FILED MEMORANDUM DECISION Jun 23 2016, 9:34 am
CLERK Indiana Supreme Court Pursuant to Ind. Appellate Rule 65(D), Court of Appeals and Tax Court this 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 Anthony C. Lawrence Gregory F. Zoeller Anderson, Indiana Attorney General of Indiana
Ian McLean Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Joshua Rigney, June 23, 2016 Appellant-Defendant, Court of Appeals Cause No. 33A01-1508-CR-1301 v. Appeal from the Henry Circuit Court State of Indiana, The Honorable Mary G. Willis, Appellee-Plaintiff. Judge Trial Court Cause No. 33C01-1311-FB-97
Barnes, Judge.
Court of Appeals of Indiana | Memorandum Decision 33A01-1508-CR-1301 | June 23, 2016 Page 1 of 9 Case Summary [1] Joshua Rigney appeals his fourteen-year sentence for Class B felony possession
of a firearm by a serious violent felon. We affirm.
Issues [2] Rigney raises two issues, which we restate as:
I. whether the trial court abused its discretion when it sentenced Rigney; and
II. whether the fourteen-year sentence is inappropriate in light of the nature of the offense and the character of the offender.
Facts [3] On November 1, 2013, Myron Crabtree discovered that four guns were missing
from his house. Crabtree’s brother, Kenny Riddle, who lived with Crabtree,
owed money to Rigney. Later that day, Rigney’s girlfriend, Leslie Catron, saw
Rigney with several large gun bags. Rigney told Catron that he thought the
guns belonged to Riddle. When Crabtree learned that Rigney might have the
guns, he confronted him. Rigney then gave the guns back to Crabtree.
[4] The State charged Rigney with Class B felony burglary, Class B felony
possession of a firearm by a serious violent felon, Class D felony receiving
stolen property, and Class B misdemeanor criminal mischief. After a jury trial,
Rigney was found guilty of Class B felony possession of a firearm by a serious
violent felon. At the sentencing hearing, the trial court found two
aggravators—Rigney’s criminal history and the fact that he had recently
Court of Appeals of Indiana | Memorandum Decision 33A01-1508-CR-1301 | June 23, 2016 Page 2 of 9 violated multiple conditions of probation and has numerous pending cases.
The trial court sentenced Rigney to fourteen years in the Department of
Correction. Rigney now appeals.
Analysis I. Abuse of Discretion
[5] Rigney argues that the trial court abused its discretion when it sentenced him.
Sentencing decisions are within the sound discretion of the trial court.
Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d
218. However, a trial court may be found to have abused its sentencing
discretion in a number of ways, including: (1) failing to enter a sentencing
statement at all; (2) entering a sentencing statement that explains reasons for
imposing a sentence where the record does not support the reasons; (3) entering
a sentencing statement that omits reasons that are clearly supported by the
record and advanced for consideration; and (4) entering a sentencing statement
in which the reasons given are improper as a matter of law. Id. at 490-91. The
reasons or omission of reasons given for choosing a sentence are reviewable on
appeal for an abuse of discretion. Id. at 491. The weight given to those reasons,
i.e. to particular aggravators or mitigators, is not subject to appellate review. Id.
[6] Rigney argues that the trial court abused its discretion because it did not find his
mental health and physical health as mitigating factors. A trial court is not
obligated to accept a defendant’s claim as to what constitutes a mitigating
circumstance. Rascoe v. State, 736 N.E.2d 246, 249 (Ind. 2000). A claim that
Court of Appeals of Indiana | Memorandum Decision 33A01-1508-CR-1301 | June 23, 2016 Page 3 of 9 the trial court failed to find a mitigating circumstance requires the defendant to
establish that the mitigating evidence is both significant and clearly supported
by the record. Anglemyer, 868 N.E.2d at 493.
[7] There was no evidence presented at the sentencing hearing regarding Rigney’s
physical or mental health. The only information concerning his physical and
mental health was provided in the presentence investigation report, which
stated:
On June 27, 2012, [Rigney] was in a car accident which resulted in his having a broken nose, broken orbital sockets, broken C1- C3, broken L1-L5, his head was degloved, his left arm was degloved, and his left ulna was broken. In addition, he has suffered from post-traumatic stress disorder and other mental trauma. He has been treated since the accident for the various injuries. He started a process to stretch the skin on his head so that a plate could be placed to protect his brain. He was incarcerated on the probation violation in 33C01-0901-FB- 000001 before the process could be completed. He stated that medical staff at the DOC reviewed his case and did not continue the process and the materials placed in his head were removed.
The defendant indicated being on [various medications]. The defendant stated that he has experienced more seizures lately, he believes due to stress.
*****
The defendant participated in counseling at CMHS (now Meridian Services) when he was a juvenile. He attempted suicide in the past by cutting himself, but believes it was more because he was mad and not truly trying to kill himself.
Court of Appeals of Indiana | Memorandum Decision 33A01-1508-CR-1301 | June 23, 2016 Page 4 of 9 The defendant was in patient at the psychiatric unit of Ball Hospital in 2008 followed by treatment at Meridian Services. He was diagnosed with Anxiety Disorder, Borderline Bipolar Disorder and ADHD.
The defendant has suffered from Post-Traumatic Stress Disorder and other mental trauma since his car accident in June of 2012. He participated in counseling with Sharon Bertram at Meridian Services through the summer of 2014.
The defendant stated that he undergoes psychiatric care at the IDOC. He sees a counselor on a monthly basis and a psychiatrist every 3 months.
App. p. 201.
[8] We first address Rigney’s physical health. Significant illnesses can be
considered a mitigating circumstance. See Moyer v. State, 796 N.E.2d 309, 313-
14 (Ind. Ct. App. 2003). However, “[i]f the defendant does not advance a
factor to be mitigating at sentencing, we will presume that it is not significant,
and the defendant is precluded from advancing it as a mitigating circumstance
for the first time on appeal.” Id. Rigney did not mention his physical health
during the sentencing hearing or argue that it was a mitigator.
[9] Waiver notwithstanding, in Moyer, extensive evidence regarding the defendant’s
illnesses and necessary medical treatments was presented at the sentencing
hearing. Here, Rigney presented no evidence concerning his physical health at
the sentencing hearing. The only evidence concerning his physical health was
provided in the PSI, which explained that Rigney was in a car accident in June
Free access — add to your briefcase to read the full text and ask questions with AI
FILED MEMORANDUM DECISION Jun 23 2016, 9:34 am
CLERK Indiana Supreme Court Pursuant to Ind. Appellate Rule 65(D), Court of Appeals and Tax Court this 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 Anthony C. Lawrence Gregory F. Zoeller Anderson, Indiana Attorney General of Indiana
Ian McLean Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Joshua Rigney, June 23, 2016 Appellant-Defendant, Court of Appeals Cause No. 33A01-1508-CR-1301 v. Appeal from the Henry Circuit Court State of Indiana, The Honorable Mary G. Willis, Appellee-Plaintiff. Judge Trial Court Cause No. 33C01-1311-FB-97
Barnes, Judge.
Court of Appeals of Indiana | Memorandum Decision 33A01-1508-CR-1301 | June 23, 2016 Page 1 of 9 Case Summary [1] Joshua Rigney appeals his fourteen-year sentence for Class B felony possession
of a firearm by a serious violent felon. We affirm.
Issues [2] Rigney raises two issues, which we restate as:
I. whether the trial court abused its discretion when it sentenced Rigney; and
II. whether the fourteen-year sentence is inappropriate in light of the nature of the offense and the character of the offender.
Facts [3] On November 1, 2013, Myron Crabtree discovered that four guns were missing
from his house. Crabtree’s brother, Kenny Riddle, who lived with Crabtree,
owed money to Rigney. Later that day, Rigney’s girlfriend, Leslie Catron, saw
Rigney with several large gun bags. Rigney told Catron that he thought the
guns belonged to Riddle. When Crabtree learned that Rigney might have the
guns, he confronted him. Rigney then gave the guns back to Crabtree.
[4] The State charged Rigney with Class B felony burglary, Class B felony
possession of a firearm by a serious violent felon, Class D felony receiving
stolen property, and Class B misdemeanor criminal mischief. After a jury trial,
Rigney was found guilty of Class B felony possession of a firearm by a serious
violent felon. At the sentencing hearing, the trial court found two
aggravators—Rigney’s criminal history and the fact that he had recently
Court of Appeals of Indiana | Memorandum Decision 33A01-1508-CR-1301 | June 23, 2016 Page 2 of 9 violated multiple conditions of probation and has numerous pending cases.
The trial court sentenced Rigney to fourteen years in the Department of
Correction. Rigney now appeals.
Analysis I. Abuse of Discretion
[5] Rigney argues that the trial court abused its discretion when it sentenced him.
Sentencing decisions are within the sound discretion of the trial court.
Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d
218. However, a trial court may be found to have abused its sentencing
discretion in a number of ways, including: (1) failing to enter a sentencing
statement at all; (2) entering a sentencing statement that explains reasons for
imposing a sentence where the record does not support the reasons; (3) entering
a sentencing statement that omits reasons that are clearly supported by the
record and advanced for consideration; and (4) entering a sentencing statement
in which the reasons given are improper as a matter of law. Id. at 490-91. The
reasons or omission of reasons given for choosing a sentence are reviewable on
appeal for an abuse of discretion. Id. at 491. The weight given to those reasons,
i.e. to particular aggravators or mitigators, is not subject to appellate review. Id.
[6] Rigney argues that the trial court abused its discretion because it did not find his
mental health and physical health as mitigating factors. A trial court is not
obligated to accept a defendant’s claim as to what constitutes a mitigating
circumstance. Rascoe v. State, 736 N.E.2d 246, 249 (Ind. 2000). A claim that
Court of Appeals of Indiana | Memorandum Decision 33A01-1508-CR-1301 | June 23, 2016 Page 3 of 9 the trial court failed to find a mitigating circumstance requires the defendant to
establish that the mitigating evidence is both significant and clearly supported
by the record. Anglemyer, 868 N.E.2d at 493.
[7] There was no evidence presented at the sentencing hearing regarding Rigney’s
physical or mental health. The only information concerning his physical and
mental health was provided in the presentence investigation report, which
stated:
On June 27, 2012, [Rigney] was in a car accident which resulted in his having a broken nose, broken orbital sockets, broken C1- C3, broken L1-L5, his head was degloved, his left arm was degloved, and his left ulna was broken. In addition, he has suffered from post-traumatic stress disorder and other mental trauma. He has been treated since the accident for the various injuries. He started a process to stretch the skin on his head so that a plate could be placed to protect his brain. He was incarcerated on the probation violation in 33C01-0901-FB- 000001 before the process could be completed. He stated that medical staff at the DOC reviewed his case and did not continue the process and the materials placed in his head were removed.
The defendant indicated being on [various medications]. The defendant stated that he has experienced more seizures lately, he believes due to stress.
*****
The defendant participated in counseling at CMHS (now Meridian Services) when he was a juvenile. He attempted suicide in the past by cutting himself, but believes it was more because he was mad and not truly trying to kill himself.
Court of Appeals of Indiana | Memorandum Decision 33A01-1508-CR-1301 | June 23, 2016 Page 4 of 9 The defendant was in patient at the psychiatric unit of Ball Hospital in 2008 followed by treatment at Meridian Services. He was diagnosed with Anxiety Disorder, Borderline Bipolar Disorder and ADHD.
The defendant has suffered from Post-Traumatic Stress Disorder and other mental trauma since his car accident in June of 2012. He participated in counseling with Sharon Bertram at Meridian Services through the summer of 2014.
The defendant stated that he undergoes psychiatric care at the IDOC. He sees a counselor on a monthly basis and a psychiatrist every 3 months.
App. p. 201.
[8] We first address Rigney’s physical health. Significant illnesses can be
considered a mitigating circumstance. See Moyer v. State, 796 N.E.2d 309, 313-
14 (Ind. Ct. App. 2003). However, “[i]f the defendant does not advance a
factor to be mitigating at sentencing, we will presume that it is not significant,
and the defendant is precluded from advancing it as a mitigating circumstance
for the first time on appeal.” Id. Rigney did not mention his physical health
during the sentencing hearing or argue that it was a mitigator.
[9] Waiver notwithstanding, in Moyer, extensive evidence regarding the defendant’s
illnesses and necessary medical treatments was presented at the sentencing
hearing. Here, Rigney presented no evidence concerning his physical health at
the sentencing hearing. The only evidence concerning his physical health was
provided in the PSI, which explained that Rigney was in a car accident in June
Court of Appeals of Indiana | Memorandum Decision 33A01-1508-CR-1301 | June 23, 2016 Page 5 of 9 2012, that he had various injuries as a result, that he had been undergoing a
process to stretch the skin on his head so that a plate could be placed to protect
his brain, but that the DOC did not continue the process. However, unlike
Moyer, Rigney presented no evidence regarding medical hardships that he
would endure if incarcerated, no evidence that the prison was unable to
accommodate his medical issues, and no evidence that he suffered medical
problems from the DOC’s discontinuing the stretching process. The proposed
mitigator is not clearly supported by the record. The trial court did not abuse its
discretion when it did not consider his physical health as a mitigator.
[10] As for Rigney’s mental health, he did advance that as a proposed mitigator at
the sentencing hearing. However, again, he did not present any evidence
concerning his mental health at the sentencing hearing. The only information
concerning his mental health is provided in the PSI, which notes that Rigney
has post-traumatic stress from the car accident, an anxiety disorder, borderline
bipolar disorder, and ADHD. He has attempted suicide, was hospitalized for
psychiatric treatment in 2008, and currently attends counseling.
[11] Our supreme court has held there is “the need for a high level of discernment
when assessing a claim that mental illness warrants mitigating weight.”
Covington v. State, 842 N.E.2d 345, 349 (Ind. 2006). The court identified several
factors to consider in weighing the mitigating force of a mental health issue,
including “the extent of the inability to control behavior, the overall limit on
function, the duration of the illness, and the nexus between the illness and the
crime.” Id. Rigney presented no evidence concerning the extent of his inability
Court of Appeals of Indiana | Memorandum Decision 33A01-1508-CR-1301 | June 23, 2016 Page 6 of 9 to control his behavior, the overall limit on his ability to function, or the nexus
between his mental health and his offense. Given the lack of evidence on these
factors, Rigney has not shown that his mental health was significant or clearly
supported by the record. The trial court did not abuse its discretion when it did
not recognize Rigney’s mental health as a mitigator.
II. Inappropriate Sentence
[12] Rigney argues that his sentence is inappropriate under Indiana Appellate Rule
7(B). Appellate Rule 7(B) provides that we may revise a sentence authorized by
statute if, after due consideration of the trial court’s decision, we find that the
sentence is inappropriate in light of the nature of the offenses and the character
of the offender. When considering whether a sentence is inappropriate, we
need not be “extremely” deferential to a trial court’s sentencing decision.
Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007). Still, we must
give due consideration to that decision. Id. We also understand and recognize
the unique perspective a trial court brings to its sentencing decisions. Id. Under
this rule, the burden is on the defendant to persuade the appellate court that his
or her sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind.
2006).
[13] 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 Court of Appeals of Indiana | Memorandum Decision 33A01-1508-CR-1301 | June 23, 2016 Page 7 of 9 the trees—consecutive or concurrent, number of counts, or length of the
sentence on any individual count.” Id. 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).
[14] The nature of the offense is that Rigney had four guns in his possession despite
his status as a serious violent felon. As for Rigney’s character, we note that
thirty-two-year-old Rigney has a significant criminal history. As a juvenile,
Rigney was adjudicated delinquent for what would have been Class C felony
burglary. As an adult, Rigney has convictions for Class D felony receiving
stolen property, Class A misdemeanor operating a vehicle while intoxicated,
Class A misdemeanor criminal trespass, Class B felony burglary, Class A
misdemeanor resisting law enforcement, and Class A misdemeanor aggressive
driving. He has had home detention and a suspended sentence revoked, and he
was on probation at the time of the current offense. At the time of the
sentencing hearing, he had pending charges for Class D felony unlawful sale of
a precursor, Class A misdemeanor resisting law enforcement, Class B
misdemeanor false informing, Level 6 felony forgery, Level 6 felony theft, Level
2 felony burglary with a deadly weapon, Class A misdemeanor theft, Class B
misdemeanor criminal mischief, Level 4 felony burglary, and Level 6 felony
theft.
Court of Appeals of Indiana | Memorandum Decision 33A01-1508-CR-1301 | June 23, 2016 Page 8 of 9 [15] Rigney argues that he has a mental illness that was exacerbated by his 2012 car
accident and that he desires substance abuse treatment. Despite Rigney’s
physical and mental injuries from his car accident, he has continued to
accumulate numerous criminal charges and convictions. Although his desire
for substance abuse treatment is commendable, it does not negate his significant
criminal history and continued criminal activity. The fourteen-year sentence
imposed by the trial court is not inappropriate.
Conclusion [16] Rigney’s sentence is not inappropriate. We affirm.
[17] Affirmed.
Vaidik, C.J., and Mathias, J., concur.
Court of Appeals of Indiana | Memorandum Decision 33A01-1508-CR-1301 | June 23, 2016 Page 9 of 9