Adam K. Bales v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: February 29, 2016
• Docket: 77A01-1501-CR-12
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Feb 29 2016, 9:12 am regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Kimberly A. Jackson Gregory F. Zoeller Indianapolis, Indiana Attorney General of Indiana

Karl M. Scharnberg Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Adam K. Bales, February 29, 2016 Appellant-Defendant, Court of Appeals Case No. 77A01-1501-CR-12 v. Appeal from the Sullivan Superior Court State of Indiana, The Honorable Robert E. Springer, Appellee-Plaintiff Magistrate Trial Court Cause No. 77D01-1307-FA-372

Bailey, Judge.

Court of Appeals of Indiana | Memorandum Decision 77A01-1501-CR-12 | February 29, 2016 Page 1 of 9 Case Summary [1] Adam K. Bales (“Bales”) brings a belated appeal1 to challenge the sentence

imposed upon him following his plea of guilty to Attempted Murder, a Class A

felony.2 We affirm the aggregate sentence, but remand to the trial court with

instructions to vacate the fine imposed as part of the habitual offender

enhancement and to enter a sentencing order that provides that Bales received a

forty-year sentence, enhanced by thirty years, as opposed to consecutive

sentences.

Issues [2] Bales presents four issues for review:

I. Whether the trial court abused its sentencing discretion by failing to enter a proper sentencing statement;

II. Whether the trial court abused its sentencing discretion by failing to recognize remorse as a mitigating circumstance;

1 After Bales initiated an appeal and filed an appellant’s brief, the State filed an appellee’s brief and contended that Bales’s appeal should be dismissed due to failure to file a timely notice of appeal. Bales filed a petition for remand, for the purpose of filing a petition to file a belated notice of appeal. This Court remanded the matter and permitted Bales ten days to file his petition for a belated appeal in the trial court. The trial court granted the petition on September 15, 2015, and this Court permitted Bales to file an amended brief and a belated notice of appeal. 2 Ind. Code §§ 35-42-1-1(1) & 35-41-5-1.

Court of Appeals of Indiana | Memorandum Decision 77A01-1501-CR-12 | February 29, 2016 Page 2 of 9 III. Whether the habitual offender enhancement was improperly designated a consecutive sentence and accompanied by a fine; and

IV. Whether Bales’s sentence is inappropriate.

Facts and Procedural History [3] On June 29, 2013, Bales struck his girlfriend, Joann Pierce (“Pierce”)

repeatedly, using his fists and a rifle. He grabbed a knife and cut Pierce as she

tried to disarm him. Bales then pursued Pierce as she attempted to flee,

shooting her multiple times. Pierce collapsed on the lawn, having been shot in

her neck, face, leg, and right arm.

[4] Bales called 9-1-1 and reported the shooting. He was arrested and charged with

Attempted Murder. After Bales pled guilty to the charge against him, and

admitted his status as a habitual offender, he received a seventy-year aggregate

sentence and two fines of $100.00 each. This appeal ensued.

Discussion and Decision Abuse of Discretion – Sentencing Statement [5] At the time of Bales’s offense, Indiana Code Section 35-50-2-4 provided that a

person convicted of a Class A felony faced a sentencing range of twenty to fifty

years, with the advisory sentence being thirty years. Bales received a sentence

of ten years more than the advisory sentence. The Attempted Murder sentence

Court of Appeals of Indiana | Memorandum Decision 77A01-1501-CR-12 | February 29, 2016 Page 3 of 9 was enhanced by thirty years, due to Bales’s status as a habitual offender. I.C. §

35-50-2-8.

[6] “So long as the sentence is within the statutory range, it is subject to review

only for abuse of discretion.” Anglemyer v. State, 868 N.E.2d 482, 490 (Ind.

2007), clarified on other grounds, 875 N.E.2d 218 (Ind. 2007) (Anglemyer II). This

includes the finding of an aggravating circumstance and the omission to find a

proffered mitigating circumstance. Id. at 490-91. When imposing a sentence

for a felony, the trial court must enter “a sentencing statement that includes a

reasonably detailed recitation of its reasons for imposing a particular sentence.”

Id. at 491.

[7] The trial court’s reasons must be supported by the record and must not be

improper as a matter of law. Id. However, a trial court’s sentencing order may

no longer be challenged as reflecting an improper weighing of sentencing factors.

Id. A trial court abuses its discretion if its reasons for imposing a particular

sentence are clearly against the logic and effect of the facts and circumstances

before the court, or the reasonable, probable, and actual deductions to be drawn

therefrom. Hollin v. State, 877 N.E.2d 462, 464 (Ind. 2007).

[8] Here, the trial court made an oral sentencing statement and entered a written

sentencing statement. Bales contends that these statements irreconcilably

conflict. The oral sentencing statement provided:

[T]he court’s going to find that the aggravators listed in the Pre- Sentence report are appropriate, in that the person does have a criminal history, and clearly, with this type of crime and that he Court of Appeals of Indiana | Memorandum Decision 77A01-1501-CR-12 | February 29, 2016 Page 4 of 9 was actually on probation when he committed this crime. Also [I am] going to consider the method in which the crime was committed and the seriousness of the defendant’s [sic] injuries. I believe it is significant that he, this whole episode took a good deal of time; he had several opportunities to abandon what he, what he was doing. It is a mitigator that he’s admitting his guilt. And I believe, of course the seriousness of the offense and the seriousness of her injuries are aggravators as well. … So there’ll be seventy (70). Had you not called 9-1-1 and admitted your guilt it would have been eighty (80) Mr. Bales.

(Tr. at 76-77.) The written Sentencing Order included the trial court’s

statement that the Pre-Sentence Investigation Report had been considered, and

the following aggravators and mitigators were specifically found: “The

Defendant has a history of criminal behavior; The Defendant has recently

violated the conditions of probation; The Court considers the method of the

crime; The Defendant called 911 to report the crime; and The Defendant is

admitting his guilt.” (App. at 83-84.) The written order also stated that an

aggregate sentence of seventy years had been imposed.

[9] We do not find the oral and written statements to be in irreconcilable conflict.

In each instance, the trial court clearly conveyed that the court had considered

the circumstances reflected in the Pre-Sentence Investigation Report. In each

instance, the trial court specifically articulated its consideration of the manner

in which the crime was committed, Bales’s criminal history, and his acceptance

of responsibility after commission of the instant crime. In each instance, the

aggregate sentence referenced was the same. The trial court need not have used

identical language. We find no abuse of discretion.

Court of Appeals of Indiana | Memorandum Decision 77A01-1501-CR-12 | February 29, 2016 Page 5 of 9 Abuse of Discretion – Mitigating Circumstance [10] Bales claims that the trial court abused its discretion by failing to consider his

remorse as a mitigating circumstance. An allegation that the trial court failed to

identify or find a mitigating factor requires the defendant to establish that the

mitigating evidence is not only supported by the record but also that the

mitigating evidence is significant. Anglemyer II, 875 N.E.2d at 220-21. The trial

court is not obligated to explain why it did not find a particular circumstance to

be significantly mitigating. Sherwood v. State, 749 N.E.2d 36, 38 (Ind. 2001).

[11] The trial court accorded mitigating weight to Bales’s taking responsibility for his

actions by calling 9-1-1 and pleading guilty. To the extent that Bales believes he

manifested his remorse apart from those actions, he did not present an

argument in this regard to the trial court. The trial court will not be found to

have abused its discretion by failing to find a mitigator not advanced for

consideration. Anglemyer II, 875 N.E.2d at 221.

Habitual Offender Enhancement [12] Bales admitted his status as a habitual offender and the trial court accordingly

adjudicated him a habitual offender. The trial court then purportedly imposed

a “consecutive sentence” for “Count II,” and assessed a separate $100.00 fine.

(App. at 84.) As Bales argues, and the State concedes, this was in error, as

Bales was not subject to a separate sentence and fine.

[13] At the time of Bales’s offense, Indiana Code Section 35-50-2-8(a) provided that

the State could seek to have a person sentenced as a habitual offender by Court of Appeals of Indiana | Memorandum Decision 77A01-1501-CR-12 | February 29, 2016 Page 6 of 9 alleging that the person had accumulated two prior unrelated felony

convictions. Section (h) provided that the court should sentence a person found

to be a habitual offender to an “additional fixed term” not less than the advisory

sentence for the underlying offense and not more than three times the advisory

sentence for the underlying offense, capped at thirty years. Upon his

adjudication as a habitual offender, Bales was subject to an enhancement but

not a separate sentence or fine. We remand for correction of the sentencing

order in accordance with the relevant statute.

Appropriateness of Sentence [14] Under Indiana Appellate Rule 7(B), this “Court may revise a sentence

authorized by statute if, after due consideration of the trial court’s decision, the

Court finds that the sentence is inappropriate in light of the nature of the offense

and the character of the offender.” In performing our review, we assess “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). The principal role of such review is

to attempt to leaven the outliers. Id. at 1225. A defendant ‘“must persuade the

appellate court that his or her sentence has met th[e] inappropriateness standard

of review.”’ Anglemyer, 868 N.E.2d at 494 (quoting Childress v. State, 848

N.E.2d 1073, 1080 (Ind. 2006)).

[15] As for the nature of the offense, Bales armed himself with a gun and knife and

waited for Pierce to return home. Bales first attacked Pierce with his fists, then

Court of Appeals of Indiana | Memorandum Decision 77A01-1501-CR-12 | February 29, 2016 Page 7 of 9 cut her with the knife. He smashed her forehead with the end of a rifle and

threw lamps at her as she fled through the house. Bales picked up a shotgun

and began to fire at Pierce, stopping to re-load his weapon. One shot struck

Pierce in the hand, taking off two fingers and leaving “hunks of flesh” lying on

the kitchen floor. (Tr. at 22.) One shot shattered Pierce’s tibia. Also, her

carotid artery was nicked.

[16] The police officer who responded to Bales’s 9-1-1 call found Pierce collapsed

next to a vehicle; he did not expect Pierce to survive. She required

hospitalization for over one month and has undergone multiple surgeries. One

surgery involved the insertion of a steel rod in her leg.

[17] As to the character of the offender, Bales has a criminal history consisting of

three prior felonies and four misdemeanors. Two of the felony convictions

stemmed from attacks on prior girlfriends. He held a butcher knife to the throat

of one girlfriend; he beat another with a lamp. He had been released from work

release just six weeks, and was on probation, when he committed the present

offense.

[18] Having reviewed the matter, we conclude that the trial court did not impose an

inappropriate sentence under Appellate Rule 7(B), and the sentence does not

warrant appellate revision. Accordingly, we decline to disturb the sentence

imposed by the trial court.

Conclusion

Court of Appeals of Indiana | Memorandum Decision 77A01-1501-CR-12 | February 29, 2016 Page 8 of 9 [19] Bales has not shown that the trial court abused its sentencing discretion. The

aggregate sentence imposed for Attempted Murder is not inappropriate.

However, we remand to the trial court with instructions to vacate the $100.00

fine imposed as part of the habitual offender enhancement and to enter a

sentencing order that shows Bales received a forty-year sentence, enhanced by

thirty years, due to his status as a habitual offender, as opposed to consecutive

[20] Affirmed and Remanded.

Vaidik, C.J., and Crone, J., concur.

Court of Appeals of Indiana | Memorandum Decision 77A01-1501-CR-12 | February 29, 2016 Page 9 of 9