### MEMORANDUM DECISION
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.

A TTORNEY FOR A PPELLANT Cara Schaefer Wieneke Wieneke Law Office, LLC Brooklyn, Indiana A TTORNEY S FOR A PPELLEE Gregory F. Zoeller Attorney General of Indiana James B. Martin Deputy Attorney General Indianapolis, Indiana



### IN THE 

# COURT OF APPEALS OF INDIANA

Michael W.L. Deweese , Appellant

- Defendant,

v. 

### State of Indiana , Appellee

- Plaintiff

. N ovember 23, 2016 Court of Appeals Ca se No. 53A01

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- 1310 Appeal from the Monroe Circuit Court. The Honorable Marc R. Kellams, Judge. Cause No. 53C02

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### Friedlander , Senior Judge

[1] Michael W.L. Deweese pleaded guilty and now appeals the 109.5

- year sentence the trial court imposed upon his convictions of att empted murder, a Level 1 felony; seven counts of rape, all Level 1 felonies; burglary, a Level 2 felony; two counts of armed robbery, both Level 3 felonies; two counts of criminal

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- 1310 | N o v e m b e r 2 3 , 2 0 1 6 Page 1 of 11con finement, both Level 3 felonies; and resisting law enforcement, a Level 6 felony. We affirm in pa rt, reverse in part, and remand with instructions.

[2] On the evening of November 8, 2014, Deweese and several companions went
to Bloomington , Indiana to attend a party . Over the course of the night, they visited several locations, drinking alcohol and consum ing controlled substances along the way

. At 4:30 a.m. on November 9, 2014, Deweese and his accomplice Jaylan Glazebrook , who were both armed with h andguns, broke
into a n apartment , intending to commit theft

. 1 Three women were present : A.M.R., S.R.E., an d K.M.H.

[3] Deweese found a laptop computer in the living room and placed it outside, intending to put it in the car later. One of the men found A.M.R. in a bedroom and forced her into S.R.E. ’s bedroom, where the other man was waiting. Next, Deweese and Gla zebrook forced A.M.R. and S.R.E. to submit to numerous sexual acts at gunpoint as Deweese and Glazebrook threatened to kill them

. Over the course of up to thirty minutes, Deweese put his penis in S.R.E.’s mouth, vagina, and anus

. Glazebrook put his fingers in A.M.R.’s vagina and his penis in A.M.R.’s mouth, vagina and anus.

[4] K. M.H . was in another bedroom, heard the sounds of her roommates being assaulted, and called 911. Officer William Abram was dispatched to

1 During trial court proceedings, the parties disputed whether a third person, Jesse Benti

- Torres, briefly entered the apartment with Deweese and Glazebro ok or merely waited outside in the car. We take note of the dispute but need not resolve it in this ap peal

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- 1310 | N o v e m b e r 2 3 , 2 0 1 6 Page 2 of 11investigate. He kn ocked on the partially ajar front door and announced that he was a police officer. When Officer Abram looked into the apartment, he saw a man, later identified as Deweese, standing in a bedroom doorway pulling up his pants . D eweese went back into the bed room. He or Glazebrook opened a bedroom window to flee, and Glazebrook fired several shots before they climbed out. Officer Abram circled around the outside of the apartment building and saw Deweese and Glazebrook running away from the window

. Glazebroo k fired a shot at Officer Abram , who fired several shots in return.

[5] Later, the police captured Deweese and Glazebrook in separate locations in Bloomington . Each of them had gunshot wounds. Glazebrook was carrying S.R.E.’s cell phone and other property

. Deweese initially denied an y involvement in the crimes. He instead told the officers he had been walking by the apartment building when he saw someone climb out of the victims’ window and shoot at him.

[6] Meanwhile, o ther officers entered the apartment to ch eck on the victims

. Subsequent investigation revealed that Deweese and Glazebrook’s DNA was found on the victims.

[7] T he State charged Deweese with several offenses. He was charged as an accomplice for some of the offenses. We summarize them as follows: Co unt I, attempte d murder, a Level 1 felony, for the shot at Officer Abram; Count II, rape, a Level 1 felony, for an act against A.M.R.; Count III, rape, a Level 1 felony, for an act against A.M.R.;

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- 1310 | N o v e m b e r 2 3 , 2 0 1 6 Page 3 of 11Count IV, rape, a Level 1 felony, for an act against A.M.R.; Count V, rape, a Level 1 felony, for an act against A.M.R.; Count VI, rape, a Level 1 felony, for an act against S.R.E.; Count VII, rape, a Level 1 felony, for an act against S.R.E.; Count VIII, rape, a Level 1 felony, for an act against S.R.E; Co unt IX, burglary, a Level 2 felony, for breaking and entering the apartment; Count X, armed robbery, a Level 3 felony, for an act against A.M.R.; Count X I , armed robbery, a Level 3 felony, for an act against S.R.E.; Count XII, crimina l confinement, a Level 3 felony, for an act against K.M.H.; Count XIII, criminal confinement, a Level 3 felony , for an act against A.M.R. ; Count XIV, criminal confinement, a Level 3 felony , for an act against S.R.E. ; and Count XV, resisting law enforcement, a Level 6 felony , fo r an act involving Officer Abram.

[8] In addition, the State f iled a notice of intent to seek a sentencing enhancement for Deweese’s use of a firearm while committing criminal confinement.

[9] Dewe ese and the State negotiated a plea bargain in which Deweese agreed to plead guilty to all charges except Count XII, criminal confinement of K.M.H. In exchange, the State agreed to request dismiss al of Count XII. In addition, pursuant to the agreement, the trial court would have the discretion to determine whether the s entences for Counts I (attempted murder), VI (rape), VII (rape), VIII (rape), I X (burglary ), X (armed robbery) and XIV ( criminal

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- 1310 | N o v e m b e r 2 3 , 2 0 1 6 Page 4 of 11confinement ) would be served consecutively or concurrently , but the senten ces for the remaining counts would be serve d concurre ntly with each other and the sentences for Counts I, VI, VII, VIII, IX, X, and XIV

.

[10] The trial court accepted the plea agreement and e ntered a judgment of conviction on all counts except Count XII, which the court dismissed. The court imposed an aggregate sentence of 109.5 years, which includes fifteen years for the sentence enhancement related to Deweese’s use of a firearm. This appeal followed.

[11] Deweese first contends the trial court erroneously exceeded the maximum possible sentence for several of his convictions. The State agrees. At the time Deweese committed his offenses, the maximum s ente nce for a Level 3 felony was sixteen years. Ind. Code § 35

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- 5 (2014). The maximum sentence for a Level 6 felony was two and a half years
. Ind. Code § 35

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- 7 (2014). The trial court imposed sentences of thirty years each for counts XI (armed robbery, a Level 3 felony), XIII (criminal confinement, a Level 3 felony), and Count XV (resisting law enforcement, a Level 6 felony). We reverse that portion of the trial court’s judgment and remand with instructions to resentence Deweese on those three counts to terms within the statutory maximums. Reduction of Deweese’s sentences for those three convictions will not change his overall

sentence because Deweese is serving those sentences concurrently with other

sentences.

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- 1310 | N o v e m b e r 2 3 , 2 0 1 6 Page 5 of 11[12] Next, Deweese claims the trial court erred in the course of imposing the firearm sentencing enhancement and asks that the enhancement be v acated. The State contends that the Cou rt should remand the case to the trial court to clarify how it intended to apply the enhancement.

[13] When a defendant uses a firearm to commit certain felonies such as criminal confinement, the State may seek to add a fixed term of imprisonment to the

sentenc e. Ind. Code § 35

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- 11 (2014). If the State proves beyond a reasonable doubt that the defendant knowingly or intentionally used a firearm to commit one of the felonies specified by statute , the trial court may add an additional fixed term of imprisonm ent of between five and twenty years. Id.

[14] The trial court noted in its sentencing order that Deweese was sentenced to fifteen years for the sentencing enhan cement but did not explain to which conviction the enhancement was intended to apply. In the abstr act of judgment, the court clarified that the sentencing enhancement was “included in total commitment time in Count XIV.” Appellant’s App. p. 129. Count XIV is a charge of criminal confinement related to S.R.E. , for which the trial court imposed twelve years in the sentencing order and then, in the abstract of judgment, listed the total sentence for that conviction as twenty

- seven years, further demonstrating that it had added the fifteen

- year enhancement to the twelve

- year sentence.

[15] Uncertainty arises because, according to the sentencing order, the court ordered that the enhanced twenty

- seven - year sentence on Count XIV would be served

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- 1310 | N o v e m b e r 2 3 , 2 0 1 6 Page 6 of 11concurrently with Deweese’s thirty

- year sentences for C ounts VI, VII, and VIII (rapes), thus resulting in no overall in crease in t he total sentence. Despite the court’s order , the trial court also expressed an intent that the fifteen

- year enhancement should be added to the total sentence for the underlying convictions, resulting in the 109.5

- year term. We are remanding t he case to the trial court for correction of the sentences identified above , and so the trial court must also cla rify on remand how the sentencing enhancement is intended to apply to the total sentence

. We express no opinion as to how the court should

rec alculate Deweese’s sentence.

[16] Finally, Deweese argues his aggregate sentence of 109.5 years is inappropriate and should be reduced

. The State re sponds that the sentence is appropriate due to the nature of his crimes and character.

[17] In general, sentencing de cisions are left to the sound discretion of the trial court and are reviewed on appeal for an abuse of discretion. Anglemyer v. State , 868 N.E.2d 482 (Ind. 2007), clarified on reh’g , 875 N.E.2d 218 (2007). Even when a court has acted within its discretio n, this Court may review and revise sentences pursuant to Article seven, section six of the Indiana Constitution. The constitutional authority to review and revise sentences is implemented through Indiana Appellate Rule 7(B) , which states : “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.”

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- 1310 | N o v e m b e r 2 3 , 2 0 1 6 Page 7 of 11[18] When reviewing a sentence pursu ant to Appellate Rule 7(B), an appellate court’s principal role “is to attempt to leaven the outliers.” Bess v. State , 58 N.E.3d 174, 175 (Ind. 2016). The question is not whether another sentence is more appropriate, but rather whether the sentence impos ed is inappropriate. Helsley v. State , 43 N.E.3d 225 (Ind. 2015). An appellant must persuade the court that his or her sentence is inappropriate. Rice v. State , 6 N.E.3d 940 (Ind. 2014). Whether a sentence is inappropriate ultimately 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. Brown v. State , 52 N.E.3d 945 (Ind. Ct. App. 201 6), trans. denied

.

[19] In this c ase, the trial court imposed an increased sentence on each count , determining that aggravating circumstances outweighed mitigating circumstances . For purposes of b revity and clarity, the consecutive sentences

are : thirty years on Count I (attempted murder of Officer Abram ) ; thirty years on Count VI (rape of S.R. E.); twenty

- two and a half years on Count IX (burgla ry); and twelve years on Count X (armed robbery of A.M.R. ), for ninety

four and a half years, plus the fifteen

- year s entencing enhancement, for a total of 109.5 years. The remaining sentences are to be served concurrently with the ones listed above.

[20] The nature of the offenses is indisputably brutal. Deweese and Glazebrook armed themselves, broke into a dwelling at night , sexually assaulted the sleeping occupants in multiple ways over a span of thirty minutes , and took their property

. Deweese and Glazebrook threatened the women with death if
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- 1310 | N o v e m b e r 2 3 , 2 0 1 6 Page 8 of 11they resisted or looked at their faces. When O fficer Abram arrived at the scene, Glazebrook shot at the officer as he and Deweese attempted to flee.

[21] Deweese had multiple o pportunities to end his criminal conduct and separate from his companions, but h e instead chose to commit ever more serious offenses, going from burglary t o armed robbery and rape s to attempted mur der. Deweese’s crime spree was ended by his capture, not by his choice

.

[22] Deweese claims he did not physically harm the victims above and beyond what was inherent in committing his crimes. Any lack of physical injury is more than offset by the severe, long

- term psychological trauma S.R.E. and A.M.R.

are exp eriencing . S .R.E. thought she and A.M.R. were going to die whe n Glazebrook fired several shots as he climbed out the bedroom window. Over a year after the attack, S.R.E. suffered from frequent nightmares. She had to change jobs because her old one required her to work alone at night, and she was too frightened. Sh e went to the gun range to work toward earning a concealed carry permit, and the sound of gunshots bro ught back traumatic memories, resulting in her being unable to hold the gun. At night, S.R.E. feels afraid to leave her locked bedroom, even to use the b athroom, unless someone else is home. A.M.R. also experiences nightmares. She is unable to live alone, and , upon entering a room, always looks for an exit and a place to hide. A.M. R. remains terrified of the dark and of loud sounds.

[23] Turning to the chara cter of the offender, Deweese was not quite twenty

- one years of age at sentencing. He had amassed one prior felony conviction and

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- 1310 | N o v e m b e r 2 3 , 2 0 1 6 Page 9 of 11three misdemeanor convictions in his short adult life . He was convicted of dealing in marijuana, a class D felony, and resis ting law enforcement, operating a motor vehicle while intoxicated, and driving while suspended, all Class A misdemeanors. While these crimes are not as severe as his current offenses, it speaks volumes about Deweese’s character that he wa s unable to go mo re than a year without committing new offenses. In addition, he was placed on probation twice and violated the conditions of probation both times. Finally, while Deweese was incarcerated pending trial, h e violated jail rules on multiple occasions

.

[24] Dewees e points out that he pleaded guilty, ther eby sparing the victims the hardship of testifying. He further claims he did not receive a substantial benefit from the plea because he has effectively received a life sentence. A guilty plea is not necessarily a mitigating factor where the evidence against the defendant is so strong that the decision to plead guilty is merely pragmatic. Amalfitano v. State , 956 N.E.2d 208 (Ind. Ct. App. 2011) , trans. denied . In this case, there were multiple eyewitnesses and Dew eese’s DNA was found on one of the victims. In addition, he had been shot by Officer Abram as he attempted to flee and had a gunshot wound when he was captured

.

[25] Deweese further argues his troubled childhood is worthy of consideration because his father wa s completely absent and his mother was addicted to drugs, which resulted in him being raised by his grandmother. Evidence of a difficult childhood warrants little, if any, mitigating weight. Ritchie v. State , 875 N.E.2d 706 (Ind. 2007). In addition, the evidence that Deweese had a troubled

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- 1310 | N o v e m b e r 2 3 , 2 0 1 6 Page 10 of 11childhood is mixed. He submitted to the trial court a sentencing memorandum in which he stated he was exposed to significant family dysfunction as a child

. On the other hand, Deweese stated during the presentence inv estigation process that he was adequately cared for by his grandmother and had love and suppo rt in his youth

.

[26] Considering the callous nature of the offenses, and the mixed (at best) evidence of Deweese’s character, he has failed to demonstrate that his sen tence is inappropriate. 2 See Lacey v. State , 755 N.E.2d 576 (Ind. 2001 ) (sentence a rising from home invasion did not merit reduction under prior sentencing review standard ; defendant’s youth and relat ively brief criminal history were offset by brutal nature of crimes ).

[27] For the reasons stated above, we affirm the judgment of the trial court in part, reverse in part, and remand with instructions to correct and clarify Deweese’s sentence as discussed above

.

[28] Judgment affirmed in part, rev ersed in part, and remanded

. Baker, J., and Barnes, J., concur.

2 Our analysis as to the appro priateness of the sentence applies with equal force even if the trial court on remand red uces Deweese’s overall sentence in the process of correcting the sentencing order

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