Pursuant to Ind.Appellate Rule 65(D), this
FILED Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of Aug 21 2012, 9:22 am establishing the defense of res judicata, collateral estoppel, or the law of the case. CLERK of the supreme court, court of appeals and tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
CHRIS M. TEAGLE GREGORY F. ZOELLER Muncie, Indiana Attorney General of Indiana
MICHAEL GENE WORDEN Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
JOHN NORTON, JR., ) ) Appellant-Defendant, ) ) vs. ) No. 05A04-1202-CR-99 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE BLACKFORD CIRCUIT COURT The Honorable Dean A. Young, Judge Cause No. 05C01-1109-FB-349
August 21, 2012
MEMORANDUM DECISION – NOT FOR PUBLICATION
RILEY, Judge STATEMENT OF THE CASE
Appellant-Defendant, John Norton, Jr. (Norton), appeals his sentence for burglary,
a Class B felony, Ind. Code § 35-43-2-1(B)(i).
We affirm.
ISSUE
Norton raises one issue on appeal, which we restate as follows: Whether his
sentence is inappropriate in light of the nature of the offense and his character.
FACTS AND PROCEDURAL HISTORY
On July 9, 2011, Justin Peters (Justin) and his mother, Linda Peters, returned from
vacation to find that their residence had been burglarized. Electronics, video games, and
a knife were taken. Someone had left behind a cell phone along with other personal
clothing items at the residence. A friend of Justin’s learned who had the stolen property
and confiscated it. The friend later met police, naming Chris Love (Love) and Norton as
persons involved with the stolen property.
Meanwhile, police obtained a search warrant for the abandoned cell phone. The
cell phone contained Love’s photo and text messages from an individual named ‘Will’
that described a planned burglary of the Peters’ residence. The police interviewed Love
by telephone and he admitted to being at the Peters’ house around July 4, 2011, but
denied involvement with the burglary. Love stated that he gave his cell phone to Norton.
2 On July 19, 2011, Norton met with police about his involvement with the burglary.
Norton admitted knowing Justin, borrowing Love’s cell phone, and knowing about the
planned burglary, but otherwise denied involvement. However, Norton indicated that
another person named ‘Will’ was involved. The police identified ‘Will’ as Will Collis
(Collis) and questioned him. While denying involvement initially, Collis eventually
confessed to entering the Peters’ residence with Norton and stealing various items while
Love acted as a lookout.
On August 30, 2011, the juvenile court waived its jurisdiction over Norton. On
September 8, 2011, the State filed an Information charging Norton with Count I,
burglary, a Class B felony, I.C. § 35-43-2-1; Count II, theft, a Class D felony, I.C. § 35-
43-4-2(a); and Count III, operating a vehicle without ever receiving a license, a Class C
misdemeanor, I.C. § 9-24-18-1. The foregoing charges were unrelated to Norton’s
burglary of the Peters’ residence and subsequently on September 30, 2011, the State filed
an additional Information related to the Peters’ burglary, charging Norton with Count IV,
burglary, a Class B felony, I.C. § 35-43-2-1, and Count V, theft, a Class D felony, I.C. §
35-43-4-2(a).
On January 23, 2012, Norton entered a plea of guilty to Count IV. In exchange for
Norton’s plea, the State dismissed all other Counts and agreed that the executed portion
of Norton’s sentence should be capped at six years. At a hearing on February 13, 2012,
the trial court accepted Norton’s plea of guilty to Count IV. Immediately thereafter, the
trial court conducted a sentencing hearing. The trial court sentenced Norton to ten years
3 with four years suspended to probation. In addition, the trial court ordered Norton to pay
restitution of $1,000 to Justin.
Norton now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
Norton challenges his sentence under Ind. Appellate Rule 7(B), contending that
the trial court’s imposed sentence is inappropriate in light of the nature of his offense and
his character. Specifically, he requests this court to suspend the six-year executed portion
of his sentence to probation.
We first note that Norton’s sentence was within the statutory range. Norton was
convicted of burglary, a Class B felony. A sentence for a Class B felony ranges from six
to twenty years, with an advisory sentence of ten years. I.C. § 35-50-2-5. Here, the trial
court imposed an aggregate sentence of ten years, with six years executed and four years
suspended to probation.
Under App. Rule 7(B), we may revise a sentence authorized by statute if we find
the sentence inappropriate in light of the nature of the offense and the character of the
offender. Id. To examine the nature of the offense, we review the details and
circumstances surrounding the commission of the offense and the defendant’s
participation in it. Washington v. State, 940 N.E.2d 1220, 1222 (Ind. Ct. App. 2011),
trans. denied. To examine the character of the offender, we consider the defendant’s life
and conduct. Id. It is the defendant’s burden to persuade us that the sentence imposed by
4 the trial court is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).
Here, Norton did not carry his burden.
We first consider the nature of Norton’s offense. The police reports reveal that
Norton joined two friends to burglarize the Peters’ residence and steal video games and
electronic equipment worth over $1,000. While the property stolen was arguably
insubstantial, the manner in which Norton set about accomplishing his crime was
substantial. Text messages in the abandoned cell phone revealed that Norton and his
friends had planned the burglary well in advance. The details of the crime also revealed
the offenders’ persistence. Upon failing to gain entry through a lower window, Collis
and Norton obtained a ladder to break in through an upstairs bedroom window. In sum,
this was a premeditated crime, requiring determination on the part of Norton and his
compatriots to effect its execution.
We also cannot conclude that Norton’s character warrants a revised sentence.
Norton cites various factors to argue that his character does not merit an executed
sentence of six years. In particular, he relies upon his status as a juvenile at the time of
the crime, his mother’s offer of support, his remorse, his attempt to make restitution to
the victim, and his efforts to obtain schooling during incarceration. While the trial court
noted these as mitigating factors, it chose not to ascribe them significant weight.
On the other hand, Norton’s significant juvenile history tellingly illustrates the
nature of his character. Norton amassed three juvenile adjudications in the five years
prior to this conviction, which were for crimes that would have been considered Class A
5 and B misdemeanors as well as Class B, C and D felonies if committed by an adult. As a
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Pursuant to Ind.Appellate Rule 65(D), this
FILED Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of Aug 21 2012, 9:22 am establishing the defense of res judicata, collateral estoppel, or the law of the case. CLERK of the supreme court, court of appeals and tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
CHRIS M. TEAGLE GREGORY F. ZOELLER Muncie, Indiana Attorney General of Indiana
MICHAEL GENE WORDEN Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
JOHN NORTON, JR., ) ) Appellant-Defendant, ) ) vs. ) No. 05A04-1202-CR-99 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE BLACKFORD CIRCUIT COURT The Honorable Dean A. Young, Judge Cause No. 05C01-1109-FB-349
August 21, 2012
MEMORANDUM DECISION – NOT FOR PUBLICATION
RILEY, Judge STATEMENT OF THE CASE
Appellant-Defendant, John Norton, Jr. (Norton), appeals his sentence for burglary,
a Class B felony, Ind. Code § 35-43-2-1(B)(i).
We affirm.
ISSUE
Norton raises one issue on appeal, which we restate as follows: Whether his
sentence is inappropriate in light of the nature of the offense and his character.
FACTS AND PROCEDURAL HISTORY
On July 9, 2011, Justin Peters (Justin) and his mother, Linda Peters, returned from
vacation to find that their residence had been burglarized. Electronics, video games, and
a knife were taken. Someone had left behind a cell phone along with other personal
clothing items at the residence. A friend of Justin’s learned who had the stolen property
and confiscated it. The friend later met police, naming Chris Love (Love) and Norton as
persons involved with the stolen property.
Meanwhile, police obtained a search warrant for the abandoned cell phone. The
cell phone contained Love’s photo and text messages from an individual named ‘Will’
that described a planned burglary of the Peters’ residence. The police interviewed Love
by telephone and he admitted to being at the Peters’ house around July 4, 2011, but
denied involvement with the burglary. Love stated that he gave his cell phone to Norton.
2 On July 19, 2011, Norton met with police about his involvement with the burglary.
Norton admitted knowing Justin, borrowing Love’s cell phone, and knowing about the
planned burglary, but otherwise denied involvement. However, Norton indicated that
another person named ‘Will’ was involved. The police identified ‘Will’ as Will Collis
(Collis) and questioned him. While denying involvement initially, Collis eventually
confessed to entering the Peters’ residence with Norton and stealing various items while
Love acted as a lookout.
On August 30, 2011, the juvenile court waived its jurisdiction over Norton. On
September 8, 2011, the State filed an Information charging Norton with Count I,
burglary, a Class B felony, I.C. § 35-43-2-1; Count II, theft, a Class D felony, I.C. § 35-
43-4-2(a); and Count III, operating a vehicle without ever receiving a license, a Class C
misdemeanor, I.C. § 9-24-18-1. The foregoing charges were unrelated to Norton’s
burglary of the Peters’ residence and subsequently on September 30, 2011, the State filed
an additional Information related to the Peters’ burglary, charging Norton with Count IV,
burglary, a Class B felony, I.C. § 35-43-2-1, and Count V, theft, a Class D felony, I.C. §
35-43-4-2(a).
On January 23, 2012, Norton entered a plea of guilty to Count IV. In exchange for
Norton’s plea, the State dismissed all other Counts and agreed that the executed portion
of Norton’s sentence should be capped at six years. At a hearing on February 13, 2012,
the trial court accepted Norton’s plea of guilty to Count IV. Immediately thereafter, the
trial court conducted a sentencing hearing. The trial court sentenced Norton to ten years
3 with four years suspended to probation. In addition, the trial court ordered Norton to pay
restitution of $1,000 to Justin.
Norton now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
Norton challenges his sentence under Ind. Appellate Rule 7(B), contending that
the trial court’s imposed sentence is inappropriate in light of the nature of his offense and
his character. Specifically, he requests this court to suspend the six-year executed portion
of his sentence to probation.
We first note that Norton’s sentence was within the statutory range. Norton was
convicted of burglary, a Class B felony. A sentence for a Class B felony ranges from six
to twenty years, with an advisory sentence of ten years. I.C. § 35-50-2-5. Here, the trial
court imposed an aggregate sentence of ten years, with six years executed and four years
suspended to probation.
Under App. Rule 7(B), we may revise a sentence authorized by statute if we find
the sentence inappropriate in light of the nature of the offense and the character of the
offender. Id. To examine the nature of the offense, we review the details and
circumstances surrounding the commission of the offense and the defendant’s
participation in it. Washington v. State, 940 N.E.2d 1220, 1222 (Ind. Ct. App. 2011),
trans. denied. To examine the character of the offender, we consider the defendant’s life
and conduct. Id. It is the defendant’s burden to persuade us that the sentence imposed by
4 the trial court is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).
Here, Norton did not carry his burden.
We first consider the nature of Norton’s offense. The police reports reveal that
Norton joined two friends to burglarize the Peters’ residence and steal video games and
electronic equipment worth over $1,000. While the property stolen was arguably
insubstantial, the manner in which Norton set about accomplishing his crime was
substantial. Text messages in the abandoned cell phone revealed that Norton and his
friends had planned the burglary well in advance. The details of the crime also revealed
the offenders’ persistence. Upon failing to gain entry through a lower window, Collis
and Norton obtained a ladder to break in through an upstairs bedroom window. In sum,
this was a premeditated crime, requiring determination on the part of Norton and his
compatriots to effect its execution.
We also cannot conclude that Norton’s character warrants a revised sentence.
Norton cites various factors to argue that his character does not merit an executed
sentence of six years. In particular, he relies upon his status as a juvenile at the time of
the crime, his mother’s offer of support, his remorse, his attempt to make restitution to
the victim, and his efforts to obtain schooling during incarceration. While the trial court
noted these as mitigating factors, it chose not to ascribe them significant weight.
On the other hand, Norton’s significant juvenile history tellingly illustrates the
nature of his character. Norton amassed three juvenile adjudications in the five years
prior to this conviction, which were for crimes that would have been considered Class A
5 and B misdemeanors as well as Class B, C and D felonies if committed by an adult. As a
result, Norton has been placed in a residential treatment facility and made a ward of the
Department of Correction on two occasions. These efforts at rehabilitation have
apparently been without effect as Norton’s crime evinces a lack of respect for the law and
the property rights of others.
In arguing that his character does not warrant an executed sentence of six years,
Norton relies on Knight v. State, 930 N.E.2d 20 (Ind. 2010). In Knight, our supreme
court revised a juvenile’s aggregate sentence of 70 years for multiple convictions of
burglary, robbery, and criminal confinement stemming from crimes against multiple
victims on the same evening. Id. at 21. Despite such crimes, the supreme court
concluded the defendant did not possess a character of “recalcitrance or depravity” to
justify an aggregate sentence of 70 years. Id. at 23. The supreme court revised Knight’s
aggregate sentence to 40 years based on: his status as a juvenile at the time the crimes
were committed, his lack of a prior felony conviction, and his co-defendant’s shorter
sentence. Id. at 22-23.
Here, Norton attempts to analogize his situation to that of Knight and argues that
since he was a juvenile at the time his crimes were committed and his crimes did not
include violence against his victims, his sentence should be revised. While the
defendant’s character in Knight did not justify a 70 year sentence, we have no
information regarding what punishment Norton’s co-defendants received and also note
the disparity between the aggregate 70 year sentence in Knight with Norton’s aggregate
6 sentence of 10 years. Instead, we conclude that based upon Norton’s juvenile history and
the planned, persistent, and deliberate manner in which he committed his crimes, the trial
court’s sentence was appropriate. Accordingly, we find that Norton has not carried his
burden to persuade us that his sentence is inappropriate in light of the nature of the
offense and his character.
CONCLUSION
Based on the foregoing, we conclude that Norton’s sentence is appropriate in light
of the nature of the offense and his character.
Affirmed.
BAILEY, J. and CRONE, J. concur