John E. Bulington v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: March 30, 2016
• Docket: 79A05-1507-CR-956
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Mar 30 2016, 9:02 am this Memorandum Decision shall not be CLERK regarded as precedent or cited before any Indiana Supreme Court Court of Appeals court except for the purpose of establishing and Tax Court

the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Timothy P. Broden Gregory F. Zoeller Lafayette, Indiana Attorney General of Indiana Paula J. Beller Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

John E. Bulington, March 30, 2016 Appellant-Defendant, Court of Appeals Case No. 79A05-1507-CR-956 v. Appeal from the Tippecanoe Superior Court State of Indiana, The Honorable Sean M. Persin, Appellee-Plaintiff Judge Trial Court Cause No. 79D05-1502-F6-67

Baker, Judge.

Court of Appeals of Indiana | Memorandum Decision 79A05-1507-CR-956 | March 30, 2016 Page 1 of 4 [1] John E. Bulington appeals the two-year sentence imposed by the trial court after

Bulington pleaded guilty to one count of Theft,1 a Level 6 Felony. Bulington

argues that the sentence is inappropriate in light of the nature of the offense and

his character. Finding that the sentence is not inappropriate, we affirm.

Facts [2] On February 16, 2015, Bulington went to a Payless Supermarket in Lafayette.

He used the store’s U-Scan self-service checkout. After he scanned and bagged

his merchandise, but before paying, he told the store’s associate that he wanted

to pick up a few more items in the store before completing his purchase.

Bulington then left the U-Scan area and attempted to exit the building with the

items for which he had not paid. Bulington was arrested by the store’s loss-

prevention officer.

[3] On February 17, 2015, the State charged Bulington with one count of Level 6

Felony theft. On May 20, 2015, Bulington pleaded guilty to one count of theft.

On June 23, 2015, the trial court sentenced Bulington to two years in the

Department of Correction, with credit given for time served. Bulington now

appeals.

1 Ind. Code § 35-43-4-2.

Court of Appeals of Indiana | Memorandum Decision 79A05-1507-CR-956 | March 30, 2016 Page 2 of 4 Discussion and Decision [4] Bulington has one argument on appeal: that the two-year sentence is

inappropriate. Indiana Appellate Rule 7(B) allows this Court to independently

review and revise a sentence authorized by statue if, after due consideration, we

find the trial court’s sentence inappropriate in light of the nature of the offense

and the character of the offender. Anderson v. State, 989 N.E. 2d 823, 827 (Ind.

Ct. App. 2013). On appeal, Bulington bears the burden of persuading this court

that the sentence is inappropriate. See Childress v. State, 848 N.E.2d. 1080 (Ind.

2006).

[5] As previously noted, the trial court imposed a two-year sentence for the theft

conviction. Indiana code section 35-50-2-7(b) provides that a person who

commits a Level 6 felony shall be imprisoned for a fixed term of between six

months and two and one-half years, with the advisory sentence being one year.

Therefore, Bulington received more than the advisory but less than the

maximum sentence.

[6] Turning to the nature of Bulington’s offense, he intentionally lied to the store

associate to facilitate his theft. His conduct in the store demonstrates that he

had a premeditated plan, including how he would obtain store bags to complete

the theft and where and how he would exit the store to avoid detection. He did

not anticipate the store associate not falling for his ruse. Bulington does not

dispute the fact that he shoplifted the merchandise; he merely minimizes his

theft because it did not involve the theft of entertainment or luxury items.

Court of Appeals of Indiana | Memorandum Decision 79A05-1507-CR-956 | March 30, 2016 Page 3 of 4 Bulington argues that his offense should be excused because he was stealing

food; yet, there is no evidence to suggest he was malnourished or could not

legally obtain food. The fact that Bulington had a Hoosier Works card issued by

the State of Indiana Family and Social Services Agency suggests that he

understood the process for obtaining financial assistance.

[7] Turning to Bulington’s character, his lengthy criminal history must be

acknowledged. He was convicted of the following over a period of fourteen

years: in 2000, felony fraud and identity deception; in 2003, financial

transaction card fraud; in 2009, two convictions for conversion; in 2010,

conversion; in 2013, two convictions for felony theft; in 2014, two convictions

for felony theft; and in 2015, three convictions for check deception. He was on

probation in two different counties for felony theft at the time he committed this

offense. As the trial court said to Bulington at sentencing, “The only gaps that

you have from committing the crime of theft and stealing from other people has

either you have been in jail or you have been in rehab [for a stroke]. Otherwise

you are committing the crime of theft or fraud nonstop”. Tr. P. 31. Bulington

has evinced an inability or unwillingness to comply with the laws of society.

We do not find his sentence inappropriate in light of the nature of the offense

and his character.

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

Bradford, J., and Pyle, J., concur.

Court of Appeals of Indiana | Memorandum Decision 79A05-1507-CR-956 | March 30, 2016 Page 4 of 4