Shwe v. State

Citation977 N.E.2d 478
Decision Date26 October 2012
Docket NumberNo. 02A03–1203–CR–134.,02A03–1203–CR–134.
PartiesNyunt SHWE, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff.
CourtCourt of Appeals of Indiana

977 N.E.2d 478

Nyunt SHWE, Appellant–Defendant,
STATE of Indiana, Appellee–Plaintiff.

No. 02A03–1203–CR–134.

Court of Appeals of Indiana.

Oct. 26, 2012.

Appeal from the Allen Superior Court; The Honorable John F. Surbeck, Judge; Cause No. 02D06–1104–FB–78.
Gregory F. Zoeller, Attorney General of Indiana, Gary R. Rom, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

Randy M. Fisher, Deputy Public Defender, Leonard, Hammond, Thoma & Terrill, Fort Wayne, IN, Attorney for Appellant.



Nyunt Shwe appeals his twelve-year sentence for Aggravated Battery, 1 a class B felony. Shwe presents the following restated issues for our review:

1. Did the trial court abuse its sentencing discretion by overlooking significant mitigating factors?

2. Is Shwe's sentence inappropriate in light of the nature of the offense and the character of the offender?

We affirm.

On April 7, 2011, Shwe, Thein Oo, and Aung Win spent the evening at Shwe's Fort Wayne apartment socializing and drinking together. At some point in the evening, Thein Oo and Aung Win became involved in a physical altercation in which Aung Win stabbed Thein Oo with a knife. Aung Win then left the apartment, but later returned. After Aung Win entered the apartment, Shwe punched him in the face and then struck him in the head with a kitchen pestle. Aung Win was knocked unconscious, and Shwe initially thought he was sleeping. At around midnight, however, Shwe realized that Aung Win was dead. Shwe covered Aung Win's body with a blanket and then went to sleep nearby.

The next morning, a neighbor entered Shwe's apartment and discovered Aung Win's body. At the time, Shwe and Thein Oo were seated in very close proximity to the body and watching a movie. When the neighbor asked Shwe and Thein Oo what they had done, they fled. Law enforcement was summoned and conducted a search of the apartment. Police discovered the bloody kitchen pestle, as well as a bloody cleaver and knife. Aung Win's blood was found on the pestle and the blade of the cleaver. Thein Oo's blood was found on the knife, and the cleaver handle contained a mixture of DNA from Shwe, Thein Oo, and Aung Win. Examination of Aung Win's body revealed extensive injuries, including multiple bruises and lacerations to his face and head, a depressed area on the side of his skull, and bleeding on his brain. The cause of death was determined to be blunt force trauma to the head.

In relation to these events, the State charged Shwe with aggravated battery, battery, reckless homicide, and involuntary manslaughter. Following a three-day jury trial, Shwe was found guilty as charged. At a March 2, 2011 sentencing hearing, the trial court entered judgment of conviction on the aggravated battery count only and sentenced Shwe to twelve years imprisonment in the Department of Correction. Shwe now appeals his sentence.


Shwe first argues that the trial court abused its sentencing discretion by overlooking significant mitigating circumstances. Sentencing decisions rest within the sound discretion of the trial court. Anglemyer v. State, 868 N.E.2d 482 (Ind.2007), clarified on reh'g,875 N.E.2d 218. 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 (quoting K.S. v. State, 849 N.E.2d 538, 544 (Ind.2006)).

A trial court may abuse its sentencing 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. Anglemyer v. State, 868 N.E.2d 482. If the trial court abuses its discretion in one of these or another way, remand for resentencing is the appropriate remedy “if we cannot say with confidence that the trial court would have imposed the same sentence had it properly considered reasons that enjoy support in the record.” Id. at 491.

Shwe argues that the trial court abused its discretion in failing to identify four allegedly significant mitigating factors advanced for consideration at his sentencing hearing: (1) his limited criminal history; (2) his history of substance abuse; (3) his previous employment; and (4) his community ties and support system. An allegation that the trial court failed to identify a mitigating factor requires the defendant to establish that the mitigating evidence is both significant and clearly supported by the record. Anglemyer v. State, 868 N.E.2d 482. A sentencing court is not obligated to find a circumstance to be mitigating merely because it is advanced as such by the defendant, nor is it required to explain why it chose not to make a finding of mitigation. Felder v. State, 870 N.E.2d 554 (Ind.Ct.App.2007). A trial court does not abuse its discretion in failing to find a mitigating...

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1 cases
  • Shwe v. State
    • United States
    • Indiana Appellate Court
    • October 26, 2012

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