Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any Jan 09 2014, 6:36 am 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:
DONALD C. SWANSON, JR. GREGORY F. ZOELLER Deputy Public Defender Attorney General of Indiana Fort Wayne, Indiana CHANDRA K. HEIN Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
ANTHONY A. OUTLAW, JR., ) ) Appellant-Defendant, ) ) vs. ) No. 02A04-1305-CR-250 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE ALLEN SUPERIOR COURT The Honorable Wendy W. Davis, Judge Cause No. 02D06-1302-FD-129
January 9, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
FRIEDLANDER, Judge Anthony A. Outlaw, Jr. appeals the sentence he received following his conviction of
theft, a class D felony, which was entered upon his guilty plea. Outlaw contends his sentence
is inappropriate in light of his character and the nature of his offense.
We affirm.
The facts as admitted by Outlaw are that on January 31, 2013, Outlaw entered a
Macy’s Department Store and took several bottles of cologne, two pairs of gloves, three
rings, and a watch and placed them in a bag. Several Macy’s employees observed what
Outlaw was doing on store surveillance cameras. When Outlaw attempted to exit the store
without paying for them, he was stopped by a Macy’s loss prevention officer and asked about
the items in the bag. Police were summoned. Outlaw was transported to the Allen County
Jail where, after waiving his rights, he admitted that he took “two or three pairs of gloves”
and walked out of the store without paying for them. Appellant’s Appendix at 23. Outlaw
was charged with theft as a class D felony, and subsequently pled guilty to that charge. The
trial court sentenced Outlaw to 548 (1 year plus 183 days) days, all executed, in the
Department of Correction.
Outlaw contends his sentence was inappropriate in light of his character and the nature
of his offense. Article 7, section 4 of the Indiana Constitution grants our Supreme Court the
power to review and revise criminal sentences. Pursuant to Ind. Appellate Rule 7, the
Supreme Court authorized this court to perform the same task. Cardwell v. State, 895 N.E.2d
1219 (Ind. 2008). Per Indiana Appellate Rule 7(B), we may revise a sentence “if, after due
consideration of the trial court’s decision, the Court finds that the sentence is inappropriate in
2 light of the nature of the offense and the character of the offender.” Wilkes v. State, 917
N.E.2d 675, 693 (Ind. 2009), cert. denied, 131 S.Ct. 414 (2010). “[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 at 1223. Outlaw bears the burden on appeal of
persuading us that his sentence is inappropriate. Childress v. State, 848 N.E.2d 1073 (Ind.
2006).
The determination of whether we regard a sentence as appropriate “turns on our sense
of 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 at
1224. Moreover, “[t]he 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. Accordingly, “the question under Appellate Rule 7(B) is not whether
another sentence is more appropriate; rather, the question is whether the sentence imposed is
inappropriate.” King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008) (emphasis in
original).
In order to assess the appropriateness of a sentence, we first look to the statutory
ranges established for the classification of the relevant offense. Outlaw was convicted of
theft as a class D felony. Under the current scheme, the advisory sentence for a class D
felony is one and one-half years; the maximum sentence is three years. Therefore, Outlaw
received, for all intents and purposes, the advisory sentence. The advisory sentence is the
3 starting point chosen by our legislature as an appropriate sentence for the crime committed.
Therefore, the defendant “bears a particularly heavy burden in persuading us that his sentence
is inappropriate when the trial court imposes the advisory sentence.” Fernbach v. State, 954
N.E.2d 1080, 1089 (Ind. Ct. App. 2011), trans. denied.
We note initially that Outlaw challenges his sentence in part upon the claim that,
“substantial mitigating circumstances were not properly weighed by the court, and this Court
should reweigh the factors and impose the minimum sentence of six (6) months executed.”
Appellant’s Brief at 7. Our Supreme Court has explained that under the current advisory
sentencing scheme, trial courts do not have an obligation to weigh aggravating and mitigating
factors against each other when imposing a sentence. See Anglemyer v. State, 868 N.E.2d
482 (Ind. 2006), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007). Therefore, the weight the
trial court assigns to any aggravating or mitigating circumstance is not subject to appellate
review. Id.
Therefore, we turn to the arguments made on Outlaw’s behalf that focus upon his
character and the nature of his offense. Beginning with his character, Outlaw pled guilty,
admitted his responsibility, and showed remorse. Outlaw also claimed that he suffers from
serious health conditions, including cancer, liver complications, arthritis, and bipolar
disorder. He also claimed to be homeless and without financial resources.
We acknowledge that a defendant who pleads guilty deserves to have at least some
mitigating weight extended to the guilty plea in return. Lavoie v. State, 903 N.E.2d 135 (Ind.
Ct. App. 2009). It has been observed, however, that “a guilty plea does not rise to the level
4 of significant mitigation where the defendant has received a substantial benefit from the plea
or where the evidence against him is such that the decision to plead guilty is merely a
pragmatic one.” Id. at 143 (quoting Wells v. State, 836 N.E.2d 475, 479 (Ind. Ct. App. 2005),
trans. denied). In Outlaw’s case, the evidence of guilt was overwhelming. Therefore, his
decision to plead guilty is a pragmatic one that does not merit significant mitigating weight.
Moreover, Outlaw’s expression of remorse fell far short of heartfelt contrition. He stated, “I
did what I did. I’m not going to sit here and go all outlandish about it, you know. Standing
on the street corner begging for change and whatever would not have (inaudible) this
prosecutor, because I guess that’s a crime, you know. So what I did, I did.” Transcript at 6.
Neither of these factors represent a strong argument for a reduced sentence.
Defense counsel argued that Outlaw’s mental and physical challenges and difficulties
should mitigate his sentence.
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Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any Jan 09 2014, 6:36 am 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:
DONALD C. SWANSON, JR. GREGORY F. ZOELLER Deputy Public Defender Attorney General of Indiana Fort Wayne, Indiana CHANDRA K. HEIN Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
ANTHONY A. OUTLAW, JR., ) ) Appellant-Defendant, ) ) vs. ) No. 02A04-1305-CR-250 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE ALLEN SUPERIOR COURT The Honorable Wendy W. Davis, Judge Cause No. 02D06-1302-FD-129
January 9, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
FRIEDLANDER, Judge Anthony A. Outlaw, Jr. appeals the sentence he received following his conviction of
theft, a class D felony, which was entered upon his guilty plea. Outlaw contends his sentence
is inappropriate in light of his character and the nature of his offense.
We affirm.
The facts as admitted by Outlaw are that on January 31, 2013, Outlaw entered a
Macy’s Department Store and took several bottles of cologne, two pairs of gloves, three
rings, and a watch and placed them in a bag. Several Macy’s employees observed what
Outlaw was doing on store surveillance cameras. When Outlaw attempted to exit the store
without paying for them, he was stopped by a Macy’s loss prevention officer and asked about
the items in the bag. Police were summoned. Outlaw was transported to the Allen County
Jail where, after waiving his rights, he admitted that he took “two or three pairs of gloves”
and walked out of the store without paying for them. Appellant’s Appendix at 23. Outlaw
was charged with theft as a class D felony, and subsequently pled guilty to that charge. The
trial court sentenced Outlaw to 548 (1 year plus 183 days) days, all executed, in the
Department of Correction.
Outlaw contends his sentence was inappropriate in light of his character and the nature
of his offense. Article 7, section 4 of the Indiana Constitution grants our Supreme Court the
power to review and revise criminal sentences. Pursuant to Ind. Appellate Rule 7, the
Supreme Court authorized this court to perform the same task. Cardwell v. State, 895 N.E.2d
1219 (Ind. 2008). Per Indiana Appellate Rule 7(B), we may revise a sentence “if, after due
consideration of the trial court’s decision, the Court finds that the sentence is inappropriate in
2 light of the nature of the offense and the character of the offender.” Wilkes v. State, 917
N.E.2d 675, 693 (Ind. 2009), cert. denied, 131 S.Ct. 414 (2010). “[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 at 1223. Outlaw bears the burden on appeal of
persuading us that his sentence is inappropriate. Childress v. State, 848 N.E.2d 1073 (Ind.
2006).
The determination of whether we regard a sentence as appropriate “turns on our sense
of 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 at
1224. Moreover, “[t]he 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. Accordingly, “the question under Appellate Rule 7(B) is not whether
another sentence is more appropriate; rather, the question is whether the sentence imposed is
inappropriate.” King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008) (emphasis in
original).
In order to assess the appropriateness of a sentence, we first look to the statutory
ranges established for the classification of the relevant offense. Outlaw was convicted of
theft as a class D felony. Under the current scheme, the advisory sentence for a class D
felony is one and one-half years; the maximum sentence is three years. Therefore, Outlaw
received, for all intents and purposes, the advisory sentence. The advisory sentence is the
3 starting point chosen by our legislature as an appropriate sentence for the crime committed.
Therefore, the defendant “bears a particularly heavy burden in persuading us that his sentence
is inappropriate when the trial court imposes the advisory sentence.” Fernbach v. State, 954
N.E.2d 1080, 1089 (Ind. Ct. App. 2011), trans. denied.
We note initially that Outlaw challenges his sentence in part upon the claim that,
“substantial mitigating circumstances were not properly weighed by the court, and this Court
should reweigh the factors and impose the minimum sentence of six (6) months executed.”
Appellant’s Brief at 7. Our Supreme Court has explained that under the current advisory
sentencing scheme, trial courts do not have an obligation to weigh aggravating and mitigating
factors against each other when imposing a sentence. See Anglemyer v. State, 868 N.E.2d
482 (Ind. 2006), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007). Therefore, the weight the
trial court assigns to any aggravating or mitigating circumstance is not subject to appellate
review. Id.
Therefore, we turn to the arguments made on Outlaw’s behalf that focus upon his
character and the nature of his offense. Beginning with his character, Outlaw pled guilty,
admitted his responsibility, and showed remorse. Outlaw also claimed that he suffers from
serious health conditions, including cancer, liver complications, arthritis, and bipolar
disorder. He also claimed to be homeless and without financial resources.
We acknowledge that a defendant who pleads guilty deserves to have at least some
mitigating weight extended to the guilty plea in return. Lavoie v. State, 903 N.E.2d 135 (Ind.
Ct. App. 2009). It has been observed, however, that “a guilty plea does not rise to the level
4 of significant mitigation where the defendant has received a substantial benefit from the plea
or where the evidence against him is such that the decision to plead guilty is merely a
pragmatic one.” Id. at 143 (quoting Wells v. State, 836 N.E.2d 475, 479 (Ind. Ct. App. 2005),
trans. denied). In Outlaw’s case, the evidence of guilt was overwhelming. Therefore, his
decision to plead guilty is a pragmatic one that does not merit significant mitigating weight.
Moreover, Outlaw’s expression of remorse fell far short of heartfelt contrition. He stated, “I
did what I did. I’m not going to sit here and go all outlandish about it, you know. Standing
on the street corner begging for change and whatever would not have (inaudible) this
prosecutor, because I guess that’s a crime, you know. So what I did, I did.” Transcript at 6.
Neither of these factors represent a strong argument for a reduced sentence.
Defense counsel argued that Outlaw’s mental and physical challenges and difficulties
should mitigate his sentence. It is unclear, however, that these conditions contributed to his
offense. Indeed, in light of his extensive criminal history, it appears that this offense was not
the product of physical infirmities and mental disability as much as it was merely the latest
iteration of a well-established pattern of criminal conduct. The same can be said of Outlaw’s
financial woes. At sentencing, counsel described Outlaw as “homeless”, and “in miserable
financial shape [.]” Id. at 4. Although lamentable, there is nothing in the record to indicate
that the present offense was a product of those conditions. Instead, it appears that Outlaw is
a career criminal. Stretching back to 1976, he has accumulated 14 misdemeanor and 8
felony convictions, which includes multiple convictions for conduct similar to that in the
present case, i.e., two felony convictions for burglary, two felony convictions for theft, five
5 misdemeanor convictions for criminal conversion, and one misdemeanor conviction for theft.
In light of the foregoing, we find nothing inappropriate about Outlaw’s 548-day sentence.
Judgment affirmed.
KIRSCH, J., and BAILEY, J., concur.