MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Jun 17 2015, 9:06 am Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Brandon E. Murphy Gregory F. Zoeller Muncie, Indiana Attorney General of Indiana
Cynthia L. Ploughe Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Jonathon Gustafson, June 17, 2015
Appellant-Defendant, Court of Appeals Cause No. 05A02-1410-CR-752 v. Appeal from the Blackford Circuit Court Cause No. 05C01-1403-FB-89 State of Indiana, Appellee-Plaintiff. The Honorable Dean A Young, Judge
Barnes, Judge.
Court of Appeals of Indiana | Memorandum Decision 05A02-1410-CR-752 | June 17, 2015 Page 1 of 6 Case Summary
[1] Jonathon Gustafson appeals his twenty-year executed sentence for convictions
for three counts of burglary as Class B felonies. We affirm.
Issue
[2] The issue is whether Gustafson’s twenty-year sentence is inappropriate in light
of his character and offenses.
Facts
[3] Between November 2013 and March 2014, Gustafson broke into three different
residences and stole property. For these offenses collectively, Gustafson was
charged with four counts of burglary as Class B felonies, one count of aiding
burglary as a Class B felony, and two counts of theft as Class D felonies.
Pursuant to a plea agreement entered with the State, Gustafson pled guilty to
three counts of burglary as Class B felonies. The State agreed to dismiss the
remaining counts as well as a case pending in another county. The agreement
also stipulated that the sentences for the three guilty pleas would run
concurrently, although the trial court retained discretion as to the duration of
the sentences.
[4] At the sentencing hearing, Gustafson explained that he had a drug addiction
and expressed interest in participating in a State-facilitated treatment program.
He agreed to pay restitution to the victims and urged the trial court to consider
a term of probation in his sentence, which would allow him to work to pay the
Court of Appeals of Indiana | Memorandum Decision 05A02-1410-CR-752 | June 17, 2015 Page 2 of 6 restitution. The State recommended that the trial court impose the maximum
applicable sentence of twenty years.
[5] The trial court found Gustafson’s criminal history and his lack of initiative to
address his substance-abuse problem as aggravating factors. The trial court
cited hardship to Gustafson’s minor child, his cooperation in the case, and his
expression of remorse as mitigating factors. The trial court qualified, however,
that given Gustafson’s criminal history, this articulation of remorse was
accorded little weight.
[6] The trial court sentenced Gustafson to the maximum sentence of twenty years
for each of the three counts, to run concurrently. Gustafson now appeals.
Analysis
[7] Gustafson argues that the trial court’s imposition of the twenty-year executed
sentence is inappropriate. We assess whether Gustafson’s sentence is
inappropriate under Indiana Appellate Rule 7(B) in light of his character and
the nature of the offense. See Anglemyer v. State, 868 N.E.2d 482, 491 (Ind.
2007). Although Rule 7(B) does not require us to be “extremely” deferential to
a trial court’s sentencing decision, we still must give due consideration to that
decision. Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007). We
also understand and recognize the unique perspective a trial court brings to its
sentencing decisions. Id. “Additionally, a defendant bears the burden of
persuading the appellate court that his or her sentence is inappropriate.” Id.
Court of Appeals of Indiana | Memorandum Decision 05A02-1410-CR-752 | June 17, 2015 Page 3 of 6 [8] The principal role of Rule 7(B) review “should be to attempt to leaven the
outliers, and identify some guiding principles for trial courts and those charged
with improvement of the sentencing statutes, but not to achieve a perceived
‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.
2008). We “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. Whether a sentence is inappropriate
ultimately turns on 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. Id. at 1224. When reviewing the appropriateness of a sentence
under Rule 7(B), we may consider all aspects of the penal consequences
imposed by the trial court in sentencing the defendant, including whether a
portion of the sentence was suspended. Davidson v. State, 926 N.E.2d 1023,
1025 (Ind. 2010).
[9] Our review of Gustafson’s character reveals that he is twenty-seven years old
and has one son, whom he has custody of and financially supports. Gustafson
is addicted to opiates and other prescription medication and believes his
criminality is motivated by his drug dependency. While Gustafson’s
recognition of his addiction and professed desire to seek treatment is
commendable, the fact that Gustafson “has a substance abuse problem is not
necessarily a factor that weighs in favor of a lesser sentence.” Marley v. State, 17
N.E.3d 335, 341 (Ind. Ct. App. 2014), trans. denied. The trial court properly
reasoned that any mitigating treatment accorded to Gustafson’s recognition of
Court of Appeals of Indiana | Memorandum Decision 05A02-1410-CR-752 | June 17, 2015 Page 4 of 6 his drug problem is tempered by the fact that, although he is aware of his
problem, he previously has not taken steps to address or treat it. See Hape v.
State, 903 N.E.2d 977, 1002 (Ind. Ct. App. 2009), trans. denied. Gustafson’s
criminal history includes a juvenile adjudication and three felony convictions
for residential entry, receiving stolen property, and burglary. This criminal
history, involving offenses similar to those underlying Gustafson’s appeal,
indicates a defiance to rehabilitation and “disregard for law and authority.”
Clark v. State, 26 N.E.3d 615, 619 (Ind. Ct. App. 2014). Although Gustafson
expressed remorse for the burglaries, the trial court found that Gustafson’s
criminal history belied this sentiment, rendering it a “hollow gesture.” Tr. p.
49. Because it witnessed Gustafson’s apology and demeanor first hand,
“substantial deference must be given to the trial court’s evaluation of remorse.”
Sharkey v. State, 967 N.E.2d 1074, 1079 (Ind. Ct. App. 2012).
[10] As to the nature of the offenses, Gustafson committed three burglaries of
different residences within less than a six-month period. Cf. Buchanan v. State,
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Jun 17 2015, 9:06 am Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Brandon E. Murphy Gregory F. Zoeller Muncie, Indiana Attorney General of Indiana
Cynthia L. Ploughe Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Jonathon Gustafson, June 17, 2015
Appellant-Defendant, Court of Appeals Cause No. 05A02-1410-CR-752 v. Appeal from the Blackford Circuit Court Cause No. 05C01-1403-FB-89 State of Indiana, Appellee-Plaintiff. The Honorable Dean A Young, Judge
Barnes, Judge.
Court of Appeals of Indiana | Memorandum Decision 05A02-1410-CR-752 | June 17, 2015 Page 1 of 6 Case Summary
[1] Jonathon Gustafson appeals his twenty-year executed sentence for convictions
for three counts of burglary as Class B felonies. We affirm.
Issue
[2] The issue is whether Gustafson’s twenty-year sentence is inappropriate in light
of his character and offenses.
Facts
[3] Between November 2013 and March 2014, Gustafson broke into three different
residences and stole property. For these offenses collectively, Gustafson was
charged with four counts of burglary as Class B felonies, one count of aiding
burglary as a Class B felony, and two counts of theft as Class D felonies.
Pursuant to a plea agreement entered with the State, Gustafson pled guilty to
three counts of burglary as Class B felonies. The State agreed to dismiss the
remaining counts as well as a case pending in another county. The agreement
also stipulated that the sentences for the three guilty pleas would run
concurrently, although the trial court retained discretion as to the duration of
the sentences.
[4] At the sentencing hearing, Gustafson explained that he had a drug addiction
and expressed interest in participating in a State-facilitated treatment program.
He agreed to pay restitution to the victims and urged the trial court to consider
a term of probation in his sentence, which would allow him to work to pay the
Court of Appeals of Indiana | Memorandum Decision 05A02-1410-CR-752 | June 17, 2015 Page 2 of 6 restitution. The State recommended that the trial court impose the maximum
applicable sentence of twenty years.
[5] The trial court found Gustafson’s criminal history and his lack of initiative to
address his substance-abuse problem as aggravating factors. The trial court
cited hardship to Gustafson’s minor child, his cooperation in the case, and his
expression of remorse as mitigating factors. The trial court qualified, however,
that given Gustafson’s criminal history, this articulation of remorse was
accorded little weight.
[6] The trial court sentenced Gustafson to the maximum sentence of twenty years
for each of the three counts, to run concurrently. Gustafson now appeals.
Analysis
[7] Gustafson argues that the trial court’s imposition of the twenty-year executed
sentence is inappropriate. We assess whether Gustafson’s sentence is
inappropriate under Indiana Appellate Rule 7(B) in light of his character and
the nature of the offense. See Anglemyer v. State, 868 N.E.2d 482, 491 (Ind.
2007). Although Rule 7(B) does not require us to be “extremely” deferential to
a trial court’s sentencing decision, we still must give due consideration to that
decision. Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007). We
also understand and recognize the unique perspective a trial court brings to its
sentencing decisions. Id. “Additionally, a defendant bears the burden of
persuading the appellate court that his or her sentence is inappropriate.” Id.
Court of Appeals of Indiana | Memorandum Decision 05A02-1410-CR-752 | June 17, 2015 Page 3 of 6 [8] The principal role of Rule 7(B) review “should be to attempt to leaven the
outliers, and identify some guiding principles for trial courts and those charged
with improvement of the sentencing statutes, but not to achieve a perceived
‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.
2008). We “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. Whether a sentence is inappropriate
ultimately turns on 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. Id. at 1224. When reviewing the appropriateness of a sentence
under Rule 7(B), we may consider all aspects of the penal consequences
imposed by the trial court in sentencing the defendant, including whether a
portion of the sentence was suspended. Davidson v. State, 926 N.E.2d 1023,
1025 (Ind. 2010).
[9] Our review of Gustafson’s character reveals that he is twenty-seven years old
and has one son, whom he has custody of and financially supports. Gustafson
is addicted to opiates and other prescription medication and believes his
criminality is motivated by his drug dependency. While Gustafson’s
recognition of his addiction and professed desire to seek treatment is
commendable, the fact that Gustafson “has a substance abuse problem is not
necessarily a factor that weighs in favor of a lesser sentence.” Marley v. State, 17
N.E.3d 335, 341 (Ind. Ct. App. 2014), trans. denied. The trial court properly
reasoned that any mitigating treatment accorded to Gustafson’s recognition of
Court of Appeals of Indiana | Memorandum Decision 05A02-1410-CR-752 | June 17, 2015 Page 4 of 6 his drug problem is tempered by the fact that, although he is aware of his
problem, he previously has not taken steps to address or treat it. See Hape v.
State, 903 N.E.2d 977, 1002 (Ind. Ct. App. 2009), trans. denied. Gustafson’s
criminal history includes a juvenile adjudication and three felony convictions
for residential entry, receiving stolen property, and burglary. This criminal
history, involving offenses similar to those underlying Gustafson’s appeal,
indicates a defiance to rehabilitation and “disregard for law and authority.”
Clark v. State, 26 N.E.3d 615, 619 (Ind. Ct. App. 2014). Although Gustafson
expressed remorse for the burglaries, the trial court found that Gustafson’s
criminal history belied this sentiment, rendering it a “hollow gesture.” Tr. p.
49. Because it witnessed Gustafson’s apology and demeanor first hand,
“substantial deference must be given to the trial court’s evaluation of remorse.”
Sharkey v. State, 967 N.E.2d 1074, 1079 (Ind. Ct. App. 2012).
[10] As to the nature of the offenses, Gustafson committed three burglaries of
different residences within less than a six-month period. Cf. Buchanan v. State,
767 N.E.2d 967, 972 (Ind. 2002) (suggesting that chronological proximity of
offenses is a factor in sentencing determinations). Moreover, the victim of one
of these burglaries was an elderly woman. Gustafson argues that imposition of
the twenty-year maximum sentence is inappropriate as “maximum possible
sentences are generally most appropriate for the worst offenders.” Id. at 973.
However, considering Gustafson’s character and the nature of the offenses
together, it was not inappropriate to sentence Gustafson to the maximum
sentence. The twenty-year sentence effectively reflects the maximum for one
Court of Appeals of Indiana | Memorandum Decision 05A02-1410-CR-752 | June 17, 2015 Page 5 of 6 count of burglary as a Class B felony, as the plea agreement stipulated that the
sentences for Gustafson’s three convictions would run concurrently. Given that
on appeal we may take into account the effect of “sentencing tools,” such as
concurrent sentencing, the maximum sentence is not inappropriate. See
Thompson v. State, 5 N.E.3d 383, 391-93 (Ind. Ct. App. 2014).
[11] Gustafson argues that his sentence should be revised to the advisory ten-year
sentence. In light of the number of offenses, Gustafson’s criminal history, and
his apparent resistance to rehabilitation in the past, however, Gustafson has
failed to satisfy the burden of persuading us that the sentenced imposed by the
trial court is inappropriate.
Conclusion
[12] Gustafson’s twenty-year executed sentence is not inappropriate. We affirm.
[13] Affirmed.
[14] Riley, J., and Bailey, J., concur.
Court of Appeals of Indiana | Memorandum Decision 05A02-1410-CR-752 | June 17, 2015 Page 6 of 6