MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                     FILED
this Memorandum Decision shall not be
                                                                      Jan 31 2020, 9:29 am
regarded as precedent or cited before any
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
R. Patrick Magrath                                       Curtis T. Hill, Jr.
Alcorn Sage Schwartz & Magrath, LLP                      Attorney General of Indiana
Madison, Indiana
                                                         Marjorie Lawyer-Smith
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Michael Gay,                                             January 31, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-2204
        v.                                               Appeal from the Ripley Superior
                                                         Court
State of Indiana,                                        The Honorable Jeffrey Sharp,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         69D01-1805-F6-122



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2204 | January 31, 2020               Page 1 of 6
                                             Case Summary
[1]   Michael Gay appeals the two-year executed sentence imposed by the trial court

      following his guilty plea to level 6 felony criminal recklessness and level 6

      felony failure to appear. He contends that the sentence is inappropriate in light

      of the nature of the offenses and his character. Concluding that he has not met

      his burden to demonstrate that his sentence is inappropriate, we affirm.


                                 Facts and Procedural History
[2]   On May 2, 2018, Gay used methamphetamine, which he had done two to three

      times per week for many years. On that day, Gay got into an argument

      regarding property lines with Matthew Werner, his neighbor’s nephew, as

      Werner was operating a tractor on his aunt’s property, which was adjacent to

      Gay’s property. Werner was using a planting attachment to plant grass in an

      open field. During Werner’s first planting pass, Gay accused him of crossing

      onto Gay’s property. Werner told Gay to move out of the way and continued

      to plant. Gay continued to yell at Werner every time Werner passed in the

      tractor. At some point during the verbal altercation, Gay announced that he

      was “going to get [his] pistol” and left the field. Tr. Vol. 2 at 46. Five hours

      later, at around 10:00 p.m., Werner was operating the tractor approximately

      fifty yards from Gay’s property line when Gay fired a BB gun toward the

      tractor. One of the tractor windows exploded and shattered, with the broken

      glass hitting Werner and frightening him. Werner had no idea what had

      happened. He called the police. Werner was unable to operate the tractor for

      more than two weeks as he waited for over $1300 in repairs to be completed.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2204 | January 31, 2020   Page 2 of 6
      Werner now “duck[s]” or “cringe[s] up” out of fear when he hears loud booms

      or noises. Id. at 36.


[3]   The State charged Gay with level 6 felony criminal recklessness. After he failed

      to appear at the pretrial conference, the trial court issued a bench warrant for

      his arrest. Thereafter, the State also charged Gay with level 6 felony failure to

      appear.


[4]   On August 22, 2019, the parties entered into a plea agreement which provided

      for Gay to plead guilty to both level 6 felonies and for consecutive sentences of

      a maximum of two years for each felony. The trial court accepted the plea and

      imposed a two-year executed sentence on the criminal recklessness count and a

      consecutive eighteen-month suspended sentence on the failure to appear count.

      The court also ordered Gay to pay restitution in the amount of $1354.78. Gay

      now appeals the two-year executed sentence imposed for level 6 felony criminal

      recklessness.


                                     Discussion and Decision
[5]   Gay requests that we reduce his 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 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).

      Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2204 | January 31, 2020   Page 3 of 6
      sentence to the circumstances presented, and the trial court’s judgment “should

      receive considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind.

      2008). The principal role of appellate review is to attempt to “leaven the

      outliers.” Id. at 1225. Whether we regard a sentence as inappropriate 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 facts that come to light

      in a given case.” Id. at 1224. “The question under Appellate Rule 7(B) is not

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

      the sentence imposed is inappropriate.” Fonner v. State, 876 N.E.2d 340, 344

      (Ind. Ct. App. 2007).


[6]   Regarding the nature of the offense, the advisory sentence is the starting point

      that the legislature has selected as an appropriate sentence for the crime

      committed. Fuller v. State, 9 N.E.3d 653, 657 (Ind. 2014). The sentencing range

      for a level 6 felony is between six months and two and a half years, with an

      advisory sentence of one year. Ind. Code § 35-50-2-7. The trial court here

      imposed a two-year executed sentence for criminal recklessness and an

      eighteen-month suspended sentence for failure to appear. The two-year

      executed sentence imposed for criminal recklessness that is the subject of this

      appeal is above the advisory but below the maximum for that count, and we

      additionally note that the aggregate sentence for both of Gay’s crimes is well

      below the four-year fully executed sentence he could have received pursuant to

      the plea agreement.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2204 | January 31, 2020   Page 4 of 6
[7]   When reviewing the nature of the offense, this Court considers “the details and

      circumstances of the commission of the offense.” Washington v. State, 940

      N.E.2d 1220, 1222 (Ind. Ct. App. 2011), trans. denied. Here, the trial court

      highlighted the following details and circumstances: Gay used

      methamphetamine, got involved in a heated verbal altercation about what

      would have been a minor, if any, encroachment, on his property, threatened

      Werner, and then came back five hours later and shot a “deadly weapon,”

      albeit a BB gun, in the dark directly at the large piece of farm machinery

      Werner was operating, shattering its window. Tr. Vol. 2 at 102. The trial court

      noted that the results of Gay’s actions could have been much worse and

      considered this “a very serious offense” and “an extreme overreaction” to the

      situation that “probably had something to do with [Gay’s] methamphetamine

      use on that day.” Id. The nature of Gay’s offense does not lead us to conclude

      that the trial court’s imposition of a sentence above the advisory sentence but

      below the maximum was inappropriate.


[8]   Turning to his character, we note that the character of the offender is found in

      what we learn of the offender’s life and conduct. Croy v. State, 953 N.E.2d 660,

      664 (Ind. Ct. App. 2011). Included in that assessment is a review of an

      offender’s criminal history. Garcia v. State, 47 N.E.3d 1249, 1251 (Ind. Ct. App.

      2015), trans. denied (2016). Although remote, Gay does have a criminal history

      which includes two misdemeanor convictions, one of which was originally

      entered as a class D felony. While we agree with Gay that his history is not

      significantly aggravating, we find it noteworthy that while out on bond for the


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2204 | January 31, 2020   Page 5 of 6
      criminal recklessness charge, Gay failed to appear for a hearing and was then

      charged with level 6 felony failure to appear. The record further reveals that

      while he was out on bond in the current case, Gay was arrested in another

      county for possession of methamphetamine, and those charges were still

      pending at the time of sentencing. Gay admits that he has been using

      methamphetamine weekly for several years and that he has been using

      marijuana weekly for the last twenty-five years. Gay’s recent criminal behavior

      and long-standing pattern of illegal drug use does not reflect favorably on his

      character. Under the circumstances, Gay has not persuaded us that a sentence

      reduction is warranted based upon his character. In sum, he has not met his

      burden to establish that the two-year executed sentence imposed by the trial

      court is inappropriate in light of the nature of his offenses and his character.


[9]   Affirmed.


      May, J., and Pyle, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2204 | January 31, 2020   Page 6 of 6
