OUSLEY v. STATE (2025)

MEMORANDUM DECISION

Statement of the Case

[1] Austin D. Ousley appeals the sentence the trial court imposed after: (1) a jury convicted him of Level 1 felony attempted murder and Level 5 felony reckless homicide; and (2) he admitted he was subject to a firearm sentencing enhancement. Concluding the trial court's sentencing order contains an error, we reverse and remand.

Issue

[2] Ousley raises two sentencing claims, but one of them is dispositive: whether the trial court erred in calculating Ousley's sentence.¹

Facts and Procedural History

[3] On February 27, 2023, eighteen-year-old Ousley and a juvenile friend entered an empty farmhouse on the Wildt family's farm in Vanderburgh County. Two brothers, Shawn and Chad Wildt, found the intruders and confronted them. Ousley drew a handgun and shot Chad in the face. Chad fell to the ground, unconscious. Ousley fired two more shots before fleeing with the juvenile.

[4] When Chad awoke, he saw no one else. He stumbled out of the house and fell in the front yard, where a passerby saw him and called emergency services. Chad survived, but with permanent mouth and neck pain.

[5] The police arrived and searched the house, where they found Shawn's body. One of the gunshots had entered his back and pierced his heart.

[6] The State charged Ousley with Level 1 felony attempted murder, Level 2 felony burglary, Level 5 felony reckless homicide, and Class A misdemeanor trespass. The State also filed a notice that it was seeking a sentencing enhancement because Ousley used a firearm to commit a felony that resulted in death or serious bodily injury.

[7] The jury determined Ousley was guilty of attempted murder and reckless homicide but not guilty of the remaining charges. Ousley admitted he was subject to the firearm sentencing enhancement. The trial court sentenced Ousley to forty-five years for Level 1 felony attempted murder, enhanced by ten years for the firearm enhancement, for a sentence of fifty-five years. The court also sentenced Ousley to five years for Level 5 felony reckless homicide. Finally, the court ordered him to serve his sentences consecutively, for a total sentence of sixty years. This appeal followed.

Discussion and Decision

[8] Ousley argues his forty-five-year sentence for Level 1 felony attempted murder is erroneous because it exceeds the statutory sentencing range for Level 1 felonies. The State concedes Ousley is correct. Appellee's Br. p. 14.

[9] If a sentence is within the statutory range, we will reverse only for an abuse of discretion. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh'g, 875 N.E.2d 218. At the time Ousley committed attempted murder, Indiana Code section 35-50-2-4(b) (2014) provided, “a person who commits a Level 1 felony ․ shall be imprisoned for a fixed term of between twenty (20) and forty (40) years, with the advisory sentence being thirty (30) years.” The trial court's sentence exceeds the statutory maximum by five years and must be corrected.²

Conclusion

[10] For the reasons stated above, we reverse the judgment of the trial court and remand for resentencing.

[11] Reversed and Remanded.

FOOTNOTES

1.   Ousley also claims that his sentence is inappropriate under Indiana Appellate Rule 7(B). That claim is premature because we are remanding for resentencing.

2.   For a discussion of the trial court's options on remand, see O'Connell v. State, 742 N.E.2d 943, 952-53 (Ind. 2001).

Crone, Senior Judge.

Mathias, J., and Tavitas, J., concur.