Robert J. Fugate, Jr. v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: November 12, 2015
• Docket: 84A01-1505-CR-411
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Nov 12 2015, 6:04 am 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 Mark Small Gregory F. Zoeller Indianapolis, Indiana Attorney General of Indiana

Christina D. Pace Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Robert J. Fugate, Jr., November 12, 2015 Appellant-Defendant, Court of Appeals Case No. 84A01-1505-CR-411 v. Appeal from the Vigo Superior Court State of Indiana, The Honorable John T. Roach, Appellee-Plaintiff Judge Trial Court Cause No. 84D01-1404-FB-1008

Crone, Judge.

Court of Appeals of Indiana | Memorandum Decision 84A01-1505-CR-411| November 12, 2015 Page 1 of 4 Case Summary [1] Robert J. Fugate, Jr., appeals the ten-year sentence imposed by the trial court

following his guilty plea to class B felony rape. He asserts that his sentence is

inappropriate in light of his character. Concluding that he has waived our

review of the appropriateness of his sentence, we affirm.

Facts and Procedural History [2] On April 9, 2015, Fugate raped his neighbor T.G. The State charged Fugate

with class B felony rape, class D felony sexual battery, and with being a repeat

sexual offender. Fugate and the State subsequently entered into a plea

agreement pursuant to which Fugate pled guilty to class B felony rape, with a

sentencing cap of ten years (the advisory sentence for a class B felony 1), in

exchange for the dismissal of the remaining charges. During sentencing, the

trial court noted Fugate’s guilty plea as a mitigating factor, but determined that

his decision to plead guilty was entitled to no mitigating weight in light of the

substantial benefit Fugate received in exchange for his plea, namely the

dismissal of the additional charges. 2 The trial court found Fugate’s extensive

criminal history, which included multiple felonies, as an aggravating factor. At

1 Ind. Code § 35-50-2-5. 2 The trial court found that additional mitigating factors proffered by Fugate were unsupported by the evidence.

Court of Appeals of Indiana | Memorandum Decision 84A01-1505-CR-411| November 12, 2015 Page 2 of 4 the conclusion of the hearing, the trial court imposed the maximum sentence

allowable under the plea agreement, which was ten years. This appeal ensued.

Discussion and Decision [3] Pursuant to Indiana Appellate Rule 7(B), we may revise a sentence authorized

by statute if, after due consideration of the trial court’s decision, we find that the

sentence “is inappropriate in light of the nature of the offense and the character

of the offender.” Whether we regard a sentence as inappropriate at the end of

the day turns on “our sense of the culpability of the defendant, the severity of

the crime, the damage done to others, and myriad other facts that come to light

in a given case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). The

defendant bears the burden to persuade this Court that his or her sentence is

inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). Sentencing

is principally a discretionary function of the trial court to which appellate courts

owe considerable deference. Cardwell, 895 N.E.2d at 1222. “Such deference

should prevail 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).

[4] The argument section of Fugate’s appellate brief is incredibly short and

comments only scantly on his character. However, revision of a sentence

pursuant to Appellate Rule 7(B) requires the appellant to demonstrate that his

Court of Appeals of Indiana | Memorandum Decision 84A01-1505-CR-411| November 12, 2015 Page 3 of 4 sentence is inappropriate in light of both the nature of his offense and his

character. Williams v. State, 891 N.E.2d 621, 633 (Ind. Ct. App. 2008). Because

Fugate presents no argument, scant or otherwise, regarding the appropriateness

of his sentence in light of the nature of his offense, we conclude that he has

waived our review. See id.

[5] Waiver notwithstanding, the advisory sentence is the starting point the

legislature has selected as an appropriate sentence for the crime committed.

Abbott v. State, 961 N.E.2d 1016, 1019 (Ind. 2012). The sentencing range for a

class B felony is between six and twenty years, with an advisory sentence of ten

years. Ind. Code § 35-50-2-5. Because Fugate received the advisory ten-year

sentence for his offense, we cannot conclude that his sentence is excessive.

[6] As for Fugate’s character, we need look no further than his extensive criminal

history, which includes a child molesting conviction along with numerous other

felonies. There is nothing about Fugute’s character that convinces us that his

ten-year sentence is inappropriate. Accordingly, we affirm the sentence

imposed by the trial court.

[7] Affirmed.

May, J., and Bradford, J., concur.

Court of Appeals of Indiana | Memorandum Decision 84A01-1505-CR-411| November 12, 2015 Page 4 of 4