HARRY v. STATE (2025)

MEMORANDUM DECISION

[1] Allen Wayne Harry appeals his sentence for Level 6 felony intimidation.¹ He argues his two-and-one-half-year sentence is inappropriate based on the nature of the offense and his character. We affirm.

Facts and Procedural History

[2] On February 19, 2024, Harry sent his ex-girlfriend, E.S., threatening messages via Facebook Messenger. In one of the messages, Harry told E.S., “I kill u I ain't playing ․ Ur gonna die[.]” (App. Vol. II at 15) (errors in original). In another he stated, “I am gonna kill some people I'm pretty sure If u ever. Knew amber I'm coming forbu to put a bullet in ur head bro[.]” (Id.) (errors in original). Based thereon, the State charged Harry with Level 6 felony intimidation on February 23, 2024.

[3] On August 30, 2024, Harry filed a motion to plead guilty without the benefit of a plea agreement. On September 26, 2024, the trial court held a hearing during which Harry pled guilty as charged. The trial court then moved to the sentencing phase of the proceedings. E.S. gave a victim impact statement, telling the trial court she would be concerned for her safety and that of her family if Harry were given probation. She indicated she had spoken to a counselor “a couple times” about the incident. (Tr. Vol. II at 15.) Harry testified he was under the influence of alcohol at the time of the incident. He told the trial court he was sorry for his actions and “[he] ain't going to hurt nobody.” (Id.) (errors in original).

[4] The State noted Harry's criminal history consisted of at least three misdemeanor convictions and two felony convictions. The State asked the trial court to sentence Harry to 800 days incarcerated. Harry argued the trial court should consider that “he [was] truly remorseful for the messages he sent to the victim.” (Id. at 20.) The trial court found Harry's criminal history as an aggravator and his acceptance of responsibility as a mitigator and sentenced him to 912 days, or two and one-half years, incarcerated, minus credit time.

Discussion and Decision

[5] Harry argues his sentence of two-and-one-half years is inappropriate based on the nature of his offense and his character. We evaluate inappropriate sentence claims using a well-settled standard of review.

We “may revise a sentence authorized by statute if, after due consideration of the trial court's decision, [we find] the sentence is inappropriate in light of the nature of the offense and the character of the offender.” Ind. App. R. 7(B). Our role in reviewing a sentence pursuant to Appellate Rule 7(B) “should be to attempt to leaven the outliers, and identify some guiding principles for the trial courts and those charged with improvement of the sentencing statutes, but not to achieve a perceived ‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). “The defendant bears the burden of persuading this court that his or her sentence is inappropriate.” Kunberger v. State, 46 N.E.3d 966, 972 (Ind. Ct. App. 2015).

“Whether a sentence is inappropriate ultimately turns on the culpability of the defendant, the severity of the crime, the damage done to others, and a myriad of other factors that come to light in a given case.” Thompson v. State, 5 N.E.3d 383, 391 (Ind. Ct. App. 2014).

Belcher v. State, 138 N.E.3d 318, 328 (Ind. Ct. App. 2019), trans. denied.

[6] “When considering the nature of the offense, we first look to the advisory sentence for the crime.” McHenry v. State, 152 N.E.3d 41, 46 (Ind. Ct. App. 2020). When a sentence deviates from the advisory sentence, “we consider whether there is anything more or less egregious about the offense as committed by the defendant that distinguishes it from the typical offense accounted for by our legislature when it set the advisory sentence.” Madden v. State, 162 N.E.3d 549, 564 (Ind. Ct. App. 2021). The sentence for a Level 6 felony ranges from six months to two and one-half years, with an advisory sentence of one year. Ind. Code § 35-50-2-7. Harry received the maximum sentence for his offense.

[7] Harry contends his sentence is inappropriate based on the nature of his offense because the details of the crime were “not particularly notable.” (Appellant's Br. at 7.) He also argues his offense does not warrant the maximum sentence because he was “so intoxicated he did not recall committing the offense[.]” (Id.) However, being intoxicated does not excuse Harry's behavior or eliminate criminal liability. See Ind. Code § 35-41-3-5 (voluntary intoxication not a defense to prohibited conduct).

[8] Harry sent several messages to E.S. threatening to kill her and her family. E.S. testified at Harry's sentencing hearing that the offense made her feel like she had to “look over her shoulder the whole time” in fear that Harry would hurt her or her family. (Tr. Vol. II at 14.) Based thereon, we conclude Harry's sentence was not inappropriate based on the nature of his offense. See, e.g., Shotts v. State, 53 N.E.3d 526, 539 (Ind. Ct. App. 2016) (sentence not inappropriate for unlawful possession of a firearm by a serious violent felon despite Shotts’ argument that the details of the crime could not be considered the most egregious), trans. denied.

[9] Harry also contends that, despite his criminal history, his sentence is inappropriate based on his character because he accepted responsibility for his crime and was remorseful. “When considering the character of the offender, one relevant fact is the defendant's criminal history.” Johnson v. State, 986 N.E.2d 852, 857 (Ind. Ct. App. 2013). Harry acknowledges his criminal history, which included convictions for felonies such as burglary and dealing in methamphetamine as well as misdemeanors such as battery resulting in bodily injury and domestic battery. While Harry took responsibility for his crime by pleading guilty and expressing remorse, we cannot say it outweighs his criminal history because his repeated offenses over the years illustrate a disregard for the justice system and do not reflect his motivation to reform his behavior. Based thereon, we conclude Harry's character does not render his sentence inappropriate. See, e.g., Weiss v. State, 848 N.E.2d 1070, 1073 (Ind. 2006) (holding defendant's sentence was not inappropriate because “[h]is repeated contacts with the criminal justice system have had no impact on persuading him to reform”).

Conclusion

[10] Harry's two- and one-half-year sentence for Level 6 felony intimidation was not inappropriate based on the nature of his offense or his character. Accordingly, we affirm.

[11] Affirmed.

FOOTNOTES

1.   Ind. Code § 35-45-2-1(b)(1).

May, Judge.

Weissmann, J., and Scheele, J., concur.