MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Dec 22 2017, 6:31 am
court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Cara Schaefer Wieneke Curtis T. Hill, Jr. Wieneke Law Office, LLC Attorney General of Indiana Brooklyn, Indiana Katherine Cooper Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Mark Bailey, December 22, 2017 Appellant-Defendant, Court of Appeals Case No. 33A05-1705-CR-1174 v. Appeal from the Henry Circuit Court State of Indiana, The Honorable Kit C. Dean Crane, Appellee-Plaintiff Judge Trial Court Cause No. 33C02-1608-F6-271
Crone, Judge.
Court of Appeals of Indiana | Memorandum Decision 33A05-1705-CR-1174 | December 22, 2017 Page 1 of 8 Case Summary [1] Mark Bailey pled guilty to level 6 felony resisting law enforcement, class A
misdemeanor driving while suspended, and a habitual offender count. He
appeals his six-year aggregate sentence, claiming that the trial court failed to
consider his guilty plea as a mitigating circumstance. He also asserts that his
sentence is inappropriate in light of the nature of the offenses and his character.
Finding that the trial court acted within its discretion in its treatment of Bailey’s
guilty plea and concluding that Bailey has failed to meet his burden of
demonstrating that his sentence is inappropriate, we affirm.
Facts and Procedural History [2] On August 5, 2016, a Henry County Sheriff’s Department deputy attempted to
perform a traffic stop on a vehicle driven by Bailey. As the deputy exited his
patrol car, Bailey sped off. After a high-speed chase, Bailey crashed the vehicle
he was driving. The deputy discovered that the vehicle had been listed as stolen
and that Bailey was driving on a suspended license.
[3] The State charged Bailey with level 6 felony auto theft, level 6 felony resisting
law enforcement, class A misdemeanor driving while suspended, class C
misdemeanor reckless driving, and nine infractions for the traffic offenses of
disregarding a lighted signal, failure to signal for turn or lane change, and
speeding. The State later amended the charging information to add a habitual
offender count.
Court of Appeals of Indiana | Memorandum Decision 33A05-1705-CR-1174 | December 22, 2017 Page 2 of 8 [4] On the morning of his jury trial, the State moved to dismiss the auto theft
charge. Bailey then pled guilty to level 6 felony resisting law enforcement, class
A misdemeanor driving while suspended, and being a habitual offender, and
the State dismissed all remaining counts. At sentencing, the trial court
identified as aggravating circumstances Bailey’s lengthy criminal history and
repeated violations of probation and parole. The court did not identify Bailey’s
guilty plea as a mitigating circumstance, noting that he waited until the day of
trial to plead guilty. The court sentenced Bailey to a two-year term for resisting
law enforcement, with one year suspended to probation, a four-year executed
term for his habitual offender enhancement, and a one-year suspension of his
driver’s license for his driving while suspended conviction.
[5] Bailey now appeals. Additional facts will be provided as necessary.
Discussion and Decision
Section 1 – The trial court acted within its discretion in its treatment of Bailey’s guilty plea during sentencing. [6] Bailey challenges the trial court’s treatment of his guilty plea during sentencing.
Sentencing decisions rest within the sound discretion of the trial court, and as
long as a sentence is within the statutory range, it is subject to review only for
an abuse of discretion. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007),
clarified on reh’g, 875 N.E.2d 218. An abuse of discretion occurs where the trial
court’s decision is clearly against the logic and effect of the facts and
circumstances before it, or the reasonable, probable, and actual deductions to be
Court of Appeals of Indiana | Memorandum Decision 33A05-1705-CR-1174 | December 22, 2017 Page 3 of 8 drawn therefrom. Sloan v. State, 16 N.E.3d 1018, 1026 (Ind. Ct. App. 2014). A
trial court may abuse its discretion if the sentencing statement omits mitigating
factors that are clearly supported by the record and advanced for consideration.
Anglemyer, 868 N.E.2d at 490-91.
[7] Bailey specifically contends that the trial court abused its discretion by declining
to identify his guilty plea as a mitigating circumstance. The trial court is not
obligated to accept the defendant’s argument concerning what constitutes a
mitigating factor. Healey v. State, 969 N.E.2d 607, 616 (Ind. Ct. App. 2012),
trans. denied. Moreover, if the trial court does not find the existence of a
mitigator after it has been argued by counsel, the court is not obligated to
explain why it found the circumstance not to be mitigating. Anglemyer, 868
N.E.2d at 493.
[8] Here, Bailey advanced his guilty plea for consideration as a mitigating
circumstance. The trial court considered the plea and the circumstances
surrounding it and simply did not find it to be mitigating. Despite its lack of
obligation to do so, the court explained its decision as follows:
I do recall Mr. Bailey we were here for Jury Trial. The Jury was literally outside that door with the Bailiff. The closed door and she was looking through the window when you folks decided to enter those guilty pleas so uh I don’t find that as a mitigating circumstance. Might have been a mitigating circumstance if it’d have [sic] taken place three or four months before but when the jury is waiting right out there ready to come in I, I don’t buy or accept the fact when somebody says I manned up. That’s not manning up when the Jury is right there ready to come in, ok.
Court of Appeals of Indiana | Memorandum Decision 33A05-1705-CR-1174 | December 22, 2017 Page 4 of 8 Tr. Vol. 2 at 26.
[9] In short, the trial court did not overlook a mitigator clearly supported by the
record and advanced for consideration. The fact that Bailey disagrees with the
court’s conclusion regarding the effect of his guilty plea on his sentence does
not create an abuse of discretion on the court’s part. See Healey, 969 N.E.2d at
616. The trial court acted within its discretion in its treatment of Bailey’s guilty
plea.
Section 2 – Bailey has failed to meet his burden of demonstrating that his sentence is inappropriate in light of the nature of the offenses and his character. [10] Bailey asks that we review and revise his sentence pursuant to Indiana
Appellate Rule 7(B), which states that we “may revise a sentence authorized by
statute if, after due consideration of the trial court’s decision, [this] Court finds
that the sentence is inappropriate in light of the nature of the offense and the
character of the offender.” When a defendant requests appellate review and
revision of his sentence, we have the power to affirm or reduce the sentence.
Akard v.
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Dec 22 2017, 6:31 am
court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Cara Schaefer Wieneke Curtis T. Hill, Jr. Wieneke Law Office, LLC Attorney General of Indiana Brooklyn, Indiana Katherine Cooper Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Mark Bailey, December 22, 2017 Appellant-Defendant, Court of Appeals Case No. 33A05-1705-CR-1174 v. Appeal from the Henry Circuit Court State of Indiana, The Honorable Kit C. Dean Crane, Appellee-Plaintiff Judge Trial Court Cause No. 33C02-1608-F6-271
Crone, Judge.
Court of Appeals of Indiana | Memorandum Decision 33A05-1705-CR-1174 | December 22, 2017 Page 1 of 8 Case Summary [1] Mark Bailey pled guilty to level 6 felony resisting law enforcement, class A
misdemeanor driving while suspended, and a habitual offender count. He
appeals his six-year aggregate sentence, claiming that the trial court failed to
consider his guilty plea as a mitigating circumstance. He also asserts that his
sentence is inappropriate in light of the nature of the offenses and his character.
Finding that the trial court acted within its discretion in its treatment of Bailey’s
guilty plea and concluding that Bailey has failed to meet his burden of
demonstrating that his sentence is inappropriate, we affirm.
Facts and Procedural History [2] On August 5, 2016, a Henry County Sheriff’s Department deputy attempted to
perform a traffic stop on a vehicle driven by Bailey. As the deputy exited his
patrol car, Bailey sped off. After a high-speed chase, Bailey crashed the vehicle
he was driving. The deputy discovered that the vehicle had been listed as stolen
and that Bailey was driving on a suspended license.
[3] The State charged Bailey with level 6 felony auto theft, level 6 felony resisting
law enforcement, class A misdemeanor driving while suspended, class C
misdemeanor reckless driving, and nine infractions for the traffic offenses of
disregarding a lighted signal, failure to signal for turn or lane change, and
speeding. The State later amended the charging information to add a habitual
offender count.
Court of Appeals of Indiana | Memorandum Decision 33A05-1705-CR-1174 | December 22, 2017 Page 2 of 8 [4] On the morning of his jury trial, the State moved to dismiss the auto theft
charge. Bailey then pled guilty to level 6 felony resisting law enforcement, class
A misdemeanor driving while suspended, and being a habitual offender, and
the State dismissed all remaining counts. At sentencing, the trial court
identified as aggravating circumstances Bailey’s lengthy criminal history and
repeated violations of probation and parole. The court did not identify Bailey’s
guilty plea as a mitigating circumstance, noting that he waited until the day of
trial to plead guilty. The court sentenced Bailey to a two-year term for resisting
law enforcement, with one year suspended to probation, a four-year executed
term for his habitual offender enhancement, and a one-year suspension of his
driver’s license for his driving while suspended conviction.
[5] Bailey now appeals. Additional facts will be provided as necessary.
Discussion and Decision
Section 1 – The trial court acted within its discretion in its treatment of Bailey’s guilty plea during sentencing. [6] Bailey challenges the trial court’s treatment of his guilty plea during sentencing.
Sentencing decisions rest within the sound discretion of the trial court, and as
long as a sentence is within the statutory range, it is subject to review only for
an abuse of discretion. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007),
clarified on reh’g, 875 N.E.2d 218. An abuse of discretion occurs where the trial
court’s decision is clearly against the logic and effect of the facts and
circumstances before it, or the reasonable, probable, and actual deductions to be
Court of Appeals of Indiana | Memorandum Decision 33A05-1705-CR-1174 | December 22, 2017 Page 3 of 8 drawn therefrom. Sloan v. State, 16 N.E.3d 1018, 1026 (Ind. Ct. App. 2014). A
trial court may abuse its discretion if the sentencing statement omits mitigating
factors that are clearly supported by the record and advanced for consideration.
Anglemyer, 868 N.E.2d at 490-91.
[7] Bailey specifically contends that the trial court abused its discretion by declining
to identify his guilty plea as a mitigating circumstance. The trial court is not
obligated to accept the defendant’s argument concerning what constitutes a
mitigating factor. Healey v. State, 969 N.E.2d 607, 616 (Ind. Ct. App. 2012),
trans. denied. Moreover, if the trial court does not find the existence of a
mitigator after it has been argued by counsel, the court is not obligated to
explain why it found the circumstance not to be mitigating. Anglemyer, 868
N.E.2d at 493.
[8] Here, Bailey advanced his guilty plea for consideration as a mitigating
circumstance. The trial court considered the plea and the circumstances
surrounding it and simply did not find it to be mitigating. Despite its lack of
obligation to do so, the court explained its decision as follows:
I do recall Mr. Bailey we were here for Jury Trial. The Jury was literally outside that door with the Bailiff. The closed door and she was looking through the window when you folks decided to enter those guilty pleas so uh I don’t find that as a mitigating circumstance. Might have been a mitigating circumstance if it’d have [sic] taken place three or four months before but when the jury is waiting right out there ready to come in I, I don’t buy or accept the fact when somebody says I manned up. That’s not manning up when the Jury is right there ready to come in, ok.
Court of Appeals of Indiana | Memorandum Decision 33A05-1705-CR-1174 | December 22, 2017 Page 4 of 8 Tr. Vol. 2 at 26.
[9] In short, the trial court did not overlook a mitigator clearly supported by the
record and advanced for consideration. The fact that Bailey disagrees with the
court’s conclusion regarding the effect of his guilty plea on his sentence does
not create an abuse of discretion on the court’s part. See Healey, 969 N.E.2d at
616. The trial court acted within its discretion in its treatment of Bailey’s guilty
plea.
Section 2 – Bailey has failed to meet his burden of demonstrating that his sentence is inappropriate in light of the nature of the offenses and his character. [10] Bailey asks that we review and revise his sentence pursuant to Indiana
Appellate Rule 7(B), which states that we “may revise a sentence authorized by
statute if, after due consideration of the trial court’s decision, [this] Court finds
that the sentence is inappropriate in light of the nature of the offense and the
character of the offender.” When a defendant requests appellate review and
revision of his sentence, we have the power to affirm or reduce the sentence.
Akard v. State, 937 N.E.2d 811, 813 (Ind. 2010). In conducting our review, we
may consider all aspects of the penal consequences imposed by the trial court in
sentencing, i.e., whether it consists of executed time, probation, suspension,
home detention, or placement in community corrections, and whether the
sentences run concurrently or consecutively. Davidson v. State, 926 N.E.2d
1023, 1025 (Ind. 2010). We do not look to see whether the defendant’s
sentence is appropriate or if another sentence might be more appropriate; rather,
Court of Appeals of Indiana | Memorandum Decision 33A05-1705-CR-1174 | December 22, 2017 Page 5 of 8 the test is whether the sentence is “inappropriate.” Fonner v. State, 876 N.E.2d
340, 344 (Ind. Ct. App. 2007). A defendant bears the burden of persuading this
Court that his sentence meets the inappropriateness standard. Anglemyer, 868
N.E.2d at 490.
[11] In considering the nature of Bailey’s offenses, “the advisory sentence is the
starting point the Legislature has selected as an appropriate sentence.” Id. at
494. When determining the appropriateness of a sentence that deviates from an
advisory sentence, we consider whether there is anything more or less egregious
about the offense as committed by the defendant that “makes it different from
the typical offense accounted for by the legislature when it set the advisory
sentence.” Holloway v. State, 950 N.E.2d 803, 807 (Ind. Ct. App. 2011).
[12] Bailey pled guilty to one level 6 felony, one class A misdemeanor, and a
habitual offender count. The sentencing range for a level 6 felony is six months
to two and one-half years, with a one-year advisory term. Ind. Code § 35-50-2-
7(b). A class A misdemeanor carries a sentence of not more than one year.
Ind. Code § 35-50-3-2. A habitual offender finding for a defendant convicted of
a level 6 felony mandates a nonsuspendible, fixed additional term of two to six
years. Ind. Code § 35-50-2-8(i)(2).
[13] We find Bailey’s resistance of law enforcement offense to be more egregious
than a typical offense, such as when a defendant refuses to pull over, flees on
foot, or wiggles out of handcuffs. Bailey sped away during the traffic stop and
precipitated a high-speed chase. In so doing, he endangered himself, law
Court of Appeals of Indiana | Memorandum Decision 33A05-1705-CR-1174 | December 22, 2017 Page 6 of 8 enforcement officers, and other drivers and pedestrians who might have been in
his path. He did all this while operating on a suspended license, for which he
received an additional one-year suspension of his driver’s license. His elevated
two-year term for his level 6 felony comprised one year executed and one
suspended to probation. As for his habitual offender finding, which accounts
for the majority of his aggregate six-year sentence, the court appears to have
split the difference in the statutory sentencing range, which could be deemed
lenient, since the record indicates that he has a previous habitual offender
finding. The nature of Bailey’s offenses does not merit a shorter term.
[14] Similarly, Bailey’s character does not militate toward a shorter sentence. We
conduct our review of his character by engaging in a broad consideration of his
qualities. Aslinger v. State, 2 N.E.3d 84, 95 (Ind. Ct. App. 2014), clarified on other
grounds on reh’g, 11 N.E.3d 571. The presentence investigation report shows
Bailey to be a career criminal whose offenses span two decades, six different
Indiana counties, and Ohio, where he was convicted of breaking and entering,
theft, and receiving stolen property. His felony record includes three robbery
convictions, multiple convictions for theft, auto theft, and receiving stolen
property, and one conviction each for cocaine possession, resisting law
enforcement, and attempted fraud. His misdemeanor record includes
convictions for check deception, possession of paraphernalia, criminal trespass,
driving while suspended, and criminal conversion. Bailey’s record is peppered
with probation and parole violations/revocations, which indicates that previous
attempts at leniency have failed. Even so, the trial court built leniency into his
Court of Appeals of Indiana | Memorandum Decision 33A05-1705-CR-1174 | December 22, 2017 Page 7 of 8 current sentence by suspending one year of his level 6 felony sentence. Bailey
admitted that he has been a regular user of cocaine for nearly two decades and
that most of his criminal conduct has been related to his drug habit. Though we
acknowledge his solid community service record and recent completion of a
substance abuse program, he simply has not demonstrated that his character
merits a reduced sentence.
[15] Simply put, Bailey has failed to meet his burden of showing that his sentence is
inappropriate in light of the nature of the offenses and his character.
Accordingly, we affirm.
[16] Affirmed.
Robb, J., and Bradford, J., concur.
Court of Appeals of Indiana | Memorandum Decision 33A05-1705-CR-1174 | December 22, 2017 Page 8 of 8