MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Oct 24 2019, 9:36 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Steven E. Ripstra Curtis T. Hill, Jr. Calvin K. Miller Attorney General of Indiana Jasper, Indiana Samantha M. Sumcad Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Michael L. Pate, October 24, 2019 Appellant-Defendant, Court of Appeals Case No. 19A-CR-557 v. Appeal from the Dubois Superior Court State of Indiana, The Honorable Mark R. Appellee-Plaintiff McConnell, Judge. Trial Court Cause No. 19D01-1703-F6-311
Altice, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-557 | October 24, 2019 Page 1 of 6 Case Summary
[1] Michael Pate appeals his sentence following his plea of guilty to auto theft, a
Level 6 felony. Pate raises two issues on appeal: whether the trial court abused
its discretion by failing to find a mitigating factor; and whether Pate’s sentence
is inappropriate in light of the nature of the offense and his character.
[2] We affirm.
Facts & Procedural History
[3] On February 14, 2017, Denise Varner invited Pate to her residence so that he
could help her get rid of cardboard boxes. When Varner went to the bathroom,
Pate took her car keys and drove off with her car. The following day, Varner
reported her car stolen and gave a statement to the police, identifying Pate as
the thief. On February 17, 2017, Officer Greg Brescher located the stolen
vehicle at a Super 8 Motel parking lot. On March 23, 2017, the State charged
Pate with auto theft. Pate was arrested on a bench warrant on November 9,
2018. Pate chose to proceed pro se and entered a plea of guilty.
[4] A sentencing hearing was held on November 28, 2018. The trial court identified
Pate’s substantial criminal history and his history of violating previous
probation and community correction sentences as aggravating circumstances.
Pate argued to the court, “I have literally no violence in my criminal history.”
Transcript at 18. In response, the trial court reviewed Pate’s prior convictions,
which include multiple serious crimes such as battery, resisting law
Court of Appeals of Indiana | Memorandum Decision 19A-CR-557 | October 24, 2019 Page 2 of 6 enforcement, burglary, grand larceny, and possession of a firearm or a
concealed weapon by a convicted felon. The trial court expressly determined
that there were no mitigating factors. The trial court then sentenced Pate to a
two-year executed sentence. Pate now appeals.
Discussion & Decision
I. Abuse of Discretion
[5] Sentencing decisions rest within the discretion of the trial court and are
reviewed on appeal 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 (Ind. 2007). An
abuse of discretion occurs if the decision is clearly against the logic and effect of
the facts and circumstances before the court or the reasonable, probable, and
actual deductions drawn therefrom. Id. One way in which a trial court may
abuse its discretion is by entering a sentencing statement that omits mitigating
circumstances that are clearly supported by the record and advanced for
consideration. Id. at 490-91. Under such circumstance, “remand for
resentencing may be the appropriate remedy if we cannot say with confidence
that the trial court would have imposed the same sentence had it properly
considered reasons that enjoy support in the record.” Id. at 491.
[6] Pate contends that the trial court abused its discretion by failing to identify his
decision to plead guilty as a mitigating circumstance. Indeed, a defendant who
pleads guilty generally deserves “some” mitigating weight to be afforded to the
plea. Anglemyer, 875 N.E.2d at 220 (citing McElroy v. State, 865 N.E.2d 584,
Court of Appeals of Indiana | Memorandum Decision 19A-CR-557 | October 24, 2019 Page 3 of 6 591 (Ind. 2007)). However, our Supreme Court has recognized that a trial court
does not necessarily abuse its discretion by failing to recognize a defendant’s
guilty plea as a significant mitigating circumstance. Id. at 221. Instead, a trial
court is required only to identify mitigating circumstances that are both
significant and supported by the record. Id. at 220-21.
[7] Here, the trial court identified Pate’s significant criminal history as an
aggravating circumstance. As set out below, Pate’s criminal history shows that
he is a career criminal offender. Even if we assumed that the trial court abused
its discretion by failing to identify Pate’s guilty plea as a mitigating
circumstance, based on the facts of this case, we are confident that the trial
court would have imposed the same sentence even if it had recognized his
guilty plea as a mitigating circumstance. Thus, the trial court did not abuse its
discretion in sentencing Pate.
II. Inappropriate Sentence
[8] Article 7, Section 4 and 6 of the Indiana Constitution “authorize independent
appellate review and revision of a sentence imposed by the trial court.” Roush v.
State, 875 N.E.2d 801, 812 (Ind. Ct. App. 2007). This appellate authority is
implemented through Indiana Appellate Rule 7(B). Id. We may revise a
sentence if the sentence is “inappropriate in light of the nature of the offense
and the character of the offender.” App. R.7(B). The defendant bears the
burden of persuading the court that the sentence is inappropriate. Rutherford v.
State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007).
Court of Appeals of Indiana | Memorandum Decision 19A-CR-557 | October 24, 2019 Page 4 of 6 [9] When determining if a sentence is inappropriate, the question is not whether
another sentence is more appropriate, but rather whether the sentence imposed
is inappropriate. King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008).
Deference to the trial court “prevail[s] unless overcome by compelling evidence
portraying in a positive light the nature of the offense (such as accompanied by
restraint, regard, and lack of brutality) and the defendant’s character (such as
substantial virtuous traits or persistent examples of good character).” Stephenson
v. State, 29 N.E.3d 111, 122 (Ind. 2015).
[10] With regard to the nature of the offense, we acknowledge that there was
nothing particularly egregious about the facts giving rise to the auto theft.
However, Pate has shown himself to be a person of particularly bad character.
“The character of the offender is found in what we learn from the offender’s life
and conduct.” Croy v. State, 953 N.E.2d 660, 664 (Ind. Ct. App. 2011). When
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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 Oct 24 2019, 9:36 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Steven E. Ripstra Curtis T. Hill, Jr. Calvin K. Miller Attorney General of Indiana Jasper, Indiana Samantha M. Sumcad Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Michael L. Pate, October 24, 2019 Appellant-Defendant, Court of Appeals Case No. 19A-CR-557 v. Appeal from the Dubois Superior Court State of Indiana, The Honorable Mark R. Appellee-Plaintiff McConnell, Judge. Trial Court Cause No. 19D01-1703-F6-311
Altice, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-557 | October 24, 2019 Page 1 of 6 Case Summary
[1] Michael Pate appeals his sentence following his plea of guilty to auto theft, a
Level 6 felony. Pate raises two issues on appeal: whether the trial court abused
its discretion by failing to find a mitigating factor; and whether Pate’s sentence
is inappropriate in light of the nature of the offense and his character.
[2] We affirm.
Facts & Procedural History
[3] On February 14, 2017, Denise Varner invited Pate to her residence so that he
could help her get rid of cardboard boxes. When Varner went to the bathroom,
Pate took her car keys and drove off with her car. The following day, Varner
reported her car stolen and gave a statement to the police, identifying Pate as
the thief. On February 17, 2017, Officer Greg Brescher located the stolen
vehicle at a Super 8 Motel parking lot. On March 23, 2017, the State charged
Pate with auto theft. Pate was arrested on a bench warrant on November 9,
2018. Pate chose to proceed pro se and entered a plea of guilty.
[4] A sentencing hearing was held on November 28, 2018. The trial court identified
Pate’s substantial criminal history and his history of violating previous
probation and community correction sentences as aggravating circumstances.
Pate argued to the court, “I have literally no violence in my criminal history.”
Transcript at 18. In response, the trial court reviewed Pate’s prior convictions,
which include multiple serious crimes such as battery, resisting law
Court of Appeals of Indiana | Memorandum Decision 19A-CR-557 | October 24, 2019 Page 2 of 6 enforcement, burglary, grand larceny, and possession of a firearm or a
concealed weapon by a convicted felon. The trial court expressly determined
that there were no mitigating factors. The trial court then sentenced Pate to a
two-year executed sentence. Pate now appeals.
Discussion & Decision
I. Abuse of Discretion
[5] Sentencing decisions rest within the discretion of the trial court and are
reviewed on appeal 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 (Ind. 2007). An
abuse of discretion occurs if the decision is clearly against the logic and effect of
the facts and circumstances before the court or the reasonable, probable, and
actual deductions drawn therefrom. Id. One way in which a trial court may
abuse its discretion is by entering a sentencing statement that omits mitigating
circumstances that are clearly supported by the record and advanced for
consideration. Id. at 490-91. Under such circumstance, “remand for
resentencing may be the appropriate remedy if we cannot say with confidence
that the trial court would have imposed the same sentence had it properly
considered reasons that enjoy support in the record.” Id. at 491.
[6] Pate contends that the trial court abused its discretion by failing to identify his
decision to plead guilty as a mitigating circumstance. Indeed, a defendant who
pleads guilty generally deserves “some” mitigating weight to be afforded to the
plea. Anglemyer, 875 N.E.2d at 220 (citing McElroy v. State, 865 N.E.2d 584,
Court of Appeals of Indiana | Memorandum Decision 19A-CR-557 | October 24, 2019 Page 3 of 6 591 (Ind. 2007)). However, our Supreme Court has recognized that a trial court
does not necessarily abuse its discretion by failing to recognize a defendant’s
guilty plea as a significant mitigating circumstance. Id. at 221. Instead, a trial
court is required only to identify mitigating circumstances that are both
significant and supported by the record. Id. at 220-21.
[7] Here, the trial court identified Pate’s significant criminal history as an
aggravating circumstance. As set out below, Pate’s criminal history shows that
he is a career criminal offender. Even if we assumed that the trial court abused
its discretion by failing to identify Pate’s guilty plea as a mitigating
circumstance, based on the facts of this case, we are confident that the trial
court would have imposed the same sentence even if it had recognized his
guilty plea as a mitigating circumstance. Thus, the trial court did not abuse its
discretion in sentencing Pate.
II. Inappropriate Sentence
[8] Article 7, Section 4 and 6 of the Indiana Constitution “authorize independent
appellate review and revision of a sentence imposed by the trial court.” Roush v.
State, 875 N.E.2d 801, 812 (Ind. Ct. App. 2007). This appellate authority is
implemented through Indiana Appellate Rule 7(B). Id. We may revise a
sentence if the sentence is “inappropriate in light of the nature of the offense
and the character of the offender.” App. R.7(B). The defendant bears the
burden of persuading the court that the sentence is inappropriate. Rutherford v.
State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007).
Court of Appeals of Indiana | Memorandum Decision 19A-CR-557 | October 24, 2019 Page 4 of 6 [9] When determining if a sentence is inappropriate, the question is not whether
another sentence is more appropriate, but rather whether the sentence imposed
is inappropriate. King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008).
Deference to the trial court “prevail[s] unless overcome by compelling evidence
portraying in a positive light the nature of the offense (such as accompanied by
restraint, regard, and lack of brutality) and the defendant’s character (such as
substantial virtuous traits or persistent examples of good character).” Stephenson
v. State, 29 N.E.3d 111, 122 (Ind. 2015).
[10] With regard to the nature of the offense, we acknowledge that there was
nothing particularly egregious about the facts giving rise to the auto theft.
However, Pate has shown himself to be a person of particularly bad character.
“The character of the offender is found in what we learn from the offender’s life
and conduct.” Croy v. State, 953 N.E.2d 660, 664 (Ind. Ct. App. 2011). When
considering the character of the offender, “‘one relevant fact is the defendant’s
criminal history,’ and [t]he significance of criminal history varies based on the
gravity, nature, and number of prior offenses in relation to the current offense.”
Sanders v. State, 71 N.E.3d 839, 844 (Ind. Ct. App. 2017) (quoting Garcia v. State,
47 N.E.3d 1249, 1251 (Ind. Ct. App. 2015), trans. denied), trans. denied.
[11] Pate has a significant history of violating the law. Pate’s criminal history spans
over twenty-four years and includes forty-nine total criminal cases resulting in
thirty-five convictions of various misdemeanors and felonies. As pointed out by
the trial court, Pate has been convicted of a variety of offenses including battery,
resisting law enforcement, burglary, grand larceny, and possession of a firearm
Court of Appeals of Indiana | Memorandum Decision 19A-CR-557 | October 24, 2019 Page 5 of 6 or a concealed weapon by a convicted felon. In addition, nearly early every
time Pate has been given the opportunity for a community corrections sentence,
that sentence has been revoked. Pate’s criminal history demonstrates that he
has consistently disobeyed our laws and has shown no effort to change his
behavior.
[12] Pate faced a sentencing range of six months to two-and-a-half-years for the
Level 6 felony conviction. Ind. Code § 35-50-2-7(b). The advisory sentence is
one year. Id. The trial court imposed an aggravated sentence of two years,
which is well within the sentencing range, and less than the trial court could
have imposed. Under these circumstances, we cannot say that Pate’s sentence
is inappropriate in light of his character and the nature of the offense.
Judgment affirmed.
Brown, J. and Tavitas, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-557 | October 24, 2019 Page 6 of 6