MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Oct 15 2018, 6:17 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Andrew K. Porter Curtis T. Hill, Jr. Feavel & Porter Attorney General of Indiana Vincennes, Indiana Angela N. Sanchez Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Alex Bise, October 15, 2018 Appellant-Defendant, Court of Appeals Case No. 26A01-1711-PC-2747 v. Appeal from the Gibson Superior Court State of Indiana, The Honorable Earl G. Penrod, Appellee-Plaintiff. Judge Trial Court Cause No. 26D01-1510-PC-589
Mathias, Judge.
Court of Appeals of Indiana | Memorandum Decision 26A01-1711-PC-2747 | October 15, 2018 Page 1 of 8 [1] The Gibson Superior Court ordered Alex Bise (“Bise”) to serve forty-three years
for his Class A felony attempted murder conviction. Bise appeals his sentence
and raises two issues, which we restate as:
I. Whether the trial court abused its discretion when it made a statement regarding the impact Bise’s offense had on the drug court program; and
II. Whether Bise’s forty-three-year sentence is inappropriate in light of the nature of the offense and the character of the offender.
[2] We affirm.
Facts and Procedural History [3] Bise, who has been convicted of numerous alcohol- and drug-related offenses,
was a participant in the Gibson County Substance Abuse Treatment Court
Program. Bise was residing with sixty-seven-year old Anne Myers who was
assisting Bise with his completion of the program requirements.
[4] On May 2, 2014, a police officer from the Oakland City Police Department
arrived at Myers’s home for the purpose of serving an arrest warrant on Bise.
No one answered the officer’s knock at the door. But the officer entered the
home because he saw Myers laying on the ground in a fetal position surrounded
by a pool of blood. Bise was seated on the couch, and he was agitated, smelled
of alcohol, and had blood on his clothes and hands.
[5] Myers was severely beaten, and her jaw was obviously broken. The officer saw
at least four stab wounds on her arms and legs. Myers also had a black eye.
Myers had been lying on the floor surrounded by her blood for thirty minutes to
Court of Appeals of Indiana | Memorandum Decision 26A01-1711-PC-2747 | October 15, 2018 Page 2 of 8 an hour before the officer arrived. Myers was able to tell the officer that Bise
beat her and that he stated he was going to kill her. Later, Myers told the police
that Bise beat her with his fists, a cane, and a broom handle, and stabbed her
with a survival knife. Myers is a diminutive woman, and she was not able to
defend herself. Fearing that Myers might not make it to the hospital in time to
save her life, the officer escorted the ambulance to the hospital, and the
Evansville Police Department blocked intersections to clear the roadway.
[6] Bise admitted that he beat Myers. He also told the officers that he consumed
alcohol and used methamphetamine prior to beating Myers. Bise later stated
that he was angry with Myers and claimed that she was interested in a romantic
relationship with him.
[7] Bise was charged with Class A felony attempted murder, and he pleaded guilty
to the crime approximately one month after he was charged. The trial court
held Bise’s sentencing hearing on August 13, 2014. The trial court noted as
aggravating factors Bise’s extensive, although primarily drug- and alcohol-
related, criminal history and the fact that he committed the crime while serving
in the drug court program. The trial court also considered the extremely brutal
nature of the crime and that Myers was beaten repeatedly as aggravating
circumstances. In addition, the court found that Myers’s age and the fact that
Bise victimized the person who was supporting him and helping him through
the drug court program were aggravating circumstances. Finally, the court
considered the likelihood that Bise will continue to have issues with substance
abuse as an aggravating factor.
Court of Appeals of Indiana | Memorandum Decision 26A01-1711-PC-2747 | October 15, 2018 Page 3 of 8 [8] With regard to mitigating circumstances, the trial court considered Bise’s guilty
plea during the early stages of the proceedings. The court found that Bise
accepted responsibility for his crime and expressed remorse. And the court gave
modest mitigating weight to Bise’s struggle with substance abuse and the impact
it had on his offense.
[9] Finally, before pronouncing Bise’s sentence, the trial court noted the impact
that Bise’s crime had on the community and the drug court program. However,
the court expressly stated that it was “not going to sentence [Bise] based upon
this particular factor.” Tr. p. 63. The court then sentenced Bise to serve forty-
three years in the Department of Correction. Bise now belatedly appeals his
sentence.
Discussion and Decision [10] Bise argues that the trial court improperly considered an aggravating
circumstance and claims that his forty-three-year sentence is inappropriate in
light of the nature of the offense and the character of the offender.
I. Abuse of Discretion
[11] Sentencing decisions rest within the sound discretion of the trial court and are
reviewed only for an abuse of discretion. Anglemyer v. State, 868 N.E.2d 482,
490 (Ind. 2007), clarified on reh'g, 875 N.E.2d 218. An abuse of discretion occurs
if the decision is “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.” Id. A trial court abuses its discretion if it:
Court of Appeals of Indiana | Memorandum Decision 26A01-1711-PC-2747 | October 15, 2018 Page 4 of 8 (1) fails “to enter a sentencing statement at all,” (2) enters “a sentencing
statement that explains reasons for imposing a sentence—including a finding of
aggravating and mitigating factors if any—but the record does not support the
reasons,” (3) enters a sentencing statement that “omits reasons that are clearly
supported by the record and advanced for consideration,” or (4) considers
reasons that “are improper as a matter of law.” Id. at 490–91. The relative
weight or value assignable to reasons properly found, or those which should
have been found, is not subject to review for abuse of discretion. Id. at 491.
[12] Bise argues that the trial court relied on an improper aggravating factor, i.e. the
negative impact Bise’s crime had on the drug court program. The trial court
made a statement addressing Bise’s participation in the drug court program and
the negative impact his crime had on that program and the community as a
whole. However, the trial court expressly stated that it was “not going to
sentence [Bise] based upon this particular factor, but it was referenced by the
State and I think it bears mentioning.” Tr. p. 63. After making its statement, the
court again stated that it was not considering the negative impact on the drug
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Oct 15 2018, 6:17 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Andrew K. Porter Curtis T. Hill, Jr. Feavel & Porter Attorney General of Indiana Vincennes, Indiana Angela N. Sanchez Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Alex Bise, October 15, 2018 Appellant-Defendant, Court of Appeals Case No. 26A01-1711-PC-2747 v. Appeal from the Gibson Superior Court State of Indiana, The Honorable Earl G. Penrod, Appellee-Plaintiff. Judge Trial Court Cause No. 26D01-1510-PC-589
Mathias, Judge.
Court of Appeals of Indiana | Memorandum Decision 26A01-1711-PC-2747 | October 15, 2018 Page 1 of 8 [1] The Gibson Superior Court ordered Alex Bise (“Bise”) to serve forty-three years
for his Class A felony attempted murder conviction. Bise appeals his sentence
and raises two issues, which we restate as:
I. Whether the trial court abused its discretion when it made a statement regarding the impact Bise’s offense had on the drug court program; and
II. Whether Bise’s forty-three-year sentence is inappropriate in light of the nature of the offense and the character of the offender.
[2] We affirm.
Facts and Procedural History [3] Bise, who has been convicted of numerous alcohol- and drug-related offenses,
was a participant in the Gibson County Substance Abuse Treatment Court
Program. Bise was residing with sixty-seven-year old Anne Myers who was
assisting Bise with his completion of the program requirements.
[4] On May 2, 2014, a police officer from the Oakland City Police Department
arrived at Myers’s home for the purpose of serving an arrest warrant on Bise.
No one answered the officer’s knock at the door. But the officer entered the
home because he saw Myers laying on the ground in a fetal position surrounded
by a pool of blood. Bise was seated on the couch, and he was agitated, smelled
of alcohol, and had blood on his clothes and hands.
[5] Myers was severely beaten, and her jaw was obviously broken. The officer saw
at least four stab wounds on her arms and legs. Myers also had a black eye.
Myers had been lying on the floor surrounded by her blood for thirty minutes to
Court of Appeals of Indiana | Memorandum Decision 26A01-1711-PC-2747 | October 15, 2018 Page 2 of 8 an hour before the officer arrived. Myers was able to tell the officer that Bise
beat her and that he stated he was going to kill her. Later, Myers told the police
that Bise beat her with his fists, a cane, and a broom handle, and stabbed her
with a survival knife. Myers is a diminutive woman, and she was not able to
defend herself. Fearing that Myers might not make it to the hospital in time to
save her life, the officer escorted the ambulance to the hospital, and the
Evansville Police Department blocked intersections to clear the roadway.
[6] Bise admitted that he beat Myers. He also told the officers that he consumed
alcohol and used methamphetamine prior to beating Myers. Bise later stated
that he was angry with Myers and claimed that she was interested in a romantic
relationship with him.
[7] Bise was charged with Class A felony attempted murder, and he pleaded guilty
to the crime approximately one month after he was charged. The trial court
held Bise’s sentencing hearing on August 13, 2014. The trial court noted as
aggravating factors Bise’s extensive, although primarily drug- and alcohol-
related, criminal history and the fact that he committed the crime while serving
in the drug court program. The trial court also considered the extremely brutal
nature of the crime and that Myers was beaten repeatedly as aggravating
circumstances. In addition, the court found that Myers’s age and the fact that
Bise victimized the person who was supporting him and helping him through
the drug court program were aggravating circumstances. Finally, the court
considered the likelihood that Bise will continue to have issues with substance
abuse as an aggravating factor.
Court of Appeals of Indiana | Memorandum Decision 26A01-1711-PC-2747 | October 15, 2018 Page 3 of 8 [8] With regard to mitigating circumstances, the trial court considered Bise’s guilty
plea during the early stages of the proceedings. The court found that Bise
accepted responsibility for his crime and expressed remorse. And the court gave
modest mitigating weight to Bise’s struggle with substance abuse and the impact
it had on his offense.
[9] Finally, before pronouncing Bise’s sentence, the trial court noted the impact
that Bise’s crime had on the community and the drug court program. However,
the court expressly stated that it was “not going to sentence [Bise] based upon
this particular factor.” Tr. p. 63. The court then sentenced Bise to serve forty-
three years in the Department of Correction. Bise now belatedly appeals his
sentence.
Discussion and Decision [10] Bise argues that the trial court improperly considered an aggravating
circumstance and claims that his forty-three-year sentence is inappropriate in
light of the nature of the offense and the character of the offender.
I. Abuse of Discretion
[11] Sentencing decisions rest within the sound discretion of the trial court and are
reviewed only for an abuse of discretion. Anglemyer v. State, 868 N.E.2d 482,
490 (Ind. 2007), clarified on reh'g, 875 N.E.2d 218. An abuse of discretion occurs
if the decision is “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.” Id. A trial court abuses its discretion if it:
Court of Appeals of Indiana | Memorandum Decision 26A01-1711-PC-2747 | October 15, 2018 Page 4 of 8 (1) fails “to enter a sentencing statement at all,” (2) enters “a sentencing
statement that explains reasons for imposing a sentence—including a finding of
aggravating and mitigating factors if any—but the record does not support the
reasons,” (3) enters a sentencing statement that “omits reasons that are clearly
supported by the record and advanced for consideration,” or (4) considers
reasons that “are improper as a matter of law.” Id. at 490–91. The relative
weight or value assignable to reasons properly found, or those which should
have been found, is not subject to review for abuse of discretion. Id. at 491.
[12] Bise argues that the trial court relied on an improper aggravating factor, i.e. the
negative impact Bise’s crime had on the drug court program. The trial court
made a statement addressing Bise’s participation in the drug court program and
the negative impact his crime had on that program and the community as a
whole. However, the trial court expressly stated that it was “not going to
sentence [Bise] based upon this particular factor, but it was referenced by the
State and I think it bears mentioning.” Tr. p. 63. After making its statement, the
court again stated that it was not considering the negative impact on the drug
court program as an aggravating factor and the court was focused on Bise and
the crime he committed. Id. at p. 64. We therefore conclude that Bise’s
argument challenging the court’s statement lacks merit.
[13] Bise also claims that the trial court did not consider his remorse and guilty plea
as mitigating circumstances. But the trial court expressly stated that it found
Bise’s guilty plea and remorse as mitigating circumstances and engaged in a
thoughtful discussion of those factors. Id. at pp. 58–60. Bise’s claim is more
Court of Appeals of Indiana | Memorandum Decision 26A01-1711-PC-2747 | October 15, 2018 Page 5 of 8 appropriately framed as a challenge to the weight the trial court assigned to
those mitigating factors. But the weight a trial court affords to mitigating
circumstances is not subject to appellate review. See Anglemyer, 868 N.E.2d at
491.
[14] For all of these reasons, we conclude that the trial court did not abuse its
discretion when it sentenced Bise.
II. Inappropriate Sentence
[15] Indiana Appellate Rule 7(B) provides that “[t]he 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 conducting our review, “[w]e do not look
to determine if the sentence was appropriate; instead we look to make sure the
sentence was not inappropriate.” Conley v. State, 972 N.E.2d 864, 876 (Ind.
2012). “[S]entencing is principally a discretionary function in which the trial
court’s judgment should receive considerable deference.” Cardwell v. State, 895
N.E.2d 1219, 1222 (Ind. 2008).
[16] Thus, although we have the power to review and revise sentences, the principal
role of appellate review should be to attempt to “leaven the outliers, and
identify some guiding principles for trial courts and those charged with
improvement of the sentencing statutes, but not to achieve a perceived ‘correct’
result in each case.” Id. at 1225. It is Bise’s burden on appeal to establish that
Court of Appeals of Indiana | Memorandum Decision 26A01-1711-PC-2747 | October 15, 2018 Page 6 of 8 his sentence is inappropriate. Grimes v. State, 84 N.E.3d 635, 645 (Ind. Ct. App.
2017), trans. denied.
[17] When considering the nature of the offense, we observe that “the advisory
sentence is the starting point the Legislature selected as appropriate for the
crime committed.” Pierce v. State, 949 N.E.2d 349, 352 (Ind. 2011). On the date
Bise committed his crime, the advisory sentence for a Class A felony was thirty
years. See Ind. Code § 35-50-2-4(a). Bise’s forty-three-year sentence is seven
years less than the maximum fifty-year sentence he could have received. See id.
[18] Bise brutally and repeatedly beat Myers, a defenseless sixty-seven-year-old
woman who is half his size. He beat her with his fists, a cane, and a broom
handle. Bise also stabbed her repeatedly with a survival knife. There is one
picture of Myers in the record, and the image is horrifying. After Bise beat
Myers, she lay in a pool of her own blood for thirty minutes to an hour before a
police officer fortuitously arrived at her residence. Bise did not attempt to
provide any assistance to Myers. Myers received a police escort to the hospital
because police officers and EMTs feared that Myers would die on the way to
the hospital.
[19] Forty-five-year-old Bise has an extensive criminal record dating back to 1988.
Although most of his offenses are alcohol- or substance abuse-related
misdemeanors, Bise also has convictions for Class C felony assisting a criminal,
Class C felony intimidation, Class A misdemeanor battery resulting in bodily
injury, and Class A misdemeanor resisting law enforcement. Bise’s probation
Court of Appeals of Indiana | Memorandum Decision 26A01-1711-PC-2747 | October 15, 2018 Page 7 of 8 was revoked or he received an unsatisfactory discharge from probation six
times. When he committed this offense, he was participating in drug court. And
he committed his offense against the individual providing him assistance and a
place to live as he attempted to complete the drug court program.
[20] Bise did not receive the maximum sentence because he pleaded guilty, accepted
responsibility, and expressed remorse for his actions, all of which reflect
positively on his character. But the brutal nature of his offense and his inability
to lead a law-abiding life more than support the trial court’s decision to impose
a forty-three-year sentence. Considering the nature of the offense and the
character of the offender, we conclude that Bise’s forty-three-year sentence is
not inappropriate.
Conclusion [21] The trial court’s sentencing statement thoroughly and thoughtfully sets out its
reasons for sentencing Bise to serve forty-three years in the Department of
Correction. The trial court did not abuse its discretion when it sentenced Bise,
and his sentence is not inappropriate in light of the nature of the offense and the
character of the offender.
[22] Affirmed.
Bailey, J., and Bradford, J., concur.
Court of Appeals of Indiana | Memorandum Decision 26A01-1711-PC-2747 | October 15, 2018 Page 8 of 8