Timothy Charles Wakefield v. State of Indiana (NFP)

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Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any 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: ANGELA WARNER SIMS Anderson, Indiana GREGORY F. ZOELLER Attorney General of Indiana WADE JAMES HORNBACHER Deputy Attorney General Indianapolis, Indiana FILED IN THE COURT OF APPEALS OF INDIANA Jul 13 2010, 10:06 am CLERK of the supreme court, court of appeals and tax court TIMOTHY WAKEFIELD, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) ) No. 48A04-0911-CR-647 APPEAL FROM THE MADISON SUPERIOR COURT The Honorable Thomas Newman, Jr., Judge Cause Nos. 48D03-0804-FB-106 & 48D03-0804-FB-107 July 13, 2010 MEMORANDUM DECISION - NOT FOR PUBLICATION VAIDIK, Judge Case Summary Timothy Wakefield appeals his aggregate sentence of six years on in-home detention for Class D felony criminal recklessness, Class D felony maintaining a common nuisance, Class D felony dealing in marijuana, and Class D felony possession of a controlled substance. He contends that the trial court abused its discretion in failing to enter a sentencing statement and that his sentence is inappropriate in light of the nature of the offenses and his character. Finding an abuse of discretion in sentencing, we remand this case. Facts and Procedural History1 On the morning of February 21, 2008, Wakefield received a call from his daughter asking him to pick her and her two children up from her boyfriend s house where she and the children were living. Wakefield s daughter indicated that she and her boyfriend had been arguing and he had threatened her and the children with a gun. Wakefield then went to the home of his daughter s boyfriend carrying a 9mm assault rifle. Wakefield s grandchildren were present when he entered the boyfriend s residence and grabbed the boyfriend by the neck, pushed him against a wall, and pointed the rifle at his head while Wakefield s finger was on the trigger. Wakefield told the boyfriend that he would never have his children in that house again and left the residence with his daughter and grandchildren. Appellant s App. p. 30. The police obtained a search warrant for Wakefield s residence, which revealed not only the assault rifle with a loaded magazine and a .50 caliber black powder shotgun, 1 Because Wakefield does not include the transcript from the guilty plea hearing, we, like Wakefield and the State, take the facts from the probable cause affidavits. 2 but also an active marijuana growing operation. The marijuana growing operation included a large grow light, a timer, a triple beam balance, a glass smoking pipe, and a marijuana bud crusher. Additionally, three approximately one-foot-tall marijuana plants, seven smaller newly planted marijuana plants, and some loose marijuana were found during the search. The plants had a combined approximate weight of three hundred grams. The search also revealed eight Xanax pills inside a safe. The State charged Wakefield with Class B felony criminal confinement and Class D felony pointing a firearm under the first cause number and Class D felony maintaining a common nuisance, Class D felony dealing in marijuana, and Class D felony possession of a controlled substance under the second cause number. In September 2009 Wakefield pled guilty to both causes in a single written plea agreement. Wakefield pled guilty to Class D felony criminal recklessness under the first cause number and Class D felony maintaining a common nuisance, Class D felony dealing in marijuana, and Class D felony possession of a controlled substance under the second cause number. Wakefield s plea agreement provided the sentence shall be open to the Court with any executed time to be served on In-Home Detention. Appellant s App. p. 39. In sentencing Wakefield, the trial court stated: THE COURT: This matter comes before the Court for sentencing. Defendant having previously pled guilty to various charges, the Court finds that the sentence in cause 48D03-0804-FB-00106, criminal reckless[ness], a D felony, three (3) years to the Department of Correction - - you re saying six (6) years on in-home, is that what you re saying? STATE OF INDIANA []: Yes. The plea agreement was an open sentence, but any executed time on in-home detention. THE COURT: And then count - - in cause that ends in 107, maintaining a common nuisance, a D felony, also three (3) years to the Department of Correction; Count II, dealing in marijuana, in cause 107, three (3) years to 3 the Department of Correction; Count III, possession of a controlled substance, a D felony, three (3) years to the Department of Correction. All these will - - let s see, the two cause numbers will run - - the counts within the cause numbers will concurrently with each other, but the two cause numbers will consecutive for six (6) sentence. Mr. Wakefield, I think you re a liar and a manipulator. And I think you should be going to prison, is what I think, but I m gonna honor this request and put you on in-home detention. And if you screw up, you re gone. You come in here and lie to me again, you re gone. I don t know why you think you can come in here and lie. Who are you to think you can do that? But you re gonna start out on work release because you don t have a phone to get hooked up on inhome detention, so until you get your phone hooked up, you re gonna be work release. Tr. p. 20-22. The trial court sentenced Wakefield to three years on in-home detention under the first cause number and three years on in-home detention on each count, to be served concurrently, under the second cause number. The court ordered the sentences in both causes to be served consecutively for an aggregate term of six years executed on inhome detention. Wakefield now appeals his sentence. Discussion and Decision Wakefield makes two arguments on appeal. First, he contends that the trial court abused its discretion by failing to enter a sentencing statement. Second, he contends that his sentence is inappropriate in light of the nature of the offenses and his character. Finding the first issue dispositive, we do not address the second. Sentencing decisions rest within the sound discretion of the trial court and are reviewed on appeal only for an abuse of discretion. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh g, 875 N.E.2d 218 (Ind. 2007). An abuse of discretion occurs if the decision is clearly against the logic and effect of the facts and circumstances 4 before the court or the reasonable, probable, and actual deductions to be drawn therefrom. Id. After a court has pronounced a sentence for a felony conviction, the court shall issue a statement of the court s reasons for selecting the sentence that it imposes. Ind. Code ยง 35-38-1-1.3. Indiana s case law has made clear that sentencing statements serve two primary purposes: (1) they guard against arbitrary and capricious sentencing and (2) they provide an adequate basis for appellate review. Anglemyer, 868 N.E.2d at 489 (citing Dumbsky v. State, 508 N.E.2d 1274, 1278 (Ind. 1987)). A sentencing statement must include a reasonably detailed recitation of the trial court s reasons for imposing a particular sentence. Id. at 490. Before a trial court can impose a consecutive sentence, it must (1) identify all significant aggravating and mitigating circumstances; (2) set forth the specific facts and reasons that lead the court to find the existence of each such circumstance; and (3) demonstrate that the mitigating and aggravating circumstances have been evaluated and balanced in determining the sentence. Harris v. State, 897 N.E.2d 927, 929 (Ind. 2008). Ways in which a trial court may abuse its discretion are failing to enter a sentencing statement at all . . . or the reasons given are improper as a matter of law. Anglemyer, 868 N.E.2d at 490-91. Wakefield argues that the trial court abused its discretion in failing to enter a sentencing statement at all. sentencing statement. We agree that Wakefield did not receive an adequate The trial court s written sentencing order does not set forth specific facts, reasons, or mitigating and aggravating circumstances for imposing Wakefield s consecutive sentence. We review the sentences in non-capital cases by 5 examining both the written and oral sentencing statements to discern the findings of the trial court, McElroy v. State, 865 N.E.2d 584, 589 (Ind. 2007), but the oral reasoning for Wakefield s sentence provided by the trial court during the sentencing hearing was that the court considered Wakefield to be a liar and manipulator and that he should be going to prison. We find that these comments do not qualify as a sentencing statement, especially not for a consecutive sentence. The trial court abused its discretion in failing to enter a sentencing statement detailed with specific facts, reasons, and mitigating and aggravating circumstances regarding Wakefield s consecutive sentence. In the absence of a proper sentencing order, we may either remand this case to the trial court for a sentencing statement that clearly explains its finding of aggravating and mitigating circumstances and its reasons for imposing consecutive sentences or exercise our authority to review and revise the sentence under Indiana Appellate Rule 7(B). Windhorst v. State, 868 N.E.2d 504, 507 (Ind. 2007), reh g denied. We choose to remand for a proper sentencing statement. Remanded. NAJAM, J., and BROWN, J., concur. 6

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