Walsman v. State

• Decision Date: 23 October 2006
• Docket Number: No. 69A04-0512-CR-701.,69A04-0512-CR-701.
• Citation: 855 N.E.2d 645
• Parties: Shane WALSMAN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

855 N.E.2d 645

Shane WALSMAN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 69A04-0512-CR-701.

Court of Appeals of Indiana.

October 23, 2006.

Leanna Weissmann, Lawrenceburg, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Arthur Thaddeus Perry, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

Shane Walsman appeals from his conviction and sentence for Robbery, as a Class B felony, following a jury trial. Walsman presents three issues for review, namely:

1. Whether the evidence is sufficient to support his conviction.

2. Whether the trial court abused its discretion when it sentenced him.

3. Whether the trial court erred when it ordered him to pay restitution.

We affirm in part, reverse in part, and remand.

FACTS AND PROCEDURAL HISTORY

On January 20, 2004, a white man dressed in dark clothes and wearing a black mask entered the Sunman Package Store in Ripley County. The man pointed a gun at the store's owner and demanded that she give him all of her money. The owner gave the man the contents of the cash register, which totaled more than $700. The man then ordered the owner to lie face down on the floor and put her hands behind her head. The owner complied but when she heard the door close, she activated an alarm.

In the course of investigating the crime, officers encountered one of Walsman's roommates, Angela Slayback. Slayback told police that Walsman had robbed the store and that she had made a mask for Walsman from the sleeve of one of her black shirts. Police found the mask behind the store and a black shirt missing a sleeve in the apartment that Walsman shared with Slayback. DNA testing performed on the mask did not rule out Walsman as having worn it.

Gerald Frensemeier, another roommate, testified that on January 20, 2004, he and Walsman had talked about robbing the store and that Frensemeier had obtained a gun from Leon Gabbard for Walsman. The store could be seen from Gabbard's apartment. On the day of the robbery, Gabbard saw Walsman in front of the store, and Frensemeier saw Walsman exit the store. Walsman had "a wad of money" when he returned from the store and later gave cash to Gabbard and Frensemeier. Transcript at 252.

The State charged Walsman with Armed Robbery, as a Class B felony; Intimidation, as a Class C felony; Criminal Recklessness, as a Class D felony; Pointing a Firearm, as a Class D felony; Receiving Stolen Property, as a Class D felony; Possession of Marijuana, Hash Oil, or Hashish, as a Class A misdemeanor; Possession of Paraphernalia, as a Class A misdemeanor; Possession of a Handgun Without a Permit, as a Class A misdemeanor; and Visiting a Common Nuisance, as a Class B misdemeanor. The State later amended the Robbery count and dismissed all other counts.¹

A jury convicted Walsman of robbery, as a Class B felony. The trial court sentenced Walsman to fifteen years, with 664 days of pre-trial jail time credit, three years suspended, and three years of probation. As a condition of probation, the trial court ordered Walsman to pay restitution. Walsman's restitution obligation is owed jointly and severally with Frensemeier. This appeal ensued.

DISCUSSION AND DECISION

Issue One: Sufficiency of Evidence

Walsman first contends that the evidence is insufficient to support his conviction. When reviewing a sufficiency of the evidence claim, we neither reweigh the evidence nor judge the credibility of witnesses. Grim v. State, 797 N.E.2d 825, 830 (Ind.Ct.App.2003). Rather, we consider only the evidence that is favorable to the verdict along with the reasonable inferences to be drawn therefrom to determine whether there was sufficient evidence of probative value to support a conviction. Id. We will affirm the conviction if there is substantial evidence of probative value from which a reasonable trier of fact could have drawn the conclusion that the defendant was guilty of the crime charged beyond a reasonable doubt. Id.

To prove the offense of robbery, as a Class B felony, the State was required to show that Walsman knowingly or intentionally took property from the store's owner by putting the owner in fear. See Ind.Code § 35-42-5-1. The offense is a Class B felony if committed while armed with a deadly weapon. Id. Walsman "maintain[s] his innocence and claims that the witnesses' testimony is suspect given their involvement in the crime." Appellant's Brief at 5. But Walsman's claim amounts to a request that we reweigh the evidence, which we will not do.

The evidence shows that Walsman and Frensemeier consulted about robbing the store and that Slayback suggested that Walsman wear dark clothes and a mask. Slayback made the mask for Walsman from a sleeve taken off one of her black shirts, and the rest of that shirt was found in their apartment. Frensemeier and Gabbard testified that they saw Walsman at the liquor store on the day of the crime, and both testified that Walsman later gave them cash. Police found a black mask behind the store, and DNA testing did not rule out Walsman as having worn it. We conclude that the reasonable inferences taken from the evidence are sufficient to support Walsman's robbery conviction.

Issue Two: Sentence

Walsman next argues that the trial court abused its discretion when it imposed sentence. Specifically, Walsman alleges that the trial court should have applied the presumptive sentencing scheme in effect when the offense was committed instead of the advisory scheme in effect when he was sentenced. He also claims that one of the aggravators identified by the trial court was improper. We address each contention in turn.

A. Presumptive or Advisory Sentence

Walsman first claims that the trial court should have sentenced him under the presumptive sentencing scheme that was in effect when he committed the offense. He further contends that the advisory sentencing scheme "cannot be applied retroactively without implicating ex post facto prohibitions." Appellant's Brief at 8. We must agree.

In Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the Supreme Court held that, other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. Four years later, in Blakely v. Washington, 542 U.S. 296, 303-04, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), the Supreme Court applied the Apprendi rule to the statutory sentencing scheme in Washington. The Washington sentencing scheme provided for a "standard range," but the trial judge could impose a sentence above the standard range if he found substantial and compelling reasons to justify an exceptional sentence. Blakely, 542 U.S. at 299, 124 S.Ct. 2531. The Court held that the "statutory maximum" in Washington's sentencing scheme was the standard range because a finding that additional facts existed was necessary to impose a greater sentence. Id. at 303-04, 124 S.Ct. 2531. The Court further held that the existence of additional facts to support a sentence longer than the "statutory maximum" must be determined by a jury to avoid running afoul of Apprendi. Id.

Following Blakely, the Indiana Supreme Court held in Smylie v. State, 823 N.E.2d 679, 684-85 (Ind.2005), cert. denied, ___ U.S. ___, 126 S.Ct. 545, 163 L.Ed.2d 459 (2005), that Indiana's sentencing scheme violated the Apprendi rule. Specifically, the sentencing statutes in effect at that time provided for a presumptive sentence and allowed for a greater sentence if aggravating factors existed. See, e.g., Ind. Code §§ 35-50-2-4 through -7 (amended 2005). As a result of the court's decision in Smylie, our legislature amended the sentencing statutes to provide for an advisory sentence within a specific range. Under the sentencing statutes as amended, the range for each sentence remained the same as the range under the former presumptive sentence, and the presumptive sentence has been replaced with an "advisory sentence." See, e.g., Ind.Code §§ 35-50-2-4 through -7. The amendments became effective on April 25, 2005.

Here, the issue presented concerns a narrow class of cases in which a defendant committed an offense before the sentencing statute amendments became effective but was sentenced after the effective date. Walsman's case falls within that class. Thus, we must determine whether Walsman should have been sentenced under the sentencing statute in effect when he committed the crime or under the amended sentencing statute that was in effect when he was sentenced. Panels of this court have reached different conclusions on that issue. At least one has held that advisory sentencing applies. See Samaniego-Hernandez v. State, 839 N.E.2d 798 (Ind.Ct. App.2005). But at least three panels have held that the presumptive sentencing scheme applies. See Weaver v. State, 845 N.E.2d 1066 (Ind.Ct.App.2006), trans. denied; Patterson v. State, 846 N.E.2d 723 (Ind.Ct.App.2006); Henderson v. State, 848 N.E.2d 341 (Ind.Ct.App.2006).

In general, "the law in effect at the time that the crime was committed is controlling." Holsclaw v. State, 270 Ind. 256, 384 N.E.2d 1026, 1030 (1979). But an "exception to this rule exists for remedial statutes, which are statutes intended to cure a defect or mischief that existed in a prior statute[, namely, a remedial statute]."² Martin v. State, 774 N.E.2d 43, 44 (Ind.2002). "When a remedial statute is involved, a court must construe it to `effect the evident purpose for which it was enacted[.]'" Id. (quoting Conn. Mut. Life Ins. Co. v. Talbot, 113 Ind. 373, 14 N.E. 586, 589 (1887)) (alteration in original). "Accordingly, remedial statutes will be applied retroactively to carry out their legislative purpose unless to do so violates a vested right or constitutional guaranty." Id. But "not all remedial statutes are automatically applied retroactively." State v. Pelley, 828 N.E.2d...