                                                        FILED
                                                    Jul 21 2016, 6:44 am

                                                        CLERK
                                                    Indiana Supreme Court
                                                       Court of Appeals
                                                         and Tax Court




ATTORNEY FOR APPELLANT                                      ATTORNEYS FOR APPELLEE
Derick W. Steele                                            Gregory F. Zoeller
Deputy Public Defender                                      Attorney General of Indiana
Kokomo, Indiana                                             Paula J. Beller
                                                            Deputy Attorney General
                                                            Indianapolis, Indiana


                                            IN THE
    COURT OF APPEALS OF INDIANA

William Hunter,                                             July 21, 2016
Appellant-Defendant,                                        Court of Appeals Case No.
                                                            34A04-1506-CR-751
        v.                                                  Appeal from the Howard Circuit
                                                            Court
State of Indiana,                                           The Honorable Lynn Murray,
Appellee-Plaintiff                                          Judge
                                                            Trial Court Cause No.
                                                            34C01-1408-FB-122



Bailey, Judge.




Court of Appeals of Indiana |Opinion 34A04-1506-CR-751| July 21, 2016                     Page 1 of 8
                                            Case Summary
[1]   William Hunter (“Hunter”) pled guilty to a single count of Possession of a

      Firearm by a Serious Violent Felon, as a Class B felony. 1 The trial court

      sentenced Hunter to twenty years imprisonment, with five years to be served on

      in-home detention. He now appeals, raising for our review only whether his

      sentence is inappropriate under Appellate Rule 7(B).


[2]   We affirm.



                                 Facts and Procedural History
[3]   On May 8, 2014, Hunter, who had been convicted of Burglary, as a Class B

      felony, in 2004, attempted to pawn several shotguns and rifles that had

      apparently been reported as stolen as the result of a burglary. Police arrested

      Hunter, and on May 29, 2014, the State charged Hunter with Possession of a

      Firearm by a Serious Violent Felon. On July 17, 2014, the State amended the

      charging information to include a count of Receiving Stolen Property, as a

      Class D felony.2 On July 11, 2014, in a different cause, the State charged




      1
        Ind. Code 35-47-4-5 (2012). Hunter committed his offense prior to the effective date of wide-reaching
      amendments to Indiana’s criminal statutes. We refer throughout to the substantive portions of those statutes
      in effect at the time of Hunter’s offense.
      2
          I.C. § 35-43-4-2(b).


      Court of Appeals of Indiana |Opinion 34A04-1506-CR-751| July 21, 2016                             Page 2 of 8
      Hunter with misdemeanor-level Resisting Law Enforcement.3 On August 12,

      2014, the State filed charges against Hunter in several additional causes, adding

      eight additional felony-level charges for Receiving Stolen Property, Theft,4

      Burglary,5 and Fraud.6


[4]   On April 9, 2015, Hunter and the State filed a “Recommendation of Plea,” in

      which Hunter represented that he would enter a plea of guilty as to the single

      count of Possession of a Firearm by a Serious Violent Felon, and the State

      represented that it would, “in exchange therefor,” dismiss the other charges

      against Hunter. (App’x at 62.) Subsequent to this, a pre-sentencing

      investigation report was prepared and filed with the trial court.


[5]   On May 27, 2015, the trial court conducted a change-of-plea hearing, during

      which Hunter pled guilty to Possession of a Firearm by a Serious Violent Felon,

      and the State moved to dismiss the remaining charges. The trial court accepted

      the plea and granted the State’s motion. At the conclusion of the hearing, the

      trial court entered judgment of conviction against Hunter and sentenced him to

      twenty years imprisonment, with five years to be served on in-home detention.




      3
          I.C. § 35-44.1-3-1(a)(1).
      4
          I.C. § 35-43-4-2(a)(1)(A).
      5
          I.C. § 35-43-2-1.
      6
          I.C. § 35-43-5-4(1).


      Court of Appeals of Indiana |Opinion 34A04-1506-CR-751| July 21, 2016    Page 3 of 8
      The court also ordered Hunter to pay restitution to the owners of the stolen

      firearms.


[6]   This appeal ensued.



                                 Discussion and Decision
                               Inappropriateness of Sentence
[7]   The authority granted to this Court by Article 7, § 6 of the Indiana Constitution

      permitting appellate review and revision of criminal sentences is implemented

      through Appellate Rule 7(B), which provides: “The 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.” Under this rule, and as

      interpreted by case law, appellate courts may revise sentences after due

      consideration of the trial court’s decision, if the sentence is found to be

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

      offender. Cardwell v. State, 895 N.E.2d 1219, 1222-25 (Ind. 2008); Serino v. State,

      798 N.E.2d 852, 856-57 (Ind. 2003). The principal role of such review is to

      attempt to leaven the outliers. Cardwell, 895 N.E.2d at 1225.


[8]   Here, Hunter was convicted of a single count of Possession of a Firearm by a

      Serious Violent Felon, as a Class B felony. As a result, he faced a sentencing

      range of six to twenty years imprisonment, with an advisory term of ten years.

      I.C. § 35-50-2-5(a).

      Court of Appeals of Indiana |Opinion 34A04-1506-CR-751| July 21, 2016         Page 4 of 8
[9]    Looking first to the nature of Hunter’s offense, Hunter, who had in 2004 been

       adjudicated a serious violent felon, was determined to have possessed multiple

       shotguns and a rifle when he was not, under Indiana law, permitted to possess

       any firearms because of his prior conviction for Burglary. The firearms had

       been reported as stolen, and had come into Hunter’s possession. Hunter

       attempted to pawn the firearms, and was apprehended by police as a result.

       During the presentencing investigation, Hunter indicated that because he had

       been living in Tennessee for some period of time, he was mistaken about the

       duration of time during which he could not possess any type of firearm in

       Indiana. We note, however, that Hunter committed the predicate offense of

       Burglary in Indiana, he was convicted of that offense in Indiana, and it is long

       settled in Indiana that ignorance of the law does not excuse criminal conduct.

       Dewald v. State, 898 N.E.2d 488, 493 (Ind. Ct. App. 2008) (citing Yoder v. State,

       208 Ind. 50, 194 N.E. 645, 648 (1935)). The nature of Hunter’s offense—

       possessing not one but multiple firearms, some stolen, and attempting to pawn

       them—supports an aggravated sentence.


[10]   Hunter’s character also speaks poorly of him. Hunter’s encounters with the

       criminal justice system began as a juvenile, when he was adjudicated a

       delinquent for conduct that would constitute felony-level Sexual Battery if

       committed by an adult. As an adult, Hunter accrued convictions in Indiana for

       Theft, False Informing, and Driving while Suspended, as Class A

       misdemeanors; the predicate offense in this case, Burglary, as a Class B felony;

       and Escape, as a Class C felony. However, Hunter has also had numerous,


       Court of Appeals of Indiana |Opinion 34A04-1506-CR-751| July 21, 2016     Page 5 of 8
       encounters with law enforcement since reaching adulthood, with charges filed

       against him in Indiana for an array of offenses including Possession of a

       Firearm without a License, Sexual Misconduct with a Minor, numerous

       alcohol- and substance-related offenses, and numerous property crimes. While

       living in Tennessee, Hunter was charged in 2013 with Theft and numerous

       counts of Forgery, and with Possession of a Schedule III Narcotic.


[11]   To his credit, Hunter pled guilty in this case. However, he received a

       significant benefit: while Hunter was convicted of a Class B felony, the State

       agreed to dismiss nine felony counts, including multiple felony counts of

       Burglary, Fraud, and Receiving Stolen Property, and Theft, and a single count

       of misdemeanor-level Resisting Law Enforcement. Moreover, additional

       charges of Forgery and Theft were pending against Hunter in another case in

       Miami County. Further, Hunter, a father of two children, indicated that his

       financial and employment status was unstable, and he admitted to a long

       pattern of substance abuse that ended only in 2014—that is, the year he

       committed the instant offense.


[12]   In light of the nature of his offense and his character, we cannot conclude that

       Hunter’s statutory maximum sentence, with five years to be served on in-home

       detention, is inappropriate.


                                  “Recommendation of Plea”
[13]   We write additionally, sua sponte, to note an unusual and concerning facet of

       this case. The trial court here was presented with a document captioned as a

       Court of Appeals of Indiana |Opinion 34A04-1506-CR-751| July 21, 2016       Page 6 of 8
       “Recommendation of Plea” and signed by counsel for both parties and by

       Hunter himself. The trial court apparently viewed the Recommendation of

       Plea as something other than a plea agreement, and thus believed it lacked any

       discretion over whether to accept or reject Hunter’s plea and the State’s

       dismissal of the remaining charges in exchange for the plea. Prior to

       determining Hunter’s sentence, the trial court stated:


               I guess I would first make the point that this is not really your
               typical plea agreement or plea bargain. I feel this is not anything
               in which the [C]ourt, I, really have a lot of discretion about. The
               State has decided only to pursue one charge and to dismiss the
               other 9 felonies and Mr. Hunter has agreed to plead guilty to it
               and be open to the [C]ourt. It’s not anything in which I have the
               power either to accept or to reject, which I guess I particularly
               would note because of my presentence report from my probation
               department told me I should reject this, when in fact I don’t even
               have that type of discretion.


       (Tr. at 15-16.)


[14]   The Recommendation of Plea document set forth a quid pro quo arrangement

       whereby Hunter agreed to enter a guilty plea on one charge, with the State

       agreeing to dismiss other charges “in exchange therefor.” (App’x at 62.) The

       document went on to recite—as would a plea agreement—the various

       representations and waivers ordinarily present in a plea agreement. This

       included the following text: “I understand that the Court is not bound by this

       Recommendation of Plea.” (App’x at 62.)




       Court of Appeals of Indiana |Opinion 34A04-1506-CR-751| July 21, 2016         Page 7 of 8
[15]   “James Whitcomb Riley (1849-1916), our celebrated ‘Hoosier Poet,’ is widely

       credited with the origination of the Duck Test; as he expressed it, ‘[w]hen I see

       a bird that walks like a duck and swims like a duck and quacks like a duck, I

       call that bird a duck.’” Walczak v. Labor Works-Ft. Wayne, LLC, 983 N.E.2d

       1146, 1148 (Ind. 2013). This Recommendation of Plea is a duck—or, caption

       aside, a plea agreement. Trial courts have discretion to accept or reject plea

       agreements. I.C. § 35-35-3-3(b); Pannarale v. State, 638 N.E.2d 1247, 1248 (Ind.

       1994) (citing I.C. § 35-35-3-3). Generally, the substance of a pleading or motion

       governs over its form. Fajardo v. State, 859 N.E.2d 121, 1206-08 (Ind. 2007)

       (applying the “substance/form” test with respect to an amended charging

       information); Preferred Prof. Ins. Co. v. West, 23 N.E.3d 716, 732 (Ind. Ct. App.

       2014) (recognizing “it is the substance of a claim, not its caption” that

       determines the need to comply with the Medical Malpractice Act), trans. denied.

       The trial court would, then, have been able to exercise its discretion to decide

       whether to accept or reject the plea agreement.



                                                Conclusion
[16]   Hunter’s sentence was not inappropriate.


[17]   Affirmed.


       Bradford, J., and Altice, J., concur.




       Court of Appeals of Indiana |Opinion 34A04-1506-CR-751| July 21, 2016       Page 8 of 8
