MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                        FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                                Dec 21 2017, 9:03 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
R. Brian Woodward                                       Curtis T. Hill, Jr.
Crown Point, Indiana                                    Attorney General of Indiana
                                                        Caroline G. Templeton
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Steve Allen Sherron,                                    December 21, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        45A04-1708-CR-1831
        v.                                              Appeal from the Lake Superior
                                                        Court
State of Indiana,                                       The Honorable Natalie Bokota,
Appellee-Plaintiff.                                     Judge, Pro Tem
                                                        Trial Court Cause No.
                                                        45G01-1609-F4-32



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 45A04-1708-CR-1831 | December 21, 2017          Page 1 of 8
                                       Statement of the Case
[1]   Steve Sherron (“Sherron”) appeals the sentence imposed after he pled guilty to

      Level 5 felony stalking.1 He specifically argues that the trial court abused its

      discretion in sentencing him and that his five and one-half-year sentence is

      inappropriate in light of the nature of the offense and his character. Because we

      conclude that the trial court did not abuse its discretion in sentencing Sherron

      and that Sherron’s sentence is not inappropriate in light of the nature of the

      offense and Sherron’s character, we affirm Sherron’s sentence.


[2]   We affirm.


                                                    Issues
                1.      Whether the trial court abused its discretion in sentencing
                        Sherron.


                2.      Whether Sherron’s sentence is inappropriate.


                                                     Facts
[3]   Sherron and J.D. (“J.D.”) were married in 1990. Their marriage was dissolved

      the following year shortly after their daughter was born. In 2014, a non-

      expiring protective order was issued that prohibited Sherron from

      communicating with J.D. by any means that would be likely to cause her




      1
          IND. CODE 35-45-10-5.


      Court of Appeals of Indiana | Memorandum Decision 45A04-1708-CR-1831 | December 21, 2017   Page 2 of 8
      annoyance or alarm. The protective order also prohibited Sherron from

      possessing weapons.


[4]   In August 2016, Sherron placed a sex toy and dirty shirts on J.D.’s doorstep

      and threw a pile of trash into her yard. Also that month, police officers found

      Sherron in J.D.’s backyard with a knife. The State charged Sherron with four

      counts of stalking as a Level 5 felony, four counts of invasion of privacy as a

      Level 6 felony, and one count of stalking as a Level 4 felony. Pursuant to the

      terms of a plea agreement, Sherron pled guilty to one count of stalking as a

      Level 5 felony, and the State dismissed the other eight felony charges. There

      was no agreement with respect to sentencing.


[5]   J.D.’s cousin, D.H. (“D.H.”), testified at the sentencing hearing. D.H. testified

      that Sherron had “set his daughter up” by giving her a car and then calling the

      police department to report that the car had been stolen. (Tr. 14). D.H. further

      testified that she was familiar with Sherron’s previous convictions for invasion

      of privacy and harassment because she was “involved in a lot of them.” (Tr.

      15). D.H. specifically explained that Sherron had previously “dropp[ed] off

      packages with feces all smeared on it” at her place of employment. (Tr. 15).

      According to D.H., Sherron had also hid in the bushes, telephoned D.H.

      seventy-two (72) times in one night, and threatened to “open fire in the place

      [she worked].” (Tr. 15).


[6]   Sherron’s counsel did not object to D.H.’s testimony. Rather, when given the

      opportunity to question D.H., defense counsel asked her if she had filed a


      Court of Appeals of Indiana | Memorandum Decision 45A04-1708-CR-1831 | December 21, 2017   Page 3 of 8
      petition for a restraining order against Sherron, if she had an active restraining

      order against him, and if he had ever been charged with violating a restraining

      order pertaining to her. D.H. responded affirmatively to all of defense counsel’s

      questions. Responding to questions from defense counsel, D.H. further testified

      that Sherron had lunged at her when she reminded him that he had been

      ordered to stay away from her. She also testified that he had thrown coffee in

      the face of a man that had attempted to help her.


[7]   Testimony at the sentencing hearing further revealed that Sherron has one

      felony and seven misdemeanor convictions. Sherron’s misdemeanor

      convictions are for harassment, intimidation, and invasion of privacy. He also

      has misdemeanor convictions for battery by bodily waste, failure to report his

      mother’s dead body, and resisting law enforcement. Sherron’s felony

      conviction is for battery against a child under fourteen years of age. Sherron

      had been on probation five times. The State asked the trial court to sentence

      Sherron to the maximum sentence.


[8]   In its oral sentencing statement, the trial court assessed Sherron’s character as

      being “predatory, disturbing, dangerous, as evidenced by his repeated acts of

      the invasions of privacy, harassment and the instant crime of stalking.” (Tr.

      32). The trial court pointed out that Sherron had “been given the benefit of

      probation five times in the past, but he continues to break the law. And so we

      consider that response to show that he has disdain for the law and hold other

      people’s concerns in contempt, quite frankly.” (Tr. 32-33). The trial court



      Court of Appeals of Indiana | Memorandum Decision 45A04-1708-CR-1831 | December 21, 2017   Page 4 of 8
       found no mitigating factors and sentenced Sherron to five and one-half years for

       his Level 5 felony conviction.


                                                   Decision
       1. Abuse of Discretion


[9]    Sherron first argues that the trial court abused its discretion in sentencing him.

       Sentencing decisions rest within the sound discretion of the trial court.

       Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007). So long as the sentence is

       within the statutory range, it is subject to review only for an abuse of discretion.

       Id. 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. Id. at 491. A trial

       court may abuse its discretion in a number of ways, including: (1) failing to

       enter a sentencing statement at all; (2) entering a sentencing statement that

       includes aggravating and mitigating factors that are unsupported by the record;

       (3) entering a sentencing statement that omits reasons that are clearly supported

       by the record; or (4) entering a sentencing statement that includes reasons that

       are improper as a matter of law. Id. at 490-91.


[10]   Here, Sherron contends that the trial court abused its discretion in failing to

       consider his guilty plea as a mitigating factor. A finding of a mitigating factor is

       not mandatory but is within the discretion of the trial court. Page v. State, 878

       N.E.2d 404, 408 (Ind. Ct. App. 2007), trans. denied. In order to show that the

       trial court abused its discretion in failing to find a mitigating factor, the

       Court of Appeals of Indiana | Memorandum Decision 45A04-1708-CR-1831 | December 21, 2017   Page 5 of 8
       defendant must establish that the mitigating evidence is both significant and

       clearly supported by the record. Rogers v. State, 958 N.E.2d 4, 9 (Ind. Ct. App.

       2011). A guilty plea is not necessarily a mitigating factor where the defendant

       receives a substantial benefit from the plea. Barker v. State, 994 N.E.2d 306, 312

       (Ind. Ct. App. 2013), trans. denied. Here, in exchange for Sherron’s guilty plea

       to one Level 5 felony, the State dismissed eight additional felony charges.

       Sherron received a substantial benefit from his plea, and the trial court did not

       abuse its discretion in failing to consider his guilty plea as a mitigating factor.


[11]   Sherron also contends that the trial court abused its discretion in considering

       D.H.’s sentencing hearing testimony, which he alleges was hearsay. Sherron

       has waived appellate review of this issue because he failed to object to D.H.’s

       testimony at the sentencing hearing. See McClendon v. State, 671 N.E.2d 486,

       489 (Ind. Ct. App. 1996) (explaining that a party cannot raise an issue for the

       first time on appeal). Waiver notwithstanding, the strict rules of evidence do

       not apply in a sentencing hearing, and hearsay testimony is therefore

       admissible. Indiana Evidence Rule 101(d)(2); Dillon v. State, 492 N.E.2d 661,

       664 (Ind. 1986). We find no abuse of the trial court’s discretion.


[12]   2. Inappropriate Sentence


[13]   Sherron further argues that his sentence is inappropriate. 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, we find that the sentence is

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


       Court of Appeals of Indiana | Memorandum Decision 45A04-1708-CR-1831 | December 21, 2017   Page 6 of 8
       offender. The defendant bears the burden of persuading this Court that his

       sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).

       Whether we regard a sentence as inappropriate turns on the “culpability of the

       defendant, the severity of the crime, the damage done to others, and myriad

       other factors that come to light in a given case.” Cardwell v. State, 895 N.E.2d

       1219, 1224 (Ind. 2008).


[14]   The Indiana Supreme Court has further explained that “[s]entencing 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). “Such deference should prevail unless overcome by compelling evidence

       portraying in a positive light the nature of the offense (such as accompanied by

       restraint, regard, and lack of brutality) and the defendant’s character (such as

       substantial virtuous traits or persistent examples of good character).” Stephenson

       v. State, 29 N.E.3d 111, 122 (Ind. 2015).


[15]   When determining whether a sentence is inappropriate, the advisory sentence is

       the starting point the Legislature has selected as an appropriate sentence for the

       crime committed. Childress, 848 N.E.2d at 1081. Here, Sherron was convicted

       of one level 5 felony. The sentencing range for a Level 5 felony is between one

       and six years, with an advisory sentence of three years. See I.C. § 35-50-2-6.

       The trial court sentenced Sherron to five and one-half years, which is less than

       the maximum sentence and more than the advisory sentence.




       Court of Appeals of Indiana | Memorandum Decision 45A04-1708-CR-1831 | December 21, 2017   Page 7 of 8
[16]   With regard to the nature of the offense, Sherron stalked J.D., his ex-wife, while

       there was a non-expiring protective order in place that prohibited Sherron from

       communicating with J.D. by any means that would be likely to cause her

       annoyance or alarm. With regard to the nature of Sherron’s character, he has

       five misdemeanor convictions and one felony conviction. Several of the

       misdemeanor convictions are similar to the stalking conviction in this case.

       Sherron has also been on probation five times. His former contacts with the

       law have not caused him to reform himself. See Jenkins v. State, 909 N.E.2d

       1080, 1086 (Ind. Ct. App. 2009), trans. denied. Further, as the trial court pointed

       out, Sherron’s repeated invasions of privacy, stalking, and harassment reveal a

       predatory, dangerous, and disturbing character.


[17]   Sherron has failed to meet his burden to persuade this Court that his five and

       one-half-year sentence for his Level 5 Felony stalking conviction is

       inappropriate.


[18]   Affirmed.


       Kirsch, J., and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 45A04-1708-CR-1831 | December 21, 2017   Page 8 of 8
