Noble Potter v. State of Indiana ( 2012 )

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MEMORANDUM DECISION - NOT FOR PUBLICATION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
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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
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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.
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