Dustin Arbuckle v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: June 14, 2016
• Docket: 48A02-1510-CR-1596
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Jun 14 2016, 8:29 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Dorothy Ferguson Gregory F. Zoeller Anderson, Indiana Attorney General of Indiana

Ian McLean Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Dustin Arbuckle, June 14, 2016 Appellant-Defendant, Court of Appeals Case No. 48A02-1510-CR-1596 v. Appeal from the Madison Circuit Court State of Indiana, The Honorable David A. Happe, Appellee-Plaintiff. Judge Trial Court Cause No. 48C04-1503-F3-305, 48C04-1507- F6-1109, and 48C04-1508-F4-1263

Altice, Judge.

Case Summary

Court of Appeals of Indiana | Memorandum Decision 48A02-1510-CR-1596 | June 14, 2016 Page 1 of 13 [1] Dustin Arbuckle pled guilty to multiple offenses under three separate cause

numbers and received an aggregate sentence of fifty years executed in the

Department of Correction followed by three years suspended to probation.

Arbuckle now appeals, arguing that the trial court abused its discretion in

sentencing him and that the sentence imposed is inappropriate.

[2] We affirm.

Facts & Procedural History

[3] In the early morning hours of February 26, 2015, Jeffrey Monday was asleep in

his home in Elwood, Indiana when he awoke to find Arbuckle standing over

him, yelling at him to get on the floor or he would be killed. When Monday

looked up at Arbuckle, Arbuckle struck him in the face with what appeared to

be a pistol. Both Monday and Arbuckle fell to the floor and struggled as

Arbuckle attempted to take Monday’s wallet. Monday was able to get away

from Arbuckle and grab an aluminum baseball bat. Arbuckle rushed at

Monday and a struggle over the bat ensued. Monday managed to escape and

run to a neighbor’s house for help. As he fled, Monday saw Arbuckle leave the

house with the aluminum bat. When police arrived, they were able to follow

footprints in the snow leading from Monday’s house to another residence.

When police obtained a search warrant and knocked on the door, Arbuckle

answered the door. Upon searching the house, police found a toy gun in

Arbuckle’s bedroom, shoes matching the footprints between the two residences,

Monday’s aluminum baseball bat, and a pair of Monday’s sunglasses. As a

Court of Appeals of Indiana | Memorandum Decision 48A02-1510-CR-1596 | June 14, 2016 Page 2 of 13 result of these events, Arbuckle was arrested and charged under cause number

38C04-1503-F3-305 (F3-305) with Level 3 felony burglary, Level 3 felony

robbery, and Level 3 felony attempted robbery. Arbuckle was released on bail

on May 9, 2015.

[4] On July 17, 2015, a patrolling police officer observed a vehicle leave the

roadway and drive left of center. The officer conducted a traffic stop and the

driver, Arbuckle, provided an Indiana identification card and told the officer

that he had been texting and did not have a valid driver’s license. A records

check revealed that Arbuckle’s license had been suspended after he was

determined to be a habitual traffic violator (HTV) in August 2012.

Additionally, upon searching the vehicle, the officer located a marijuana

cigarette. As a result, Arbuckle was charged under cause number 48C04-1507-

F6-1109 (F6-1109) with operating a vehicle after being determined to be a HTV,

a Level 6 felony, and class B misdemeanor possession of marijuana. Arbuckle

was released on bail on August 1, 2015.

[5] Just six days later, on August 7, 2015, Shawn Young woke up in his Elwood

home to find Arbuckle going through a pair of his pants. When Young

confronted him, Arbuckle fled through the front door of the home. About

twelve hours later, James Jackson saw Arbuckle approach his Elwood home.

Jackson was best friends with Arbuckle’s brother and had known Arbuckle for

approximately thirty years. Jackson watched as Arbuckle walked onto his

porch, removed his shoes and socks, placed his socks on his hands, and put his

shoes back on. Arbuckle then called Jackson’s phone, and when Jackson did

Court of Appeals of Indiana | Memorandum Decision 48A02-1510-CR-1596 | June 14, 2016 Page 3 of 13 not answer, knocked on the front door. When Jackson did not come to the

door, Arbuckle tried to push the front door open. When that did not work,

Arbuckle went to a bedroom window and tried to push it open. Arbuckle then

removed a window air conditioning unit, and Jackson confronted him and

asked what he was doing. Arbuckle asked Jackson for money and then left.

About an hour later, Arbuckle arrived at Michael McGuire’s home in Elwood.

A neighbor watched as Arbuckle peered over McGuire’s privacy fence before

climbing it. Arbuckle opened McGuire’s garage door and entered the garage.

At that time, the neighbor confronted Arbuckle. Arbuckle said that the

homeowner was his friend and then fled down the street to a waiting vehicle.

Police later found Arbuckle hiding in the bushes in the back yard of another

residence. As a result of the events of August 7, 2015, Arbuckle was arrested

and charged under cause number 48C04-1508-F4-1263 (F4-1263) with burglary

and attempted burglary, both as Level 4 felonies; burglary as a Level 5 felony,

three counts of theft as Level 6 felonies; three counts of attempted theft as class

A misdemeanors; and criminal mischief, a class B misdemeanor.

[6] On August 27, 2015, Arbuckle pled guilty to the charges filed under F3-305, F6-

1109, and F4-1263 without the benefit of a plea agreement. With regard to the

offenses charged under F3-305, the trial court found that the theft charges

merged into the remaining convictions and imposed fourteen-year executed

sentences on each of the three Level 3 felony charges. The sentences for

robbery and attempted robbery were to be served concurrently, but consecutive

Court of Appeals of Indiana | Memorandum Decision 48A02-1510-CR-1596 | June 14, 2016 Page 4 of 13 to the sentence for burglary. Thus, Arbuckle received an aggregate twenty-

eight-year sentence for the offenses charged under F3-305.

[7] In F4-1263, the trial court imposed consecutive sentences of nine years each on

the Level 4 felony burglary and attempted burglary convictions and four years

for the Level 5 burglary conviction. The trial court found that the attempted

theft and theft convictions merged into the burglary convictions and assessed

only a fine and costs on the misdemeanor criminal mischief count. Thus,

Arbuckle received an aggregate twenty-two-year sentence for the offenses

charged under F4-1263.

[8] With regard to the offenses charged under F6-1109, the trial court imposed a

sentence of two and a half years for the HTV offense and six months for

possession of marijuana, to be served consecutively. The entirety of the

aggregate three-year sentence under F6-1109 was suspended to probation.

[9] As required by statute, the sentences imposed under each cause number were

ordered to be served consecutive to one another. Thus, for all three cause

numbers, Arbuckle received an aggregate sentence of fifty years executed and

three years suspended to probation. Arbuckle now appeals.

Discussion & Decision

[10] Before addressing the merits of Arbuckle’s appeal, we note that his argument

conflates two separate sentencing standards: whether the trial court abused its

discretion in identifying mitigating and aggravating factors and whether

Court of Appeals of Indiana | Memorandum Decision 48A02-1510-CR-1596 | June 14, 2016 Page 5 of 13 Arbuckle’s sentence is inappropriate pursuant to Indiana Appellate Rule 7. “As

our Supreme Court has made clear, inappropriate sentence and abuse of

discretion claims are to be analyzed separately.” King v. State, 894 N.E.2d 265,

267 (Ind. Ct. App. 2008). Accordingly, “an inappropriate sentence analysis

does not involve an argument that the trial court abused its discretion in

sentencing the defendant.” Id.

[11] With respect to Arbuckle’s argument concerning the trial court’s consideration

of aggravating and mitigating factors, we note that sentencing decisions rest

within the sound discretion of the trial court. Anglemyer v. State, 868 N.E.2d

482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218. So long as the sentence

is within the statutory range, it is subject to review only for an abuse of

discretion. Id. “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

(quoting K.S. v. State, 849 N.E.2d 538, 544 (Ind. 2006)).

[12] A trial court may abuse its sentencing discretion in a number of ways,

including: (1) failing to enter a sentencing statement at all; (2) entering a

sentencing statement that includes aggravating and mitigating factors that are

unsupported by the record; (3) entering a sentencing statement that omits

reasons that are clearly supported by the record; or (4) entering a sentencing

statement that includes reasons that are improper as a matter of law. Id. at 490-

91. If the trial court abuses its discretion in one of these or another way,

remand for resentencing is the appropriate remedy “if we cannot say with

Court of Appeals of Indiana | Memorandum Decision 48A02-1510-CR-1596 | June 14, 2016 Page 6 of 13 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.

[13] On appeal, Arbuckle notes that the trial court found aggravating and mitigating

circumstances, but argues that the court failed to explain “why the aggravators

outweigh the mitigators or the rationale for an aggravated sentence above the

advisory sentence.” Appellant’s Brief at 11. The basis of this argument is

unclear. To the extent that Arbuckle argues that the trial court did not properly

weigh the aggravating and mitigating factors, we note that trial courts are no

longer obligated to weigh such factors against each other when imposing a

sentence. Anglemyer, 868 N.E.2d at 491. Thus, a trial court cannot be said to

have abused its discretion in failing to properly weigh such factors. Id.

[14] To the extent that Arbuckle claims the trial court failed to enter a sufficiently

detailed sentencing statement, we note that when imposing a sentence for a

felony offense, a trial court must enter a sentencing statement that “include[s] a

reasonably detailed recitation of the trial court’s reasons for imposing a

particular sentence.” Id. at 490. In this case, the trial court carefully explained

its reasoning when imposing Arbuckle’s sentence. As aggravating

circumstances, the trial court noted Arbuckle’s extensive criminal history,

which will be detailed further below, as well as the fact that Arbuckle

committed multiple crimes against multiple victims. As mitigating

circumstances, the trial court noted that Arbuckle accepted responsibility by

pleading guilty and expressed remorse. The court went on to find that “the

aggravation strongly outweighs the mitigation here, and it does call for an

Court of Appeals of Indiana | Memorandum Decision 48A02-1510-CR-1596 | June 14, 2016 Page 7 of 13 aggravated sentence.” Transcript at 54. This is a sufficiently detailed sentencing

statement.

[15] Arbuckle also argues that the trial court abused its discretion by overlooking

significant mitigating circumstances. An allegation that the trial court failed to

identify a mitigating factor requires the defendant to establish that the

mitigating evidence is both significant and clearly supported by the record.

Anglemyer, 868 N.E.2d at 493. A sentencing court is not obligated to find a

circumstance to be mitigating merely because it is advanced as such by the

defendant, nor is it required to explain why it chose not to make a finding of

mitigation. Felder v. State, 870 N.E.2d 554, 558 (Ind. Ct. App. 2007). A trial

court does not abuse its discretion in failing to find a mitigating factor that is

highly disputable in nature, weight, or significance. Rogers v. State, 878 N.E.2d

269, 272 (Ind. Ct. App. 2007), trans. denied.

[16] Arbuckle appears to argue that the trial court abused its discretion by failing to

recognize his history of substance abuse as a mitigating factor. A trial court is

not required to consider a defendant’s substance abuse as a mitigating

circumstance. James v. State, 643 N.E.2d 321, 323 (Ind. 1994). In fact,

substance abuse may be considered an aggravating circumstance where the

defendant is aware of his addiction and does not seek treatment. See Caraway v.

State, 959 N.E.2d 847, 852 (Ind. Ct. App. 2011), trans. denied. Arbuckle

admitted to abusing drugs and alcohol beginning at twelve years old. However,

Arbuckle reported that the only treatment he ever received was substance abuse

classes while incarcerated and a short inpatient stay following a heroin

Court of Appeals of Indiana | Memorandum Decision 48A02-1510-CR-1596 | June 14, 2016 Page 8 of 13 overdose. In light of Arbuckle’s continued drug use and failure to seek out help

to battle his addiction, the trial court did not abuse its discretion in declining to

find his substance abuse problem to be a mitigating circumstance.

[17] Arbuckle also seems to suggest that the trial court should have identified the

presence of a number of his family members at the sentencing hearing, as

compared to the absence of any of his victims, as a mitigating factor. Arbuckle

has made no attempt to explain why these facts should be considered

mitigating, and he has not directed our attention to any authority remotely

supporting such a conclusion. The trial court did not abuse its discretion in

declining to recognize these circumstances as a mitigating factor.

[18] Finally, Arbuckle claims that the trial court abused its discretion by failing to

identify his employment history as a significant mitigating factor. We note,

however, that the pre-sentence investigation report establishes that Arbuckle’s

employment was sporadic and short-lived due to his many incarcerations. The

trial court did not abuse its discretion in declining to find Arbuckle’s

employment history to be a significant mitigating factor. For all of these

reasons, we cannot conclude that the trial court abused its discretion in

imposing Arbuckle’s sentence.

[19] Turning now to Arbuckle’s challenge to the appropriateness of his sentence, we

note that although a trial court may have acted within its lawful discretion in

imposing a sentence, Article 7, Sections 4 and 6 of the Indiana Constitution

authorize independent appellate review and revision of a sentence imposed by

Court of Appeals of Indiana | Memorandum Decision 48A02-1510-CR-1596 | June 14, 2016 Page 9 of 13 the trial court. Alvies v. State, 905 N.E.2d 57, 64 (Ind. Ct. App. 2009) (citing

Anglemyer, 868 N.E.2d at 491). This appellate authority is implemented

through Indiana Appellate Rule 7(B), which provides that a 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.” Anglemyer, 868 N.E.2d at 491.

Nevertheless, “we must and should exercise 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

unique perspective a trial court brings to its sentencing decisions.” Stewart v.

State, 866 N.E.2d 858, 866 (Ind. Ct. App. 2007). The appellant bears the

burden of persuading us that his sentence is inappropriate. Childress v. State, 848

N.E.2d 1073, 1080 (Ind. 2006).

[20] Whether we regard a sentence as appropriate “turns on our sense of the

culpability of the defendant, the severity of the crime, the damage done to

others, and myriad other factors that come to light in a given case.” Cardwell v.

State, 895 N.E.2d 1219, 1224 (Ind. 2008). Additionally, our review “should

focus on the forest—the aggregate sentence—rather than the trees—consecutive

or concurrent, number of counts, or length of the sentence on any individual

count.” Id. at 1225.

Court of Appeals of Indiana | Memorandum Decision 48A02-1510-CR-1596 | June 14, 2016 Page 10 of 13 [21] Arbuckle was convicted of three Level 3 felonies, 1 two Level 4 felonies,2 a Level

5 felony,3 a Level 6 felony,4 and two class B misdemeanors.5 At the sentencing

hearing, Arbuckle and the State agreed that the maximum aggregate sentence

the trial court could have imposed for all three cause numbers was sixty-five

and a half years. Thus, Arbuckle’s sentence of fifty years executed followed by

three years suspended to probation was well below the maximum he could have

received.

[22] On appeal, Arbuckle devotes very little effort to discussing the nature of the

offenses, merely stating that “the only stolen item was an aluminum baseball

bat, and the only injury was a minor injury to one victims [sic] face.”

Appellant’s Brief at 12. Arbuckle has grossly understated the seriousness of his

offenses. Arbuckle broke into Monday’s home and threatened his life before

striking him in the face. Arbuckle then wrestled with Monday in an attempt to

take his wallet and then a baseball bat. Shortly after being released on bail for

these offenses, Arbuckle was caught driving after being adjudicated an HTV

1 Ind. Code § 35-50-2-5 provides that “[a] person who commits a Level 3 felony . . . shall be imprisoned for a fixed term of between three (3) and sixteen (16) years, with the advisory sentence being nine (9) years.” 2 I.C. § 35-50-2-5.5 provides that “[a] person who commits a Level 4 felony shall be imprisoned for a fixed term of between two (2) and twelve (12) years, with the advisory sentence being six (6) years.” 3 I.C. § 35-50-2-6 provides that “[a] person who commits a Level 5 felony . . . shall be imprisoned for a fixed term of between one (1) and six (6) years, with the advisory sentence being three (3) years.” 4 I.C. § 35-50-2-7 provides that “[a] person who commits a Level 6 felony . . . shall be imprisoned for a fixed term of between six (6) months and two and one-half (2 ½ ) years, with the advisory sentence being one (1) year.” 5 I.C. § 35-50-3-3 provides that “[a] person who commits a Class B misdemeanor shall be imprisoned for a fixed term of not more than one hundred eighty (180) days[.]”

Court of Appeals of Indiana | Memorandum Decision 48A02-1510-CR-1596 | June 14, 2016 Page 11 of 13 and found to be in possession of marijuana. Just days after being released on

bail yet again, Arbuckle went on a crime spree during which be burglarized or

attempted to burglarize three residences. Although it appears that the only

items Arbuckle actually managed to steal in the course of committing the

offenses at issue were Monday’s aluminum baseball bat and a pair of

sunglasses, it was not for lack of trying. The fact that Arbuckle’s multiple

attempts to steal items were ultimately unsuccessful does nothing to mitigate

the seriousness of these offenses.

[23] Nor does Arbuckle’s character support a revision of his sentence. His criminal

history standing alone would be sufficient to justify the sentence imposed.

Arbuckle has eight prior felony convictions for offenses including theft,

burglary, obstruction of justice, possession of a controlled substance, and

operating a vehicle while intoxicated, and according to his own testimony, he

has committed numerous burglaries, thefts, and OWI offenses for which he was

never caught. He has also violated his probation numerous times, and he was

out on bail for the offenses in F3-305 when he committed the offenses in F6-

1109, and he was released on bond in F6-1109 a mere six days before

committing the offenses in F4-1263. Defense counsel noted that Arbuckle, who

was thirty-four years old at the time of sentencing, had already spent eleven

years of his adult life behind bars. Despite his numerous contacts with the

criminal justice system and the leniency afforded him in the past, Arbuckle has

continued to abuse drugs and engage in a pattern of criminal activity that has

Court of Appeals of Indiana | Memorandum Decision 48A02-1510-CR-1596 | June 14, 2016 Page 12 of 13 escalated in seriousness over time. For all of these reasons, we cannot conclude

that Arbuckle’s sentence is inappropriate.

[24] We affirm.

[25] Bailey, J. and Bradford, J., concur.

Court of Appeals of Indiana | Memorandum Decision 48A02-1510-CR-1596 | June 14, 2016 Page 13 of 13