Dustin Arbuckle v. State of Indiana (mem. dec.) ( 2016 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Jun 14 2016, 8:29 am
regarded as precedent or cited before any CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Dorothy Ferguson Gregory F. Zoeller
Anderson, Indiana Attorney General of Indiana
Ian McLean
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Dustin Arbuckle, June 14, 2016
Appellant-Defendant, Court of Appeals Case No.
48A02-1510-CR-1596
v. Appeal from the Madison Circuit
Court
State of Indiana, The Honorable David A. Happe,
Appellee-Plaintiff. Judge
Trial Court Cause No.
48C04-1503-F3-305, 48C04-1507-
F6-1109, and 48C04-1508-F4-1263
Altice, Judge.
Case Summary
Court of Appeals of Indiana | Memorandum Decision 48A02-1510-CR-1596 | June 14, 2016 Page 1 of 13
[1] Dustin Arbuckle pled guilty to multiple offenses under three separate cause
numbers and received an aggregate sentence of fifty years executed in the
Department of Correction followed by three years suspended to probation.
Arbuckle now appeals, arguing that the trial court abused its discretion in
sentencing him and that the sentence imposed is inappropriate.
[2] We affirm.
Facts & Procedural History
[3] In the early morning hours of February 26, 2015, Jeffrey Monday was asleep in
his home in Elwood, Indiana when he awoke to find Arbuckle standing over
him, yelling at him to get on the floor or he would be killed. When Monday
looked up at Arbuckle, Arbuckle struck him in the face with what appeared to
be a pistol. Both Monday and Arbuckle fell to the floor and struggled as
Arbuckle attempted to take Monday’s wallet. Monday was able to get away
from Arbuckle and grab an aluminum baseball bat. Arbuckle rushed at
Monday and a struggle over the bat ensued. Monday managed to escape and
run to a neighbor’s house for help. As he fled, Monday saw Arbuckle leave the
house with the aluminum bat. When police arrived, they were able to follow
footprints in the snow leading from Monday’s house to another residence.
When police obtained a search warrant and knocked on the door, Arbuckle
answered the door. Upon searching the house, police found a toy gun in
Arbuckle’s bedroom, shoes matching the footprints between the two residences,
Monday’s aluminum baseball bat, and a pair of Monday’s sunglasses. As a
Court of Appeals of Indiana | Memorandum Decision 48A02-1510-CR-1596 | June 14, 2016 Page 2 of 13
result of these events, Arbuckle was arrested and charged under cause number
38C04-1503-F3-305 (F3-305) with Level 3 felony burglary, Level 3 felony
robbery, and Level 3 felony attempted robbery. Arbuckle was released on bail
on May 9, 2015.
[4] On July 17, 2015, a patrolling police officer observed a vehicle leave the
roadway and drive left of center. The officer conducted a traffic stop and the
driver, Arbuckle, provided an Indiana identification card and told the officer
that he had been texting and did not have a valid driver’s license. A records
check revealed that Arbuckle’s license had been suspended after he was
determined to be a habitual traffic violator (HTV) in August 2012.
Additionally, upon searching the vehicle, the officer located a marijuana
cigarette. As a result, Arbuckle was charged under cause number 48C04-1507-
F6-1109 (F6-1109) with operating a vehicle after being determined to be a HTV,
a Level 6 felony, and class B misdemeanor possession of marijuana. Arbuckle
was released on bail on August 1, 2015.
[5] Just six days later, on August 7, 2015, Shawn Young woke up in his Elwood
home to find Arbuckle going through a pair of his pants. When Young
confronted him, Arbuckle fled through the front door of the home. About
twelve hours later, James Jackson saw Arbuckle approach his Elwood home.
Jackson was best friends with Arbuckle’s brother and had known Arbuckle for
approximately thirty years. Jackson watched as Arbuckle walked onto his
porch, removed his shoes and socks, placed his socks on his hands, and put his
shoes back on. Arbuckle then called Jackson’s phone, and when Jackson did
Court of Appeals of Indiana | Memorandum Decision 48A02-1510-CR-1596 | June 14, 2016 Page 3 of 13
not answer, knocked on the front door. When Jackson did not come to the
door, Arbuckle tried to push the front door open. When that did not work,
Arbuckle went to a bedroom window and tried to push it open. Arbuckle then
removed a window air conditioning unit, and Jackson confronted him and
asked what he was doing. Arbuckle asked Jackson for money and then left.
About an hour later, Arbuckle arrived at Michael McGuire’s home in Elwood.
A neighbor watched as Arbuckle peered over McGuire’s privacy fence before
climbing it. Arbuckle opened McGuire’s garage door and entered the garage.
At that time, the neighbor confronted Arbuckle. Arbuckle said that the
homeowner was his friend and then fled down the street to a waiting vehicle.
Police later found Arbuckle hiding in the bushes in the back yard of another
residence. As a result of the events of August 7, 2015, Arbuckle was arrested
and charged under cause number 48C04-1508-F4-1263 (F4-1263) with burglary
and attempted burglary, both as Level 4 felonies; burglary as a Level 5 felony,
three counts of theft as Level 6 felonies; three counts of attempted theft as class
A misdemeanors; and criminal mischief, a class B misdemeanor.
[6] On August 27, 2015, Arbuckle pled guilty to the charges filed under F3-305, F6-
1109, and F4-1263 without the benefit of a plea agreement. With regard to the
offenses charged under F3-305, the trial court found that the theft charges
merged into the remaining convictions and imposed fourteen-year executed
sentences on each of the three Level 3 felony charges. The sentences for
robbery and attempted robbery were to be served concurrently, but consecutive
Court of Appeals of Indiana | Memorandum Decision 48A02-1510-CR-1596 | June 14, 2016 Page 4 of 13
to the sentence for burglary. Thus, Arbuckle received an aggregate twenty-
eight-year sentence for the offenses charged under F3-305.
[7] In F4-1263, the trial court imposed consecutive sentences of nine years each on
the Level 4 felony burglary and attempted burglary convictions and four years
for the Level 5 burglary conviction. The trial court found that the attempted
theft and theft convictions merged into the burglary convictions and assessed
only a fine and costs on the misdemeanor criminal mischief count. Thus,
Arbuckle received an aggregate twenty-two-year sentence for the offenses
charged under F4-1263.
[8] With regard to the offenses charged under F6-1109, the trial court imposed a
sentence of two and a half years for the HTV offense and six months for
possession of marijuana, to be served consecutively. The entirety of the
aggregate three-year sentence under F6-1109 was suspended to probation.
[9] As required by statute, the sentences imposed under each cause number were
ordered to be served consecutive to one another. Thus, for all three cause
numbers, Arbuckle received an aggregate sentence of fifty years executed and
three years suspended to probation. Arbuckle now appeals.
Discussion & Decision
[10] Before addressing the merits of Arbuckle’s appeal, we note that his argument
conflates two separate sentencing standards: whether the trial court abused its
discretion in identifying mitigating and aggravating factors and whether
Court of Appeals of Indiana | Memorandum Decision 48A02-1510-CR-1596 | June 14, 2016 Page 5 of 13
Arbuckle’s sentence is inappropriate pursuant to Indiana Appellate Rule 7. “As
our Supreme Court has made clear, inappropriate sentence and abuse of
discretion claims are to be analyzed separately.” King v. State, 894 N.E.2d 265,
267 (Ind. Ct. App. 2008). Accordingly, “an inappropriate sentence analysis
does not involve an argument that the trial court abused its discretion in
sentencing the defendant.” Id.
[11] With respect to Arbuckle’s argument concerning the trial court’s consideration
of aggravating and mitigating factors, we note that sentencing decisions rest
within the sound discretion of the trial court. Anglemyer v. State, 868 N.E.2d
482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218. So long as the sentence
is within the statutory range, it is subject to review only for an abuse of
discretion. Id. “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. at 490
(quoting K.S. v. State, 849 N.E.2d 538, 544 (Ind. 2006)).
[12] A trial court may abuse its sentencing discretion in a number of ways,
including: (1) failing to enter a sentencing statement at all; (2) entering a
sentencing statement that includes aggravating and mitigating factors that are
unsupported by the record; (3) entering a sentencing statement that omits
reasons that are clearly supported by the record; or (4) entering a sentencing
statement that includes reasons that are improper as a matter of law. Id. at 490-
91. If the trial court abuses its discretion in one of these or another way,
remand for resentencing is the appropriate remedy “if we cannot say with
Court of Appeals of Indiana | Memorandum Decision 48A02-1510-CR-1596 | June 14, 2016 Page 6 of 13
confidence that the trial court would have imposed the same sentence had it
properly considered reasons that enjoy support in the record.” Id. at 491.
[13] On appeal, Arbuckle notes that the trial court found aggravating and mitigating
circumstances, but argues that the court failed to explain “why the aggravators
outweigh the mitigators or the rationale for an aggravated sentence above the
advisory sentence.” Appellant’s Brief at 11. The basis of this argument is
unclear. To the extent that Arbuckle argues that the trial court did not properly
weigh the aggravating and mitigating factors, we note that trial courts are no
longer obligated to weigh such factors against each other when imposing a
sentence. Anglemyer, 868 N.E.2d at 491. Thus, a trial court cannot be said to
have abused its discretion in failing to properly weigh such factors. Id.
[14] To the extent that Arbuckle claims the trial court failed to enter a sufficiently
detailed sentencing statement, we note that when imposing a sentence for a
felony offense, a trial court must enter a sentencing statement that “include[s] a
reasonably detailed recitation of the trial court’s reasons for imposing a
particular sentence.” Id. at 490. In this case, the trial court carefully explained
its reasoning when imposing Arbuckle’s sentence. As aggravating
circumstances, the trial court noted Arbuckle’s extensive criminal history,
which will be detailed further below, as well as the fact that Arbuckle
committed multiple crimes against multiple victims. As mitigating
circumstances, the trial court noted that Arbuckle accepted responsibility by
pleading guilty and expressed remorse. The court went on to find that “the
aggravation strongly outweighs the mitigation here, and it does call for an
Court of Appeals of Indiana | Memorandum Decision 48A02-1510-CR-1596 | June 14, 2016 Page 7 of 13
aggravated sentence.” Transcript at 54. This is a sufficiently detailed sentencing
statement.
[15] Arbuckle also argues that the trial court abused its discretion by overlooking
significant mitigating circumstances. An allegation that the trial court failed to
identify a mitigating factor requires the defendant to establish that the
mitigating evidence is both significant and clearly supported by the record.
Anglemyer, 868 N.E.2d at 493. A sentencing court is not obligated to find a
circumstance to be mitigating merely because it is advanced as such by the
defendant, nor is it required to explain why it chose not to make a finding of
mitigation. Felder v. State, 870 N.E.2d 554, 558 (Ind. Ct. App. 2007). A trial
court does not abuse its discretion in failing to find a mitigating factor that is
highly disputable in nature, weight, or significance. Rogers v. State, 878 N.E.2d
269, 272 (Ind. Ct. App. 2007), trans. denied.
[16] Arbuckle appears to argue that the trial court abused its discretion by failing to
recognize his history of substance abuse as a mitigating factor. A trial court is
not required to consider a defendant’s substance abuse as a mitigating
circumstance. James v. State, 643 N.E.2d 321, 323 (Ind. 1994). In fact,
substance abuse may be considered an aggravating circumstance where the
defendant is aware of his addiction and does not seek treatment. See Caraway v.
State, 959 N.E.2d 847, 852 (Ind. Ct. App. 2011), trans. denied. Arbuckle
admitted to abusing drugs and alcohol beginning at twelve years old. However,
Arbuckle reported that the only treatment he ever received was substance abuse
classes while incarcerated and a short inpatient stay following a heroin
Court of Appeals of Indiana | Memorandum Decision 48A02-1510-CR-1596 | June 14, 2016 Page 8 of 13
overdose. In light of Arbuckle’s continued drug use and failure to seek out help
to battle his addiction, the trial court did not abuse its discretion in declining to
find his substance abuse problem to be a mitigating circumstance.
[17] Arbuckle also seems to suggest that the trial court should have identified the
presence of a number of his family members at the sentencing hearing, as
compared to the absence of any of his victims, as a mitigating factor. Arbuckle
has made no attempt to explain why these facts should be considered
mitigating, and he has not directed our attention to any authority remotely
supporting such a conclusion. The trial court did not abuse its discretion in
declining to recognize these circumstances as a mitigating factor.
[18] Finally, Arbuckle claims that the trial court abused its discretion by failing to
identify his employment history as a significant mitigating factor. We note,
however, that the pre-sentence investigation report establishes that Arbuckle’s
employment was sporadic and short-lived due to his many incarcerations. The
trial court did not abuse its discretion in declining to find Arbuckle’s
employment history to be a significant mitigating factor. For all of these
reasons, we cannot conclude that the trial court abused its discretion in
imposing Arbuckle’s sentence.
[19] Turning now to Arbuckle’s challenge to the appropriateness of his sentence, we
note that although a trial court may have acted within its lawful discretion in
imposing a sentence, Article 7, Sections 4 and 6 of the Indiana Constitution
authorize independent appellate review and revision of a sentence imposed by
Court of Appeals of Indiana | Memorandum Decision 48A02-1510-CR-1596 | June 14, 2016 Page 9 of 13
the trial court. Alvies v. State, 905 N.E.2d 57, 64 (Ind. Ct. App. 2009) (citing
Anglemyer, 868 N.E.2d at 491). This appellate authority is implemented
through Indiana Appellate Rule 7(B), which provides that a 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.” Anglemyer, 868 N.E.2d at 491.
Nevertheless, “we must and should exercise deference to a trial court’s
sentencing decision, both because Rule 7(B) requires us to give ‘due
consideration’ to that decision and because we understand and recognize the
unique perspective a trial court brings to its sentencing decisions.” Stewart v.
State, 866 N.E.2d 858, 866 (Ind. Ct. App. 2007). The appellant bears the
burden of persuading us that his sentence is inappropriate. Childress v. State, 848
N.E.2d 1073, 1080 (Ind. 2006).
[20] Whether we regard a sentence as appropriate “turns on our sense of the
culpability of the defendant, the severity of the crime, the damage done to
others, and myriad other factors that come to light in a given case.” Cardwell v.
State, 895 N.E.2d 1219, 1224 (Ind. 2008). Additionally, our review “should
focus on the forest—the aggregate sentence—rather than the trees—consecutive
or concurrent, number of counts, or length of the sentence on any individual
count.” Id. at 1225.
Court of Appeals of Indiana | Memorandum Decision 48A02-1510-CR-1596 | June 14, 2016 Page 10 of 13
[21] Arbuckle was convicted of three Level 3 felonies, 1 two Level 4 felonies,2 a Level
5 felony,3 a Level 6 felony,4 and two class B misdemeanors.5 At the sentencing
hearing, Arbuckle and the State agreed that the maximum aggregate sentence
the trial court could have imposed for all three cause numbers was sixty-five
and a half years. Thus, Arbuckle’s sentence of fifty years executed followed by
three years suspended to probation was well below the maximum he could have
received.
[22] On appeal, Arbuckle devotes very little effort to discussing the nature of the
offenses, merely stating that “the only stolen item was an aluminum baseball
bat, and the only injury was a minor injury to one victims [sic] face.”
Appellant’s Brief at 12. Arbuckle has grossly understated the seriousness of his
offenses. Arbuckle broke into Monday’s home and threatened his life before
striking him in the face. Arbuckle then wrestled with Monday in an attempt to
take his wallet and then a baseball bat. Shortly after being released on bail for
these offenses, Arbuckle was caught driving after being adjudicated an HTV
1
Ind. Code § 35-50-2-5 provides that “[a] person who commits a Level 3 felony . . . shall be imprisoned for a
fixed term of between three (3) and sixteen (16) years, with the advisory sentence being nine (9) years.”
2
I.C. § 35-50-2-5.5 provides that “[a] person who commits a Level 4 felony shall be imprisoned for a fixed
term of between two (2) and twelve (12) years, with the advisory sentence being six (6) years.”
3
I.C. § 35-50-2-6 provides that “[a] person who commits a Level 5 felony . . . shall be imprisoned for a fixed
term of between one (1) and six (6) years, with the advisory sentence being three (3) years.”
4
I.C. § 35-50-2-7 provides that “[a] person who commits a Level 6 felony . . . shall be imprisoned for a fixed
term of between six (6) months and two and one-half (2 ½ ) years, with the advisory sentence being one (1)
year.”
5
I.C. § 35-50-3-3 provides that “[a] person who commits a Class B misdemeanor shall be imprisoned for a
fixed term of not more than one hundred eighty (180) days[.]”
Court of Appeals of Indiana | Memorandum Decision 48A02-1510-CR-1596 | June 14, 2016 Page 11 of 13
and found to be in possession of marijuana. Just days after being released on
bail yet again, Arbuckle went on a crime spree during which be burglarized or
attempted to burglarize three residences. Although it appears that the only
items Arbuckle actually managed to steal in the course of committing the
offenses at issue were Monday’s aluminum baseball bat and a pair of
sunglasses, it was not for lack of trying. The fact that Arbuckle’s multiple
attempts to steal items were ultimately unsuccessful does nothing to mitigate
the seriousness of these offenses.
[23] Nor does Arbuckle’s character support a revision of his sentence. His criminal
history standing alone would be sufficient to justify the sentence imposed.
Arbuckle has eight prior felony convictions for offenses including theft,
burglary, obstruction of justice, possession of a controlled substance, and
operating a vehicle while intoxicated, and according to his own testimony, he
has committed numerous burglaries, thefts, and OWI offenses for which he was
never caught. He has also violated his probation numerous times, and he was
out on bail for the offenses in F3-305 when he committed the offenses in F6-
1109, and he was released on bond in F6-1109 a mere six days before
committing the offenses in F4-1263. Defense counsel noted that Arbuckle, who
was thirty-four years old at the time of sentencing, had already spent eleven
years of his adult life behind bars. Despite his numerous contacts with the
criminal justice system and the leniency afforded him in the past, Arbuckle has
continued to abuse drugs and engage in a pattern of criminal activity that has
Court of Appeals of Indiana | Memorandum Decision 48A02-1510-CR-1596 | June 14, 2016 Page 12 of 13
escalated in seriousness over time. For all of these reasons, we cannot conclude
that Arbuckle’s sentence is inappropriate.
[24] We affirm.
[25] Bailey, J. and Bradford, J., concur.
Court of Appeals of Indiana | Memorandum Decision 48A02-1510-CR-1596 | June 14, 2016 Page 13 of 13