Randy H. Wilson v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: June 18, 2019
• Docket: 18A-CR-2736
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be regarded as precedent or cited before any Jun 18 2019, 7:13 am

court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Christopher L. Clerc Curtis T. Hill, Jr. Columbus, Indiana Attorney General of Indiana

Tiffany A. McCoy Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Randy H. Wilson, June 18, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-2736 v. Appeal from the Bartholomew Superior Court State of Indiana, The Honorable James D. Worton, Appellee-Plaintiff Judge Trial Court Cause No. 03D01-1804-F3-2296

Crone, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2736 | June 18, 2019 Page 1 of 5 Case Summary [1] Randy H. Wilson appeals his twelve-year aggregate sentence for level 5 felony

robbery and level 5 felony criminal confinement. Wilson asserts that the trial

court abused its discretion in failing to find his mental illness as a mitigating

factor. Finding that Wilson has waived this claim, we affirm.

Facts and Procedural History [2] On April 19, 2018, Whitney Mitchell was walking down the street to a friend’s

house in Columbus. Perry Davis, whom Mitchell knew and considered a

friend, saw her walking about. Davis called her over to him and led her into a

residence. Wilson and Ann Bennet were present when Mitchell entered the

residence. Wilson, Davis, and Bennet accused Mitchell of being a “snitch.” Tr.

at 27. Davis snatched Mitchell’s purse, dumped her belongings out, and then

handed Mitchell’s apartment keys to Wilson. All three then battered Mitchell.

[3] Wilson struck Mitchell in the face and started looking for a cord, while Davis

pulled out what would be identified as a black BB handgun. Mitchell feared for

her life and attempted to flee while Wilson and Davis shifted their attention to a

knock on the door. A neighbor noticed Mitchell’s efforts and cry for help.

Wilson and Davis let Mitchell leave when they realized the neighbor was

watching. The neighbor called 911. Police found Mitchell blocks away from

the residence in tears and with multiple wounds. That night, police arrested

Davis and Bennet after stopping a suspect automobile. Wilson, who was also

in the vehicle, fled but was located two months later.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2736 | June 18, 2019 Page 2 of 5 [4] The State charged Wilson with level 3 felony robbery resulting in bodily injury,

level 5 felony criminal confinement, level 6 felony battery resulting in moderate

bodily injury, and class A misdemeanor theft. A jury found Wilson guilty of

the lesser included offense of level 5 felony robbery and found him guilty as

charged on the remaining counts. The trial court vacated judgments on the level

6 felony and class A misdemeanor.

[5] In its sentencing statement, the trial court found five aggravating factors: (1)

criminal history; (2) multiple supervisory sentence failures; (3) prior failed

opportunities for treatment outside of a penal facility; (4) pretrial jail rule

violations; and (5) severity of the crime’s impact on the victim. The trial court

found no mitigating factors and sentenced Wilson to six years executed on each

conviction, to be served consecutively.

Discussion and Decision [6] Wilson now appeals his twelve-year aggregate sentence. Wilson contends that

the trial court abused its discretion when it failed to consider his mental illness

at sentencing.1 “Generally speaking, sentencing decisions are left to the sound

discretion of the trial court, and we review the trial court’s decision only for an

abuse of this discretion.” Singh v. State, 40 N.E.3d 981, 987 (Ind. Ct. App.

1 Wilson also argues that the trial court “should have attributed significant mitigating weight to Wilson’s mental illness at sentencing.” Appellant’s Br. at 8. Trial courts have no obligation to weigh aggravating and mitigating factors against each other when imposing a sentence; “therefore, a trial court can not now be said to have abused its discretion in failing to ‘properly weigh’ these factors.” Anglemeyer v. State, 868 N.E.2d 482, 491 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2736 | June 18, 2019 Page 3 of 5 2015), trans. denied (2016). “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 to be drawn

therefrom.” Anglemeyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on

reh’g, 875 N.E.2d 218. One of the ways a trial court may abuse its discretion is

by failing to consider aggravating or mitigating factors that are clearly

supported by the record and advanced for consideration during sentencing. Id.

at 490-91. At sentencing, Wilson failed to advance his mental illness as a

mitigating factor for consideration. Thus, he “is precluded from advancing it as

a mitigating circumstance for the first time on appeal.” Creekmore v. State, 853

N.E.2d 523, 530 (Ind. Ct. App. 2006), clarified on denial of reh’g, 858 N.E.2d 230,

trans. denied.

[7] Waiver notwithstanding, “[a]n allegation that the trial court failed to identify or

find a mitigating factor requires the defendant to establish that the mitigating

evidence is both significant and clearly supported by the record.” Anglemeyer,

868 N.E.2d at 493. Our supreme court has outlined factors to consider when

assessing the effect of a defendant’s mental illness on sentencing: (1) the extent

of the defendant’s inability to control his behavior due to the disorder or

impairment; (2) overall limitations on functioning; (3) the duration of the

mental illness; and (4) the extent of any nexus between the disorder or

impairment and the commission of the crime. Weeks v. State, 697 N.E.2d 28, 30

(Ind. 1998). Wilson did not proffer any evidence that he was diagnosed with a

mental illness. Because he refused to be interviewed for the presentence

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2736 | June 18, 2019 Page 4 of 5 investigation report in this case, the probation officer who compiled the report

referenced a 2014 presentence investigation report. That report states that

Wilson claimed he was diagnosed as bipolar at age seven. He reported he

stopped taking medication for the condition at the age of seventeen; he is now

twenty-seven. Putting aside Wilson’s bald assertion on appeal, there is no

indication that his alleged bipolar disorder played any role in his commission of

the instant crimes. Therefore, we affirm.

[8] Affirmed.

Bradford, J., and Tavitas, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2736 | June 18, 2019 Page 5 of 5