Judson D. Garrett v. State of Indiana ( 2012 )

FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
Oct 10 2012, 9:14 am
any court except for the purpose of
establishing the defense of res judicata,
CLERK
collateral estoppel, or the law of the case. of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
DONALD C. SWANSON, JR. GREGORY F. ZOELLER
Deputy Public Defender Attorney General of Indiana
Fort Wayne, Indiana
JOSEPH Y. HO
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
JUDSON D. GARRETT, )
)
Appellant-Defendant, )
)
vs. ) No. 02A04-1205-CR-231
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE ALLEN SUPERIOR COURT
The Honorable Frances C. Gull, Judge
Cause No. 02D05-1108-FB-168
October 10, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
BRADFORD, Judge
Appellant-Defendant Judson D. Garrett appeals the sentence imposed by the trial court
following his guilty plea to and conviction for Class B felony robbery.1 Specifically, Garrett
contends that the trial court abused its discretion in sentencing him and that his sentence is
inappropriate. We affirm.
FACTS AND PROCEDURAL HISTORY
The stipulated factual basis entered during the March 12, 2012 guilty plea hearing
provides that on July 28, 2011, Garrett, along with two other individuals, knowingly and
intentionally took money from Theresa Bets while she was working in her position as an
employee of a McDonald’s restaurant. Garrett and his cohorts carried out the robbery while
armed with a deadly weapon, i.e., a firearm, and threatened its use against Bets.
On August 4, 2011, the State charged Garrett with one count of Class B felony
robbery.2 On March 12, 2012, the trial court conducted a hearing at which Garrett pled guilty
“straight up” to the robbery charge. Guilty Plea Tr. p. 8. The trial court accepted Garrett’s
guilty plea and conducted a sentencing hearing on April 9, 2012, at which the court sentenced
Garrett to a fifteen-year term. This appeal follows.
DISCUSSION AND DECISION
Garrett contends that the trial court abused its discretion in sentencing him and that his
sentence is inappropriate in light of the nature of his offense and his character.
I. Abuse of Discretion
1
Ind. Code § 35-42-5-1 (2011).
2
The State amended the charging information on October 27, 2011.
2
Sentencing decisions rest within the sound 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), modified on other grounds 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 to be
drawn therefrom.” Id. (quotation omitted). When imposing a sentence in a felony case, the
trial court must provide a reasonably detailed sentencing statement explaining its reason for
imposing the sentence. Id.One way in which a trial court may abuse its discretion is failing to enter a
sentencing statement at all. Other examples include entering a sentencing
statement that explains reasons for imposing a sentence-including a finding of
aggravating and mitigating factors if any-but the record does not support the
reasons, or the sentencing statement omits reasons that are clearly supported by
the record and advanced for consideration, or the reasons given are improper
as a matter of law. Under those circumstances, 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 490-91.
In arguing that the trial court abused its discretion in sentencing him, Garrett “requests
this Court to reweigh the aggravating and mitigating” factors. Appellant’s Br. p. 6.
However, in Anglemyer, the Indiana Supreme Court held that “because the trial court no
longer has any obligation to ‘weigh’ aggravating and mitigating factors against each other
when imposing a sentence … a trial court can not now be said to have abused its discretion in
failing to ‘properly weigh’ such factors.” Id. at 491. Thus, “the relative weight or value
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assignable to reasons properly found or those which should have been found is not subject to
review for abuse.” Id. Accordingly, in light of the Indiana Supreme Court’s holding in
Anglemyer, we decline Garrett’s request that we reweigh the aggravating and mitigating
factors found by the trial court.3
II. Appropriateness of Sentence
Garrett also challenges his sentence by claiming that it is inappropriate in light of the
nature of his offense and his character. Indiana Appellate Rule 7(B) provides that “The
Court may revise a sentence authorized by statute if, after due consideration of the trial
court’s decision, the Court finds that the sentence is inappropriate in light of the nature of the
offense and the character of the offender.” The defendant bears the burden of persuading us
that his sentence is inappropriate. Sanchez v. State, 891 N.E.2d 174, 176 (Ind. Ct. App.
2008).
With respect to the nature of Garrett’s offense, the record demonstrates that Garrett,
along with two others, robbed a McDonald’s restaurant while armed with a firearm and
threatened to use the firearm against the McDonald’s employee, Bets. Garrett forced Bets to
take him to a back office and instructed her to open the safe and to place the money within
the safe in a plastic bag. Garrett’s actions put Bets in great fear.
With respect to Garrett’s character, the record demonstrates that Garrett had three
prior felony convictions for robbery, auto theft, and resisting law enforcement as well as a
3
We note that the cases relied on by Garrett in support of his request that we reweigh the aggravating
and mitigating factors apply to the pre-Blakely statutory regime which was overturned long before Garrett
committed the instant offense.
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misdemeanor conviction for operating a vehicle having never received a license. Garrett had
previously had his probation revoked and was on parole under an unrelated cause number at
the time he committed the present offense. Garrett argues that his prior felony criminal
convictions should not be given great weight because the convictions were from 2005, and he
had not committed any additional felonies in the intervening seven years. Garrett, however,
was incarcerated for most of the intervening seven years and committed the instant robbery
less than one year after having been released from incarceration for his prior felony robbery
conviction.
Garrett also argues that it reflects well on his character that he accepted responsibility
for his actions and pled guilty. At sentencing, the trial court found Garrett’s guilty plea and
acceptance of responsibility to be mitigating factors. However, the trial court told Garrett
that it did not “weight [sic] that very heavily … because your trial was set to commence
March 13th, and you pled guilty on March 12th, which in my mind is more of a tactical
decision on your part as opposed to a true acceptance of responsibility, but you did plead
guilty.” Sentencing Tr. p. 11. We agree with the trial court that Garrett’s decision to plead
guilty one day before his trial was scheduled to begin appears to be more of a tactical
decision than a desire to accept responsibility for his actions. Thus, in light of Garrett’s
actions, which included robbing a McDonald’s restaurant while armed with and having
threatened use of a firearm against a McDonald’s employee; Garrett’s criminal history, which
included a prior felony robbery conviction; and his prior failure to respond positively to
probation, we cannot say that his fifteen-year sentence in inappropriate.
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The judgment of the trial court is affirmed.
ROBB, C.J., and BAKER, J., concur.
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