MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                          FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                             Dec 26 2018, 8:49 am

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


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke                                   Curtis T. Hill, Jr.
Wieneke Law Office, LLC                                 Attorney General of Indiana
Brooklyn, Indiana
                                                        Angela N. Sanchez
                                                        Assistant Section Chief, Criminal
                                                        Appeals
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

William Belew,                                          December 26, 2018
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A-CR-1564
        v.                                              Appeal from the Vigo Superior
                                                        Court
State of Indiana,                                       The Honorable John T. Roach,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        84D01-1712-F4-4056



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1564 | December 26, 2018             Page 1 of 6
                                       Statement of the Case
[1]   William Belew appeals his sentence following his conviction for stalking, as a

      Level 5 felony. Belew raises a single issue for our review, namely, whether his

      placement in the Department of Correction is inappropriate in light of the

      nature of the offense and his character. We affirm.


                                 Facts and Procedural History
[2]   On December 2, 2017, Vigo County Sheriff’s Deputy and member of the Terre

      Haute Fire Department William Roberts responded to a report of an attempted

      arson at the residence of Vicki Bowen. Upon his arrival at Bowen’s residence,

      Deputy Roberts observed damage to the property from an “axe type blade” and

      also observed a burned napkin near paneling that had been ripped from a wall

      covering. Appellant’s App. Vol. 2 at 18-19. Deputy Roberts spoke with

      Bowen, and she informed him that she suspected that Belew had damaged the

      property and placed the napkin because she “had ended a relationship” with

      him and, since doing so, she “has been receiving threatening messages” from

      him. Id. at 19.


[3]   A few days later, Bowen followed up with Deputy Roberts and provided him

      with a voicemail and two audio recordings from Belew. In the voicemail,

      Belew admitted to damaging Bowen’s property and attempting to burn it down.

      In the two audio recordings, Belew threatened to kill Bowen and her family.


[4]   The State charged Belew with attempted arson, as a Level 4 felony; burglary, as

      a Level 5 felony; stalking, as a Level 5 felony; and two counts of Class A

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1564 | December 26, 2018   Page 2 of 6
      misdemeanor intimidation. Thereafter, Belew agreed to plead guilty to

      stalking, as a Level 5 felony, and in exchange the State agreed to dismiss the

      remaining counts. Pursuant to his plea agreement, Belew would not “be

      sentenced to an executed term of imprisonment greater than five (5) years.” Id.

      at 46.


[5]   The trial court accepted Belew’s plea agreement and held a sentencing hearing.

      After that hearing, the court entered the following sentencing statement:


               The following statutory aggravating factor is established:
               defendant has a lengthy criminal history including eight (8)
               felonies and nine (9) misdemeanors. The evidence before the
               court does not establish any statutory mitigating factors.
               Defendant’s mother is on a fixed income . . . and needs help
               around the house. She is getting assistance from other family
               members. The court does not find that imprisonment will work
               an undue hardship. Defendant does not fully accept
               responsibility for his actions as he continues to place blame on
               one of the victims herein. There is no evidence to support a
               finding defendant would be successful on probation or as a direct
               placement. The proposed residence, and source of funds, for In
               Home detention would be his mother, and she does not believe
               defendant has committed any of the offenses for which he has
               been convicted. There is some evidence she maintains a
               relationship with defendant’s ex-girlfriend, one of the victims
               herein.


               The court finds an aggravated sentence of four (4) years is
               appropriate. The defendant is sentenced to the Indiana
               Department of Correction for four (4) years. Three (3) years of
               the sentence shall be executed and one (1) year is suspended to
               formal probation . . . .


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1564 | December 26, 2018   Page 3 of 6
      Id. at 72. This appeal ensued.


                                     Discussion and Decision
[6]   On appeal, Belew asserts that his sentence is inappropriate. As we have

      explained:


              Indiana Appellate Rule 7(B) permits an Indiana appellate court
              to “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.” We assess the trial court’s
              recognition or nonrecognition of aggravators and mitigators as an
              initial guide to determining whether the sentence imposed was
              inappropriate. Gibson v. State, 856 N.E.2d 142, 147 (Ind. Ct.
              App. 2006). The principal role of appellate review is to “leaven
              the outliers.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.
              2008). A defendant must persuade the appellate court that his or
              her sentence has met the inappropriateness standard of review.
              Roush v. State, 875 N.E.2d 801, 812 (Ind. Ct. App. 2007).


      Robinson v. State, 61 N.E.3d 1226, 1228 (Ind. Ct. App. 2016). Belew pleaded

      guilty to one Level 5 felony. A Level 5 felony carries a fixed term between one

      and six years with an advisory term of three years. Ind. Code § 35-50-2-6(b)

      (2018).


[7]   Belew “recognizes that a term of 4 years was not inappropriate.” Appellant’s

      Br. at 8. Instead, he asserts that his sentence is inappropriate in that his

      placement is in the Department of Correction rather than on home detention.

      “The place that a sentence is to be served is an appropriate focus for application

      of our review and revise authority.” Biddinger v. State, 868 N.E.2d 407, 414

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1564 | December 26, 2018   Page 4 of 6
      (Ind. 2007). “Nonetheless, we note that it will be quite difficult for a defendant

      to prevail on a claim that the placement of his sentence is inappropriate.” King

      v. State, 894 N.E.2d 265, 267 (Ind. Ct. App. 2008). “This is because the

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

      appropriate” but “whether the sentence imposed is inappropriate.” Id. at 268

      (emphasis in original).


[8]   According to Belew, his placement in the Department of Correction is

      inappropriate because “he was found to be a suitable candidate for home

      detention.” Appellant’s Br. at 8. Belew asserts that “there is nothing

      particularly remarkable about” the nature of his stalking offense. Id. He further

      asserts that, while he “has a prior criminal history,” most of his prior offenses

      “were lower-level offenses that occurred nearly a decade before the instant

      offense.” Id. at 9. Belew also argues that the trial court’s rationale for his

      placement was based on undue emphasis given to the testimony of Belew’s

      mother.


[9]   We cannot say that Belew’s placement in the Department of Correction is

      inappropriate. While he pleaded guilty to a single Level 5 offense of stalking,

      the nature of the offense demonstrates that Belew had broken into Bowen’s

      residence with an axe and attempted to burn it down. The nature of the offense

      also demonstrates that Belew had, on at least two other occasions, physically

      threatened Bowen and her family. And Belew’s character reveals an extensive

      criminal history, which includes eight prior felonies. Accordingly, we cannot

      say that his placement in the Department of Correction instead of a less-

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1564 | December 26, 2018   Page 5 of 6
       restrictive placement is inappropriate in light of the nature of the offense or

       Belew’s character. Thus, we affirm his sentence.


[10]   Affirmed.


       Pyle, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1564 | December 26, 2018   Page 6 of 6
