fixed term of between forty-five

      (45) and sixty-five (65) years, with the advisory sentence being fifty-five (55)

      years.”).


[7]   At the December 31 sentencing hearing, defense counsel presented several

      letters on Wert’s behalf, and the State presented the testimony of the sexual-

      assault nurse and several of Railee’s family members. The State also introduced

      several exhibits, including the hospital records and preliminary autopsy report

      (Exhibit 1) and an autopsy photograph (Exhibit 2). Wert then gave a brief

      statement: “I am sorry. I do apologize and take responsibility for my actions.”

      Tr. p. 38. Defense counsel argued that there were several mitigators. First,

      defense counsel noted that Wert pled guilty shortly after being charged.

      Second, defense counsel noted that Wert had “significant medical problems,”

      including being on dialysis, having degenerative back disease, and having

      suffered a stroke. Id. at 39. Defense counsel acknowledged that in light of the

      Court of Appeals of Indiana | Opinion 19A-CR-92 | April 11, 2019            Page 4 of 12
      studies showing the life expectancy of dialysis patients, “any sentence that [the

      trial court] hand[s] out today is probably a death sentence to [Wert].” Id.

      Third, defense counsel noted that, although not rising to the level of a defense,

      the offense occurred “during a period of time that [Wert] was on dialysis” and

      “lacked appropriate medication to deal with the pain,” causing him to

      “over[re]act[]” to the situation. Id. at 39-40. Defense counsel ended by

      “ask[ing] the Court to consider [these proposed mitigators] when it comes up to

      what it believes the appropriate sentence is.” Id. at 41.


[8]   The State acknowledged that the case “was getting resolved at a very quick

      pace” due to Wert’s early guilty plea. Id. at 41. The State also acknowledged

      Wert’s medical issues but argued that “even the minimum sentence . . . would

      mean that he would spend the rest of his natural life in prison.” Id. The State

      then argued that there were several aggravators, including Wert’s criminal

      history, his abuse of a position of trust, Railee’s young age, and the nature and

      circumstances of the crime. After highlighting that the sentencing range was

      “45 to 65 years,” the State argued that “the maximum 65-year sentence is

      appropriate” in this case. Id. at 42, 43.


[9]   In pronouncing sentence, the trial court first explained that Wert’s sentence

      could be “anywhere from 45 to 65 years. The advisory sentence being 55

      years.” Id. at 43. The court also explained that in determining an appropriate

      sentence, it considered numerous factors. The court then identified the

      following mitigators: (1) Wert pled guilty “about as early as humanly possible,”

      saving Noble County “a fair amount of expense” for his dialysis treatments; (2)

      Court of Appeals of Indiana | Opinion 19A-CR-92 | April 11, 2019          Page 5 of 12
       although the court was not compelled by Wert’s in-court apology, it found that

       he had “taken some responsibility”; and (3) the fact that Wert was without his

       pain medication that night possibly explained why his behavior was so violent.

       Id. at 44. The court identified the following aggravators: (1) Railee was only

       two years old; (2) two other children were home at the time, Wert’s son and

       K.M.; (3) Wert was in a position of trust with Railee; (4) Wert had a criminal

       history (four misdemeanors and two felonies); and (5) the nature and

       circumstances of the crime—as reflected by Exhibit 2 (autopsy photograph)—

       were “horrific.” Id. at 45. The court then concluded:


                [Defense counsel] mentioned that given your medical condition
                that whether [the sentence is] 45 years o[r] 65 years [it is]
                undoubtedly or highly likely that any sentence the Court imposes
                will be basically . . . life in prison for the rest of your life. So, at
                this point balancing the mitigating circumstances with the
                aggravating circumstances . . . I think that the aggravating
                circumstances . . . highly outweigh any mitigating circumstances
                the Court can find.


       Id. at 45-46. The court sentenced Wert to the maximum term of sixty-five

       years.


[10]   The court later issued a written sentencing order, which provides in pertinent

       part:


                The reason for the imposition of this sentence is that it is the one
                called for in the plea agreement by the Prosecuting Attorney and
                the Defendant and which the Court has accepted. The Court is,
                therefore, bound to impose it.


       Court of Appeals of Indiana | Opinion 19A-CR-92 | April 11, 2019                Page 6 of 12
       Appellant’s App. Vol. II p. 6.


[11]   Wert now appeals his sentence.



                                   Discussion and Decision
[12]   Wert challenges his sentence on multiple fronts. First, he contends that the trial

       court erred “in entering a written sentencing order which suggests the trial court

       believed it was obligated under the terms of the plea agreement to impose no

       less than a 65-year sentence.” Appellant’s Br. p. 9. Second, he contends that

       the trial court erred in not identifying his “poor health” as a mitigator. Id.

       Finally, he contends that his sentence is inappropriate in light of the nature of

       the offense and his character.


                                  I. Error in Sentencing Order
[13]   Wert first contends that the trial court’s written sentencing order misinterpreted

       the terms of his plea agreement. Wert points out that contrary to the written

       sentencing order, which provides that Wert’s plea agreement “called for” a

       sixty-five-year sentence, Appellant’s App. Vol. II p. 6, his plea agreement

       actually provides that “the trial court would have discretion to impose a

       sentence between 45 and 65 years imprisonment,” Appellant’s Br. p. 13.

       Accordingly, he argues that his sentence “should be reversed and the matter

       remanded for a new sentencing hearing.” Id. at 14.


[14]   The State concedes that the written sentencing order erroneously provides that

       Wert’s sixty-five-year sentence was imposed “because that was what was

       Court of Appeals of Indiana | Opinion 19A-CR-92 | April 11, 2019           Page 7 of 12
       required by the plea agreement.” Appellee’s Br. p. 10. However, the State

       argues that this does not warrant the reversal of Wert’s sentence and a remand

       for a new sentencing hearing. We agree with the State.


[15]   In reviewing a sentencing decision in a non-capital case, we are not limited to

       the written sentencing statement but may consider the trial court’s comments in

       the transcript of the sentencing proceedings. Corbett v. State, 764 N.E.2d 622,

       631 (Ind. 2002). Here, Wert’s plea agreement provides that the trial court had

       the discretion to impose a sentence between forty-five and sixty-five years, the

       statutory sentencing range for murder. See I.C. § 35-50-2-3(a). The trial court’s

       comments at the sentencing hearing reflect that the court understood that it had

       discretion to sentence Wert within this range. First, both defense counsel and

       the State argued at sentencing that the trial court had the discretion to impose a

       sentence between forty-five and sixty-five years. Second, the trial court

       explicitly acknowledged this range before addressing the factors that it was

       considering. See Tr. p. 43 (“In . . . determining what the appropriate sentence

       should be in this case, [the court] obviously is constrained by the law. The law

       provides that for a conviction for murder the sentence is anywhere from 45 to

       65 years. The advisory sentence being 55 years.” (emphasis added)). Third, the

       trial court identified aggravators and mitigators and then balanced them.

       Finally, right before imposing sentence, the trial court again recognized the

       sentencing range when it said that whether Wert’s sentence was forty-five or

       sixty-five years, it would be a life sentence for him. Id. at 46. In light of the

       trial court’s comments at the sentencing hearing, we conclude that the trial


       Court of Appeals of Indiana | Opinion 19A-CR-92 | April 11, 2019            Page 8 of 12
       court did not misinterpret the terms of Wert’s plea agreement but rather made a

       mistake in its written sentencing order. We therefore remand this case to the

       trial court for the limited purpose of issuing a new written sentencing order.


                                  II. Failure to Find Mitigator
[16]   Wert next contends that the trial court erred in failing to find his debilitating

       health conditions as a mitigator. Sentencing decisions rest within the sound

       discretion of the trial court and are reviewed on appeal for an abuse of

       discretion. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g,

       875 N.E.2d 218 (Ind. 2007). One way that a trial court may abuse its discretion

       is by not recognizing mitigators that are clearly supported by the record and

       advanced for consideration. Id. at 491. The defendant bears the burden of

       demonstrating that “the trial court failed to find or identify a mitigating factor

       by establishing that the mitigating evidence is both significant and clearly

       supported by the record.” McElfresh v. State, 51 N.E.3d 103, 112 (Ind. 2016)

       (quotation omitted).


[17]   Here, the trial court identified as a mitigator that Wert was without his pain

       medication for his debilitating health conditions at the time of the offense,

       which may have explained why he acted so violently:


               I will take it as accepted that somehow on this particular evening
               he was somehow without his pain medication. I have had no
               evidence or no understanding as to why he was without his pain
               medication or the lack of pain medication, how that affected him,
               but I will accept that as certainly not, the word justification is not


       Court of Appeals of Indiana | Opinion 19A-CR-92 | April 11, 2019            Page 9 of 12
               appropriate, but as an explanation as to possibly why his
               behavior was so violent.


       Tr. p. 44. To the extent Wert argues that the trial court should have separately

       identified his debilitating health conditions as a mitigator, the court considered

       this when it recognized that whether Wert’s sentence was forty-five or sixty-five

       years, it would be a life sentence for him given his health conditions. In other

       words, the trial court found that Wert’s health conditions did not have any

       effect on a murder sentence. We find no abuse of discretion.


                                   III. Inappropriate Sentence
[18]   Last, Wert contends that his maximum sentence of sixty-five years is

       inappropriate. He asks us to reduce it to fifty-five years (with five years

       suspended to probation) pursuant to Indiana Appellate Rule 7(B), which

       provides that an appellate court “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.” Because we generally defer to the judgment of trial courts in

       sentencing matters, Norris v. State, 27 N.E.3d 333, 335-36 (Ind. Ct. App. 2015),

       defendants have the burden of persuading us that their sentences are

       inappropriate, Thompson v. State, 5 N.E.3d 383, 391 (Ind. Ct. App. 2014).

       “Whether a sentence is inappropriate ultimately turns on the culpability of the

       defendant, the severity of the crime, the damage done to others, and a myriad

       of other factors that come to light in a given case.” Id. (citing Cardwell v. State,

       895 N.E.2d 1219, 1224 (Ind. 2008)).

       Court of Appeals of Indiana | Opinion 19A-CR-92 | April 11, 2019           Page 10 of 12
[19]   Wert concedes that the nature of the offense is “significant and tragic.”

       Appellant’s Br. p. 15. As the trial court described the offense:


               The photo, State’s Exhibit #2, that photo by itself speaks to the
               violence and the horrificness of what happened to this young
               child that night. I can understand the [sexual-assault] nurse, . . .
               you know she does this for a living and unfortunately, she
               probably has seen too many autopsy photos and autopsies, but I
               think that that even shook her.


                                                       *****


               I don’t know why this happened on this particular night. I don’t
               know why. All I know is that it did happen number one, and
               number two the results were horrific. They were beyond the pale
               and we now have lost a young child who certainly no one can
               suggest did anything to justify or cause what you did to her.
               And, once again, looking at the picture, I don’t know how
               anybody can justify or say, well, . . . the picture of the autopsy
               certainly puts a whole new light on what happened that
               particular evening.


       Tr. pp. 44-45. The sexual-assault nurse testified at the sentencing hearing as

       follows:


               I was asked to come collect evidence on November 2nd, and I
               took photographs, collected evidence and provided
               documentation of that encounter. Only one percent of the time
               will we ever see anal injury, yet we did see significant anal injury.
               Only five to ten percent of the time will we ever see vaginal
               injury, yet we saw significant vaginal injury. I’ve worked there
               for eight years and I have never seen anything like this ever. I
               had to hold her, position her, and get very close to her face to try
               to collect evidence and do what I needed to do as a nurse. This

       Court of Appeals of Indiana | Opinion 19A-CR-92 | April 11, 2019           Page 11 of 12
               type of case leaves scars big time on all of us that had to deal with
               her following her death. I will never be able to say exactly what
               happened to her, because she couldn’t tell me.


       Id. at 23. Perhaps most chilling is that, as Wert acknowledges, the final blow

       occurred when Railee tried to leave the bathroom and Wert kicked her in the

       buttocks, propelling her into the door frame. The nature of the offense supports

       the maximum sentence.


[20]   As for Wert’s character, his PSI reveals that he has at least two prior felony

       convictions. It is true that his felony convictions are non-violent and that he

       pled guilty one month after being charged and is in poor health. But even

       considering these things in Wert’s favor, they do not overcome the horrific

       nature of this offense. Wert has failed to persuade us that his sixty-five-year

       sentence is inappropriate.


[21]   Affirmed and remanded.


       Kirsch, J., and Altice, J., concur.




       Court of Appeals of Indiana | Opinion 19A-CR-92 | April 11, 2019           Page 12 of 12
