      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),                                       FILED
      this Memorandum Decision shall not be
      regarded as precedent or cited before any                               Jul 13 2018, 10:09 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
      P. Jeffrey Schlesinger                                   Curtis T. Hill, Jr.
      Lake County Public Defender’s Office –                   Attorney General of Indiana
      Appellate Division
                                                               Henry A. Flores, Jr.
      Crown Point, Indiana                                     Deputy Attorney General
                                                               Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Michael J. Davis,                                        July 13, 2018
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               45A05-1712-CR-2920
              v.                                               Appeal from the Lake Superior
                                                               Court
      State of Indiana,                                        The Honorable Clarence D.
      Appellee-Plaintiff.                                      Murray, Judge
                                                               Trial Court Cause No.
                                                               45G02-8512-CR-195



      Mathias, Judge.

[1]   After being tried in absentia in Lake Superior Court in 1985, Michael J. Davis

      (“Davis”) was found guilty of criminal deviate conduct and was sentenced in


      Court of Appeals of Indiana | Memorandum Decision 45A05-1712-CR-2920 | July 13, 2018             Page 1 of 18
      2017 to the presumptive sentence of thirty years of incarceration. Davis appeals

      and presents three issues, which we restate as:


            I.    Whether the trial court violated the Interstate Agreement on
                  Detainers (“IAD”) when it denied Davis’s various pro se requests for
                  disposition while he was incarcerated in Colorado on other
                  convictions;
           II.    Whether the trial court violated Davis’s right to a speedy trial when it
                  denied his pro se requests for disposition; and
          III.    Whether Davis’s thirty-year sentence is inappropriate.

[2]   We affirm.


                                 Facts and Procedural History
[3]   In 1985, the victim in this case, C.B., lived in Kouts, Indiana with her husband

      and children. In November 1985, she moved into a battered women’s shelter in

      Hobart, Indiana. When her estranged husband found her there, she moved to

      another women’s shelter in Hammond, Indiana.


[4]   On November 26, 1985, C.B. became ill, so the shelter contacted a bus service

      to transport C.B. to the hospital. Davis was the driver of the bus, and C.B. was

      the only passenger. Instead of taking C.B. to the hospital, Davis parked the bus

      and locked the doors. He brandished a knife, grabbed C.B. by the hair, and told

      her to go to the back of the bus. Davis repeatedly told C.B. that he would not

      hurt her if she cooperated. Davis forced C.B. to the floor of the bus and pushed

      the knife into her stomach and neck when she resisted. Davis forced C.B. to

      disrobe, then twice placed his finger in her vagina. He also forced her to

      perform oral sex on him. C.B. attempted to resist and screamed, but Davis held

      Court of Appeals of Indiana | Memorandum Decision 45A05-1712-CR-2920 | July 13, 2018   Page 2 of 18
      her down. During her attempts to resist, C.B. cut her fingers on the knife. As

      C.B. continued to struggle, Davis told her, “there was a lot of other women that

      were easier to get than [her],” and that she was “just about ready to have a

      nervous breakdown[.]” Tr. Vol. II, p. 30. Davis therefore stopped his attack and

      told C.B. to calm down, which she did not. Davis told C.B. to put her clothes

      on and took her to a nearby hospital, where he dropped her off.


[5]   C.B. told a nurse inside the hospital what had happened, and the hospital staff

      completed a rape kit to examine C.B. for evidence of sexual assault. Serological

      testing confirmed the presence of seminal fluid in C.B.’s mouth after the attack.

      C.B. later identified Davis as her attacker and noted that he was uncircumcised.

      The police arrested Davis the next day and found in his possession a knife,

      which C.B. later confirmed was the one Davis used during the attack. Under

      police questioning, Davis denied attacking C.B., but admitted that he was

      uncircumcised.


[6]   On December 2, 1985, the State charged Davis with Class A felony criminal

      deviate conduct, alleging that he knowingly or intentionally forced C.B. to

      perform or submit to deviate sexual conduct by force or imminent threat of

      force while armed with a deadly weapon. Davis appeared in person and by

      counsel on January 29, 1986, and the trial court informed him that his trial was

      set for March 10, 1986. Davis’s counsel successfully moved to continue the trial

      to April 7, 1986.




      Court of Appeals of Indiana | Memorandum Decision 45A05-1712-CR-2920 | July 13, 2018   Page 3 of 18
[7]   At the April 7 trial, Davis failed to appear, and he was tried in absentia. At the

      conclusion of the trial the following day, the jury found Davis guilty. Instead of

      sentencing Davis in absentia, the trial court issued a warrant for his arrest and

      stated that, once Davis was arrested, he would be sentenced. The trial court did

      not formally enter a judgment of conviction on the jury’s verdict at that time.


[8]   Over ten years later, on August 20, 1996, an entry was made in the trial court’s

      chronological case summary (“CCS”) stating, “Defendant reportedly in custody

      in Arapohoe [sic] County, Colorado. Detainer issued by sheriff. Extradition

      proceedings initiated.” Appellant’s App. p. 13. The record indicates that Davis

      was convicted on Colorado charges and sentenced to thirty-two years in the

      Colorado Department of Corrections. On February 24, 1998, the trial court

      again noted in its CCS, “Defendant reportedly in custody at Dept of

      Corrections, Colorado Springs, Colorado. Detainer issued by sheriff.” Id.


[9]   During the ensuing years, Davis made several requests to the Lake Superior

      Court to dispose of his case, which the trial court denied either because Davis

      had not followed the proper procedures under the IAD, i.e., first submitting his

      request to the person having custody of Davis, or because Davis had already

      been tried and therefore could not be “brought to trial” as set forth in the IAD.1




      1
        Specifically, on February 11, 2002, Davis sent a pro se motion to the trial court requesting that he be
      appointed counsel and that “the existing case now be adjudicated and resolved.” Appellant’s App. p. 77. The
      record does not indicate that any action was taken on this motion. On April 20, 2005, Davis sent the trial
      court a pro se letter that the court considered as a request for disposition. The trial court denied this motion on
      the basis that it was not a valid request under the IAD because there was no indication that Davis had
      followed the necessary procedural steps under the IAD, such as submitting the request to the official having

      Court of Appeals of Indiana | Memorandum Decision 45A05-1712-CR-2920 | July 13, 2018                  Page 4 of 18
[10]   Finally, on October 20, 2017, Davis, apparently having been released from

       incarceration in Colorado, was finally brought before the Lake Superior Court,

       which found him indigent and appointed counsel for purposes of sentencing.

       On November 15, 2017, over thirty-one years after Davis’s trial, the trial court

       held a sentencing hearing at which Davis appeared in person and by counsel.

       The trial court found as aggravating Davis’s criminal history, that Davis was in

       a position of custody and control with his victim, and the nature and

       circumstances of the crime. The court found no mitigators, but still sentenced

       Davis to the presumptive sentence of thirty years of incarceration. Davis now

       appeals.


                                   I. Interstate Agreement on Detainers

[11]   Davis first argues that the trial court erred as a matter of law by failing to

       sentence him within 180 days of his requests for disposition, which he argues




       custody of him. On February 26, 2010, the trial court received from Davis a pro se motion to quash detainer
       and dismiss conviction, again referencing the IAD. The trial court denied this motion on March 8, 2010,
       again explaining to Davis the procedure he needed to follow. On December 13, 2010, Davis filed another pro
       se request for disposition citing the IAD. The trial court denied this motion too on grounds that Davis had
       already been tried and convicted. On September 26, 2012, Davis filed a pro se Writ of Habeas Corpus ad
       Prosequendum. The trial court considered this to be another request for disposition and, on October 23,
       2012, denied the motion because Davis had again failed to follow the proper steps under the IAD. On April
       8, 2016, Davis filed a pro se Motion Requesting Final Disposition of Criminal Indictment, claiming that his
       right to a speedy trial had been violated. The court considered this to be another request for disposition,
       which it denied with language similar to that in its October 23, 2012 order. On May 2, 2016, Davis filed a pro
       se motion to reconsider, claiming that his claim was not brought under the IAD, but the trial court denied this
       motion the following day. On August 30, 2017, Davis sent a pro se letter to the trial court, along with a form
       he sent to the warden at the Colorado prison, again referencing the IAD. The trial court denied this request,
       finding that the IAD did not apply to Davis because he had already been tried and convicted.

       Court of Appeals of Indiana | Memorandum Decision 45A05-1712-CR-2920 | July 13, 2018              Page 5 of 18
was required under the IAD, which is codified at Indiana Code section 35-33-

10-4. As explained by our supreme court in Sweeney v. State:


         The [IAD] was created to solve several problems which arose
         from the use of detainers. . . .[2] Before the [IAD] was enacted,
         there was no legal mechanism for prisoners to clear detainers
         filed against them by authorities outside the jurisdiction in which
         they were imprisoned. Consequently, detainers had the capability
         of restricting, circumscribing, or disrupting the activities,
         including rehabilitative activities, of prisoners within the
         “sending state’s” prison. This is because in the past, detainers
         would remain lodged against a prisoner for several years and
         cause serious problems: (1) the prisoner would be ineligible for
         work assignments and (2) the prisoner often lost interest in
         institutional opportunities because he was serving his current
         sentence without knowing what additional sentences may be
         imposed on him or if and when he would be able to employ the
         education and skills developed while in prison. . . .

         As a result of the problems created by the use of detainers, the
         federal government and all the states that adopted the IAD
         determined that the primary purpose of the IAD would be to
         provide for expeditious disposition of all outstanding charges
         which may affect the conditions or duration of imprisonment and
         treatment, and also to prescribe procedures by which a state may
         obtain a prisoner incarcerated in another state. The IAD also
         provide[s] cooperate procedures among member states to
         facilitate such disposition.




2
  “Although the IAD does not define a detainer, the congressional record provides that ‘[a] detainer is a
notification filed with the institution in which a prisoner is serving a sentence, advising that he is wanted to
face pending criminal charges in another jurisdiction.’” Sweeney v. State, 704 N.E.2d 86, 95 (Ind. 1998)
(quoting United States v. Mauro, 436 U.S. 340, 359 (1978)).

Court of Appeals of Indiana | Memorandum Decision 45A05-1712-CR-2920 | July 13, 2018                  Page 6 of 18
       704 N.E.2d 86, 95–96 (Ind. 1998) (citations and internal quotations omitted).3


[12]   Here, Davis argues that he sent the trial court several requests for disposition

       that triggered a 180-day time limit set forth in the IAD within which the trial

       court had to dispose of his case. Davis refers to Article 3 of the IAD, which

       provides:


                (a) Whenever a person has entered upon a term of imprisonment
                in a penal or correctional institution of a party state, and whenever
                during the continuance of the term of imprisonment there is
                pending in any other party state any untried indictment,
                information or complaint on the basis of which a detainer has been
                lodged against the prisoner, he shall be brought to trial within one
                hundred eighty (180) days after he shall have caused to be delivered to the
                prosecuting officer and the appropriate court of the prosecuting officer’s
                jurisdiction written notice of the place of his imprisonment and his request
                for a final disposition to be made of the indictment, information or
                complaint; provided that for good cause shown in open court, the
                prisoner or his counsel being present, the court having jurisdiction
                of the matter may grant any necessary or reasonable continuance.


       Ind. Code § 35-33-10-4, IAD Art. 3(a) (emphases added).


[13]   As explained in Sweeney, “Article 3 establishes a procedure by which a prisoner

       against whom a detainer has been lodged can demand a speedy disposition of




       3
         Article 4 of the IAD provides the means by which a prosecutor can obtain temporary custody of a
       defendant in order to dispose of outstanding charges. Sweeney, 704 N.E.2d at 96. Pursuant to Article 4, the
       prisoner must be brought to trial within 120 days of his or her arrival in the receiving state. Id. If the prisoner
       is not brought to trial within the 120-day time limit, or if the prisoner is returned to the “sending state”
       without bringing the prisoner to trial, the charges will be dismissed with prejudice. Id. “This is often referred
       to as the ‘anti-shuffling’ provision.” Id.

       Court of Appeals of Indiana | Memorandum Decision 45A05-1712-CR-2920 | July 13, 2018                   Page 7 of 18
       the charges.” 704 N.E.2d at 96. If the prisoner makes such a request, he must be

       “brought to trial” within 180 days. Id. (citing IAD Art. 3(a)).


[14]   The State argues that the trial court properly denied Davis’s motions for

       disposition and that the 180-day time limit of IAD Article 3(a) was not

       triggered because the plain text of this provision presumes that the prisoner

       seeking disposition is facing untried charges. We agree.


[15]   Article 3(a) applies only when “there is pending in any other party state any

       untried indictment, information or complaint” against the prisoner. IAD Art.

       3(a) (emphasis added). Moreover, Article 3(a) provides that such a prisoner

       “shall be brought to trial within one hundred eighty (180) days” after making his

       request for disposition. Id. (emphasis added).


[16]   None of this is applicable to Davis. There was no untried information pending

       against him, as he had already been tried and found guilty. Therefore, he could

       not be “brought to trial” within 180 days for the simple reason that he had

       already been brought to trial, albeit in absentia.


[17]   Davis nevertheless claims that because he has not been sentenced, and because

       there is no indication that the trial court entered a judgment of conviction

       against him after his 1986 trial, he was still facing “untried” charges and should

       have been sentenced within 180 days of his various requests. We have already

       rejected a similar argument.




       Court of Appeals of Indiana | Memorandum Decision 45A05-1712-CR-2920 | July 13, 2018   Page 8 of 18
[18]   In Gilbert v. State, 982 N.E.2d 1087 (Ind. Ct. App. 2013), this court held that the

       term “trial” as used in Article 4 of the IAD did not include entering judgment of

       conviction or sentencing. In that case, Gilbert had been transferred from prison

       in Kentucky to Indiana to face pending charges and was returned to Kentucky

       after the trial court accepted his plea of guilty, but before the trial court entered

       judgment of conviction and sentenced him. Gilbert was subsequently returned

       again to Indiana, where the trial court entered judgment and sentenced the

       defendant.


[19]   On appeal, Gilbert argued that the charges against him in Indiana should have

       been dismissed pursuant to the “anti-shuffling”4 provisions of the IAD when he

       was returned to Kentucky after pleading guilty in Indiana, but before the trial

       court accepted the plea and sentenced him. Gilbert argued that the term “trial,”

       as used in the IAD’s anti-shuffling provision, included entering judgment of

       conviction and sentencing. Id. at 1089.


[20]   In addressing this issue of first impression, the Gilbert court noted that most

       jurisdictions had held that “the IAD’s anti-shuffling provision is not violated

       when a defendant is transferred back to the state of origin after pleading guilty




       4
           The “anti-shuffling” provision of the IAD states:

                  (e) If trial is not had on any indictment, information or complaint contemplated hereby
                  prior to the prisoner’s being returned to the original place of imprisonment pursuant to
                  Article 5(e) hereof, such indictment, information or complaint shall not be of any further
                  force or effect, and the court shall enter an order dismissing the same with prejudice.
       Ind. Code § 35-33-10-4, Art. 4(e).

       Court of Appeals of Indiana | Memorandum Decision 45A05-1712-CR-2920 | July 13, 2018                Page 9 of 18
       but prior to sentencing.” Id. The Gilbert court quoted with approval the

       following language from the Maryland Court of Special Appeals:


                [T]he term “trial” in [IAD] Article III, as well as in [IAD] Article
                IV, does not encompass sentencing. If it did, then the anti-
                shuffling provision of Article III, as well as of Article IV, would
                have addressed, we can assume, unsentenced convictions, as it
                does “untried indictments, informations, or complaints.” It does
                not, and thus we conclude that a “trial,” for the purposes of the IAD,
                refers to the resolution of charges and not necessarily to the imposition of
                sentence.


       Id. (quoting Painter v. State, 848 A.2d 692, 703 (Md. Ct. Spec. App. 2004)

       (emphasis added)).5


[21]   Although Gilbert dealt with the anti-shuffling provision in Article 4 of the IAD,

       we find its interpretation of the word “trial” to be equally applicable in Article

       3’s requirement that a prisoner being held in a sending jurisdiction be “brought

       to trial” in the receiving jurisdiction within 180 days of a proper request for

       disposition. That is, “trial” refers to the resolution of charges, not sentencing.

       Gilbert, 982 N.E.2d at 1089.




       5
         As noted in Gilbert, other courts have come to similar conclusions. See id. at 1089–90 (citing United States v.
       Coffman, 905 F.2d 330, 333 (10th Cir. 1990) (holding that sentencing is not included in the term “trial” as
       used in the IAD because transferring a prisoner after trial but before sentencing did “not implicate the
       prisoner rehabilitation concerns animating the IAD to the same degree as pre-trial transfers”); State v. Lewis,
       422 N.W.2d 768, 772 (Minn. Ct. App. 1988) (holding that IAD’s anti-shuffling provision was not violated
       when the defendant was returned to federal prison after trial, but before sentencing, in state court); People ex
       rel. Harrist v. Dalsheim, 442 N.Y.S.2d 906, 907 (N.Y. Sup. Ct. 1981) (concluding that IAD’s anti-shuffling
       provision was violated when defendant was returned to Massachusetts prison after pleading guilty to New
       York charge but before sentencing).

       Court of Appeals of Indiana | Memorandum Decision 45A05-1712-CR-2920 | July 13, 2018                Page 10 of 18
[22]   In the present case, Davis had already been tried and found guilty. Thus, under

       Article 3 of the IAD he could not be “brought to trial” within 180 days of his

       requests for disposition, because he had already been brought to trial. This is

       not altered by the fact that the trial court had not yet entered a judgment of

       conviction on the jury’s verdict. In Gilbert, the defendant argued that the IAD

       did apply because, although he had already pleaded guilty, the trial court had

       not entered a judgment of conviction before he was sent back to Kentucky.

       Gilbert had, however, already pleaded guilty without the benefit of a plea

       agreement, and the trial court had accepted his plea. “Therefore, there was

       nothing left to do in the case except to sentence Gilbert.” Id. at 1091. The same

       is true here. The jury had already found Davis guilty, and there was nothing left

       to do in this case other than sentence Davis.6


[23]   Accordingly, even if Davis’s various pro se requests for disposition did trigger

       the 180-day time limit of IAD Article 3, this provision was inapplicable because

       Davis had already been “brought to trial” years before his requests. That the

       trial court had not entered a judgment of conviction or sentenced Davis does

       not alter the fact that he had already been brought to trial. Because Davis had




       6
         We find Davis’s citation to Robison v. State, 172 Ind. App. 205, 359 N.E.2d 924 (1977), unavailing. In that
       case, the trial court indefinitely postponed pronouncement of judgment and sentence, and a panel of this
       court held that, when a trial court did so, it “loses jurisdiction to sentence and upon application the defendant
       should be discharged.” 172 Ind. App. at 206, 359 N.E.2d at 924. Notably, the defendant in Robison did not
       flee the jurisdiction. The trial court simply postponed the judgment and sentencing indefinitely. Here, the
       trial court did not indefinitely postpone judgment and sentencing; it merely waited until Davis was returned
       to Indiana.

       Court of Appeals of Indiana | Memorandum Decision 45A05-1712-CR-2920 | July 13, 2018               Page 11 of 18
       already been brought to trial, there was no violation of IAD Article 3, and the

       trial court did not err in denying Davis’s earlier requests for disposition.


                                             II. Right to a Speedy Trial

[24]   Davis next contends that the delay in sentencing him deprived him of his right

       to a speedy trial under both the federal Constitution and Indiana Constitution.

       This argument fails for a variety of reasons.


[25]   First, Davis did not present this argument to the trial court, thus the

       constitutional claims are waived. See Curtis v. State, 948 N.E.2d 1143, 1148–49

       (Ind. 2011) (holding that appellant forfeited his constitutional speedy trial claim

       where the issue was not presented to the trial court but for the first time on

       interlocutory appeal and stating that “[t]o hold otherwise would allow a party

       to circumvent the well-established rule that issues must be raised before the trial

       court or are unavailable on appeal.” (citing Pigg v. State, 929 N.E.2d 799, 803

       (Ind. Ct. App. 2010)).7


[26]   Moreover, we observe yet again that Davis was tried over thirty years ago.

       Therefore, there was no violation of his right to a speedy trial. At most, Davis

       was denied a speedy sentencing. But the Sixth Amendment right to a speedy

       trial8 does not apply to sentencing. See Betterman v. Montana, ___ U.S. ___, 136



       7
        Although Curtis involved an interlocutory appeal, we find the court’s reasoning equally applicable here.
       Davis did not raise his constitutional claims before the trial court, and it is well settled that issues not raised
       at the trial level are generally waived on appeal. See id.
       8
        Davis also refers to the Indiana Constitution, but does not develop a separate argument as to why the result
       would be different under the Indiana Constitution. Any claim under the Indiana Constitution is also waived

       Court of Appeals of Indiana | Memorandum Decision 45A05-1712-CR-2920 | July 13, 2018                   Page 12 of 18
       S. Ct. 1609, 1612 (2016) (holding that the Sixth Amendment guarantee to a

       speedy trial does not apply once a defendant has been found guilty at trial or

       pleaded guilty).9


[27]   Aside from his constitutional claim, Davis also claims that he was entitled by

       statute to be sentenced within thirty days of his conviction. Indiana Code 35-38-

       1-2(b) provides, “Upon entering a conviction, the court shall set a date for

       sentencing within thirty (30) days, unless for good cause shown an extension is

       granted.”10


[28]   Davis concedes that “his initial absence from the jurisdiction would constitute

       good cause to delay sentencing.” Appellant’s Br. at 12. This concession is well

       taken, as we have long held that a defendant waives the right to be sentenced

       within thirty days when he or she is responsible for the delay. Moore v. State, 154

       Ind.App. 482, 497, 290 N.E.2d 472, 480 (1972). But Davis argues that the trial

       court still failed to act once it discovered his whereabouts and ignored for more

       than ten years his requests to be sentenced. Davis therefore argues that the




       for this reason. See Patterson v. State, 958 N.E.2d 478, 488 (Ind. Ct. App. 2011) (holding that defendant’s
       argument that search and seizure violated Article 1, Section 11 of the Indiana Constitution was waived where
       he presented no authority or independent analysis supporting a separate standard under the Indiana
       Constitution).
       9
        This does not mean that there is no constitutional remedy for an inordinate delay in sentencing, as “a
       defendant may have other recourse, including, in appropriate circumstances, tailored relief under the Due
       Process Clauses of the Fifth and Fourteenth Amendments.” Betterman, ___U.S. at ___, 136 S. Ct. at 1612.
       10
          Indiana Criminal Rule 11 similarly provides, “[u]pon entering a conviction, whether the acceptance of a
       guilty plea or by finding or by verdict, the court shall sentence a defendant convicted in a criminal case within
       thirty (30) days of the plea or the finding or verdict of guilty, unless an extension for good cause is shown.”
       Davis makes no argument under Criminal Rule 11.

       Court of Appeals of Indiana | Memorandum Decision 45A05-1712-CR-2920 | July 13, 2018               Page 13 of 18
       delay in sentencing him after his requests for final disposition should not be

       attributed to him.


[29]   While we do not condone the seemingly unnecessary delay in sentencing Davis,

       we cannot say that he has demonstrated any harm as a result of this delay.

       Davis contends that he was prejudiced by the delay in sentencing because the

       delay made it impossible for the trial court to order any portion of his Indiana

       sentence to be served concurrently with the sentence he was serving in

       Colorado. However, a prisoner incarcerated in another jurisdiction cannot serve

       his sentence concurrently with a sentence imposed in Indiana. See Sweeney, 704

       N.E.2d at 110 (“[A] defendant is not even entitled to credit on his Indiana

       sentence while he is incarcerated in another jurisdiction for a totally different

       offense.”); Perry v. State, 921 N.E.2d 525, 527–28 (Ind. Ct. App. 2010)

       (“Sentences to penal institutions of different jurisdictions are cumulative and

       not concurrent.”); Saylor v. State, 565 N.E.2d 348, 350 (Ind. Ct. App. 1991)

       (“Concurrent sentences may be ordered only when they are to be served in the

       same institution.”). Accordingly, even if Davis had been sentenced in Indiana

       when he requested, he could not have begun to serve his Indiana sentence until

       he was released from prison in Colorado. Thus, Davis was not harmed by the

       admittedly long delay in sentencing him.




       Court of Appeals of Indiana | Memorandum Decision 45A05-1712-CR-2920 | July 13, 2018   Page 14 of 18
                               III. Appropriateness of Davis’s Sentence

[30]   Lastly, Davis claims that the presumptive11 thirty-year sentence imposed by the

       trial court was inappropriate.12 Indiana Appellate Rule 7(B) provides that we

       “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.” Still, we must

       exercise deference to a trial court’s sentencing decision because Rule 7(B)

       requires us to give due consideration to that decision and because we

       understand and recognize the unique perspective a trial court brings to its

       sentencing decisions. Id. Thus, although we have the power to review and

       revise sentences, the principal role of appellate review should be to attempt to

       “leaven the outliers, and identify some guiding principles for trial courts and

       those charged with improvement of the sentencing statutes, but not to achieve a




       11
          Although Davis was sentenced after the amendments to Indiana’s sentencing statutes enacted in response
       to Blakely v. Washington, 542 U.S. 296 (2004), which adopted an “advisory” sentencing scheme, his offense
       occurred before these amendments were effective. Therefore, the pre-Blakely presumptive sentencing scheme
       applies to Davis’s sentence. See Robertson v. State, 871 N.E.2d 280, 286 (Ind. 2007) (citing Gutermuth v. State,
       868 N.E.2d 427, 432 n. 4. (Ind. 2007)).
       12
          At the time Davis committed his offenses, the relevant Appellate Rule provided that this court could revise
       a sentence if it was “manifestly unreasonable.” See King v. State, 769 N.E.2d 239, 241 (Ind. Ct. App. 2002)
       (citing former Ind. Appellate Rule 17(B)). When the Appellate Rules underwent substantial revision in 2001,
       this language was initially retained in Appellate Rule 7(B). Effective January 1, 2003, our supreme court
       amended Appellate Rule 7(B) to provide that we “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.” Because this rule governs the standard to be used by
       the court on appeal, we apply the “inappropriate” standard, not the older “manifestly unreasonable”
       standard. See Rose v. State, 810 N.E.2d 361, 364 n.6 (Ind. Ct. App. 2004) (citing Kien v. State, 782 N.E.2d 398,
       416 n.12 (Ind. Ct. App. 2003)).

       Court of Appeals of Indiana | Memorandum Decision 45A05-1712-CR-2920 | July 13, 2018               Page 15 of 18
       perceived ‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225

       (Ind. 2008).


[31]   Our review under Rule 7(B) should focus on “the forest—the aggregate

       sentence—rather than the trees—consecutive or concurrent, number of counts,

       or length of the sentence on any individual count.” Id. The question is not

       whether another sentence is more appropriate; rather, the question is whether

       the sentence imposed is inappropriate. Rose v. State, 36 N.E.3d 1055, 1063 (Ind.

       Ct. App. 2015). It is the defendant’s burden on appeal to persuade us that the

       sentence imposed by the trial court is inappropriate. Childress v. State, 848

       N.E.2d 1073, 1080 (Ind. 2006).


[32]   The presumptive sentence is the starting point the legislature has selected as an

       appropriate sentence for the crime committed. McKinney v. State, 873 N.E.2d

       630, 646–47 (Ind. Ct. App. 2007) (citing Childress, 848 N.E.2d at 1081).

       “Therefore, when the trial court imposes the presumptive sentence, the

       defendant bears a heavy burden in persuading us that his or her sentence is

       inappropriate.” Id.


[33]   Here, there is nothing about the nature of Davis’s offense that persuades us his

       presumptive sentence is inappropriate. To the contrary, Davis attacked a

       resident of a woman’s shelter who he was supposed to take to the hospital.

       Instead, he brandished a knife, threatened her, and sexually assaulted her.


[34]   Neither is there anything about Davis’s character that convinces us that a

       sentence lower than the presumptive would be appropriate. He was first

       Court of Appeals of Indiana | Memorandum Decision 45A05-1712-CR-2920 | July 13, 2018   Page 16 of 18
       convicted of burglary in Illinois in 1979. In the instant case, Davis fled from

       Indiana prior to his trial. As a fugitive in Illinois, he was convicted of criminal

       damage to property in 1992 and felony theft and felony assault in 1996.13 Also

       in 1996, Davis was convicted in Colorado for two counts of sexual assault, for

       which he received an aggregate sentence of thirty-two years in prison.


[35]   Under these facts and circumstances, Davis has not met his considerable

       appellate burden of showing that his presumptive sentence of thirty years is

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

       offender.


                                                   Conclusion
[36]   The 180-day time limit set forth in the IAD within which the State has to bring

       an inmate to trial after a request for disposition was not applicable here because

       Davis had already been tried. Davis’s argument that his constitutional right to a

       speedy trial was violated is waived. Waiver aside, the right to a speedy trial

       does not apply to sentencing. Moreover, the delay in Davis’s sentencing was

       initially due to his flight from the State. And Davis has demonstrated no

       prejudice in any delay in his sentencing after his requests for disposition while

       incarcerated in Colorado because Davis had no right to serve both his Indiana

       sentence and his Colorado sentence concurrently. Lastly, Davis’s presumptive




       13
         The record does not disclose why the active Indiana warrant for Davis was not discovered by Illinois
       authorities when Davis was arrested and convicted on these charges.

       Court of Appeals of Indiana | Memorandum Decision 45A05-1712-CR-2920 | July 13, 2018           Page 17 of 18
       sentence of thirty years is not inappropriate. For all of these reasons, we affirm

       the judgment of the trial court.


[37]   Affirmed.


       Riley, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 45A05-1712-CR-2920 | July 13, 2018   Page 18 of 18
