MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Aug 29 2016, 5:53 am
regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing 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 Gary A. Cook Gregory F. Zoeller Peru, Indiana Attorney General of Indiana
Karl Scharnberg Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Jackie Butler, August 29, 2016 Appellant-Defendant, Court of Appeals Case No. 34A05-1512-CR-2240 v. Appeal from the Howard Superior Court State of Indiana, The Honorable George A. Appellee-Plaintiff. Hopkins, Judge Trial Court Cause No. 34D04-1504-F4-80
Altice, Judge.
Case Summary
Court of Appeals of Indiana | Memorandum Decision 34A05-1512-CR-2240 | August 29, 2016 Page 1 of 6 [1] Jackie Butler pleaded guilty to unlawful possession of a firearm by a serious
violent felon, a Level 4 felony. The trial court sentenced Butler to six years
imprisonment and ordered the sentence to be served consecutive to the sentence
imposed in another cause. On appeal, Butler challenges the sentence imposed.
[2] We affirm.
Facts & Procedural History
[3] On June 16, 2015, the State charged Butler with Count I, unlawful possession
of a firearm by a serious violent felon, a Level 4 felony, and Count II, resisting
law enforcement, a Class A misdemeanor. The State subsequently filed a
notice of intent to seek habitual offender status. On November 6, 2015, Butler
pled guilty to Count I, and in exchange, the State agreed to dismiss Count II
and the habitual offender allegation. Pursuant to the plea agreement,
sentencing was left to the trial court’s discretion.
[4] On November 20, 2015, the trial court accepted Butler’s plea and then
conducted a sentencing hearing. During the hearing, Butler presented evidence
that the heart surgery he had undergone in June 2014 changed his personality
and made him moodier. Butler also argued that the heart surgery caused him to
suffer depression and feelings of inadequacy due to his diminished capacity and
urged the trial court to consider such to be mitigating factors. Butler also
stressed that he did not use the gun or show it to anyone. Ultimately, Butler
requested the trial court to sentence him to ten years, with four years suspended
to probation or home detention. The probation officer who prepared the pre-
Court of Appeals of Indiana | Memorandum Decision 34A05-1512-CR-2240 | August 29, 2016 Page 2 of 6 sentence investigation report (PSI) recommended a ten-year sentence with eight
years executed and two years suspended to supervised probation. The State
urged the court to accept the probation officer’s recommendation. The trial
court sentenced Butler to the advisory sentence of six years,1 all executed.
Discussion & Decision
[5] Butler frames the issue as whether the trial court erred in sentencing him to six
years. Within his argument, he challenges the trial court’s findings relating to
mitigating factors and also notes evidence weighing on his character, seemingly
suggesting that his sentence is also inappropriate.
[6] Sentencing decisions rest within the sound discretion of the trial court and are
reviewed on appeal for an abuse of discretion. Lewis v. State, 31 N.E.3d 539,
541 (Ind. Ct. App. 2015). One way in which a trial court may abuse its
discretion is with a sentencing statement that omits reasons that are clearly
supported by the record and advanced for consideration. Id. at 542. A trial
court, however, need not consider proffered mitigating circumstances that are
highly disputable in nature, weight, or significance. Creekmore v. State, 853
N.E.2d 523, 530 (Ind. Ct. App. 2006), clarified on reh’g, 858 N.E.2d 238. On
appeal, the burden rests with Butler to establish that the mitigating evidence is
1 See Ind. Code § 35-50-2-5.5 (“[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”).
Court of Appeals of Indiana | Memorandum Decision 34A05-1512-CR-2240 | August 29, 2016 Page 3 of 6 both significant and clearly supported by the record. Carter v. State, 711 N.E.2d
835, 838 (Ind. 1999).
[7] Butler first argues that the trial court failed to take into consideration his change
in behavior, depression, and feelings of inadequacy that followed his heart
surgery. We note that in its sentencing statement, the trial court acknowledged
that from the evidence presented at the hearing, Butler did “need some help.”
Transcript at 40. The trial court qualified this statement, noting its concerns that
Butler would not follow through with services now given his failure to follow
through with services in the past. In the context of his main argument during
the sentencing hearing, we find the trial court’s statement to be directed, in part,
to Butler’s claims of depression and feelings of inadequacy. We also note that
in the PSI, it was noted that Butler requested treatment for mental health issues,
as well as services for substance abuse. The trial court was simply not
convinced that Butler’s mental health issues were a significant mitigating factor.
We find no abuse of discretion in this regard.
[8] Butler also argues that the trial court failed to find his guilty plea to be a
mitigating circumstance. A defendant who pleads guilty deserves some
mitigating weight be given to the plea in return. Anglemyer v. State, 875 N.E.2d
218, 220 (2007). The significance of a guilty plea as a mitigating factor varies
from case to case. Id. Here, in exchange for his guilty plea to unlawful
possession of a firearm by a serious violent felon, the State agreed to dismiss a
resisting law enforcement charge and a habitual offender allegation. Butler thus
benefited from his decision to plead guilty.
Court of Appeals of Indiana | Memorandum Decision 34A05-1512-CR-2240 | August 29, 2016 Page 4 of 6 [9] With regard to acceptance of responsibility aspect of pleading guilty, we note
that Butler, who has eight prior felony convictions, was found in possession of a
handgun. In light of the evidence against him and the benefits extended to him
by the State, Butler’s decision to plead guilty was more likely the result of
pragmatism than an acceptance of responsibility. Butler has not established
that the trial court abused its discretion in refusing to afford significant
mitigating weight to his guilty plea.
[10] Butler also attempts to challenge his sentence as inappropriate by reciting our
standard of review for such claims and then asserting that his expression of
remorse and history of depression were considerations to take into account in
assessing his character. Butler, however, makes no argument relating to the
nature of the offense. He has therefore waived this issue for our review. See
Anderson v. State, 989 N.E.2d 823, 827 (Ind. Ct. App. 2013) (holding that where
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Aug 29 2016, 5:53 am
regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing 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 Gary A. Cook Gregory F. Zoeller Peru, Indiana Attorney General of Indiana
Karl Scharnberg Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Jackie Butler, August 29, 2016 Appellant-Defendant, Court of Appeals Case No. 34A05-1512-CR-2240 v. Appeal from the Howard Superior Court State of Indiana, The Honorable George A. Appellee-Plaintiff. Hopkins, Judge Trial Court Cause No. 34D04-1504-F4-80
Altice, Judge.
Case Summary
Court of Appeals of Indiana | Memorandum Decision 34A05-1512-CR-2240 | August 29, 2016 Page 1 of 6 [1] Jackie Butler pleaded guilty to unlawful possession of a firearm by a serious
violent felon, a Level 4 felony. The trial court sentenced Butler to six years
imprisonment and ordered the sentence to be served consecutive to the sentence
imposed in another cause. On appeal, Butler challenges the sentence imposed.
[2] We affirm.
Facts & Procedural History
[3] On June 16, 2015, the State charged Butler with Count I, unlawful possession
of a firearm by a serious violent felon, a Level 4 felony, and Count II, resisting
law enforcement, a Class A misdemeanor. The State subsequently filed a
notice of intent to seek habitual offender status. On November 6, 2015, Butler
pled guilty to Count I, and in exchange, the State agreed to dismiss Count II
and the habitual offender allegation. Pursuant to the plea agreement,
sentencing was left to the trial court’s discretion.
[4] On November 20, 2015, the trial court accepted Butler’s plea and then
conducted a sentencing hearing. During the hearing, Butler presented evidence
that the heart surgery he had undergone in June 2014 changed his personality
and made him moodier. Butler also argued that the heart surgery caused him to
suffer depression and feelings of inadequacy due to his diminished capacity and
urged the trial court to consider such to be mitigating factors. Butler also
stressed that he did not use the gun or show it to anyone. Ultimately, Butler
requested the trial court to sentence him to ten years, with four years suspended
to probation or home detention. The probation officer who prepared the pre-
Court of Appeals of Indiana | Memorandum Decision 34A05-1512-CR-2240 | August 29, 2016 Page 2 of 6 sentence investigation report (PSI) recommended a ten-year sentence with eight
years executed and two years suspended to supervised probation. The State
urged the court to accept the probation officer’s recommendation. The trial
court sentenced Butler to the advisory sentence of six years,1 all executed.
Discussion & Decision
[5] Butler frames the issue as whether the trial court erred in sentencing him to six
years. Within his argument, he challenges the trial court’s findings relating to
mitigating factors and also notes evidence weighing on his character, seemingly
suggesting that his sentence is also inappropriate.
[6] Sentencing decisions rest within the sound discretion of the trial court and are
reviewed on appeal for an abuse of discretion. Lewis v. State, 31 N.E.3d 539,
541 (Ind. Ct. App. 2015). One way in which a trial court may abuse its
discretion is with a sentencing statement that omits reasons that are clearly
supported by the record and advanced for consideration. Id. at 542. A trial
court, however, need not consider proffered mitigating circumstances that are
highly disputable in nature, weight, or significance. Creekmore v. State, 853
N.E.2d 523, 530 (Ind. Ct. App. 2006), clarified on reh’g, 858 N.E.2d 238. On
appeal, the burden rests with Butler to establish that the mitigating evidence is
1 See Ind. Code § 35-50-2-5.5 (“[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”).
Court of Appeals of Indiana | Memorandum Decision 34A05-1512-CR-2240 | August 29, 2016 Page 3 of 6 both significant and clearly supported by the record. Carter v. State, 711 N.E.2d
835, 838 (Ind. 1999).
[7] Butler first argues that the trial court failed to take into consideration his change
in behavior, depression, and feelings of inadequacy that followed his heart
surgery. We note that in its sentencing statement, the trial court acknowledged
that from the evidence presented at the hearing, Butler did “need some help.”
Transcript at 40. The trial court qualified this statement, noting its concerns that
Butler would not follow through with services now given his failure to follow
through with services in the past. In the context of his main argument during
the sentencing hearing, we find the trial court’s statement to be directed, in part,
to Butler’s claims of depression and feelings of inadequacy. We also note that
in the PSI, it was noted that Butler requested treatment for mental health issues,
as well as services for substance abuse. The trial court was simply not
convinced that Butler’s mental health issues were a significant mitigating factor.
We find no abuse of discretion in this regard.
[8] Butler also argues that the trial court failed to find his guilty plea to be a
mitigating circumstance. A defendant who pleads guilty deserves some
mitigating weight be given to the plea in return. Anglemyer v. State, 875 N.E.2d
218, 220 (2007). The significance of a guilty plea as a mitigating factor varies
from case to case. Id. Here, in exchange for his guilty plea to unlawful
possession of a firearm by a serious violent felon, the State agreed to dismiss a
resisting law enforcement charge and a habitual offender allegation. Butler thus
benefited from his decision to plead guilty.
Court of Appeals of Indiana | Memorandum Decision 34A05-1512-CR-2240 | August 29, 2016 Page 4 of 6 [9] With regard to acceptance of responsibility aspect of pleading guilty, we note
that Butler, who has eight prior felony convictions, was found in possession of a
handgun. In light of the evidence against him and the benefits extended to him
by the State, Butler’s decision to plead guilty was more likely the result of
pragmatism than an acceptance of responsibility. Butler has not established
that the trial court abused its discretion in refusing to afford significant
mitigating weight to his guilty plea.
[10] Butler also attempts to challenge his sentence as inappropriate by reciting our
standard of review for such claims and then asserting that his expression of
remorse and history of depression were considerations to take into account in
assessing his character. Butler, however, makes no argument relating to the
nature of the offense. He has therefore waived this issue for our review. See
Anderson v. State, 989 N.E.2d 823, 827 (Ind. Ct. App. 2013) (holding that where
defendant failed to make an argument relating to nature of the offense,
challenge to appropriateness of the sentence was waived), trans. denied.
[11] In any event, we note that the sentence imposed was actually less than the
sentence Butler requested. Indeed, Butler urged the trial court to impose a ten-
year sentence with six years executed and four years suspended to probation or
home detention. Butler thus essentially agreed that the six-year-executed
sentence imposed by the trial court was appropriate under the circumstances.
Court of Appeals of Indiana | Memorandum Decision 34A05-1512-CR-2240 | August 29, 2016 Page 5 of 6 Butler cannot now be heard to complain that his six-year sentence is
inappropriate.2
[12] We affirm.
[13] Bradford, J. and Pyle, J., concur.
2 The State argues that the six-year sentence is “inappropriately low” and requests that this court increase Butler’s sentence to ten years, with six years executed and four years suspended to probation or home detention. Appellee’s Brief at 14. Where a defendant requests appellate review and revision of a criminal sentence pursuant to the authority derived from Article 7, Sections 4 or 6 of the Indiana Constitution, the reviewing court is presented with the issue of whether to affirm, reduce, or increase the sentence imposed. See McCullough v. State, 900 N.E.2d 745, 750 (Ind. 2009). While we understand the State’s reasons for requesting an upward revision of Butler’s sentence, we respectfully decline to exercise our discretion in this case.
Court of Appeals of Indiana | Memorandum Decision 34A05-1512-CR-2240 | August 29, 2016 Page 6 of 6