Noble Potter v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: September 4, 2012
• Docket: 10A01-1112-CR-619
• Status: Unpublished

Opinion

Pursuant to Ind. Appellate Rule 65(D), 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:

JEFFREY D. STONEBRAKER GREGORY F. ZOELLER Clark County Chief Public Defender Attorney General of Indiana Jeffersonville, Indiana AARON J. SPOLARICH Deputy Attorney General

FILED Indianapolis, Indiana

Sep 04 2012, 9:42 am IN THE COURT OF APPEALS OF INDIANA CLERK of the supreme court, court of appeals and tax court

NOBLE POTTER, ) ) Appellant-Defendant, ) ) vs. ) No. 10A01-1112-CR-619 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )

APPEAL FROM THE CLARK CIRCUIT COURT The Honorable Vicki L. Carmichael, Judge Cause No. 10C04-1005-FB-94

September 4, 2012

MEMORANDUM DECISION - NOT FOR PUBLICATION

GARRARD, Senior Judge Noble Potter was charged with residential burglary, a class B felony, and being an

habitual offender. On the day he was scheduled for trial he entered a guilty plea to both

charges. The court found his prior arrests, the nature and circumstances of the crime, and

his probation and parole violations as aggravators. As the sole mitigator, it found that

imprisonment may be a substantial hardship on his dependent children but also noted his

pending criminal non-support charge. Finding that the aggravators outweighed the

mitigator, it sentenced him to ten years on the burglary conviction enhanced by thirty

years on the habitual offender determination for a total sentence of forty years. He

appeals the severity of the sentence.

Potter contends the court failed to find a mitigating factor in his entry of a guilty

plea. Entry of a guilty plea is not an automatic mitigator. Caraway v. State, 959 N.E.2d

847, 853 (Ind. Ct. App. 2011), trans. denied. Here, the plea was not entered until the

very day of trial and after pretrial depositions had been taken. Moreover, there was

substantial evidence against Potter, including his confession. Therefore, the court was

not bound to determine the plea was a significant mitigator. See id. (“A plea’s

significance is reduced if it is made on the eve of trial . . . or if substantial admissible

evidence exists against the defendant.”). Additionally, the court is not required to explain

why it was not a mitigator. Anglemyer v. State, 868 N.E.2d 482, 493 (Ind. 2007),

clarified on reh’g, 875 N.E.2d 218 (2007).

Potter also contends that the court abused its discretion when it found as

aggravators his prior arrests, the nature and circumstances of the crime, and his probation

and parole violations. As to his prior arrests, Potter’s presentence investigation report

2 shows thirty-four contacts with the criminal justice system. Although a few of the

charges had been dismissed and others were pending, the long history of arrests

“reveal[s] to the court that subsequent antisocial behavior on the part of the defendant has

not been deterred even after having been subject to the police authority of the State.”

Tunstill v. State, 568 N.E.2d 539, 545 (Ind. 1991). Potter even concedes that a court may

consider prior arrests when sentencing a defendant. See Appellant’s Br. p. 12. The court

did not abuse its discretion in finding this aggravator.

We next note that even if the court abused its discretion in finding the other

aggravators, we may nonetheless affirm the sentence if we are confident that the court

would have imposed the same sentence had it properly considered reasons that enjoy

support in the record. See Anglemyer, 868 N.E.2d at 491. We do so here. Even if the

court had abused its discretion in finding the other aggravators, we are confident that it

would have imposed the same sentence without them.

In an earlier day, the balance of Potter’s argument would have been characterized

as challenging the weight to be given to the various factors in aggravation and mitigation.

Since Anglemyer, however, that argument is unavailable. See id. He therefore uses his

argument to address appellate review pursuant to Indiana Appellate Rule 7(B).

Sentencing is principally a discretionary function in which the trial court’s

judgment should receive considerable deference. Cardwell v. State, 895 N.E.2d 1219,

1222 (Ind. 2008). Potter bears the burden of persuading us that his sentence has met the

inappropriateness standard of review. See Anglemyer, 868 N.E.2d at 494. Resolution of

3 the issue is based upon the nature of the offense and the character of the offender. Id. at

491.

The offense was a daylight burglary of a lady’s residence. No one was injured. A

number of items were taken, including televisions, cameras, gold jewelry, and firearms,

many of which were later sold to a pawn shop. Also taken were ladies’ undergarments.

Imposition of the advisory sentence of ten years for the burglary appears reasonable.

Thus, the issue turns to the character of the offender. Potter’s criminal career

extends from 1993 in Kentucky and 1994 in Indiana. When entering his plea he admitted

that all the allegations in the habitual offender charge were true. The charge listed eight

felonies committed between 1993 and 2004. Those felonies included burglary, theft, and

receiving stolen property, crimes similar in nature to the crime committed here. In

addition his presentence investigation report disclosed pending charges against him for

two counts of burglary and one count each of theft, forgery, receiving stolen property,

criminal non-support, battery, and obtaining a drug by fraud. A thirty-year enhancement

is authorized by the habitual offender statute. See Ind. Code § 35-50-2-8(h).

In sum, Potter has failed to persuade us that his sentence is inappropriate.

Affirmed.

RILEY, J., and MAY, J., concur.