MEMORANDUM DECISION
                                                                                        FILED
Pursuant to Ind. Appellate Rule 65(D),                                          08/25/2017, 11:45 am
this Memorandum Decision shall not be                                                   CLERK
                                                                                  Indiana Supreme Court
regarded as precedent or cited before any                                            Court of Appeals
                                                                                       and Tax Court
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
Mark K. Leeman                                           Curtis T. Hill, Jr.
Leeman Law Office and                                    Attorney General of Indiana
Cass County Public Defender
                                                         Larry D. Allen
Logansport, Indiana                                      Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Daniel Michael Walts,                                    August 25, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         09A04-1703-CR-642
        v.                                               Appeal from the
                                                         Cass Superior Court
State of Indiana,                                        The Honorable
Appellee-Plaintiff                                       Richard A. Maughmer, Judge
                                                         Trial Court Cause No.
                                                         09D02-1605-F1-2



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 09A04-1703-CR-642 | August 25, 2017            Page 1 of 6
[1]   Following his plea of guilty to attempted murder, a Level 1 felony,1 David

      Michael Walts appeals his thirty-year sentence, contending that it is

      inappropriate and an abuse of discretion. Concluding that it is neither, we

      affirm.


                                      Facts and Procedural History
[2]   On May 17, 2016, Walts was sixty-seven years old and angry with Steve Smith

      for the way Smith was treating Smith’s wife, Kathy Smith. He went to the

      Bungalow Bar in Logansport, Indiana armed with a loaded gun and waited for

      Smith. When Smith arrived, Walts cocked and pointed his loaded gun at

      Smith, but hesitated because of concern for two female bystanders whom he

      told to get out and lock the door behind them. Smith ran out the back of the

      bar before Walts could shoot, and Walts chased Smith out the door.


[3]   Walts was charged with attempted murder, a Level 1 felony, and three counts

      of intimidation, each as Level 5 felonies. Walts pleaded guilty to attempted

      murder on the condition that the State dismiss the remaining three counts.

      During his plea hearing, Walts admitted that he intentionally cocked and

      pointed a loaded gun at Smith, with the intent to kill. The trial court accepted

      the guilty plea.




      1
          See Ind. Code §§ 35-42-1-1(1), 35-41-5-1(a).


      Court of Appeals of Indiana | Memorandum Decision 09A04-1703-CR-642 | August 25, 2017   Page 2 of 6
[4]   The pre-sentence report showed a history of alcohol offenses and that Walts

      reported that he drank all his life. In addition, he had no high school education

      and a prior hospitalization for a nervous breakdown. At sentencing, the trial

      court found that Walts’s criminal history was an aggravating circumstance and

      identified no mitigating circumstances. Its written sentencing statement did not

      identify any mitigating or aggravating circumstances. The trial court sentenced

      Walts to a term of thirty years of incarceration, and the State dismissed the

      remaining three criminal counts. Walts now appeals.


                                     Discussion and Decision

                                     I.      Abuse of Discretion
[5]   Walts argues that the trial court abused its discretion by failing to give proper

      weight to his age of sixty-seven years, his alcoholism, and his guilty plea. 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.” Anglemyer v. State, 868 N.E.2d 482,

      490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007). A trial court

      abuses its discretion if it: (1) fails “to enter a sentencing statement at all”; (2)

      enters “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”; (3) enters a sentencing statement that “omits

      reasons that are clearly supported by the record and advanced for

      consideration”; or (4) considers reasons that “are improper as a matter of law.”

      Id. at 409-91. If the trial court has abused its discretion, we will remand for

      Court of Appeals of Indiana | Memorandum Decision 09A04-1703-CR-642 | August 25, 2017   Page 3 of 6
      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.” Id. at 491.


[6]   Regarding age, our Supreme Court has observed that “[a]ge is neither a

      statutory nor a per se mitigating factor.” Sensback v. State, 720 N.E.2d 1160,

      1164 (Ind. 1999) (emphasis added). In Sensback, the defendant was eighteen

      years old. The court concluded that the defendant’s young age was beyond the

      age at which the law commands special treatment of youth and that it was

      within the trial court’s discretion to find that the defendant’s age was not a

      mitigating factor. At sixty-seven, Walts is long beyond the age for special

      treatment, and his long criminal history dating back to 1967 shows a long-

      standing disregard for the law.


[7]   Regarding his alcoholism, Walts long knew of the problem and was made

      aware of it in conviction after conviction, but failed to take any steps to remedy

      it. See Bennett v. State, 787 N.E.2d 938, 948 (Ind. Ct. App. 2003) (holding

      alcohol abuse may be considered aggravating circumstance when the defendant

      is aware of the problem but does not seek to remedy it), trans. denied. Walts was

      aware of his drinking problem and failed to remedy it. Indeed, he was drinking

      on the day he attempted to murder Smith.


[8]   Finally, with regard to Walts’s claim that the trial court abused its discretion by

      failing to find that his guilty plea was a significant mitigator, we note that our

      courts have long held that a defendant who pleads guilty deserves to have some


      Court of Appeals of Indiana | Memorandum Decision 09A04-1703-CR-642 | August 25, 2017   Page 4 of 6
      mitigating weight extended to the guilty plea in return. See Cotto v. State, 829

      N.E.2d 520, 524 (Ind. 2005). Where, however, there was substantial evidence

      of the defendant’s guilt, where he received a substantial benefit from his plea in

      the dismissal of the other charges, and where he did not plead guilty until the

      day of trial when the State had already expended significant resources on trial

      preparation, it is not error for a trial court not to find that the guilty plea is a

      substantial mitigator. See Scott v. State, 840 N.E.2d 376, 383 (Ind. Ct. App.

      2006). We, therefore, conclude that the trial court did not abuse its discretion

      in sentencing Walts.


                                  II.     Inappropriate Sentence
[9]   Turning to Walts’s claim that his sentence is inappropriate, we note that while a

      trial court may have acted within its lawful discretion in determining a

      sentence, Article VII, Sections 4 and 6 of the Indiana Constitution “authorize

      independent appellate review and revision of a sentence imposed by the trial

      court.” Roush v. State, 875 N.E.2d 801, 812 (Ind. Ct. App. 2007). This

      appellate authority is implemented through Indiana Appellate Rule 7(B). Id.

      Revision of a sentence under this rule requires the appellant to demonstrate that

      his sentence is inappropriate in light of the nature of his offenses and his

      character. 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, 147 (Ind.

      Ct. App. 2006). The “defendant must persuade the appellate court that his or



      Court of Appeals of Indiana | Memorandum Decision 09A04-1703-CR-642 | August 25, 2017   Page 5 of 6
       her sentence has met the inappropriateness standard of review.” Roush, 875

       N.E.2d at 812.


[10]   Looking first at the nature of the offense, we see that Walts lured his intended

       victim to the bar, pointed his gun at the bartender and threatened to kill her,

       threatened to kill two patrons of the bar if they called police, repeatedly

       threatened to kill Smith as he chased him, gun in hand, and told the arresting

       officer that he would kill Smith when he was let out of prison. See Tr. Vol. II at

       21-25. Turning to the defendant’s character, we see that Walts has an extensive

       criminal history extending over several decades, and he went to the bar

       intending to kill Smith whom he saw as a friend. We conclude that Walts’s

       sentence is not inappropriate in light of the nature of the offense and the

       character of the offender.


[11]   Affirmed.


       Najam, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 09A04-1703-CR-642 | August 25, 2017   Page 6 of 6
