Bryan Scott v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: November 7, 2017
• Docket: 49A02-1706-CR-1245
• 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 Nov 07 2017, 6:42 am

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

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Frederick Vaiana Curtis T. Hill, Jr. Voyles Vaiana Lukemeyer Baldwin & Attorney General of Indiana Webb Justin F. Roebel Indianapolis, Indiana Supervising Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Bryan Scott, November 7, 2017 Appellant-Defendant, Court of Appeals Case No. 49A02-1706-CR-1245 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Mark D. Stoner, Appellee-Plaintiff. Judge Trial Court Cause No. 49G06-1607-F5-26988

Bailey, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A02-1706-CR-1245 | November 7, 2017 Page 1 of 5 Case Summary [1] Bryan Scott (“Scott”) appeals his sentence following a bench trial at which he

was found guilty of battery as a Class A misdemeanor.1 He raises one issue on

appeal: whether the trial court abused its discretion when it failed to find his

pretrial detention to be a mitigating factor. We affirm.

Facts and Procedural History [2] On the evening of June 6, 2016, Edward Hunter (“Hunter”) was socializing

with a group of his friends on his apartment complex’s patio. Hunter saw an

individual, whom he knew and identified as Scott, run toward the group

holding a pipe—or a crowbar—screaming “I want my money!” Tr. Vol. II at

23, 68. Hunter did not owe Scott any money. Scott then knocked over one of

Hunter’s friends and swung the object in his hand at Hunter, striking Hunter in

the lip, face, and back. Hunter grabbed a nearby lawn chair and attempted to

defend himself by blocking Scott’s weapon. After the attack, Scott left the

scene, taking his weapon with him.

[3] Immediately after Scott left, Hunter called the police. City of Lawrence Police

Officer Steven Rech (“Officer Rech”) responded to the scene at approximately

9:00 p.m. and spoke with Hunter and the other witnesses. Officer Rech

observed and photographed injuries sustained by Hunter from Scott’s attack,

1 Ind. Code § 35-42-2-1(d).

Court of Appeals of Indiana | Memorandum Decision 49A02-1706-CR-1245 | November 7, 2017 Page 2 of 5 which included red marks on his wrist, a laceration on his lip, and injuries to

his face. Hunter also sustained bruising on his back. One week later, Hunter

identified Scott by photograph.

[4] On July 15, 2016, the State charged Scott with battery by means of a deadly

weapon, a Level 5 felony. Scott waived a trial by jury. Following Scott’s May

12, 2017, bench trial, the trial court found Scott guilty of the lesser included

offense of battery as a Class A misdemeanor. At sentencing the trial court

mentioned Scott’s prior drug-related criminal history and his pretrial detention.

When asked if Scott had any evidence to present at sentencing, his counsel

responded, “[n]o.” Tr. Vol. II 102. In his closing argument, defense counsel

asked that any sentence be suspended, stating, “[r]egardless of the criminal

history, it’s an A misdemeanor. We’d ask for any time to be suspended.” Id.

The court sentenced Scott to 365 days at the Marion County jail with 225 of

those days suspended to probation and 140 days credited for time already

served. This appeal of Scott’s sentence ensued.

Discussion and Decision [5] Sentencing decisions lie within the sound discretion of the trial court. Cardwell

v. State, 895 N.E.2d 1219, 1222 (Ind. 2008). 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.” Gross v. State, 22 N.E.3d 863, 869 (Ind. Ct. App. 2014) (citation

Court of Appeals of Indiana | Memorandum Decision 49A02-1706-CR-1245 | November 7, 2017 Page 3 of 5 omitted), trans. denied. A trial court abuses its discretion in sentencing if it does

any of the following:

(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. (quoting Anglemyer v. State, 868 N.E.2d 482, 490-491 (Ind. 2007), clarified on

reh’g, 875 N.E.2d 218 (Ind. 2007)). However, 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., and a trial court is under no

obligation to explain why a proposed mitigator does not exist or why the court

gave it insignificant weight. Sandleben v. State, 22 N.E.3d 782, 796 (Ind. Ct.

App. 2014), trans. denied.

[6] Here, although the trial court did issue a written sentencing order, it did not

find specific mitigating and aggravating2 factors when it issued the sentence.

However, the trial court was not required to do so. Anglemyer, 868 N.E.2d at

490 (holding that, under the advisory sentencing scheme, the trial court “no

2 The trial court did not, as Scott implies, find his criminal history to be an aggravating factor. Rather, the trial court simply noted that Scott had a prior criminal history with some “drugs involved” in the course of explaining why it ordered him to get a substance abuse evaluation and treatment, if necessary. Tr. Vol. II at 105.

Court of Appeals of Indiana | Memorandum Decision 49A02-1706-CR-1245 | November 7, 2017 Page 4 of 5 longer has an obligation to weigh aggravating and mitigating factors against

each other when imposing a sentence”). And, although Scott contends on

appeal that the trial court should have found his pretrial detention as a

mitigating factor making an additional probationary term inappropriate, he

failed to raise such an argument before the trial court. Therefore, he has

waived that argument on appeal.3 See, e.g., Carter v. State, 711 N.E.2d 835, 838–

839 (Ind. 1999) (holding that the trial court did not abuse its discretion in failing

to consider a mitigating circumstance which was not raised at sentencing);

Creekmore v. State, 853 N.E.2d 523, 530 (Ind. Ct. App. 2006) (“[I]f the defendant

fails to advance a mitigating circumstance at sentencing, this court will presume

that the factor is not significant, and the defendant is precluded from advancing

it as a mitigating circumstance for the first time on appeal.”), clarified on denial of

reh’g, 858 N.E.2d 230 (Ind. Ct. App. 2006).

[7] The trial court did not abuse its discretion when it imposed Scott’s sentence.

[8] Affirmed.

Baker, J., and Altice, J., concur.

3 We also note that Scott has failed to cite any supporting authority for his contention that pretrial detention should be considered a mitigating factor, and that failure also waives the argument on appeal. Ind. Appellate Rule 46(A)(8)(a) (“Each contention must be supported by citations to the authorities, statutes, and the Appendix or parts of the Record on Appeal relied on.”); Pierce v. State, 29 N.E.3d 1258, 1267 (Ind. 2015) (noting failure to support arguments with appropriate citations to legal authority and record evidence waives those arguments for our review).

Court of Appeals of Indiana | Memorandum Decision 49A02-1706-CR-1245 | November 7, 2017 Page 5 of 5