      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D), this                         Jan 28 2015, 9:38 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
      William A. Gray                                           Gregory F. Zoeller
      Jeffersonville, Indiana                                   Attorney General of Indiana
                                                                Christina D. Pace
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Shelby Makowsky,                                         January 28, 2015

      Appellant-Defendant,                                     Court of Appeals Cause No.
                                                               22A04-1406-CR-295
              v.                                               Appeal from the Floyd Circuit Court
                                                               The Honorable J. Terrence Cody,
                                                               Judge
      State of Indiana,                                        Cause No. 22C01-1402-FA-286
      Appellee-Plaintiff




      Crone, Judge.


                                               Case Summary
[1]   Shelby Makowsky appeals the twenty-year sentence imposed by the trial court

      following her guilty plea to class B felony conspiracy to commit arson. She

      claims that her sentence is inappropriate in light of the nature of her offense and

      Court of Appeals of Indiana | Memorandum Decision 22A04-1406-CR-295 | January 28, 2015     Page 1 of 5
      her character. Finding that Makowsky has not met her burden to demonstrate

      that her sentence is inappropriate, we affirm.


                                 Facts and Procedural History
[2]   On January 4, 2014, eighteen-year-old Makowsky and two of her friends were

      driving around shooting flares from a flare gun at the houses of people they

      were mad at or had a “beef” with. Tr. at 67. Makowsky and her friends were

      angry with an individual named Jonathon Stewart because they had tried to sell

      stolen electronics to Stewart and Stewart took the items but did not pay for

      them. As the friends drove by Stewart’s house, one of them shot a flare at the

      house. Stewart’s house caught fire. Stewart was not home at the time. Four

      young children and their mother were at the house using Stewart’s laundry

      machines. Three of the children, ages two, four, and six, died in the fire. The

      other child, age five, suffered extensive burns to thirty-five percent of her body.


[3]   The State charged Makowsky with class A felony conspiracy to commit arson.

      On April 22, 2014, Makowsky pled guilty to class B felony conspiracy to

      commit arson. The plea agreement left sentencing to the trial court’s discretion.

      Following a hearing, the trial court imposed an executed sentence of twenty

      years. This appeal ensued.


                                     Discussion and Decision
[4]   Makowsky invites this Court to reduce her twenty-year sentence pursuant to

      Indiana Appellate Rule 7(B), which provides that we may revise a sentence

      authorized by statute if, after due consideration of the trial court’s decision, we

      Court of Appeals of Indiana | Memorandum Decision 22A04-1406-CR-295 | January 28, 2015   Page 2 of 5
      find that the sentence “is inappropriate in light of the nature of the offense and

      the character of the offender.” The defendant bears the burden to persuade this

      Court that his or her sentence is inappropriate. Childress v. State, 848 N.E.2d

      1073, 1080 (Ind. 2006). “[W]hether we regard a sentence as appropriate at the

      end of the day turns on our sense of the culpability of the defendant, the

      severity of the crime, the damage done to others, and myriad other factors that

      come to light in a given case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind.

      2008). We recognize that the “principal role of appellate review should be to

      attempt to leaven the outliers and to identify some guiding principles for trial

      courts and those charged with improvement of the sentencing statutes, but not

      to achieve a perceived ‘correct’ result in each case.” Id. at 1225. Indeed, “[t]he

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

      appropriate: rather, the question is whether the sentence imposed is

      inappropriate.” King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008).


[5]   The sentencing range for a class B felony is between six and twenty years with

      the advisory sentence being ten years. Ind. Code § 35-50-2-5. The trial court

      imposed the maximum twenty-year executed sentence for Makowsky’s offense,

      and she believes that this sentence is inappropriate. We disagree.


[6]   As for the nature of her offense, Makowsky admitted to conspiring with at least

      two other individuals to shoot a flare gun at Stewart’s house in order to get

      revenge against him because she was angry at him for stealing stolen electronics

      from her and her friends. Her crime ultimately resulted in the death of three



      Court of Appeals of Indiana | Memorandum Decision 22A04-1406-CR-295 | January 28, 2015   Page 3 of 5
      innocent young children and serious and life-altering injuries to a fourth child.1

      The “damage done to others” as a result of this crime supports imposition of

      the maximum twenty-year sentence. See Cardwell, 895 N.E.2d at 1224. The

      nature of this offense does not warrant a sentence reduction.


[7]   As for her character, Makowsky fares no better. When considering the

      character of the offender, one relevant fact is the defendant’s criminal history.

      Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct. App. 2007). Although

      Makowsky committed the current offense shortly after she turned eighteen and

      therefore this was her first felony as an adult, she has two prior misdemeanor

      convictions as an adult and her juvenile criminal history is extensive, including

      several crimes of physical violence. This history demonstrates Makowsky’s

      clear and utter disdain for authority. Nevertheless, Makowsky urges us to

      revise her sentence to provide for a partially suspended sentence rather than the

      fully executed sentence imposed by the trial court. However, we consider

      significant that Makowsky committed the current offense while on probation.

      Her refusal to modify her behavior despite being given the opportunity with a




      1
        We note that, although she pled guilty to the lesser class B felony conspiracy to commit arson, Makowsky’s
      actions would have clearly supported a conviction for class A felony conspiracy to commit arson. See Ind.
      Code § 35-42-5-2 (effective until July 1, 2014) (conspiracy to commit a felony is a felony of the same class as
      the underlying offense); Ind. Code § 35-43-1-1 (effective until July 1, 2014) (arson is a class A felony if it
      results in either bodily injury or serious bodily injury to any person other than a defendant).

      Court of Appeals of Indiana | Memorandum Decision 22A04-1406-CR-295 | January 28, 2015              Page 4 of 5
      prior grant of leniency neither reflects positively on her character nor convinces

      us that her fully-executed sentence is too harsh. In sum, Makowsky has not

      met her burden to demonstrate that her twenty-year sentence is inappropriate in

      light of the nature of her offense or her character, and we decline her invitation

      for sentence reduction.


[8]   Affirmed.


      Friedlander, J., and Kirsch, J., concur.




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