SOWDERS v. STATE (2025)

MEMORANDUM DECISION

[1] The Floyd Superior Court ordered Barry Sowders to serve two consecutive, advisory thirty-year sentences, with two and one-half years suspended, after he was convicted of two counts of Level 1 felony attempted murder. Sowders appeals, arguing that his aggregate sixty-year sentence, with five years suspended, is inappropriate in light of the nature of his offenses and his character.

[2] We affirm.

Facts and Procedural History

[3] In May 2023, Sowders and Kayla Toman lived together with their children in Toman's house in New Albany. During that month, Sowders began to believe that Toman was seeing another man. On May 29, Toman took the children to her parents’ lake house. Sowders was not invited. Sowders posted on Facebook several times that day threatening violence if he saw Toman with another man.

[4] Later that day, Sowders arrived at the lake house uninvited and spoke with Toman. After Sowders left, Toman began the drive back to New Albany. As Toman was driving, Sowders called her cell phone repeatedly. When Toman finally answered, Sowders drove his car next to her vehicle. For several minutes, Sowders waved his gun around threatening to shoot himself or cause a car accident to end everyone's life. Toman decided to drive to her mother's house, and Sowders followed her. Sowders blocked Toman's car in, but she managed to maneuver around his vehicle. As she drove away, she called the police. A police officer accompanied Toman to her home to retrieve personal items and she then spent the night elsewhere.

[5] Sowders continued to call Toman throughout the night. He told her that he had “taken a bunch of Xanax” and had been drinking. Tr. p. 104. He also drove to the location where his ex-girlfriend had been murdered and threatened to kill himself. Toman told Sowders that his children needed him.

[6] On May 30, Sowders continued to post several times on Facebook accusing Toman of cheating on him and threating to shoot her. He also made threats against the New Albany Police Department. Ex. Vol., p. 20.

[7] At some point that day, Sowders entered Toman's home while she was not present. He called Toman and told her that her dog was outside. Toman was unable to check the cameras at her house to see if Sowders was there, but she returned to her house to check on her dog. When Toman arrived at her home, she did not see Sowders's vehicle. But, as she entered the home, she saw him sitting on her couch with his gun lying next to him. Sowders cornered Toman and threatened to shoot both of them. Tr. pp. 95-100.

[8] Sowders continued to confine Toman at gunpoint for several minutes until Toman convinced Sowders that she was having a panic attack. Sowders allowed her to exit the home onto the front porch but continued to point his gun at her. Toman did not want to get cornered on the porch, so she walked toward the street and sat down on the curb next to her car. Toman told Sowders she would speak to him if he would put his gun back into the house.

[9] Sowders returned to the house and pretended to leave his gun inside. After Sowders exited the house, Toman got into her car, started it, and locked the doors. Sowders showed his gun to Toman. He then pointed it at her and walked toward the driver's side door. As Toman drove away, Sowders fired the gun at her. The bullet struck Toman's vehicle. Toman then drove to the police station.

[10] After Toman reported the shooting to the police, she suggested that Sowders might have gone to his parents’ home. When police officers arrived at that address, they saw Sowders's car parked in the adjacent alley. Sowders was still in the driver's seat and he tried to drive away, but the officers used their vehicles to block the alleyway.

[11] Sowders then exited his vehicle, and the officers observed that he had a handgun sticking out of his pants. An officer yelled at Sowders to stop and lie on the ground but he ran. Officer Andrew Byrne chased after Sowders as he ran between two houses. Sowders ran around the corner of the house and waited for Officer Byrne to catch up to him. When the officer neared Sowders's location, Sowders moved toward Officer Byrne and fired four or five rounds at him from close range.

[12] The bullets struck Officer Byrne in his right arm and left leg. The bullet that entered Officer Byrne's leg traveled through his left thigh and lodged in his pelvis. Officer Byrne fell to the ground but returned fire. As Sowders ran away, he was struck by a bullet from the officer's gun, but he continued to flee. Sergeant Kelly Brown saw Sowders run across a street and told him to stop. Sowders stopped in the middle of the street, turned, and fired a shot directly at Sergeant Brown. Fortunately, the bullet did not strike the officer. Sowders resumed fleeing, but officers apprehended him and arrested him shortly thereafter.

[13] Later that day, the State charged Sowders with three counts of Level 1 felony attempted murder for shooting at three New Albany police officers, including Officer Byrne; Level 6 felony resisting law enforcement; and an enhancement for the use of a firearm for the attempted murder of Officer Byrne. The State's final amended charging information included the following counts: four Level 1 felony attempted murder charges, naming three police officers and Toman as the victims; Level 5 felony intimidation against Toman; and a firearm enhancement on each attempted murder charge.

[14] In May 2024, Sowders agreed to plead guilty to two counts of Level 1 felony attempted murder for the charges naming Toman and Officer Byrne as the victims. In exchange, the State agreed to dismiss the remaining counts and to a sentencing cap of seventy-five years.

[15] The trial court accepted the plea agreement and held the sentencing hearing on June 25. The State presented victim impact testimony, testimony of several officers, and a recording of a March 2024 jail phone call between Sowders and his mother. In the phone call, Sowders continued to threaten and disparage the police officers involved in the case. Tr. pp. 51-52; Ex. Vol., Ex. 13. The State also presented evidence that Sowders had violated a no-contact order by sending thousands of text messages to Toman while he was incarcerated. And Officer Byrne explained the significant injuries he suffered as a result of being shot, including permanent injuries. Tr. pp. 124-29, 131-33. Because he suffered a permanent injury, Officer Byrne was forced to medically retire from the police department. Tr. p. 133.

[16] Sowders presented a sentencing report prepared by psychologist Dr. Heather Henderson, who suggested five mitigating circumstances for the trial court to consider. Dr. Henderson diagnosed Sowders with PTSD, which resulted from a violent incident that occurred in 2021. She also concluded that Sowders suffered from panic disorder and depression. However, Sowders also scored high for malingering, which was significant. Id. at 168; Ex. Vol., Ex. B. Dr. Henderson explained that “malingering” is “feigning an illness or misrepresentation for a secondary ․ gain ․” Tr. p. 168.

[17] The trial court imposed consecutive terms of thirty years with two and one-half years suspended to probation on each count. In doing so, the trial court considered the following aggravating circumstances: 1) that the crimes occurred in a “highly residential area, which put many people at risk beyond the officers”; 2) that Officer Byrne was forced to retire, ending his lifelong career, and the community lost a police officer; 3) that Sowders confined Toman at gunpoint for a significant period of time before he shot at her; 4) that Sowders's offenses caused emotional distress to Toman and their children; and 5) that Sowders's violation of the no-contact order showed disdain for the court's authority. Tr. pp. 191-93. The trial court also considered the following mitigating circumstances: 1) that the State did not present evidence of any criminal history;¹ 2) that Sowders suffered from PTSD; 3) that Sowders pleaded guilty; and 4) that Sowders expressed remorse. Id. at 194-98. However, the court also specifically explained that the weight of those mitigating circumstances was lessened by the fact that several counts were dismissed as a result of Sowders's guilty plea, by the evidence that Dr. Henderson concluded that Sowders was malingering, and that his expression of remorse was inapposite to his statements in the March 2024 jail phone call. Id. at 198.

[18] Sowders now appeals.

Discussion and Decision

[19] Sowders argues that his aggregate sixty-year sentence with five years suspended to probation is inappropriate in light of the nature of the offense and his character. Under Indiana Appellate Rule 7(B), we may modify a sentence that we find is “inappropriate in light of the nature of the offense and the character of the offender.” Making this determination “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.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008).

[20] Sentence modification under Rule 7(B), however, is reserved for “a rare and exceptional case.” Livingston v. State, 113 N.E.3d 611, 612 (Ind. 2018) (per curiam). Thus, when conducting this review, we generally defer to the sentence imposed by the trial court, and that deference will prevail unless the defendant demonstrates compelling evidence on appeal that portrays the nature of the offense and his character in a positive light, such as showing a lack of brutality in the offense or showing substantial virtuous character traits. Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015).

[21] Under the terms of his plea agreement, Sowders agreed to a sentencing cap of seventy-five years. A person who is convicted of a Level 1 felony can be imprisoned to a term between twenty and forty years, with the advisory sentence being thirty years. See Ind. Code § 35-50-2-4(b). After its thorough consideration of the aggravating and mitigating circumstances, the trial court imposed a thirty-year advisory sentence with two and one-half years suspended for each Level 1 felony conviction. Sowders does not argue that his sentence for each offense is inappropriate; rather, he argues that the trial court's decision to run the sentences consecutive to each other, resulting in a sixty-year aggregate sentence with five years suspended, is an inappropriate sentence. Specifically, he claims that his aggregate sentence is “excessive” because it “is effectively a life sentence.” Appellant's Br. at 15-16.

[22] Sowders has not presented any compelling evidence concerning the nature of his offenses to support his argument that his aggregate sentence is inappropriate. In fact, Sowders is fortunate that his offenses did not result in additional injury or death to police officers, Toman, or other members of the community. Sowders confined Toman at gunpoint for a significant period of time before shooting at her once she was able to drive away from him. He also shot at several New Albany Police Officers while attempting to evade the officers who were investigating his offenses against Toman, and one officer was shot and injured so severely he was forced to medically retire from the police department.

[23] Sowders also fails to present evidence of substantial virtuous character traits that would lead us to conclude that his aggregate sentence is inappropriate in light of his character. Sowders presented evidence that he suffers from PTSD, anxiety, and depression. He also pleaded guilty and expressed remorse. However, Sowders's decision to plead guilty was also a pragmatic one because the State agreed to dismiss several charges and to a seventy-five-year cap on his sentence. In addition, while Sowders was incarcerated awaiting trial and sentencing, he violated a no-contact order by texting Toman thousands of times. And, approximately two months before he agreed to plead guilty, the jail recorded a phone call between Sowders and his mother in which Sowders threatened and disparaged the police officers involved in this case. Finally, when Dr. Henderson evaluated Sowders, she observed that he had scored high for malingering.

Conclusion

[24] For all of these reasons, Sowders has not met his burden of persuading us that his aggregate sixty-year sentence, with five years suspended to probation, is inappropriate in light of the nature of his offenses and his character.

[25] Affirmed.

FOOTNOTES

1.   Both Sowders and the State made reference to a prior criminal history that was expunged.

Mathias, Judge.

Foley, J., and Felix, J., concur.