King v. State

769 N.E.2d 239, 2002 Ind. App. LEXIS 893, 2002 WL 1227265

• Court: Indiana Court of Appeals
• Decided: June 6, 2002
• Docket: 33A04-0112-CR-539
• Status: Published

Opinions

OPINION

MATTINGLY-MAY, Judge.

Andy J. King appeals the sentence imposed after he was convicted of theft, a Class D felony.¹ He asserts that the three-year sentence he received is manifestly unreasonable in light of the nature of the offense and the character of the offender. We find it is not, and affirm the trial court's sentence.

FACTS AND PROCEDURAL HISTORY

On March 5, 2001, King stole twenty-two cartons of cigarettes from a gas station in Henry County, Indiana. When he stole the cigarettes, he was out on bond from a charge of conversion in Delaware County, Indiana. King was charged with theft and he entered a plea of guilty.

In the sentencing hearing, the trial court found numerous aggravating cireum-stances, including King's prior criminal record, the nature and circumstances of the crime and the high risk of recidivism. The trial court did not find any specific mitigating cireumstances, but it noted that King had no prior felony convictions and that the stolen cigarettes had been recovered. The trial court then sentenced King to three years executed.

DISCUSSION AND DECISION

King contends the trial court erred when it sentenced him to the maximum sentence for a Class D felony, as he had never before been convicted of a felony. He argues that the maximum sentence "is manifestly unreasonable in light of it being his first felony conviction as well as the nature of the particular offense, a petty theft." (Br. of Appellant at 3.)

King is correct that this was his first felony conviction. However, "[this Court will not revise a sentence authorized by statute except where the sentence is manifestly unreasonable in light of the nature of the offense and the character of the offender." Poulton v. State, 666 N.E.2d 390, 398-94 (Ind.1996); Ind. Appellate Rule 17(B)(1). A sentence is not manifestly unreasonable unless no reasonable person could find the sentence appropriate to the particular offense or offender. Id. The standard for review is whether the sentence "is clearly, plainly, and obviously" unreasonable. Buchanan v. State, 767 N.E.2d 967, 972-73 (Ind.2002); Spears v. State, 735 N.E.2d 1161, 1168 (Ind.2000), reh'g denied.²

Although King was only twenty-seven years old when he was sentenced for the instant crime, his criminal history is lengthy. He has been convicted of minor consuming, a Class C misdemeanor; possession of marijuana, a Class A misdemeanor; five counts of driving while suspended, Class A misdemeanors; public intoxication, a Class B misdemeanor; battery resulting in bodily injury, a Class A misdemeanor; three counts of resisting law enforcement, Class A misdemeanors; criminal mischief, a Class B misdemean- or; reckless driving, a Class B misdemeanor; and three counts of conversion, Class A misdemeanors. At the time of the sentencing hearing, he also had pending multiple counts of theft as Class D felonies, along with charges of criminal conversion, a Class A misdemeanor; driving while suspended, a Class A misdemeanor; and possession of marijuana, a Class A misdemeanor. l

King's sentence of three years executed is not clearly, plainly, and obviously unreasonable; rather, it is clearly, plainly and obviously reasonable. A review of King's criminal history indicates that he has refrained from committing crimes for significant periods of time only when he has been incarcerated. When he has been on probation, he has consistently violated the terms of the probation. While this is his first felony conviction, we note that several other Class D felony charges were pending at the time of sentencing.

The trial court did not err in sentencing King to the maximum sentence for a Class D felony. '

Affirmed.

BAKER, J., concurs. NAJAM, J., concurring in result with separate opinion.

1 . Ind.Code § 35-43-4-2.

2 . We acknowledge the well-reasoned discussion in the concurring opinion questioning the extent to which this standard is consistent with our authority to review and revise sentences under Ind. Appellate Rule 7(B). However, in light of our supreme court's articulation of this standard as recently as one month prior to today's opinion in Buchanan, we believe we are obliged to apply that standard to our review of King's sentence.