Opinion
No. 28A01-1103-CR-133
08-08-2011
ALEX CALLISON, Appellant-Defendant, v. STATE OF INDIANA, Appellee-Plaintiff.
ATTORNEY FOR APPELLANT : JOHN PINNOW Special Assistant to the State Public Defender Greenwood, Indiana ATTORNEYS FOR APPELLEE : GREGORY F. ZOELLER Attorney General of Indiana JANINE STECK HUFFMAN Deputy Attorney General Indianapolis, Indiana
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:
JOHN PINNOW
Special Assistant to the
State Public Defender
Greenwood, Indiana
ATTORNEYS FOR APPELLEE:
GREGORY F. ZOELLER
Attorney General of Indiana
JANINE STECK HUFFMAN
Deputy Attorney General
Indianapolis, Indiana
APPEAL FROM THE GREENE SUPERIOR COURT
The Honorable Dena A. Martin, Judge
Cause No. 28D01-1011-FA-497
MEMORANDUM DECISION - NOT FOR PUBLICATION
BAILEY, Judge
Case Summary
Alex Callison ("Callison") pled guilty to Burglary, as a Class A felony; Rape, as a Class B felony; Criminal Deviate Conduct, as a Class B felony; and Intimidation, as a Class D felony, and was sentenced to eighty-eight years imprisonment. He now appeals his sentence as inappropriate under Appellate Rule 7(B).
Ind. Code § 35-43-2-1(a)(2).
I.C. § 35-42-4-1(a).
I.C. § 35-42-4-2(a).
I.C. § 35-45-2-1(a) & (b)(1).
We affirm.
Facts and Procedural History
At around 3:30 a.m. on October 28, 2010, Callison, having consumed a fifth of tequila, sixteen Xanax tablets, and other pills, broke into the home of a 78-year old retired neighbor, M.W. Over the ensuing twelve hours, Callison raped M.W., forcibly performed oral sex upon her, and threatened that if she told anyone what had occurred, he would kill her and his friends would kill her family. M.W. reported the events to a family member a few days later.
On November 9, 2010, Callison was charged with Burglary; two counts of Rape, as Class B felonies; two counts of Criminal Deviate Conduct; Robbery, as a Class C felony; Theft, as a Class D felony; Criminal Confinement, as a Class C felony; and Intimidation.
I.C. § 35-42-5-1(2).
I.C. § 35-43-4-2(a).
I.C. § 35-42-3-3(a)(1) & (b)(1)(C).
On January 19, 2011, Callison and the State entered into a plea agreement, whereby Callison agreed to plead guilty to one count each of Burglary, Rape, Criminal Deviate Conduct, and Intimidation, with sentencing left to the trial court's discretion. In exchange, the State dismissed the remaining charges.
On March 4, 2011, the trial court held a plea agreement and sentencing hearing, which included statements by several of M.W.'s relatives regarding the effects of Callison's offenses upon M.W. At the conclusion of the hearing, the trial court entered judgments of conviction against Callison pursuant to the plea agreement and sentenced him to 47 ½ years imprisonment for Burglary, nineteen years imprisonment for Rape, nineteen years imprisonment for Criminal Deviate Conduct, and 2 ½ years for Intimidation. Finding the nature and circumstances of Callison's offense to be violent and heinous, the trial court ran the sentences consecutive to one another, resulting in an aggregate sentence of eighty-eight years imprisonment in the Department of Correction.
This appeal followed.
Discussion and Decision
Callison argues that his 88-year sentence is inappropriate pursuant to Appellate Rule 7(B), and requests a reduction of his sentences to the statutory advisory levels. He does not challenge the trial court's decision to run his sentences consecutively.
In Reid v. State, the Indiana Supreme Court reiterated the standard by which our state appellate courts independently review criminal sentences:
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 through Indiana Appellate Rule 7(B), which provides that a court may revise a876 N.E.2d 1114, 1116 (Ind. 2007) (internal quotation and citations omitted).
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. The burden is on the defendant to persuade us that his sentence is inappropriate.
The Court more recently stated that "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. One purpose of appellate review is to attempt to "leaven the outliers." Id. at 1225. "Whether we regard a sentence as appropriate 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 factors that come to light in a given case." Id. at 1224.
Callison was convicted of Burglary, Rape, Deviate Sexual Conduct, and Intimidation. The sentencing range for Burglary, as a Class A felony, is from twenty to fifty years imprisonment, with an advisory sentence of thirty years, I.C. § 35-50-2-4; Callison was sentenced to 47 ½ years imprisonment. The sentencing range for Rape and Deviate Sexual Conduct, each as Class B felonies, is six to twenty years imprisonment for each offense, with an advisory sentence of ten years, I.C. § 35-50-2-5; Callison was sentenced to 19 years imprisonment for each. Finally, the sentencing range for Intimidation, as a Class D felony, is six months to three years imprisonment, with an advisory sentence of 1 ½ years, I.C. § 35-50-2-7; Callison was sentenced to 2 ½ years. Had he received the maximum possible sentences for each offense, Callison faced a maximum term of imprisonment of ninety-three years. Because of the heinousness of the offenses and their surrounding circumstances, the trial court ran these sentences consecutive to one another, arriving at an aggregate sentence of eighty-eight years.
Beyond the simple facts of the offenses committed, Callison's conduct stretched over a period of nearly twelve hours. Callison entered M.W.'s home by kicking the door down in the dead of night. Sometime during his twelve hour occupation of M.W.'s home he forced her to make breakfast for him and walk him through her home in a search for valuables. The attack had long-lasting effects upon M.W., who had once been very independent but lost her willingness to care for herself in the wake of Callison's attack. Testimony from M.W.'s daughters and granddaughter indicates that she could no longer live alone, lost her "zest for life" (Tr. 40), became "overcome by depression and fear" (Tr. 42), and suffered "shame and guilt" and "felt dirty." (Tr. 43.) The physical injuries she suffered in the attack included two broken fingers, the damage to which now prevent M.W. from engaging in the cross-stitching and quilt-making she previously enjoyed.
Nor does Callison's character speak much in his favor. He admitted his guilt, thereby preventing M.W. from having to endure the stress of a trial, and expressed remorse. Yet Callison has a prior criminal history, including a prior felony conviction for Burglary, for which he was sentenced to three years imprisonment with all but six months suspended and 2 ½ years of supervised probation. Callison failed to comply with the conditions of his probation in 2008, however, and was required to serve the remainder of his term in the Department of Correction. Moreover, Callison engaged in drinking and the use of medications for which he had no prescription the night before he attacked M.W., and admitted to the trial court that though he knew the effects that Xanax and alcohol could have on him, he nevertheless consumed sixteen Xanax pills that night.
Callison does not contend that consecutive sentences are inappropriate, merely that we should revise the terms of each sentence to the statutory advisory period. Though Callison received sentences above the advisory for each offense, neither was he sentenced to the maximum on any one offense or in aggregate. And while Callison pled guilty and expressed remorse, we do not think these weigh so heavily against the nature of his offense and his character as to make his sentence inappropriate under Appellate Rule 7(B).
Affirmed. MATHIAS, J., and CRONE, J., concur.