FOR PUBLICATION



ATTORNEY FOR APPELLANT:                      ATTORNEYS FOR APPELLEE:

LORINDA MEIER YOUNGCOURT                     GREGORY F. ZOELLER
Lawrence County Public Defender              Attorney General of Indiana
Bedford, Indiana
                                             KATHERINE MODESITT COOPER
                                             Deputy Attorney General
                                             Indianapolis, Indiana


                                                                              FILED
                                                                           Oct 31 2012, 9:31 am
                            IN THE
                  COURT OF APPEALS OF INDIANA                                      CLERK
                                                                                 of the supreme court,
                                                                                 court of appeals and
                                                                                        tax court




LARRY MICHAEL CARAWAY,                       )
                                             )
     Appellant-Defendant,                    )
                                             )
            vs.                              )       No. 47A04-1205-CR-265
                                             )
STATE OF INDIANA,                            )
                                             )
     Appellee-Plaintiff.                     )


                  APPEAL FROM THE LAWRENCE CIRCUIT COURT
                       The Honorable Andrea K. McCord, Judge
                           Cause No. 47C01-0910-MR-620



                                  October 31, 2012


                            OPINION – FOR PUBLICATION


NAJAM, Judge
                            STATEMENT OF THE CASE

      Larry Michael Caraway appeals his sentence for murder, a felony, following an

open guilty plea. Caraway asks that we review and revise his sentence taking into

consideration his remorse, guilty plea, and history of alcoholism. He presents a single

issue for review: whether his sentence is inappropriate in light of the nature of the

offense and his character. We affirm.

                      FACTS AND PROCEDURAL HISTORY

      The facts underlying Caraway’s conviction are set out in his first appeal of his

sentence:

      On October 7, 2009, Caraway shot Denise Caraway, his wife of almost
      twenty-six years, seven times resulting in her death in their home in
      Lawrence County, Indiana. That day, Caraway had been drinking “very
      heavily,” having consumed “15-18 beers” by about 4:00 pm, then drinking
      “a few beers and some Ja[e]germeister at another bar, then drinking “a
      couple of beers when [he] got home.” Appellant’s Appendix at 58.
      Caraway also “ate 4 Valiums at 4:10 pm” on the day he killed Denise. Id.

              On October 9, 2009, Caraway was charged with Count I, murder;
      and Count II, altering the scene of death[,] as a class D felony. On April 6,
      2010, Caraway and the State filed a plea agreement in which the State
      agreed to dismiss Count II in exchange for his guilty plea. After a number
      of continuances, on February 11, 2011, the trial court took Caraway’s guilty
      plea, and in doing so instructed him that the sentencing range for murder is
      forty-five to sixty-five years, with fifty-five years being the advisory
      sentence and forty-five years being a non-suspendible minimum.

              On March 8, 2011, the court held a sentencing hearing and identified
      Caraway’s criminal history consisting mainly of alcohol-related incidents
      as an aggravating circumstance because it considered his drinking on the
      night of the incident to have “aggravated the whole evening” and that it
      “was probably part of the main reason this occurred,” and therefore it
      directly related to this crime. Transcript at 26. The court also identified
      Caraway’s position of trust with his wife and the nature and circumstances
      of the crime, in which Denise was shot “several times in the stomach, once
      in the face, and once . . . in the arm,” at close range by a person “she loved
                                            2
       behind the weapon,” which the court found “very disturbing,” as
       aggravators. Id. at 28. The court found as a mitigator that Caraway
       showed some remorse, found that the aggravators clearly outweighed the
       mitigators, and sentenced him to sixty-five years in the Department of
       Correction.

Caraway v. State, 959 N.E.2d 847, 849 (Ind. Ct. App. 2011), trans. denied (“Caraway I”).

Caraway appealed his sentence, arguing that it was inappropriate under Appellate Rule

7(B). On appeal we reversed and remanded, holding that the trial court had abused its

discretion when it had not acknowledged his guilty plea as a mitigator. Id. at 854.

       On remand, the trial court resentenced Caraway, again ordering that he serve

sixty-five years in the Department of Correction. The trial court’s order provides in

relevant part:

       The court adopts all of its prior aggravating and mitigating circumstances
       from the previous sentencing hearing, along with the sentencing statement
       it made orally on the record. The court further adds and acknowledges the
       mitigating circumstance that the defendant did enter a plea of guilty in this
       matter. The court[,] however, gives little weight to this mitigating factor
       for the following reasons:

       1.)    The defendant did receive some benefit from this plea by having the
       class D felony altering the scene of a death dismissed[. A]lthough not
       highly substantial, it is a felony and to be taken [into] account when
       considering the totality of this mitigating factor.

       2.)     The plea agreement was signed on April 6th, 2010[,] however the
       actual plea of guilty was not entered into until February 11, 2011. The
       record shows that the court had originally set this matter for change of plea
       on May 17th, 2010. It was then continued by the defendant to June 22,
       2010. This matter was then reset for trial as a number one setting on
       November 9, 2010[,] which was continued by the defendant. Again reset
       for trial as a number one setting on February 15, 2011[,] as a number one
       setting [sic] and again continued by the defendant. The court then reset the
       matter for jury trial on March 7th, 2011[,] as a number one setting with a
       hearing set on all final motions on March 1[,] 2011. The judge was
       informed, while out of town, that the defendant had decided to follow
       through with the plea agreement he had entered into on April 6, 2010. The
                                            3
       court arranged for Judge Sleva to act as pro tem and accept the plea on
       February 11, 2011[,] in order to ensure the hearing took place. Any prior
       observation that the plea agreement was filed six months after the crime
       was committed, and that the defendant did not plead on the eve of trial,
       although somewhat true, is not an accurate reflection of the record and the
       lengthy process, number of continuances and number of other matters that
       were moved in order to deal with this case that was set as a number one
       trial on three different occasions.

       3.)    I also reference Wells v. State, 836 N.E.2d 475, 479 (Ind. Ct. App.
       2005)[, trans. denied,] holding that a guilty plea does not rise to the level of
       a significant mitigat[or] where the evidence against the defendant is such
       that the decision to plead guilty is merely a pragmatic one. Here the
       defendant admitted that he shot his unarmed wife multiple times in the face
       and abdomen killing her. They were alone in the home. The wounds were
       not self[-]inflicted.

       Therefore, the court finds there is additional mitigation to the defendant’s
       sentence in that he did enter a plea of guilty, but does not give it significant
       weight. Further, the court’s original finding that the aggravators outweigh
       the mitigators still remains and the court finds it[s] original sentence on the
       charge of murder to 65 years in the Indiana Department of Correction is
       still appropriate.

Appellant’s Brief at 10-11.1 Caraway now appeals.

                               DISCUSSION AND DECISION

       Caraway argues that his sixty-five-year sentence is inappropriate and seeks a

revision to the advisory sentence of fifty-five years. Although 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) (alteration original). This appellate authority is implemented through Indiana

Appellate Rule 7(B). Id. Revision of a sentence under Appellate Rule 7(B) requires the

       1
          Caraway correctly included a copy of the order appealed in his Appellant’s Brief pursuant to
Appellate Rule 46(A)(10). However, Caraway should have also included a copy of the appealed order or
judgment in the Appellant’s Appendix pursuant to Appellate Rule 50(2)(b).
                                                  4
appellant to demonstrate that his sentence is inappropriate in light of the nature of his

offense and his character. See Ind. Appellate Rule 7(B); Rutherford v. State, 866 N.E.2d

867, 873 (Ind. Ct. App. 2007). 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).

However, “a defendant must persuade the appellate court that his or her sentence has met

th[e] inappropriateness standard of review.”      Roush, 875 N.E.2d at 812 (alteration

original).

       Moreover, “sentencing is principally a discretionary function in which the trial

court’s judgment should receive considerable deference.” Cardwell v. State, 895 N.E.2d

1219, 1222 (Ind. 2008). Indiana’s flexible sentencing scheme allows trial courts to tailor

an appropriate sentence to the circumstances presented. See id. at 1224. 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.

       We first consider whether Caraway’s sentence is inappropriate in light of the

nature of the offense. The State contends that Caraway waived any argument that the

nature of the offense warrants revision of his sentence because he made no specific

argument to that effect. However, Caraway acknowledges in his brief that he shot his

wife several times, causing her death and afterward tried to cover it up. We reject the

State’s waiver argument.


                                             5
       That said, Caraway has not shown that his sentence is an outlier given the nature

of the offense. After drinking all day and ingesting Valium, Caraway was home alone

with his wife of twenty-six years when they began to argue about an unpaid utility bill.

During the argument, Caraway shot his wife several times in the abdomen, once in the

face, and once in the arm, continuing to shoot her even after she had collapsed from the

initial shots. His wife died as a result of her wounds. And after the shooting he put the

gun in his wife’s hand to make it look like the wounds were self-inflicted. Caraway’s

sixty-five-year sentence is not inappropriate in light of the nature of the offense.

       Caraway also contends that his sentence is inappropriate in light of his character.

In particular, he contends that his remorse, his guilty plea, and his addiction to alcohol

require review and revision of his sentence. We cannot agree. At sentencing the trial

court acknowledged Caraway’s remorse and his longstanding problem with alcohol. The

court assigned aggravating weight to the drinking, noting it was the basis for much of his

criminal history, including the murder of his wife. The trial court also observed that,

despite a history of thirty years of drinking and offenses dating back to 1980, there was

no evidence that Caraway had ever sought treatment.

       On remand the trial court acknowledged Caraway’s guilty plea. But the court

found the weight of the guilty plea to be diminished by three factors. First, while

Caraway had signed the plea agreement in April 2010, his actual guilty plea was not

entered for another ten months, in February 2011. Caraway’s failure to enter his guilty

plea and his multiple requests for continuances required several first choice trial settings

and significantly delayed the actual entry of his plea. Also, the decision to plead guilty


                                              6
was likely a pragmatic one, given the weight of the evidence against Caraway. See Wells

v. State, 836 N.E.2d 475, 479 (Ind. Ct. App. 2005), trans. denied. And finally, Caraway

received a small benefit from his guilty plea when the State dismissed the charge of

altering the scene of a death, a Class D felony.

       After acknowledging the guilty plea on remand and assigning it little weight, the

trial court again found that the aggravators, namely Caraway’s drunken state at the time

of the offense and that he was in a position of trust, outweighed the mitigators and

sentenced him to sixty-five years. We agree. Caraway has not shown that his sentence is

an outlier given the nature of the offense or his character. As such, we affirm his

sentence.

       Affirmed.

KIRSCH, J., and MAY, J., concur.




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