MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this
                                                                         Feb 16 2016, 9:45 am
Memorandum Decision shall not be 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
Donald C. Swanson, Jr.                                    Gregory F. Zoeller
Deputy Public Defender                                    Attorney General of Indiana
Fort Wayne, Indiana
                                                          Lyubov Gore
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                             IN THE
    COURT OF APPEALS OF INDIANA

Vincent P. Wells, Sr.,                                    February 16, 2016

Appellant-Defendant,                                      Court of Appeals Case No.
                                                          02A03-1508-CR-1066
        v.                                                Appeal from the Allen Superior
                                                          Court.
                                                          The Honorable Frances C. Gull,
State of Indiana,                                         Judge.
Appellee-Plaintiff.                                       Cause No. 02D06-1501-F6-15




Friedlander, Senior Judge




Court of Appeals of Indiana | Memorandum Decision 02A03-1508-CR-1066] | February 16, 2016       Page 1 of 5
                                                                                              1
[1]   Vincent P. Wells, Sr., appeals his sentence for Level 6 felony theft, contending

      that his sentence is inappropriate in light of the nature of the offense and the

      character of the offender. We affirm.


[2]   Wells was released to parole on October 17, 2014 after having been convicted of

      Class D felony theft in Cause Number 02D05-1310-FD-1087 and sentenced to

      serve one and a half years in the Department of Correction. While on parole

      under FD-1087, Wells entered a Wal-Mart in Allen County on December 30,

      2014 and took a bottle of liquor and other items without paying for them.

      Wells was charged with theft. Seven days before the start of his jury trial, he

      pleaded guilty to Level 6 felony theft with a prior conviction.


[3]   Wells’ sentencing hearing was held on July 23, 2015. The trial court identified

      Wells’ “astonishing” criminal history and failed efforts at rehabilitation as

      aggravating circumstances. Tr. p. 19. The trial court noted the mitigating

      circumstances of Wells’ guilty plea and his remorse and acceptance of

      responsibility. Wells now challenges the trial court’s imposition of a two and

      one-half year executed sentence to be served consecutively to his sentence in

      FD-1087, contending that the sentence is inappropriate.


[4]   The sentencing range for a Level 6 felony is a period of imprisonment from

      between six months and two and one-half years, with the advisory sentence




      1
       Ind. Code § 35-43-4-2 (West, Westlaw current with all 2015 Public Laws of the 2015 First Regular Session
      of the 119th General Assembly).

      Court of Appeals of Indiana | Memorandum Decision 02A03-1508-CR-1066] | February 16, 2016       Page 2 of 5
      being one year. Ind. Code Ann. § 35-50-2-7(b) (West, Westlaw current with all

      2015 Public Laws of the 2015 First Regular Session of the 119th General

      Assembly). 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 non-recognition of aggravators and mitigators as an

      initial guide to determining whether the sentence imposed was inappropriate.

      Gibson v. State, 856 N.E.2d 142 (Ind. Ct. App. 2006). The principal role of

      appellate review is to attempt 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 (Ind. Ct. App. 2007). The question is not

      whether another sentence is more appropriate, but whether the sentence

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


[5]   “When considering the nature of the offense, the advisory sentence is the

      starting point to determine the appropriateness of a sentence.” Johnson v. State,

      986 N.E.2d 852, 856 (Ind. Ct. App. 2013). “One factor we consider when

      determining the appropriateness of a deviation from the advisory sentence is

      whether there is anything more or less egregious about the offense committed

      by the defendant that makes it different from the ‘typical’ offense accounted for

      by the legislature when it set the advisory sentence.” Holloway v. State, 950

      N.E.2d 803, 806-07 (Ind. Ct. App. 2011).


      Court of Appeals of Indiana | Memorandum Decision 02A03-1508-CR-1066] | February 16, 2016   Page 3 of 5
[6]   When reviewing the sentence with respect to the character of the offender, we

      engage in a broad consideration of a defendant’s qualities. Aslinger v. State, 2

      N.E.3d 84 (Ind. Ct. App. 2014), clarified on other grounds on reh’g, 11 N.E.3d 571.


[7]   The advisory sentence for a Level 6 felony theft is one year. With respect to the

      nature of the offense, Wells committed this offense two months after being

      released from the Department of Correction for a sentence imposed on a Class

      D felony theft conviction. One of the items Wells took from Wal-Mart was

      liquor, which is troubling given his history of substance abuse.


[8]   With respect to the character of the offender, we note that the trial court found

      Wells’ criminal history to be “astonishing.” Tr. p. 19. The significance of a

      criminal history in assessing a defendant’s character and an appropriate

      sentence varies based on the gravity, nature, proximity, and number of prior

      offenses in relation to the current offense. Bryant v. State, 841 N.E.2d 1154 (Ind.

      2006). As a juvenile, Wells was adjudicated a delinquent four times; once each

      for Class B felony arson, Class C felony burglary, vandalism, and shoplifting.

      As an adult, Wells has accumulated twenty-seven arrests, sixteen misdemeanor

      convictions, and sixteen felony convictions. Wells has committed theft ten

      times and has committed conversion four times. He was on parole for the same

      offense when he committed this new offense.


[9]   Wells has not carried his burden of persuading us that his sentence is

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

      offender.


      Court of Appeals of Indiana | Memorandum Decision 02A03-1508-CR-1066] | February 16, 2016   Page 4 of 5
[10]   Judgment affirmed.


       Barnes, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 02A03-1508-CR-1066] | February 16, 2016   Page 5 of 5
