DEW v. STATE (2025)

MEMORANDUM DECISION

[1] Tristian Stephens Dew pleaded guilty to Level 4 felony burglary, Level 6 felony theft, and Class B misdemeanor criminal mischief. The Greene Circuit Court accepted Dew's guilty plea and ordered him to serve an aggregate sentence of ten years and eighty-six days. Dew appeals and argues that his sentence is inappropriate in light of the nature of his offenses and his character.

[2] We affirm.

Facts and Procedural History

[3] On January 22, 2024, around 8:40 a.m., Dew broke into Kevin Provo's home and damaged the front door. He then stole change that Provo had stored in buckets and small cloth bags. Dew put the change, which totaled $1,329.22, into a backpack. Provo had cameras installed in his home, and the cameras captured images of Dew carrying the backpack inside Provo's home. After Provo received alerts that the cameras had detected motion in his home, he returned home where he observed Dew in his yard. Another unidentified individual driving a white truck left quickly when Provo arrived. Provo and two companions chased Dew and caught him. They held him until the police arrived on the scene.

[4] The State charged Dew with Level 4 felony burglary, Level 6 felony theft, and Class B misdemeanor criminal mischief. The State also alleged that Dew was a habitual offender. Dew agreed to plead guilty to the charged offenses in exchange for the State's agreement to dismiss the habitual offender allegation.

[5] The trial court accepted Dew's guilty plea and held his sentencing hearing. The trial court found Dew's prior criminal history of convictions and arrests to be an aggravating circumstance, which the court also concluded was indicative that Dew would likely reoffend.¹ Appellant's App. p. 81. The court considered Dew's guilty plea, expression of remorse, and the impact on his family and friends as mitigating circumstances. Id. at 82. After concluding that the aggravating circumstance outweighed the mitigating circumstances, the court ordered Dew to serve an aggregate sentence of ten years in the Department of Correction with two years suspended to probation and eighty-six days in the Greene County Jail.²

[6] Dew now appeals his sentence.

Discussion and Decision

[7] Dew argues that his aggregate ten-year and eighty-six-day sentence is inappropriate in light of his offenses and his character. Dew requests a downward revision of his ten-year sentence and urges us to order the trial court to run his eighty-six-day sentence concurrent to his sentence for Level 4 felony burglary.

[8] 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).

[9] 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 offenses and his character in a positive light, such as showing a lack of brutality in the offenses or showing substantial virtuous character traits. Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015).

[10] The court ordered Dew to serve ten years with two years suspended to probation for his Level 4 felony burglary conviction. Dew's sentence is two years less than the maximum sentence a trial court may impose for a Level 4 felony conviction. See Ind. Code § 35-50-2-5.5 (establishing the range of sentence for a Level 4 felony as a fixed term between two and twelve years with an advisory six-year sentence).³ The court imposed a consecutive eighty-six-day sentence for Dew's Class B misdemeanor conviction, which is less than half of the 180-day term allowed.⁴ See I.C. § 35-50-3-3.

[11] Dew argues that he exercised restraint in committing his offenses, which were not committed in a brutal or violent manner. He observes that he left one bucket of change in the home, and that he had the means and time to take additional items from Provo's home but did not do so. He acknowledges the damage he caused to Provo's front door but also notes that the backpack full of change was left outside the home, and he did not try to escape with it when Provo arrived home.

[12] Next, we consider Dew's character. Twenty-eight-year-old Dew has a substantial history of criminal convictions and arrests. The trial court concluded that his criminal history reflected poorly on Dew's character and indicated that Dew was likely to reoffend. Dew committed the following crimes in South Carolina: misdemeanor larceny, felony burglary, and felony manufacture or possession of illegal substances with the intent to distribute. Dew also had several arrests in South Carolina that did not result in convictions for similar offenses. The trial court considered those arrests “as prior contacts with the criminal justice system that did not deter future criminal conduct.” Appellant's App. p. 81.

[13] In support of his argument, Dew relies on the testimony of his family and friends, and his active participation in substance abuse treatment at Grace House Ministries, where he was living after he was released from jail. Multiple individuals stated that they noted positive changes in Dew and in the choices he had made in the weeks leading up to his sentencing hearing.

[14] The trial court considered this evidence but weighed it against Dew's criminal history and his refusal to provide information to the court or law enforcement about the other individual involved in the burglary of Provo's home. The court also observed that Dew continued to deny that he was involved in the offense even though the State had photographic evidence of his presence in Provo's home. Dew pleaded guilty just a few weeks before his jury trial was scheduled to begin. The trial court expressed hope that Dew would continue to participate in treatment and make better choices but also concluded that based on his criminal history and history of poor behavior, Dew would not respond well to short-term incarceration. Tr. pp. 81-82.

[15] Although Dew presented evidence of recent positive character changes, we defer to the trial court's overall assessment of Dew's character and the likelihood that he will reoffend.

Conclusion

[16] For all of these reasons, Dew has not persuaded us that his sentence is inappropriate in light of the nature of his offenses and his character. Therefore, we affirm the trial court's order sentencing Dew to serve an aggregate term of ten years and eighty-six days with two years suspended to probation.

[17] Affirmed.

FOOTNOTES

1.   Dew claims that the trial court improperly considered that burglary is classified as a violent offense as an aggravating circumstance. During the sentencing hearing, the court made that statement but only in the context of concluding that Dew is likely to reoffend. And the trial court's written sentencing order does not identify burglary's classification as a violent offense as an aggravating circumstance. For these reasons, we do not agree with Dew's assertion that the trial court improperly considered an aggravating circumstance.

2.   Specifically, the court imposed ten years with two years suspended for the Level 4 felony burglary conviction, a concurrent term of one-year for the theft conviction, and a consecutive term of eighty-six days for the criminal mischief conviction. Dew was given credit for forty-three days served in the Greene County Jail while awaiting trial and sentencing, which the court applied to his sentence for the criminal mischief conviction.

3.   For Level 6 felony theft, the trial court imposed a concurrent one-year advisory sentence. See I.C. § 35-50-2-7(b) (allowing the sentencing court to impose a term of six months to two and one-half years and establishing an advisory term of one-year).

4.   In his Appellant's Brief, Dew suggests that his convictions for burglary and criminal mischief violate double jeopardy principles. But he also acknowledges that his claim may not be raised because he pleaded guilty to those offenses. In McDonald v. State, 179 N.E.3d 463, 464 (Ind. 2022), our supreme court noted that “a defendant who has pleaded guilty may not challenge the validity of his conviction[s] on direct appeal” for a violation of double jeopardy. Accordingly, we will only address Dew's inappropriate sentence argument in our resolution of this appeal.

Mathias, Judge.

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