MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                               FILED
this Memorandum Decision shall not be                            Sep 23 2016, 9:38 am
regarded as precedent or cited before any
                                                                     CLERK
court except for the purpose of establishing                     Indiana Supreme Court
                                                                    Court of Appeals
the defense of res judicata, collateral                               and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Peter D. Todd                                            Gregory F. Zoeller
Elkhart, Indiana                                         Attorney General of Indiana
                                                         Justin F. Roebel
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Daniel N. Begly,                                         September 23, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         20A03-1602-CR-381
        v.                                               Appeal from the Elkhart Superior
                                                         Court
State of Indiana,                                        The Honorable Evan S. Roberts,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         20D01-1508-F5-199



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A03-1602-CR-381 | September 23, 2016   Page 1 of 7
                                          Case Summary
[1]   Daniel N. Begly (“Begly”) was convicted after a jury trial of Stalking, as a Level

      5 felony.1 The trial court sentenced him to a six-year term of imprisonment.

      He now appeals, raising for our review the sole issue of whether his sentence

      was inappropriate in light of the nature of his offense and his character.


[2]   We affirm.



                                Facts and Procedural History
[3]   In 2015, Begly and Shellbie Begly (“Shellbie”) had been married for several

      years. Shellbie filed for divorce and on March 5, 2015, in the context of that

      proceeding, Shellbie obtained a no-contact order as to Begly. The no-contact

      order barred Begly from directly or indirectly contacting Shellbie. Prohibited

      communications included engaging in “acts of harassment, stalking,

      intimidation, threats, and physical force of any kind.” (Ex. 101; Tr. 612-13.) A

      second no-contact order with similar requirements was later entered against

      Begly as a provision of pretrial release from custody in a separate criminal case.


[4]   On May 16, 2015, Shellbie was at the New Paris Speedway in Elkhart County.

      With Shellbie was her then-boyfriend, Andrew Vance (“Vance”). At various

      points during the day, Shellbie received text messages from Begly. Initially, the




      1
          Ind. Code § 35-45-10-5(b)(3).


      Court of Appeals of Indiana | Memorandum Decision 20A03-1602-CR-381 | September 23, 2016   Page 2 of 7
      messages were at least tangentially related to issues concerning parenting time

      arrangements, though the messages centered on Begly’s anger at Shellbie for

      blog posts concerning their divorce, as well as litigation Begly claimed to be

      initiating against third parties. Shellbie eventually indicated that she would not

      continue to discuss the issues, but Begly continued to send text messages in

      which he insisted that the no-contact order was unconstitutional and that he did

      not need to abide by it. On the evening of May 16, Begly again sent text

      messages to Shellbie that indicated that Begly was close enough to Shellbie at

      the New Paris Speedway that Begly could describe the clothing Vance was

      wearing.


[5]   In response to these messages, Shellbie called police, and Elkhart Sheriff’s

      Deputy Cory Oswald responded. As a result of Shellbie’s call, an investigation

      began into Begly’s conduct.


[6]   Shortly after this, on May 26, 2015, Begly sent a message to Shellbie through

      Facebook demanding full custody of the children or reunification with Shellbie.

      This message ended, “YOU ARE RUINING LIVES SHELLBIE. ….IVE

      BEEN WATCHING THE WHOLE TIME….THIS WEEK IS THE END OF

      YOUR BULL S[**]T GAMES!!!!!! SEMPER FIDELIS.” (Ex. 9.) Soon after,

      Begly began sending text messages to Shellbie. Shellbie reminded him of the

      no-contact order; Begly again disputed the order’s validity and told Shellbie that

      calling police was a waste of time because “no amount of judges or police or no

      contact orders would ever stop me from loving you.” (Ex. 13.) In response to



      Court of Appeals of Indiana | Memorandum Decision 20A03-1602-CR-381 | September 23, 2016   Page 3 of 7
       Shellbie telling him to contact her lawyer, Begly stated, “Good. Luck. ..rip.”

       (Ex. 12.)


[7]    On August 21, 2015, the State charged Begly with Stalking and Invasion of

       Privacy, as a Class A misdemeanor.2


[8]    A jury trial was conducted on January 5, 6, and 7, 2016. At its conclusion, the

       jury found Begly guilty as charged. Both during the trial and after the jury

       delivered its verdict, Begly engaged in disruptive behavior in court that led the

       trial court to find him in direct contempt of court. Begly was sentenced to a

       180-day term of imprisonment as a result of this conduct.


[9]    Subsequent to this, a sentencing hearing was conducted on January 19, 2016.

       At the hearing, the trial court entered judgment of conviction against Begly for

       Stalking, but did not enter judgment upon the Invasion of Privacy verdict.

       During the sentencing hearing, Shellbie testified concerning the effect of Begly’s

       conduct upon her and the couple’s children.


[10]   During the sentencing hearing, the trial court requested that counsel for the

       parties approach the bench. At that point, Begly turned around to face Shellbie

       and told her, “You’re next.” (Tr. at 1165.) Both Shellbie and her mother

       testified as to Begly’s conduct in this regard, after which the State moved for

       Begly to show cause why he should not be held in contempt of court for




       2
           I.C. § 35-46-1-15.1(12).


       Court of Appeals of Indiana | Memorandum Decision 20A03-1602-CR-381 | September 23, 2016   Page 4 of 7
       continuing to violate no-contact orders. Begly continued to be disrespectful of

       the court during the sentencing hearing.


[11]   At the conclusion of the sentencing hearing, the trial court sentenced Begly to

       six years imprisonment for Stalking in addition to the 180-day term of

       imprisonment for contempt of court.


[12]   This appeal ensued.



                                  Discussion and Decision
[13]   Begly appeals his sentence, arguing that it was inappropriate under Appellate

       Rule 7(B). The authority granted to this Court by Article 7, § 6 of the Indiana

       Constitution permitting appellate review and revision of criminal sentences is

       implemented through Appellate Rule 7(B), which provides: “The Court 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.” Under this rule, and as

       interpreted by case law, appellate courts may revise sentences after due

       consideration of the trial court’s decision, if the sentence is found to be

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

       offender. Cardwell v. State, 895 N.E.2d 1219, 1222-25 (Ind. 2008); Serino v. State,

       798 N.E.2d 852, 856-57 (Ind. 2003). The principal role of such review is to

       attempt to leaven the outliers. Cardwell, 895 N.E.2d at 1225.




       Court of Appeals of Indiana | Memorandum Decision 20A03-1602-CR-381 | September 23, 2016   Page 5 of 7
[14]   Begly was convicted of Stalking, as a Level 5 felony. The sentencing range for

       a Level 5 felony runs from one to six years, with an advisory term of three

       years. I.C. § 35-50-2-6(b). Begly received the maximum possible sentence of

       six years.


[15]   Turning first to the nature of Begly’s offense, Begly did not simply violate a no-

       contact order on one occasion. Instead, he repeatedly violated no-contact

       orders as to Shellbie on multiple days. His messages repeatedly disputed the

       validity of the no-contact orders themselves, and, in the context of a divorce

       proceeding, threatened Shellbie with loss of her children. Begly also followed

       Shellbie on at least one occasion, and threatened others with whom Shellbie

       was acquainted. This alone would make an aggravated sentence not

       inappropriate.


[16]   Begly’s appeal fares even worse when we look to his character. Begly was on

       numerous occasions referred to juvenile court and he was twice adjudicated a

       delinquent, including an adjudication for conduct that, if committed by an

       adult, would constitute the offense of Intimidation. As an adult, Begly has had

       numerous contacts with law enforcement and the courts, including a conviction

       for felony-level Theft. After his Theft conviction, Begly violated probation. At

       the time of the instant offense, Begly faced charges in other proceedings for

       Domestic Battery, Attempted Kidnapping, Battery against a public safety

       official, Resisting Law Enforcement with a deadly weapon, Battery, and

       Interference with Custody of a child. Throughout the instant proceedings at the

       trial court, Begly engaged in behavior that led to a finding that he was in

       Court of Appeals of Indiana | Memorandum Decision 20A03-1602-CR-381 | September 23, 2016   Page 6 of 7
       contempt of court, and he continued to issue threats to Shellbie even as he was

       being sentenced in this case. Indeed, even if, as Begly suggests, we were to set

       aside the question of his contumacious conduct at court, his character does not

       render inappropriate an aggravated sentence.


[17]   Having reviewed the record concerning the nature of Begly’s offense and his

       character, we cannot conclude that his six-year sentence was inappropriate.


[18]   Affirmed.


       Riley, J., and Barnes, J., concur.




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