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

• Court: Indiana Court of Appeals
• Decided: April 19, 2017
• Docket: 32A01-1611-CR-2589
• 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 court except for the purpose of establishing Apr 19 2017, 10:15 am

the defense of res judicata, collateral CLERK Indiana Supreme Court estoppel, or the law of the case. Court of Appeals and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Jeffery A. Earl Curtis T. Hill, Jr. Danville, Indiana Attorney General of Indiana Katherine Cooper Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Bryan Tate, April 19, 2017 Appellant-Defendant, Court of Appeals Case No. 32A01-1611-CR-2589 v. Appeal from the Hendricks Superior Court State of Indiana, The Honorable Karen M. Love, Appellee-Plaintiff Judge Trial Court Cause No. 32D02-1602-F5-19

Baker, Judge.

Court of Appeals of Indiana | Memorandum Decision 32A01-1611-CR-2589 | April 19, 2017 Page 1 of 3 [1] Bryan Tate appeals the sentence imposed by the trial court after Tate pleaded

guilty to Level 5 Felony Robbery.1 Tate contends that the trial court erred by

failing to consider two mitigating circumstances. Finding no error, we affirm.

[2] On January 25, 2016, Tate robbed a Subway restaurant in Hendricks County by

using or threatening the use of force and/or by putting the Subway employee in

fear. On October 25, 2016, Tate pleaded guilty as charged pursuant to a plea

agreement that capped his sentence at five years and required that he pay

restitution to Subway in the amount of $300. Tate had been sentenced in

another cause to a nine-year term for Level 5 felony robbery and it was left to

the trial court’s discretion whether his sentence in this cause would be

concurrent with or consecutive to the other sentence. Following a sentencing

hearing that same day, the trial court found Tate’s criminal history, which

includes seven adult convictions and three juvenile adjudications, as an

aggravating factor. Finding no mitigators, the trial court imposed a five-year

sentence to be served consecutively to the nine-year term. Tate now appeals.

[3] Tate’s sole argument is that the trial court erred by failing to find two mitigating

circumstances: the fact that he pleaded guilty and the fact that he agreed to pay

restitution to Subway. According to Tate, had these mitigators been

considered, the trial court would have ordered his sentence served concurrently,

rather than consecutively.

1 Ind. Code § 35-42-5-1.

Court of Appeals of Indiana | Memorandum Decision 32A01-1611-CR-2589 | April 19, 2017 Page 2 of 3 [4] Under the advisory sentencing scheme, we may reverse if a trial court finds

aggravators that are not supported by the record or are improper as a matter of

law or omits mitigators that are clearly supported by the record and advanced

for consideration. Anglemyer v. State, 868 N.E.2d 482, 490-91 (Ind. 2007),

clarified on reh’g, 875 N.E.2d 218 (Ind. 2007). Even if we find an error in this

regard, we will remand for resentencing only 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 491.

[5] Tate makes a reasonable argument that his guilty plea, pursuant to which he did

not reap a substantial benefit, and his agreement to pay restitution should have

been mitigating circumstances. The trial court, however, was clearly aware of

both facts, inasmuch as it presided over the guilty plea hearing and approved

the agreement itself, which contained the restitution provision. That the trial

court did not label them as mitigators does not mean that it was unaware of

their existence. Given that, given Tate’s lengthy criminal history, and given the

fact that Tate had been sentenced in another cause for precisely the same crime

to which he pleaded guilty in this one, we are confident that the trial court

would have imposed the same sentence even if it had considered both

mitigators proffered by Tate. Accordingly, we decline to remand for

resentencing.

[6] The judgment of the trial court is affirmed.

Barnes, J., and Crone, J., concur.

Court of Appeals of Indiana | Memorandum Decision 32A01-1611-CR-2589 | April 19, 2017 Page 3 of 3