Banks v. State

841 N.E.2d 654, 2006 Ind. App. LEXIS 160, 2006 WL 267170

• Court: Indiana Court of Appeals
• Decided: February 6, 2006
• Docket: 79A05-0506-CR-336
• Status: Published

Opinions

OPINION

CRONE, Judge.

Case Summary

Carl Banks appeals his sentence for operating a motor vehicle while privileges are forfeited for life, a class C felony. We affirm.

Issues

We restate the issues as follows:

I. Whether the trial court abused its discretion in failing to find certain mitigating factors and in weighing the aggravators and mitigators; and

II. Whether the sentence is appropriate.

Facts and Procedural History

On October 8, 2004, the State charged Banks with operating a motor vehicle while privileges are forfeited for life, a class C felony. On February 23, 2005, Banks pleaded guilty. Pursuant to the plea agreement, Banks acknowledged that he would receive "such sentences as this Court deems appropriate after hearing any evidence or argument of counsel." Appellant's App. at 6. The advisory sentence for a class C felony is a fixed term of four years. Ind.Code § 85-50-2-6. The trial court may add not more than four years for aggravating cireumstances and subtract not more than two years for mitigating circumstances. Id. Following a sentencing hearing on May 10, 2005, the trial court entered its sentencing order that same day, stating in pertinent part:

The Court finds as aggravating factors that the defendant has a history of criminal or delinquent activity, the defendant was on probation at the time of the instant offense, and there have been prior attempts at rehabilitation that have been unsuccessful.

The Court finds as a mitigating factor the defendant has a good work history.

The Court further finds that the aggravating factors outweigh the mitigating factors.

IT IS ORDERED AND ADJUDGED that the defendant, Carl L. Banks, be, and he hereby is, sentenced to the Indiana Department of Correction for a period of six (6) years for the crime of Operating a Motor Vehicle While Privileges Are Forfeited for Life, as charged in Count I, a Class C felony. The defendant shall execute four years and two years shall be suspended.

The defendant shall serve the executed portion of his sentence of four (4) years with Tippecanoe County Community Corrections. The first two (@) years shall be served on Work Release and the remaining two (2) years shall be served at a level to be determined by Tippecanoe County Community Corree-tions (and consultation with Probation Department) with an initial recommendation of house arrest. Upon notification the defendant does not qualify for Tippecanoe County Community Corrections or is rejected he will be transported to the Indiana Department of Corrections to serve his executed sentence.

IT IS FURTHER ORDERED AND ADJUDGED that two (2) years of the sentence of imprisonment should be, and the same hereby is, suspended and the defendant placed on supervised probation for two (2) years.

Appellant's App. at 57-58.

On May 18, 2005, the State filed a petition to revoke probation subsequent to Banks's failure to contact the work release program. On May 31, 2005, the trial court issued an arrest warrant for Banks because of his failure to report to work release. Banks now appeals.

Discussion and Decision

Banks contends that the trial court "improperly exercised it's [sic] discretion in the finding and balancing of aggravating and mitigating cireumstances, and as a result the defendant received an inappropriate and excessive [four] year executed sentence." Appellant's Br. at 8. As this Court recently noted in a similar case, whether the trial court abused its discretion in weighing aggravators and miti-gators has in the past been a separate analysis from whether the sentence was inappropriate under Indiana Appellate Rule 7(B). Hope v. State, 834 N.E.2d 713, 717 (Ind.Ct.App.2005) (citing Noojin v. State, 730 N.E.2d 672, 678 (Ind.2000)). In recent opinions, however, our supreme court has combined the two standards. Id. We described the revised analysis as follows:

Now, when faced with a non-Blakely challenge to an enhanced sentence, it appears the first step is to determine whether the trial court issued a sentencing statement that (1) identified all significant mitigating and aggravating circumstances; (2) stated the specific reason why each cireumstance is determined to be mitigating or aggravating; and (8) articulated the court's evaluation and balancing of the cireumstances. If we find an irregularity in a trial court's sentencing decision, we have the option to remand to the trial court for a clarification or new sentencing determination, to affirm the sentence if the error is harmless, or to reweigh the proper aggravating and mitigating cireumstances independently at the appellate level. Even if there is no irregularity and the trial court followed the proper procedures in imposing sentence, we still may exercise our authority under Appellate Rule 7(B) to revise a sentence that we conclude is inappropriate in light of the nature of the offense and the character of the offender.

Id. at 717-18 (citations and quotation marks omitted).

I. Aggravating/Mitigating Factors

Here, the trial court identified three aggravators and one mitigator in its sentencing statement, and Banks does not dispute the court's use of those factors. Banks claims, however, that the trial court failed to find several additional mitigators that were present, including a probation department Level of Services Inventory ("LSI") that showed Banks to be a low/moderate risk to reoffend; Banks's relationship with his "supportive significant other"; his guilty plea; his expression of remorse at the sentencing hearing; and the fact that his crime was non-violent and victimless. Appellant's Br. at 10.

While a sentencing court must consider all evidence of mitigating cireum-stances presented by a defendant, the finding of mitigating cireumstances rests within the sound discretion of the court. The trial court need not consider, and we will not remand for reconsideration of, alleged mitigating factors that are highly disputable in nature, weight, or significance. A sentencing court need not agree with the defendant as to the weight or value to be given to proffered mitigating facts. The trial court is not obligated to explain why it did not find a factor to be significantly mitigating. Indeed, a sentencing court is under no obligation to find mitigating factors at all.

Newsome v. State, 797 N.E.2d 293, 301 (Ind.Ct.App.2008) (citations omitted), trans. denied. When a trial court fails to find a mitigator clearly supported by the record, however, a reasonable belief arises that the trial court improperly overlooked that factor. Id. The State argues that Banks waived the opportunity to have his guilty plea considered as a mitigator because he failed to ask the trial court to consider it. See Pennington v. State, 821 N.E.2d 899, 905 (Ind.Ct.App.2005) (defendant's failure to raise proposed mitigators at sentencing precludes him from advance-ing them for first time on appeal). Our supreme court has held, however, that trial courts should be "inherently aware of the fact that a guilty plea is a mitigating circumstance." Franeis v. State, 817 N.E.2d 285, 287 n. 2 (Ind.2004). Therefore, we conclude that the court should have identified Banks's guilty plea as a mitigator.

It is unlikely, however, that the trial court would have imposed a lesser sentence, even if it had properly acknowledged the guilty plea mitigator. Indiana courts have long held that a defendant who pleads guilty is entitled to receive some benefit in return. Williams v. State, 430 N.E.2d 759, 764 (Ind.1982). Pursuant to Banks's plea agreement, and as the trial court was made aware at sentencing, the State dismissed a petition to revoke probation filed against Banks in another criminal case. Appellant's App. at 6, 40. Because Banks had already received some benefit in exchange for his guilty plea, Banks was entitled to little, if any, mitigating weight for it at sentencing. Thus, we find that the trial court's omission in this regard was harmless error.

The State also claims that Banks has waived his claims of error regarding the trial court's failure to identify as mitigators the probation department LSI results and the non-violent aspect of his crime because he failed to mention them to the trial court at the sentencing hearing. We agree. However, even in the absence of waiver, the trial court was not required to consider these two factors, as they were highly disputable in significance. The LSI results were included in the pre-sentence investigation report presented to the trial court prior to sentencing. The probation department concluded that "there is a 31.1% chance he will re-offend within one year if no services are provided." Id. at 16. Although the 81.1% result placed Banks in the "low/moderate risk/ needs" category, it was well within the trial court's discretion to reject the LSI as a mitigator because it is, after all, merely a prediction of future behavior. Id. Further, the trial court might have disregarded the LSI as somewhat unreliable in light of the fact that Banks was arrested twice in the five months following his arrest in this case and had two criminal cases pending at the time of sentencing.

Like the LSI, the fact that Banks's crime was non-violent and victimless was apparent from the record before the trial court. By definition, the crime of operating a vehicle while privileges are forfeited for life is not a crime of violence. In some cases, a person, at the time he operates a vehicle while his privileges are forfeited for life, might act violently and/or cause injury to another person-for example, by driving recklessly and causing a traffic accident, or by striking a pedestrian. In such cireumstances, however, the defendant would likely face additional charges related to the violent nature of his driving. Banks was convicted of a crime that does not contain violence as an element. Therefore, the trial court was not required to assign mitigating weight to these factors at sentencing.

Banks also argues that he expressed remorse at the sentencing hearing and that the trial court erred by failing to assign some mitigating weight to his statements. When the trial court asked Banks why he was driving with a suspended license, Banks replied, "The devil got a hold of me. I was set free and (inaudible). I know it wasn't a normal thing to do. I just felt like driving again." Tr. at 18. Later, he said,

I have never planned on my life turning out the way that, you know, it has, with all this in and out of trouble stuff. I mean, you know, I was raised without no father from age eight. My mom, you know, tried to do the best she could do.... I'm not blaming anybody else for any of my conduct but, you know, I'm not perfect, but I've just made some bad decisions and I believe given another chance you won't be seeing me again in this courtroom or anybody else's courtroom, hopefully. I apologize to the Court for even being here.

Id. at 29. It appears that Banks was somewhat ambivalent in his statements to the trial court. He failed to take full responsibility for his actions, and thus we cannot find that the trial court abused its discretion by choosing not to give mitigating weight to his remorseful statements. See Price v. State, 765 N.E.2d 1245, 1253 (Ind.2002) (defendant's statements that he was "very sorry about what happened" and that he knew how it felt to lose a loved one were insufficient to justify finding that trial court's failure to consider remorse as mitigating factor was abuse of discretion); see also Bonds v. State, 721 N.E.2d 1238, 1243 (Ind.1999) (concluding that trial court did not abuse its discretion by failing to find remorse as a mitigator where defendant's statement-"I'm remorseful for all what happened. I was just in the wrong place at the wrong time .:. I just don't know what went wrong."-did not demonstrate full acceptance of responsibility for crime). ,

Finally, Banks contends that the trial court should have given some mitigating weight to the fact that he had a long-term relationship with Carol Ann Peterson, a "supportive significant other." Appellant's Br. at 10. However, as the State points out, Banks was driving Peterson's car at the time of his arrest, and she testified that she had allowed him to drive it knowing that his license was suspended. It was certainly not an abuse of discretion for the trial court to decline to treat Banks's relationship with Peterson, as a mitigating factor.

In sum, the trial court abused its discretion only in failing to consider Banks's guilty plea as a mitigator, and as discussed above, we find that this was harmless error.

II Appropriateness of Sentence

Banks also claims that his sentence is inappropriate. Under Indiana Appellate Rule 7(B), "(tlhe 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 the instant case, the nature of the offense consisted of Banks driving a vehicle after his privileges had been forfeited for life. Although his girlfriend, Carole Ann Peterson, was present and advised him that it was not "a good plan" for him to drive her car, and although she could have driven the car to the couple's destination, Banks instead chose to break the law by getting behind the wheel. Appellant's App. at 32. As for the character of the offender, Banks was asked at trial why he had committed this offense, and he replied, "I just felt like drivin[g] again." Id. at 28. This statement, along with Banks's extensive criminal history of eleyen felony convictions and sixteen misdemeanor convictions-including five traffic-related convictions and two habitual traffic violator findings-elearly indicates that Banks thinks he is above the law and has not benefited from the State's many prior attempts at rehabilitation. Therefore, in light of the nature of the offense and the character of the offender, we conclude that the enhanced six-year sentence was appropriate in this case.

Affirmed.

FRIEDLANDER, J, concurs. MAY, J., concurs in result with opinion.