MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Apr 20 2016, 9:11 am
this Memorandum Decision shall not be CLERK regarded as precedent or cited before any Indiana Supreme Court Court of Appeals and Tax Court 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 Megan Shipley Gregory F. Zoeller Marion County Public Defender Agency Attorney General of Indiana Indianapolis, Indiana Richard C. Webster Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Antonio Scott, April 20, 2016 Appellant-Defendant, Court of Appeals Case No. 49A02-1510-CR-1562 v. Appeal from the Marion County Superior Court State of Indiana, The Honorable Lisa F. Borges, Appellee-Plaintiff. Judge The Honorable Anne M. Flannelly, Magistrate Trial Court Cause No. 49G04-1502-F4-6949
Bradford, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A02-1510-CR-1562 | April 20, 2016 Page 1 of 7 Case Summary [1] On February 26, 2015, Appellant-Defendant Antonio Scott burglarized an
Indianapolis home. Scott was convicted of Level 4 felony burglary and found
to be a habitual offender. The trial court sentenced Scott to an aggregate thirty-
two-year term of incarceration, the maximum permissible sentence. Scott
appeals his sentence, arguing that (1) the trial court erred by failing to consider
his remorse as a mitigating factor, and (2) his sentence is inappropriate in light
of the nature of his offense and his character. We affirm Scott’s sentence.
Facts and Procedural History [2] On February 26, 2015, at approximately 12:40 p.m., Scott approached Maria
Hernandez Solis’s home and knocked on the side door of the house. Maria and
her two-year-old son were inside taking a nap. After hearing the knocking,
Maria awoke and looked out the window but did not see anyone. Scott
knocked two more times before Maria finally saw him outside the door talking
on a cell phone. After knocking a third time, Scott broke into the house by
kicking in a basement window. Maria locked herself in the bedroom and called
911.
[3] Indianapolis Metropolitan Police Officers Sally Kirkpatrick and Fred Hamer
arrived at Maria’s house a few minutes later. Maria left the bedroom to let the
officers in the house and, after a short search, they located Scott attempting to
flee. Scott complied with Officer Hamer’s order to stop and was immediately
Court of Appeals of Indiana | Memorandum Decision 49A02-1510-CR-1562 | April 20, 2016 Page 2 of 7 arrested. Officer Kirkpatrick searched Scott and found a Samsung tablet in his
pocket. The tablet was later identified as belonging to Seth Ayllon, a fourteen-
year-old relative of Maria’s who also lived at the house.
[4] Scott was charged with Level 4 felony burglary, Class A misdemeanor theft,
Class B misdemeanor criminal mischief, and was alleged to be a habitual
offender. Trial was held on September 3, 2015, and the jury found Scott guilty
as charged. Scott waived his right to a jury trial on the habitual offender
allegation and the trial court found that Scott was a habitual offender. The trial
court merged the three convictions and sentenced Scott to twelve years for
burglary enhanced by twenty years by virtue of his status as a habitual offender.
Discussion and Decision [5] On appeal, Scott claims that (1) the trial court abused its discretion during
sentencing for failing to consider Scott’s remorse as a mitigating factor, and (2)
that his sentence is inappropriate in light of the nature of his offense and his
character.
I. Abuse of Discretion [6] “[S]entencing decisions rest within the sound discretion of the trial court and
are reviewed on appeal only for an abuse of discretion.” Anglemyer v. State, 868
N.E.2d 482, 490 (Ind. 2007) decision clarified on reh’g, 875 N.E.2d 218 (Ind.
2007). “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,
Court of Appeals of Indiana | Memorandum Decision 49A02-1510-CR-1562 | April 20, 2016 Page 3 of 7 probable, and actual deductions to be drawn therefrom.’” Id. (quoting K.S. v.
State, 849 N.E.2d 538, 544 (Ind. 2006)).
One way in which a trial court may abuse its discretion is failing to enter a sentencing statement at all. Other examples include entering 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, or the sentencing statement omits reasons that are clearly supported by the record and advanced for consideration, or the reasons given are improper as a matter of law.
Id. at 490-91.
[7] Scott claims that the trial court abused its discretion for failing to consider
Scott’s remorse to be a mitigating factor. “An allegation that the trial court
failed to identify or find a mitigating factor requires the defendant to establish
that the mitigating evidence is both significant and clearly supported by the
record.” Id. at 493 (citing Carter v. State, 711 N.E.2d 835, 838 (Ind. 1999)).
However, the trial court is not required to explain why it has declined to
recognize a particular factor as mitigating. Id.
[8] In Sharkey v. State, the defendant argued that the court abused its discretion by
failing to acknowledge his remorse as a mitigating factor. 967 N.E.2d 1074,
1079 (Ind. Ct. App. 2012). The trial court in that case did not specifically
address why it declined to recognize defendant’s remorse as a significant
mitigating factor. Id at 1077. On appeal, we addressed defendant’s argument
as follows:
Court of Appeals of Indiana | Memorandum Decision 49A02-1510-CR-1562 | April 20, 2016 Page 4 of 7 We recognize that substantial deference must be given to a trial court’s evaluation of remorse. Allen v. State, 875 N.E.2d 783, 788 (Ind. Ct. App. 2007). “Remorse, or lack thereof, by a defendant is something better guarded by a trial judge who views and hears a defendant’s apology and demeanor first hand and determines the defendant’s credibility.” Phelps v. State, 914 N.E.2d 283, 293 (Ind. Ct. App. 2009). Therefore, we are unable to conclude that the trial court abused its discretion when it determined that Sharkey’s remorse was not a significant mitigator.
Id. at 1079.
[9] As in Sharkey, the trial court here did not specifically address why it did not find
Scott’s remorse to be a significant mitigating factor, nor was it required to.
Anglemyer, 868 N.E.2d at 493. The trial court either determined that Scott’s
remorse was insincere or that it was not significant enough to merit
consideration. In either case, it was within its discretion to do so.
II. Appropriateness of Sentence [10] “Ind. Appellate Rule 7(B) empowers us to independently review and revise
sentences authorized by statute if, after due consideration, we find the trial
court’s decision inappropriate in light of the nature of the offense and the
character of the offender.” Anderson v.
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MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Apr 20 2016, 9:11 am
this Memorandum Decision shall not be CLERK regarded as precedent or cited before any Indiana Supreme Court Court of Appeals and Tax Court 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 Megan Shipley Gregory F. Zoeller Marion County Public Defender Agency Attorney General of Indiana Indianapolis, Indiana Richard C. Webster Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Antonio Scott, April 20, 2016 Appellant-Defendant, Court of Appeals Case No. 49A02-1510-CR-1562 v. Appeal from the Marion County Superior Court State of Indiana, The Honorable Lisa F. Borges, Appellee-Plaintiff. Judge The Honorable Anne M. Flannelly, Magistrate Trial Court Cause No. 49G04-1502-F4-6949
Bradford, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A02-1510-CR-1562 | April 20, 2016 Page 1 of 7 Case Summary [1] On February 26, 2015, Appellant-Defendant Antonio Scott burglarized an
Indianapolis home. Scott was convicted of Level 4 felony burglary and found
to be a habitual offender. The trial court sentenced Scott to an aggregate thirty-
two-year term of incarceration, the maximum permissible sentence. Scott
appeals his sentence, arguing that (1) the trial court erred by failing to consider
his remorse as a mitigating factor, and (2) his sentence is inappropriate in light
of the nature of his offense and his character. We affirm Scott’s sentence.
Facts and Procedural History [2] On February 26, 2015, at approximately 12:40 p.m., Scott approached Maria
Hernandez Solis’s home and knocked on the side door of the house. Maria and
her two-year-old son were inside taking a nap. After hearing the knocking,
Maria awoke and looked out the window but did not see anyone. Scott
knocked two more times before Maria finally saw him outside the door talking
on a cell phone. After knocking a third time, Scott broke into the house by
kicking in a basement window. Maria locked herself in the bedroom and called
911.
[3] Indianapolis Metropolitan Police Officers Sally Kirkpatrick and Fred Hamer
arrived at Maria’s house a few minutes later. Maria left the bedroom to let the
officers in the house and, after a short search, they located Scott attempting to
flee. Scott complied with Officer Hamer’s order to stop and was immediately
Court of Appeals of Indiana | Memorandum Decision 49A02-1510-CR-1562 | April 20, 2016 Page 2 of 7 arrested. Officer Kirkpatrick searched Scott and found a Samsung tablet in his
pocket. The tablet was later identified as belonging to Seth Ayllon, a fourteen-
year-old relative of Maria’s who also lived at the house.
[4] Scott was charged with Level 4 felony burglary, Class A misdemeanor theft,
Class B misdemeanor criminal mischief, and was alleged to be a habitual
offender. Trial was held on September 3, 2015, and the jury found Scott guilty
as charged. Scott waived his right to a jury trial on the habitual offender
allegation and the trial court found that Scott was a habitual offender. The trial
court merged the three convictions and sentenced Scott to twelve years for
burglary enhanced by twenty years by virtue of his status as a habitual offender.
Discussion and Decision [5] On appeal, Scott claims that (1) the trial court abused its discretion during
sentencing for failing to consider Scott’s remorse as a mitigating factor, and (2)
that his sentence is inappropriate in light of the nature of his offense and his
character.
I. Abuse of Discretion [6] “[S]entencing decisions rest within the sound discretion of the trial court and
are reviewed on appeal only for an abuse of discretion.” Anglemyer v. State, 868
N.E.2d 482, 490 (Ind. 2007) decision clarified on reh’g, 875 N.E.2d 218 (Ind.
2007). “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,
Court of Appeals of Indiana | Memorandum Decision 49A02-1510-CR-1562 | April 20, 2016 Page 3 of 7 probable, and actual deductions to be drawn therefrom.’” Id. (quoting K.S. v.
State, 849 N.E.2d 538, 544 (Ind. 2006)).
One way in which a trial court may abuse its discretion is failing to enter a sentencing statement at all. Other examples include entering 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, or the sentencing statement omits reasons that are clearly supported by the record and advanced for consideration, or the reasons given are improper as a matter of law.
Id. at 490-91.
[7] Scott claims that the trial court abused its discretion for failing to consider
Scott’s remorse to be a mitigating factor. “An allegation that the trial court
failed to identify or find a mitigating factor requires the defendant to establish
that the mitigating evidence is both significant and clearly supported by the
record.” Id. at 493 (citing Carter v. State, 711 N.E.2d 835, 838 (Ind. 1999)).
However, the trial court is not required to explain why it has declined to
recognize a particular factor as mitigating. Id.
[8] In Sharkey v. State, the defendant argued that the court abused its discretion by
failing to acknowledge his remorse as a mitigating factor. 967 N.E.2d 1074,
1079 (Ind. Ct. App. 2012). The trial court in that case did not specifically
address why it declined to recognize defendant’s remorse as a significant
mitigating factor. Id at 1077. On appeal, we addressed defendant’s argument
as follows:
Court of Appeals of Indiana | Memorandum Decision 49A02-1510-CR-1562 | April 20, 2016 Page 4 of 7 We recognize that substantial deference must be given to a trial court’s evaluation of remorse. Allen v. State, 875 N.E.2d 783, 788 (Ind. Ct. App. 2007). “Remorse, or lack thereof, by a defendant is something better guarded by a trial judge who views and hears a defendant’s apology and demeanor first hand and determines the defendant’s credibility.” Phelps v. State, 914 N.E.2d 283, 293 (Ind. Ct. App. 2009). Therefore, we are unable to conclude that the trial court abused its discretion when it determined that Sharkey’s remorse was not a significant mitigator.
Id. at 1079.
[9] As in Sharkey, the trial court here did not specifically address why it did not find
Scott’s remorse to be a significant mitigating factor, nor was it required to.
Anglemyer, 868 N.E.2d at 493. The trial court either determined that Scott’s
remorse was insincere or that it was not significant enough to merit
consideration. In either case, it was within its discretion to do so.
II. Appropriateness of Sentence [10] “Ind. Appellate Rule 7(B) empowers us to independently review and revise
sentences authorized by statute if, after due consideration, we find the trial
court’s decision inappropriate in light of the nature of the offense and the
character of the offender.” Anderson v. State, 989 N.E.2d 823, 827 (Ind. Ct.
App. 2013), trans. denied. “An appellant bears the burden of showing both
prongs of the inquiry favor revision of [his] sentence.” Id. (citing Childress v.
State, 848 N.E.2d 1073, 1080 (Ind. 2006)). “We must give ‘deference to a trial
court’s sentencing decision, both because Rule 7(B) requires us to give due
consideration to that decision and because we understand and recognize the
Court of Appeals of Indiana | Memorandum Decision 49A02-1510-CR-1562 | April 20, 2016 Page 5 of 7 unique perspective a trial court brings to its sentencing decisions.’” Gil v. State,
988 N.E.2d 1231, 1237 (Ind. Ct. App. 2013) (quoting Trainor v. State, 950
N.E.2d 352, 355-56 (Ind. Ct. App. 2011), trans. denied.).
[11] Scott’s character is evidenced by his criminal history, which began over thirty
years ago. Scott had three juvenile adjudications for crimes which would have
been Class D felonies had he been an adult. As an adult, Scott has amassed six
prior misdemeanor and eight prior felony convictions, including two burglary
convictions. Additionally, Scott has had his probation revoked on five separate
occasions. In short, Scott’s criminal history reveals that he is unwilling or
unable to reform. Scott testified that he has struggled with a severe crack-
cocaine addiction for years, it has fueled much of his criminal activity, and he
was high during the commission of the instant crime. While we sympathize
with the seemingly debilitating nature of Scott’s drug addiction, we also
recognize that he has had countless chances to reform his behavior and his
attempts at substance abuse treatment were unsuccessful. As such, Scott’s
character certainly merits an enhanced sentence.
[12] Scott argues that the nature of his crime was far from egregious and did not
warrant the maximum sentence. Specifically, he points to the facts that he
believed there was no one in the house when he broke in, he did not threaten or
use violence, and he immediately surrendered to police. While Scott may have
believed the house to be empty, that was not the case. A pregnant woman and
her two-year-old child were inside, locked in the bedroom afraid for their lives.
In a letter to the prosecutor, Maria indicated that she did not want to testify due
Court of Appeals of Indiana | Memorandum Decision 49A02-1510-CR-1562 | April 20, 2016 Page 6 of 7 to the overwhelming “fear, anxiety, and paranoia” she has suffered since the
burglary. State’s Sentencing Ex. 1. Accordingly, we find that Scott has failed
to show that either the nature of the offense or his character favor revision of
this sentence.
[13] The judgment of the trial court is affirmed.
Bailey, J., and Altice, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A02-1510-CR-1562 | April 20, 2016 Page 7 of 7