COA upholds sentence for overpass felony but splits on Rule 7(B) analysis

A man who threw a bicycle onto a major Indiana interstate has lost his appeal of his five-year executed sentence. However, his case exposed a split among the Indiana Court of Appeals on the proper analysis for determining if a sentence is inappropriate.

Appellant-defendant Stephen Davis was charged with Level 5 felony attempted overpass mischief in November 2019 after he threw a bicycle off an overpass onto Interstate 69 in Anderson. After doing so, Davis called 911 to report his actions, then told a responding officer that he had thrown the bike in “an attempt to make a vehicle crash and cause death.” He said he was trying to get arrested so that he would have regular “housing and food.”

Davis was placed in the custody of the Madison County sheriff, where he threw feces on staff and destroyed roughly $7,000 in electronics. He was thus moved to the Department of Correction and eventually pleaded guilty without a plea agreement.

At sentencing, the Madison Circuit Court identified Davis’ criminal history, his statements to the officer and the facts of the offense as aggravators. His guilty plea and history of mental health issues were identified as mitigators, though the trial court noted Davis had not sought mental health treatment for those issues. He was then sentenced to five years executed in the DOC.

On appeal in Stephen M. Davis v. State of Indiana, 21A-CR-52, Davis argued that the trial court abused its sentencing discretion by not identifying a mitigating factor that he said was “clearly … shown” by the record: the fact that he called police after throwing the bike, then waited for officers to arrive. But according to Judge Edward Najam, Davis waived that argument by not raising it at the sentencing hearing.

“Waiver notwithstanding, Davis has not demonstrated that that mitigator is significant,” Najam wrote. “Davis’ only argument on this issue is that he ‘saved the [S]tate the trouble of trying to identify who threw the bike and then finding him.’ But Davis does not acknowledge that he admitted that he wanted to be arrested to obtain ‘housing and food.’

“Nor does he suggest how this purported mitigator would add weight not already accounted for by the trial court’s assessment that Davis’ acceptance of responsibility and mental health issues entitled him to mitigating weight,” Najam continued. “Further, at only thirty-three years old, Davis’ criminal history includes seven adjudications as a juvenile and nine convictions as an adult, and Davis has had his probation revoked twice. And, as the trial court found, Davis threw a bicycle off an overpass onto a busy interstate during rush hour, which amounted to more than what was needed to convict him of attempted overpass mischief.”

The appellate panel also rejected Davis’ argument that his sentence was inappropriate. The panel found another waiver in that argument, because Davis did not challenge the appropriateness of his sentence in relation to his character.

That waiver presented a new analysis for the COA: how to apply Appellate Rule 7(B). Najam acknowledged a split on that issue within the court, then, citing Childress v. State, 858 N.E.2d 1073, 1079 (Ind. 2006), wrote that “under the plain language of the rule, … both the nature of the offense and the character of the offender” must be proven.

“For this Court to consider or address both prongs of Rule 7(B) in the absence of an appellant’s own cogent argument, we would have to become an advocate for the appellant, which is not our role,” Najam continued. “… Waiver notwithstanding, Davis has failed to persuade us that his five-year executed sentence is inappropriate.”

Judge Elizabeth Tavitas concurred in result with Najam’s opinion, which was joined by Judge Rudolph Pyle. But she wrote separately “to express (her) disagreement with the majority’s assertion that Appellate Rule 7(B) requires that a criminal defendant make a showing that his sentence is inappropriate in light of both his character and the nature of the offense.”

“A formalistic reading of Rule 7(B), in my opinion, belies the rule’s purpose,” Tavitas wrote. “… Such a determination, in my view, must necessarily be made holistically, particularly in instances where the statutory definition of a given crime forecloses entirely a conclusion that the nature of the offense renders the sentence inappropriate.”

Tavitas argued that the Indiana Supreme Court “has issued opinions regarding Appellate Rule 7(B) which have focused primarily — if not entirely — on one factor, while assigning little to no weight to the other.” The high court has also granted a sentence reduction without explicitly recognizing that only Rule 7(B) factor was argued, she continued, and has granted reductions while recognizing that a petitioner failed to establish one of the factors.

“This issue is of no small moment. By my count, this Court issued 295 opinions pertaining to Rule 7(B) last year, out of a total of 1,507 criminal matters addressed,” Tavitas wrote. “… Moreover, this split in interpretation means that a given appellant’s chances of a sentence reduction, which are already slim, may be whittled down even further based on the arbitrary factor of which judges happen to sit on the panel that reviews the case.

“Finally, it is worth noting that the majority’s interpretation of Rule 7(B), if accurate, would render the rule functionally impotent,” Tavitas concluded. “The only litigants eligible for a sentence reduction under such a rule would be those that could establish both good character and that the crime committed is a mild example of such an offense.

“… I find that our Supreme Court has made it abundantly clear that our role under Rule 7(B) is to consider both the nature of the offense and the character of the offender, without a requirement that a defendant must show that a sentence is inappropriate with respect to each factor that the court must consider. For these reasons, I respectfully concur in the result only.”

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