Brian R. Sosbe v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: July 13, 2018
• Docket: 18A-CR-16
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jul 13 2018, 10:29 am

court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Christopher L. Clerc Curtis T. Hill, Jr. Columbus, Indiana Attorney General of Indiana Katherine Cooper Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Brian R. Sosbe, July 13, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-16 v. Appeal from the Bartholomew Circuit Court State of Indiana, The Honorable Kelly S. Benjamin, Appellee-Plaintiff. Judge Trial Court Cause No. 03C01-1704-F5-2035

Friedlander, Senior Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-16| July 13, 2018 Page 1 of 5 [1] On January 19, 2017, Deputy Nick Martoccia of the Bartholomew County

Sheriff’s Department responded to a traffic accident. According to a witness,

Brian R. Sosbe crashed a vehicle into a tree and fled on foot carrying a bag.

Deputy Jarod Dougan found Sosbe hiding in a nearby field with a bag. Sosbe

admitted that he had “messed up” and that the bag was his. Appellant’s App.

Vol. II, p. 103. The deputy discovered a white powdery substance inside the

bag which Sosbe admitted was methamphetamine. That same day, Deputy

Jarod Aspenson obtained a search warrant for a blood sample from Sosbe. It

was later determined that methamphetamine and marijuana were present in

Sosbe’s blood.

[2] Captain Christopher Roberts continued the investigation and determined that

the vehicle had been reported stolen on January 16, 2017. Inside the truck,

Captain Roberts found an i-Pad belonging to the Indian Creek schools which

had been reported as stolen on January 18, 2017. Captain Roberts also

reviewed the records from the Indiana Bureau of Motor Vehicles and

determined that Sosbe’s license had been suspended for life. During his

investigation, Captain Roberts also learned that Sosbe had been previously

convicted of theft.

[3] On April 7, 2017, Sosbe was charged with (1) Level 5 felony operating a motor

vehicle after forfeiture of license for life, (2) Level 6 felony receiving stolen auto

parts, (3) Level 6 felony theft, (4) Level 6 felony possession of

methamphetamine, and (5) Class B misdemeanor leaving the scene of an

accident. On September 29, 2017, Sosbe was additionally charged with Class C

Court of Appeals of Indiana | Memorandum Decision 18A-CR-16| July 13, 2018 Page 2 of 5 misdemeanor operating a vehicle with a schedule I or II controlled substance or

its metabolite in the body. On November 2, 2017 Sosbe pled guilty to Level 5

felony operating a motor vehicle after forfeiture of license for life and Level 6

felony receiving stolen auto parts. In exchange for the guilty plea, the State

agreed to concurrent sentences and to dismiss the remaining four charges

against Sosbe.

[4] At the sentencing hearing, the trial court identified the following aggravating

factors: Sosbe’s criminal history, which included seven felony convictions and

seven misdemeanor convictions; Sosbe has violated the terms of his probation

in the past; when Sosbe has been offered treatment in the past he refused or the

treatment was not effective; Sosbe had been released from jail for three weeks

when he committed the instant offenses; Sosbe was under the influence of a

controlled substance when he crashed the vehicle; Sosbe hid from police after

he fled from the scene of the accident; and Sosbe had multiple disciplinary

write-ups while incarcerated in both the county jail and the Department of

Correction. The trial court did not find any mitigating factors. Sosbe was

sentenced to a six-year aggregate executed term, with credit for 249 actual days.

[5] Sosbe contends that the trial court abused its discretion in sentencing him by

failing to consider certain mitigating factors. Specifically, Sosbe contends that

the trial court should have given more weight to his guilty plea and mental

illness. We begin by noting that sentencing 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 (Ind. 2007), modified on other

Court of Appeals of Indiana | Memorandum Decision 18A-CR-16| July 13, 2018 Page 3 of 5 grounds 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, probable, and actual deductions to be drawn

therefrom.” Id. at 490.

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. Under those circumstances, remand for resentencing may be the appropriate remedy if we cannot say with confidence that the trial court would have imposed the same sentence had it properly considered reasons that enjoy support in the record.

Id. at 490-91. Sosbe argues that the trial court should have considered certain

mitigating factors. “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. “If the trial

court does not find the existence of a mitigating factor after it has been argued

by counsel, the trial court is not obligated to explain why it has found that the

factor does not exist.” Id.

[6] In any event, there is also evidence that Sosbe received a significant benefit by

pleading guilty. In exchange for his guilty plea to Level 5 felony operating a

motor vehicle after forfeiture for life and Level 6 felony receiving stolen auto

Court of Appeals of Indiana | Memorandum Decision 18A-CR-16| July 13, 2018 Page 4 of 5 parts, the State agreed to dismiss the other four counts filed against him and

that the sentences could run concurrent with one another. As for his claims

that he was mentally ill, there was no evidence that he was mentally ill at the

time he committed the crime, or any evidence that he had long-term mental

health issues, much less any nexus to his crimes. See Archer v. State, 689 N.E.2d

678 (Ind. 1997). Because the trial court did not abuse its discretion in

sentencing Sosbe, we affirm the trial court’s sentence.

[7] Affirmed.

Riley, J., and Crone, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-16| July 13, 2018 Page 5 of 5