MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                             FILED
regarded as precedent or cited before any                               Sep 18 2018, 7:21 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
Brian A. Karle                                           Curtis T. Hill, Jr.
Ball Eggleston, PC                                       Attorney General of Indiana
Lafayette, Indiana
                                                         Caroline G. Templeton
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Wanya Marcellas Dunn,                                    September 18, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-1124
        v.                                               Appeal from the Tippecanoe
                                                         Superior Court
State of Indiana,                                        The Honorable Steven P. Meyer,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         79D02-1712-F3-31



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1124 | September 18, 2018               Page 1 of 13
                                          Statement of the Case
[1]   Wanya Marcellas Dunn appeals his sentence following his conviction for

      robbery, as a Level 3 felony. Dunn presents two issues for our review:


                1.       Whether the trial court abused its discretion when it
                         sentenced him.

                2.       Whether his sentence is inappropriate in light of the nature
                         of the offense and his character.


[2]   We affirm.


                                    Facts and Procedural History
[3]   On November 19, 2017, Dunn and Glenn Ladd, Jr. were passengers in a car

      being driven by Zachary Sondergrath in Lafayette. Dunn had seen Ladd

      loading a handgun when Dunn got into the car. The group was on its way to

      pick up Ladd’s mother, but they decided to first stop and rob Anthony Cutillo,1

      who was walking along the side of the road. Sondergrath stopped the car,

      Dunn and Ladd got out, and Ladd placed the handgun in Cutillo’s side and

      told him not to move. Dunn took Cutillo’s backpack, and the group fled the

      scene in the car. A witness followed the men to a nearby church and called

      police, and officers with the Lafayette Police Department found Dunn, Ladd,

      and Sondergrath at the church a short time later and arrested them.




      1
          The record is unclear whether Cutillo was known to anyone in the car.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1124 | September 18, 2018   Page 2 of 13
[4]   The State charged Dunn with robbery, as a Level 3 felony; conspiracy to

      commit robbery, as a Level 3 felony; and theft, as a Class A misdemeanor. On

      March 5, 2018, Dunn pleaded guilty to robbery, as a Level 3 felony, and the

      State dismissed the remaining charges. Dunn’s plea agreement left sentencing

      open to the trial court’s discretion.


[5]   The trial court accepted Dunn’s guilty plea and entered judgment of conviction

      accordingly. At sentencing, the court engaged in a lengthy and detailed

      examination of mitigators and aggravators, including Dunn’s juvenile history:


              Your six (6) years as a juvenile surpasses a lot of criminal
              histories I see from adults. So, unfortunately for you, you are not
              the typical 17 year old that this court would like to see or that I
              hope that this is not an example of a lot of 17 year olds in our
              community. You just don’t seem to get it. And you are on a
              collision course here sir that your actions and your crimes keep
              ramping up to more and more and more serious and more
              dangerous activities here that makes anyone concerned about the
              safety of this community by your own actions. It’s amazing to
              me what you have accomplished in this six (6) years in terms of
              criminal activity, and the many opportunities that you have been
              given in the juvenile justice system. You started off by you know
              just being released to your family and then home detention type
              of opportunities where you cut off your bracelet and then you’re
              sent to the Cary Home, then you are off to Boy’s School and you
              know I mean the juvenile system I think has done about
              everything they can provided you with every opportunity and
              you’ve basically just thumbed your nose at every opportunity.
              And also what strikes me is, and I’ve read your letters from your
              family and your family seems to provide good support for you,
              they rely on you as a big brother and as a son and as a nephew,
              so maybe when you are at home you’re a good kid and you’re
              doing what – what’s expected of you. But what strikes me is

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1124 | September 18, 2018   Page 3 of 13
        several of the letters I wrote and even with your letter, I made a
        mistake is the impression I get; this is a mistake. Armed robbery
        with a gun picking a – picking out an innocent man walking
        down the street in front of Meijer is not a mistake. And
        furthermore, your activities from time to time; as I said in this
        criminal history, this is not a mistake. A mistake is maybe you
        walk out of Kohl’s and you have something in your hand and
        you forget to buy it maybe, or you forget to pay for it, maybe
        that’s a mistake. Repeated efforts here, repeated intentional acts
        on your part time and time and time again, that’s not a mistake.
        It shows a pattern of criminal history here. The fact that you get
        out of boy’s school and the first time out of boy’s school and
        within 20 days you are doing another offense and then in this
        particular incident you get out of boy’s school again within eight
        (8) or nine (9) days you’re doing a more serious offense, that’s
        not a mistake it’s criminal thinking its intentional acts on your
        behalf that you’re intentionally doing. And the videos that the
        State showed -provided, from the time that you were out from
        the last time in boy’s school to the time you committed this
        armed robbery and you’re out there having a great time smoking
        dope, waving around a gun. You’re not getting it. Obviously,
        the last time at boy’s school made no dent in your thinking.
        You’re just happy to get out. You send text messages to girl, I
        think what I saw was I – I’m really high. I’m as high as
        whatever. That was just within days of your release from boy’s
        school. You went right out and did what you did or what you
        know best which is go out and get high and start hanging out
        with guns and people who want to rob people. So, your history
        here is alarming and it’s not a mistake. And it’s not, I wrote
        down somebody said here during these proceedings, you’re a
        little misguided. I think you’re a lot more than that. A little
        misguided I think is depreciating the seriousness of what we have
        here today.

                                                ***



Court of Appeals of Indiana | Memorandum Decision 18A-CR-1124 | September 18, 2018   Page 4 of 13
        So, for that those are my first impressions of this case. On the
        mitigating side, I do find that you pled guilty, you came in and
        accepted responsibility. You appear to be cooperative with law
        enforcement, at least initially at the time of your arrest, there is
        some disagreement with the State in terms of how cooperative
        you’ve been with the statements you’ve made about this but
        overall I do show – I do think you’ve shown a cooperative spirit
        here. You have expressed remorse. As I said earlier, uh, you’re
        well spoken; you’ve shown I think some remorse for this crime
        and willingness to express that remorse to the victim. As I said,
        mitigator is your family support; there are people here to support
        you. But I don’t get it if they’re really – if they are there to
        provide good support for you and you’re not taking advantage of
        it. You don’t like to stay any place one particular long time.
        You’re 17 years old, you like to hang around. As soon as you get
        out of boy’s school you want to hop around here and hop around
        there. I mean, you know if you’re really going to provide a good
        role model for your siblings and for your little sister or brother,
        stay home and be that big brother instead of going around texting
        girls telling them you’re in a gang, waving your gun around,
        taking shots of you, smoking dope. That’s not a way to be a
        good brother. The mental health issues I’m not, there is some
        reference that you’re ADHD and maybe another condition but
        it’s not a strong mitigator to me. You’ve not been formally
        diagnosed. I haven’t seen a lot of evidence here of any real
        strong serious mental health disorders, but it appears you do have
        some of those conditions that could be help with some medicines
        if you chose to take it or get proper treatment. You had
        opportunities when you got out of boy’s school both times to go
        seek some mental health treatment and I don’t see any evidence
        that you tried to do that. And as I said your youthful age is a
        mitigator. Another mitigator I will give you credit for and I don’t
        want to diminish this in anyway because I think it is an
        important mitigator that this court finds is that you did
        participate in some rehabilitation program while at the county
        jail, and I appreciate the fact that you received your GED while
        there. On the aggravating side however, I do find that you have

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1124 | September 18, 2018   Page 5 of 13
        an extensive criminal history even as a juvenile and uh, for the
        record the summary of – as it is summarized here in the pre-
        sentence report. You were adjudicated a delinquent child for
        misdemeanor offense of theft, resisting law enforcement,
        possession of marijuana, criminal mischief, and battery resulting
        in serious or battery resulting in bodily injury. And you were
        adjudicated a delinquent child for felony offenses for robbery in
        2015, escape in 2015, auto theft in 2016, criminal confinement in
        2017. You’ve had seven (7) motions to modify against you, that
        indicates to me that they are seeking to modify your juvenile
        sentence because in one way or the other you violated probation
        rules seven (7) different times with six (6) being found true and
        granted. You were committed to the Department of Boy’s
        School for two - on two (2) different occasions and you were
        released from boy’s school just a short time before this offense
        occurred. The overall seriousness and the nature of this offense
        is an aggravator. The fact that I think, or at least you profess to
        be when – in the text messages to the girl you’re a gang member.
        I know you denied it to probation, but in the text that was
        provided to me just days before this incident you said, you were
        asked Wanya, are you in a gang? He says, yeah, you say yeah,
        why? And then the girl asks which one. I am IGD new breed.
        When asked to explain that you said Insane Gangster Disciple,
        I’m 720 not 360. So, you’re awfully proud of that fact just about
        four or five (5) days before you went out and committed armed
        robbery by helping somebody stick a gun in an innocent person’s
        ribs. So, you appear nice and clean cut and appropriate here
        today but when on your own you do show a different side of you
        which is concerning. All in all, I do find that the aggravators
        outweigh the mitigators and that executed time is appropriate
        here in this [case].




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1124 | September 18, 2018   Page 6 of 13
      Tr. at 72-77. Accordingly, the trial court sentenced Dunn to ten years, with six

      years executed and three years and 185 days suspended to probation.2 This

      appeal ensued.


                                        Discussion and Decision
                                        Issue One: Abuse of Discretion

[6]   Dunn first contends that the trial court abused its discretion when it sentenced

      him. As our Supreme Court has explained,


                sentencing decisions rest within the sound discretion of the trial
                court and are reviewed on appeal only for an abuse of
                discretion. . . . So long as the sentence is within the statutory
                range, it is subject to review only for abuse of discretion. . . . An
                abuse of discretion occurs if the decision is clearly against the
                logic and effect of the facts and circumstances before the court, or
                the reasonable, probable, and actual deductions to be drawn
                therefrom.


                One way in which a trial court may abuse its discretion is failing
                to enter a sentencing statement at all. Other examples include
                entering a sentencing statement that explains reasons for
                imposing a sentence—including a finding of aggravating and
                mitigating factors if any—but the record does not support the
                reasons, or the sentencing statement omits reasons that are
                clearly supported by the record and advanced for consideration,
                or the reasons given are improper as a matter of law. Under
                those circumstances, remand for resentencing may be the
                appropriate remedy if we cannot say with confidence that the




      2
          The trial court awarded Dunn 180 days credit for obtaining his GED while incarcerated.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1124 | September 18, 2018           Page 7 of 13
              trial court would have imposed the same sentence had it properly
              considered reasons that enjoy support in the record.


              Because the trial court no longer has any obligation to “weigh”
              aggravating and mitigating factors against each other when
              imposing a sentence, . . . a trial court can not now be said to have
              abused its discretion in failing to “properly weigh” such factors.
              And this is so because once the trial court has entered a
              sentencing statement, which may or may not include the
              existence of aggravating and mitigating factors, it may then
              “impose any sentence that is . . . authorized by statute; and . . .
              permissible under the Constitution of the State of Indiana.” I.C.
              § 35-38-1-7.1(d).


      Anglemyer v. State, 868 N.E.2d 482, 490-91 (Ind. 2007) (“Anglemyer I”) (some

      citations and quotation marks omitted), clarified on reh’g, 875 N.E.2d 218 (2007)

      (“Anglemyer II”).


[7]   Here, in its written sentencing order, the trial court identified five aggravators,

      including “the overall seriousness of the offen[s]e,” and seven mitigators,

      including that Dunn “pled guilty (diminished by Plea Agreement).”

      Appellant’s App. Vol. 2 at 58-59. Dunn contends that the trial court abused its

      discretion when it identified the “seriousness of the offense” as an aggravator

      and when it discounted the mitigating weight of his guilty plea based on his

      plea agreement, for which he received no benefit. We address each contention

      in turn.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1124 | September 18, 2018   Page 8 of 13
                                        Alleged Improper Aggravator

[8]    Dunn maintains that the “seriousness of the offense” was an improper

       aggravator. In support, Dunn asserts that “the trial court did not point to any

       particular circumstance” to support that aggravator and “a trial court may not

       use a factor constituting a material element of an offense as an aggravating

       circumstance.” Appellant’s Br. at 9.


[9]    In Anglemyer I, our Supreme Court stated that, “[c]oncerning the seriousness of

       the offense, this aggravator, which implicitly includes the nature and

       circumstances of the crime as well as the manner in which the crime is

       committed, has long been held a valid aggravating factor.” 868 N.E.2d at 492.

       Here, at sentencing, the trial court observed that Dunn had committed the

       armed robbery after “picking out an innocent man walking down the street in

       front of Meijer.” Tr. at 73. In other words, the court considered the offense

       “serious” because Cutillo had done nothing to deserve being targeted by Dunn.

       Because this aggravator does not include an element of the offense of robbery,

       and because it describes the nature and circumstances of the offense, the trial

       court properly identified this aggravator.


                                         Alleged Improper Mitigator

[10]   Dunn also maintains that the trial court improperly gave “diminished” weight

       to his guilty plea when it identified it as a mitigator. In particular, in its

       sentencing order, the trial court identified as mitigating Dunn’s guilty plea, but

       it noted that the plea was “diminished by Plea Agreement.” Appellant’s App.

       Vol. 2 at 59. On appeal, Dunn contends, and the State does not dispute, that
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1124 | September 18, 2018   Page 9 of 13
       the trial court must have erroneously concluded that Dunn had received a

       benefit under the plea agreement, which he did not. In particular, while the

       State dismissed two charges in exchange for Dunn’s plea, had Dunn not

       pleaded guilty and been convicted of all three charges at trial, double jeopardy

       principles would have prohibited the entry of judgment of conviction on the

       two charges that were ultimately dismissed. And his plea agreement left

       sentencing open to the trial court.


[11]   Dunn acknowledges that “the relative weight assigned to a mitigating

       circumstance is not grounds for an ‘abuse of sentencing discretion’ claim on

       appeal.” Reply Br. at 8. Indeed, it is well settled that “a trial court can not now

       be said to have abused its discretion in failing to ‘properly weigh’” mitigators.

       Anglemyer I, 868 N.E.2d at 491. Still, Dunn asserts that the trial court abused its

       discretion because it “mis-weighed a mitigator due to a mistake of law, not an

       exercise of discretionary factual assessment.” Reply Br. at 8. Thus, he

       maintains that the court’s “decision to discount Dunn’s guilty plea was error as

       a matter of law.” Id.


[12]   While a trial court may abuse its discretion if the reasons supporting the

       sentence are “improper as a matter of law,” we will remand for resentencing “if

       we cannot say with confidence that the trial court would have imposed the

       same sentence had it properly considered reasons that enjoy support in the

       record.” Anglemyer I, 868 N.E.2d at 491. Here, even if the trial court had not

       discounted the mitigating weight of Dunn’s guilty plea based on his plea

       agreement, his guilty plea does not otherwise deserve much mitigating weight,

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1124 | September 18, 2018   Page 10 of 13
       if any, because the evidence against Dunn is so strong that his decision to plead

       guilty was surely a pragmatic one. See Amalfitano v. State, 956 N.E.2d 208, 212

       (Ind. Ct. App. 2011). The evidence against Dunn was overwhelming. An

       eyewitness followed the car in which Dunn was riding from the scene of the

       robbery to a church, where police officers arrested Dunn and the other two men

       a very short time later. Officers brought Cutillo to the church, where he

       identified Dunn as one of the men who robbed him. Thus, Dunn’s guilty plea

       was merely pragmatic and does not deserve much mitigating weight. See id.


[13]   In any event, in the context of the trial court’s thorough explanation of

       aggravators and mitigators at the sentencing hearing, the court’s passing

       reference in its written sentencing statement to the “diminished” weight

       assigned to Dunn’s guilty plea is insignificant. We can say with confidence

       that, even had the trial court assigned more mitigating weight to Dunn’s guilty

       plea, the court still would have imposed the same sentence.


                                     Issue Two: Appellate Rule 7(B)

[14]   Dunn also contends that his ten-year sentence, with six years executed, is

       inappropriate in light of the nature of the offense and his character. Indiana

       Appellate Rule 7(B) provides that “[t]he 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.” As the Indiana Supreme Court has

       explained, the “principal role of appellate review” under Rule 7(B) “should be

       to attempt to leaven the outliers” and not to “achieve a perceived ‘correct’ result
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1124 | September 18, 2018   Page 11 of 13
       in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). The

       defendant has the burden to persuade us that his sentence is inappropriate.

       Anglemyer I, 868 N.E.2d at 494.


[15]   Dunn asserts that his sentence is inappropriate in light of the nature of the

       offense because it is “less egregious” than the typical armed robbery in that no

       one was injured, the gun was not fired, and Dunn was not armed. Appellant’s

       Br. at 14. And he asserts that his sentence is inappropriate in light of his

       character because of his youth/lack of adult criminal history, his acceptance of

       responsibility and guilty plea, the assistance that he gives to family members,

       and the letters of support from friends and family, which show that he has good

       character and “potential for rehabilitation.” Id. at 15.


[16]   We cannot say that Dunn’s ten-year sentence, with six years executed, is

       inappropriate in light of the nature of the offense. While Dunn was unarmed at

       the time of the robbery, and while the robbery was not planned, Dunn knew

       Ladd was in possession of a loaded handgun when Dunn got into the car.

       Thus, when Dunn exited the car with Ladd to rob Cutillo, Dunn knew or

       should have known that Ladd would use the handgun in the course of the

       robbery. And, as the trial court pointed out, within a few days of the robbery,

       Dunn admitted in a text message that he was a member of a gang. Dunn

       participated in a crime involving the use of a handgun and the threat of deadly

       force, and we cannot say that his sentence is inappropriate in light of the nature

       of the offense.



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1124 | September 18, 2018   Page 12 of 13
[17]   Neither is his sentence inappropriate in light of his character. Dunn’s juvenile

       history is extensive and, as the trial court observed, “[Dunn’s] actions and . . .

       crimes keep ramping up to more and more and more serious and more

       dangerous – dangerous activities[.]” Tr. at 72. And the court noted that “the

       juvenile system . . . [has] provided [Dunn] with every opportunity and [he has]

       basically just thumbed [his] nose at every opportunity.” Id. Finally, again,

       Dunn admitted to being a member of a gang within a few days of the instant

       robbery. We cannot say that Dunn’s sentence is inappropriate in light of his

       character. We affirm his sentence.


[18]   Affirmed.


       Crone, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1124 | September 18, 2018   Page 13 of 13
