from the Noble Superior Court The Honorable Robert E. Kirsch,
Judge Trial Court Cause No. 57D01-1811-MR-4
Attorney for Appellant Kimberly A. Jackson Indianapolis,
Attorneys for Appellee Curtis T. Hill, Jr. Attorney General
Lauren A. Jacobsen Deputy Attorney General Indianapolis,
Vaidik, Chief Judge.
Trevor Wert appeals his sixty-five-year murder sentence for
beating to death a two-year-old child in his care. We affirm
Wert's sentence but remand for the trial court to correct
an error in its written sentencing order.
and Procedural History
In October 2018, forty-two-year-old Wert and his ex-wife,
Samantha, lived together in Noble County with their young
son. Misty Matson had two daughters, K.M. and two-year-old
Railee Ewing. Misty worked third shift at a factory, and
Samantha watched K.M. and Railee overnight two or three times
a week while Misty worked. On October 28, Samantha started
working with Misty at the factory, thereby making Wert the
sole caregiver for K.M. and Railee when Misty and Samantha
were at work.
On October 31, Misty dropped off her daughters at Wert's
house and went to work. Wert and his young son were home.
When Misty arrived at Wert's house to pick up her
daughters on the morning of November 1, Wert told her that
Railee had been injured "during the night" when she
fell and hit her face on the bathtub. Appellant's App.
Vol. II p. 43. Misty called 911 to say that she was driving
Railee, who was limp, to the hospital. EMS met Misty on the
way and transported Railee the rest of the way to the
hospital, where she was pronounced dead at 7:47 a.m.
See Ex. 1 (hospital records stating that Railee was
"clearly dead on arrival"). The emergency-room
physician observed "extensive bruising over
[Railee's] entire body" and noted that the bruising
was "to[o] extensive" to even document.
Id. The physician also observed blood in
Railee's diaper and that there "appear[ed] to be
oozing and lacerations to both the vaginal orifice and
Wert was interviewed by detectives several times on November
1 and 2. Wert told the detectives that in the early-morning
hours of November 1, he was awakened by Railee crying and
found her in the bathroom running bath water. According to
Wert, he became "enraged" and struck Railee
multiple times with his "fists" and
"legs." Tr. p. 16; Appellant's App. Vol. II p.
44. When Railee tried to leave the bathroom, Wert kicked her
in the buttocks, slamming her into the door frame. Railee
fell silent. Wert then changed Railee's diaper and
covered her body and head with a bathrobe.
An autopsy was performed on November 2. Because of the
injuries to Railee's vagina and anus, a sexual-assault
nurse attended the autopsy. According to the nurse,
Railee's injuries included "everything under the
sun," such as "significant anal injury,"
"significant vaginal injury," abrasions,
lacerations, bruising, petechiae, and blunt-force trauma. Tr.
pp. 23-24. The nurse said she had "never seen anything
like this ever." Id. at 23. According to the
forensic pathologist, the cause of Railee's death was
multiple blunt-force traumatic injuries. Ex. 1.
On November 5, the State charged Wert with murder and Level 1
felony child molesting. Exactly one month later, Wert and the
State entered into a plea agreement. According to the
agreement, Wert would plead guilty to murder, and the State
would dismiss the child-molesting charge. Wert's sentence
was left to the discretion of the trial court as follows:
Upon the Defendant's plea . . . to [murder], the parties
shall be free to argue to the Court as to the appropriate
sentence deemed appropriate [sic], subject to the following:
The parties agree that the sentencing range must, by law, be
between 45 and 65 years, and that no portion of the sentence
less than 45 years may be suspended. The State agrees that
neither the death penalty nor life without parole shall be
imposed. Any other terms of the sentence, including any
special terms and conditions of probation (if probation is