Garrett Andrew Plumlee v. State of Indiana ( 2012 )

Pursuant to Ind.Appellate Rule 65(D),
FILED
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, Oct 02 2012, 9:21 am
collateral estoppel, or the law of the case.
CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
KAREN M. HEARD GREGORY F. ZOELLER
Evansville, Indiana Attorney General of Indiana
JAMES B. MARTIN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
GARRETT ANDREW PLUMLEE, )
)
Appellant-Defendant, )
)
vs. ) No. 82A05-1203-CR-131
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE VANDERBURGH SUPERIOR COURT
The Honorable Mary Margaret Lloyd, Judge
Cause No. 82D02-1107-FC-750
October 2, 2012
MEMORANDUM DECISION – NOT FOR PUBLICATION
VAIDIK, Judge
Case Summary
Garrett Andrew Plumlee appeals his three-year sentence for Class D felony
criminal recklessness. He contends that the trial court failed to consider certain
mitigators and his sentence is inappropriate in light of the nature of the offense and his
character. Because we find no trial court error and Plumlee has failed to persuade us that
his sentence is inappropriate in light of the nature of the offense and his character, we
affirm.
Facts and Procedural History
On July 4, 2011, Plumlee came home and saw that Jesse Heckman was there
visiting with his wife, Robin. Plumlee and Heckman got in an argument and Plumlee
told Heckman to leave. Heckman left the home with Robin and her two children,
walking them to a relative’s house nearby. As Heckman walked through an alley toward
his car, Plumlee approached him with a “buck style” knife. Appellant’s Confidential
App. p. 11. Plumlee swung at Heckman three times, Heckman threw a trash can at
Plumlee, and Plumlee stabbed Heckman once in his right side. Id. Heckman was taken
to the hospital and required surgery for his injury.
Plumlee turned himself in to the police, and the State charged him with Class C
felony battery by means of a deadly weapon. The State later filed a second count of
Class D felony criminal recklessness. In January 2012, the State indicated that it would
dismiss the Class C felony battery charge if Plumlee pled guilty to Class D felony
criminal recklessness, with the parties to argue sentencing. Tr. p. 4-8, 11. Plumlee pled
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guilty to Class D felony criminal recklessness and the trial court sentenced him to three
years executed at the Department of Correction.
Plumlee now appeals.
Discussion and Decision
Plumlee contends both that the trial court did not properly consider certain
mitigating factors and that his sentence is inappropriate in light of the nature of the
offense and his character.
II. Mitigating Factors
Plumlee argues that the trial court erred by failing to consider certain mitigating
factors when determining his sentence, specifically: (1) his completion of the Celebrating
Recovery Program; (2) his acceptance into Churches Embracing Offenders program; (3)
his ADHD; (4) his remorse for Heckman’s injuries; (5) that the stabbing happened during
“mutual combat”; and (6) that he turned himself in and pled guilty. Appellant’s Br. p. 8-
10. We disagree.
Determining what is a proper mitigating circumstance is within the discretion of
the trial court. Rogers v. State, 878 N.E.2d 269, 272 (Ind. Ct. App. 2007), trans. denied.
The trial court does not have to accept the defendant’s arguments as to what the
mitigating factors are, id., and “[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.” Carter v. State, 711 N.E.2d 835, 838
(Ind. 1999). Also, it is well settled that we do not review the weight given to an
aggravator or mitigator on appeal. See Anglemyer v. State, 868 N.E.2d 482, 491 (Ind.
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2007) (“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.”),
clarified on reh’g, 875 N.E.2d 218 (Ind. 2007).
The record in this case shows that the trial court did explicitly state Plumlee’s
completion of the Celebrating Recovery Program, his ADHD, and his remorse to be
mitigators, so there was no error. Tr. p. 27. As for the other three mitigating factors
raised by Plumlee, he has failed to show that they are both significant and clearly
supported by the record. The only evidence of Plumlee’s completion of the Celebrate
Recovery Program was his attorney’s assertion of such at the sentencing hearing, and
there is no evidence in the record that supports the contention that the stabbing happened
during “mutual combat.”1 Without clear support, Plumlee has failed to persuade us that
the trial court erred as to these mitigators.
As for the guilty plea, this is not a significant mitigating factor in this case. While
we have long realized that pleading guilty deserves some mitigating weight, “a plea is not
necessarily a significant mitigating factor.” Cotto v. State, 829 N.E.2d 520, 525 (Ind.
2005) (emphasis added). Additionally, its significance is lessened if there is substantial
evidence of the defendant’s guilt or the defendant receives a substantial benefit from the
plea. See Wells v. State, 836 N.E.2d 475, 479 (Ind. Ct. App. 2005) (“a guilty plea does
not rise to the level of significant mitigation where the defendant has received a
substantial benefit from the plea or where the evidence against him is such that the
1
The State does mention that there is some evidence of mutual combat from a deposition that was
taken, but that deposition is not in the record for our review.
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decision to plead guilty is merely a pragmatic one.”), trans. denied. In this case, there
was substantial evidence of Plumlee’s guilt, including a detailed identification of Plumlee
from Heckman and Plumlee’s own admission when he turned himself in to the police.
By pleading guilty, Plumlee was able to have a Class C felony charge dismissed, a charge
that could have carried a penalty of up to eight years imprisonment. The benefit Plumlee
gained was substantial, so the trial court did not err in failing to consider his guilty plea as
a mitigating factor.
II. Inappropriate Sentence
Plumlee also argues that his three-year executed sentence is inappropriate.
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 sentences 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.” Reid v. State, 876 N.E.2d 1114,
1116 (Ind. 2007) (citing Anglemyer, 868 N.E.2d at 491). The defendant has the burden of
persuading us that his sentence is inappropriate. Id. (citing Childress v. State, 848 N.E.2d
1073, 1080 (Ind. 2006)).
The principal role of Rule 7(B) review “should be to attempt to leaven the outliers,
and identify some guiding principles for trial courts and those charged with improvement
of the sentencing statutes, but not to achieve a perceived ‘correct’ result in each case.”
Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). We “should focus on the forest—
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the aggregate sentence—rather than the trees—consecutive or concurrent, number of
counts, or length of the sentence on any individual count.” Id. Whether a sentence is
inappropriate ultimately turns on the culpability of the defendant, the severity of the
crime, the damage done to others, and a myriad of other factors that come to light in a
given case. Id. at 1224.
The sentencing range for a Class D felony is six months to three years, with one
and one-half years being the advisory term. Ind. Code § 35-50-2-7. Here, the trial court
sentenced Plumlee to three years executed in the DOC. This sentence is within the
statutory range.
Regarding the nature of the offense, there is nothing in the record that indicates
that this sentence is inappropriate. Plumlee engaged in a verbal altercation with
Heckman at his home, and when Heckman tried to walk away, Plumlee followed him.
Instead of letting the situation diffuse, Plumlee brought “a knife to a fist fight,” Tr. p. 27,
and attacked Heckman. The nature of the offense is serious.
Regarding Plumlee’s character, he has an extensive criminal history. He has
convictions for, among other things, felony dealing in methamphetamine, possession of
methamphetamine, attempted theft, resisting law enforcement, and operating a motor
vehicle while intoxicated. Appellant’s Confidential App. p. 37-38. The trial court noted
an escalating nature of his offenses, and his recidivism shows that he was not deterred
from criminal activity through his previous contacts with the criminal-justice system.
Plumlee has violated probation and parole, and his criminal history has been constant
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since the age of sixteen. Plumlee has not convinced us that his character warrants a
reduction in his sentence.
After due consideration of the trial court’s decision, we cannot say that Plumlee’s
three-year executed sentence is inappropriate in light of the nature of the offense and his
character.
Affirmed.
MATHIAS, J., and BARNES, J., concur.
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