Jared Bustle v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: July 26, 2018
• Docket: 17A-CR-3033
• Status: Published

Opinion

MEMORANDUM DECISION FILED Jul 26 2018, 7:24 am Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as CLERK Indiana Supreme Court precedent or cited before any court except for the Court of Appeals and Tax Court purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Scott C. Andrews Curtis T. Hill, Jr. Columbus, Indiana Attorney General of Indiana Evan Matthew Comer Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Jared Bustle, July 26, 2018

Appellant-Defendant, Court of Appeals Cause No. 17A-CR-3033 v. Appeal from the Bartholomew Superior Court State of Indiana, The Honorable James D. Worton, Judge Appellee-Plaintiff. Trial Court Cause Nos. 03D01-1706- F6-3130; 03D01-1608-F6-4269; & 03D01-1707-F6-3942

Riley, Judge.

Court of Appeals of Indiana | Memorandum Decision 17A-CR-3033 | July 26, 2018 Page 1 of 6 STATEMENT OF THE CASE [1] Appellant-Defendant, Jared Bustle (Bustle), appeals his sentence following his

conviction after pleading guilty to three Counts of theft, Level 6 felonies, Ind.

Code § 35-42-4-2(a).

[2] We affirm.

ISSUE [3] Bustle presents a single issue on appeal, which we restate as: Whether Bustle’s

sentence is inappropriate in light of the nature of the offenses and his character.

FACTS AND PROCEDURAL HISTORY [4] On August 4, 2016, the State filed an Information in Cause Number 03D01-

1608-F6-4269 (F6-4269), charging Bustle with Counts I and II, theft, Level 6

felonies. On June 5, 2017, the State filed an Information in Cause Number

03D01-1706-F6-3130 (F6-3130), charging Bustle with Counts I and II, theft,

Level 6 felonies; Count III, unlawful possession of a syringe, a Level 6 felony;

Count IV, resisting law enforcement, a Class A misdemeanor; and Count V,

possession of a narcotic drug, a Level 6 felony. Less than a month later, on

July 19, 2017, the State filed an Information in Cause Number 03D01-1707-F6-

3942 (F6-3942), charging Bustle with Count I, theft, a Level 6 felony; and

Count II, resisting law enforcement, a Class A misdemeanor.

[5] On October 30, 2017, a change of plea hearing was held in which Bustle agreed

to plead guilty to one Count of theft in Cause Number F6-4269; one Count of

Court of Appeals of Indiana | Memorandum Decision 17A-CR-3033 | July 26, 2018 Page 2 of 6 theft, a Level 6 felony in Cause Number F6-1330; and one Count of theft, a

Level 6 felony in Cause Number F6-3942. In exchange, the State agreed to

dismiss all other Counts under the three Causes. The plea agreement left

sentencing open to the trial court. On the same day, the trial court determined

that a factual basis existed, and the trial court accepted Bustle’s guilty plea. On

November 29, 2017, the trial court conducted a sentencing hearing. At the

close of the evidence, the trial court sentenced Bustle to a consecutive two-year

sentence for each theft conviction, for an aggregate sentence of six years to be

served in the Department of Correction (DOC).

[6] Bustle now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION [7] Bustle claims that his consecutive six-year sentence is inappropriate in light of

the nature of the offenses and his character. Indiana Appellate Rule 7(B)

empowers this court to independently review and revise sentences authorized

by statute if, after due consideration, we find the trial court’s decision

inappropriate in light of the nature of the offense and the character of the

offender. Reid v. State, 876 N.E.2d 1114, 1116 (Ind. 2007). The “nature of

offense” compares the defendant’s actions with the required showing to sustain

a conviction under the charged offense, while the “character of the offender”

permits a broader consideration of the defendant’s character. Cardwell v. State,

895 N.E.2d 1219, 1224 (Ind. 2008); Douglas v. State, 878 N.E.2d 873, 881 (Ind.

Ct. App. 2007). An appellant bears the burden of showing that both prongs of

Court of Appeals of Indiana | Memorandum Decision 17A-CR-3033 | July 26, 2018 Page 3 of 6 the inquiry favor a revision of his sentence. Childress v. State, 848 N.E.2d 1073,

1080 (Ind. 2006). Whether we regard a sentence as appropriate at the end of

the day turns on our sense of the culpability of the defendant, the severity of the

crime, the damage done to others, and a myriad of other considerations that

come to light in a given case. Cardwell, 895 N.E.2d at 1224. Our court focuses

on “the length of the aggregate sentence and how it is to be served.” Id.

[8] The advisory sentence is the starting point the legislature has selected as an

appropriate sentence for the crime committed. Abbott v. State, 961 N.E.2d 1016,

1019 (Ind. 2012). For his Level 6 felony theft offenses, Bustle faced a

sentencing range of six months to two and one-half years, with the advisory

sentence being one. Bustle was sentenced to two years on each theft conviction.

I.C. § 35-50-2-7(b).

[9] We first examine the nature of Bustle’s offenses. The first theft under F6-4629

occurred the day after Bustle was released from prison for a 2006 Class C felony

forgery conviction. After taking some drugs, Bustle went to Sunglass Hut and

stole merchandise. In June 2017, Bustle shoplifted some items from a Kroger

store and was charged with another theft offense in F6-3130. The following

month, Bustle went to a Walgreens store and stole merchandise that led to his

theft charge in F6-3942.

[10] With respect to Bustle’s character, at his sentencing hearing, the trial court

noted Bustle’s prior criminal history. Bustle’s criminal history dates back to

2004 where he was convicted of public intoxication. In 2006, Bustle was

Court of Appeals of Indiana | Memorandum Decision 17A-CR-3033 | July 26, 2018 Page 4 of 6 convicted of two Class C forgery convictions under separate Causes. In 2007,

Bustle plead guilty to disorderly conduct and illegal consumption of an

alcoholic beverage. In 2009, Bustle was convicted of Class A misdemeanor

criminal conversion. In 2014, Bustle pleaded guilty to Class D felony theft and

the trial court recommended placement in Purposeful Incarceration. In

addition, Bustle has been arrested approximately seventeen times over the past

fourteen years, and has been undeterred by prior contacts with law

enforcement.

[11] Further, we note that Bustle’s history of thefts is inextricably linked to his

untreated drug addiction. At his sentencing hearing, Bustle stated that he began

using heroin at age eighteen. Bustle testified that he would steal “anything and

everything” to fund his drug habit. (Tr. Vol. II, p. 23). Although we are aware

of the difficulties such an addiction presents to an individual, Bustle has had

many opportunities to rid himself of those difficulties. In the past, Bustle has

been offered drug abuse treatment but did not take advantage of those treatment

opportunities. In addition, Bustle has violated his probation, and continues to

use drugs.

[12] Regardless of what is motivating Bustle’s criminal conduct, an extended period

of incarceration is necessary at this point to protect the public from that

conduct. After due consideration of the trial court’s decision and in light of

Bustle’s criminal history, we cannot say that the sentence imposed by the trial

court is inappropriate in light of the nature of the offenses and the character of

the offender.

Court of Appeals of Indiana | Memorandum Decision 17A-CR-3033 | July 26, 2018 Page 5 of 6 CONCLUSION [13] In sum, we hold that Bustle’s six-year aggregate sentence is not inappropriate in

light of the nature of the offenses and his character.

[14] Affirmed.

[15] Kirsch, J. and Vaidik, C.J. concur

Court of Appeals of Indiana | Memorandum Decision 17A-CR-3033 | July 26, 2018 Page 6 of 6