MEMORANDUM DECISION
                                                                                      FILED
Pursuant to Ind. Appellate Rule 65(D),                                            Oct 15 2018, 6:51 am
this Memorandum Decision shall not be                                                 CLERK
regarded as precedent or cited before any                                         Indiana Supreme Court
                                                                                     Court of Appeals
court except for the purpose of establishing                                           and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Evan K. Hammond                                          Curtis T. Hill, Jr.
Marion, Indiana                                          Attorney General of Indiana
                                                         Tyler G. Banks
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jason A. Whetstone,                                      October 15, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-685
        v.                                               Appeal from the Grant Circuit
                                                         Court
State of Indiana,                                        The Honorable Mark E. Spitzer,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         27C01-1604-F5-54



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-685 | October 15, 2018                 Page 1 of 8
                                Case Summary and Issue
[1]   After a jury found Jason Whetstone guilty of battery by means of a deadly

      weapon and criminal mischief, the trial court sentenced him to three years for

      the battery conviction and 180 days for the criminal mischief conviction, to be

      served concurrently. Whetstone now appeals his sentence. This case presents a

      single issue for our review, namely whether the trial court abused its discretion

      in sentencing Whetstone based on the identified mitigating and aggravating

      factors. Concluding the weight a trial court assigns to mitigating or aggravating

      factors is not subject to review for an abuse of discretion, we affirm.



                            Facts and Procedural History
[2]   Around 3:00 a.m. on April 25, 2016, outside Ashley Guy’s home, she, the

      victim, and several others observed Whetstone popping the tires of a vehicle.

      After instructing Whetstone to stop, the victim tackled Whetstone and the two

      engaged in an altercation during which Whetstone stabbed the victim twice,

      once in the abdomen and once in the back of the leg. Whetstone testified that

      he believed he was hit in the face with a brick and several people held him

      down and stuck him. After Whetstone stabbed the victim, he attempted to flee

      but an observer held him down until the police arrived.


[3]   The State charged Whetstone with battery by means of a deadly weapon, a

      Level 5 felony, and criminal mischief, a Class B misdemeanor. After a jury

      trial, Whetstone was found guilty of both offenses. At the sentencing hearing,


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-685 | October 15, 2018   Page 2 of 8
Whetstone explained that he suffers from mental health issues, including

anxiety, panic attacks, post-traumatic stress, and depression, several of which

he takes medication for. The trial court stated at the hearing:


        I think a clear aggravating factor here is that the Defendant does
        have a history of criminal or delinquent behavior. . . . [M]ental
        health is a mitigator. It’s a mild one. I…having heard the
        evidence and judging the credibility of the witnesses, including
        the Defendant’s own testimony, I’m not particularly convinced
        that mental health is a mitigating factor, and frankly the
        Defendant’s testimony was not particularly believable. [I]n terms
        of his version of the offense, you know, I think a mitigating factor
        could also be that the Defendant was substantially injured in the
        altercation and so the argument could be made that, at least to
        some extent, he’s received some punishment already. [B]ut that’s
        what happens when you go to somebody’s house and try to stick
        a knife in their tires so, you know, it’s a little bit of sort of you get
        what you have coming, frankly, and so that would be a mild
        mitigating factor as well.


Transcript, Volume I at 249-50. In its sentencing order, the trial court stated

Whetstone’s criminal history was an aggravating circumstance and his serious

injuries from the altercation and history of mental illness were mitigating

factors. The trial court sentenced Whetstone to three years at the Indiana

Department of Correction for the battery conviction and 180 days for the

criminal mischief conviction and ordered the sentences to be served

concurrently. The trial court also ordered Whetstone to pay restitution.

Whetstone now appeals.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-685 | October 15, 2018   Page 3 of 8
                                 Discussion and Decision
                                     I. Abuse of Discretion
[4]   Whetstone argues the trial court abused its discretion by “sentenc[ing] him to

      more than the minimum sentence when it found more mitigating factors than

      aggravating.” Brief of Appellant at 9. The statutory range for a Level 5 felony

      is a fixed term between one and six years with three years being the advisory

      sentence, Ind. Code § 35-50-2-6(b), and the sentence for a Class B misdemeanor

      is a fixed term of no more than 180 days, Ind. Code § 35-50-3-3.


[5]   Sentencing decisions are within the discretion of the trial court and are afforded

      considerable deference. Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008).

      We review only for an abuse of discretion. Sanders v. State, 71 N.E.3d 839, 842-

      43 (Ind. Ct. App. 2017), trans. denied. A trial court abuses its discretion when its

      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.” Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on

      reh’g, 875 N.E.2d 218 (Ind. 2007). When sentencing, a trial court can abuse its

      discretion in one of four ways:


              (1) failing to enter a sentencing statement, (2) entering a
              sentencing statement that explains reasons for imposing the
              sentence but the record does not support the reasons, (3) the
              sentencing statement omits reasons that are clearly supported by
              the record and advanced for consideration, or (4) the reasons
              given in the sentencing statement are improper as a matter of
              law.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-685 | October 15, 2018   Page 4 of 8
      Phelps v. State, 24 N.E.3d 525, 527 (Ind. Ct. App. 2015).


[6]   The advisory sentence is the starting point the Indiana legislature has selected

      as an appropriate sentence, Childress v. State, 848 N.E.2d 1073, 1081 (Ind. 2006),

      but a trial court may deviate from the advisory sentence by finding and

      weighing any aggravating or mitigating circumstances, Ind. Code § 35-38-1-7.1.

      When a trial court identifies proper aggravating or mitigating factors, the

      weight or value given to those factors is not subject to review for an abuse of

      discretion. Healey v. State, 969 N.E.2d 607, 616 (Ind. Ct. App. 2012), trans.

      denied. As our supreme court noted after the sentencing statutes were amended

      in 2005, “[b]ecause 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.” Anglemyer, 868 N.E.2d at 491.


[7]   Although Whetstone’s argument section provides a comprehensive overview of

      the abuse of discretion standard, he does not challenge a particular factor

      identified by the court as improper. Moreover, Whetstone does not contend the

      trial court’s reasons in the sentencing statement were unsupported by the record

      or that the trial court omitted reasons supported by the record. See Phelps, 24

      N.E.3d at 527.


[8]   Instead, Whetstone’s only argument is he should have received a lesser sentence

      because the trial court found more mitigating than aggravating factors. As the

      State contends, Whetstone’s argument is essentially a “claim that the trial court


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-685 | October 15, 2018   Page 5 of 8
       failed to give more weight to the mitigators than it did the aggravators.” Brief

       of Appellee at 8. However, the weight the trial court gave to a particular factor

       is not subject to appellate review. Anglemyer, 868 N.E.2d at 491. Instead, this is

       the “trial court’s call.” Id. at 493. Therefore, the trial court properly sentenced

       Whetstone within the statutory framework and weighed the identified factors at

       its discretion, which is outside the scope of our review.


                                  II. Inappropriate Sentence
[9]    Indiana Appellate Rule 7(B) provides this court with the authority to review the

       appropriateness of a defendant’s sentence in light of the nature of the offense

       and character of the offender. Whetstone briefly employs 7(B) language at the

       beginning of his brief when he states the issue as whether his sentence “is

       inappropriate in light of the nature of the offense and the character of the

       offender[,]” and at the end of his brief by stating he “believes [his] sentence is

       inappropriate in light of the nature of the offense and the character of the

       offender.” Brief of Appellant at 4, 9. Any potential Rule 7(B) argument stops

       there, however, as Whetstone fails to support his argument with cogent

       reasoning regarding the nature of the offense or his character. Therefore,

       Whetstone has waived this issue for our review. See Indiana Appellate Rule

       46(A)(8)(a).


[10]   Waiver notwithstanding, Whetstone fails to demonstrate his sentence is

       inappropriate in light of the nature of the offense and character of the offender.

       A defendant carries the burden of persuading this court that his or her sentence


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-685 | October 15, 2018   Page 6 of 8
       is inappropriate, which Whetstone has not done. Rutherford v. State, 866 N.E.2d

       867, 873 (Ind. Ct. App. 2007). Whetstone was sentenced to the advisory

       sentence, which is the “starting point” the Indiana legislature has selected as an

       appropriate sentence. Childress, 848 N.E.2d at 1081.


[11]   The nature of Whetstone’s offense does not render his sentence inappropriate.

       We consider whether there is “anything more or less egregious about the

       offense as committed by the defendant that ‘makes it different from the typical

       offense accounted for by the legislature when it set the advisory sentence.’”

       Moyer v. State, 83 N.E.3d 136, 142 (Ind. Ct. App. 2017). Even if the nature of

       Whetstone’s offense is no more egregious than any other battery offense, we

       cannot conclude his sentence is inappropriate because the trial court imposed

       the recommended sentence for the crime committed.


[12]   Based on Whetstone’s character, his sentence is not inappropriate. “Even a

       minor criminal record reflects poorly on a defendant’s character[.]” Reis v.

       State, 88 N.E.3d 1099, 1105 (Ind. Ct. App. 2017). Whetstone’s criminal history

       is comprised of multiple arrests and convictions including two dismissed battery

       charges. Despite Whetstone’s previous contact with our justice system, he was

       not deterred from committing the present offense. Rutherford, 866 N.E.2d at

       874. Although the trial court considered Whetstone’s history of mental illness a

       mitigating factor, Tr., Vol. I at 249, an evaluation of these factors does not

       merit a deviation from the advisory sentence. Therefore, Whetstone’s sentence

       was not inappropriate in light of his character.



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-685 | October 15, 2018   Page 7 of 8
                                               Conclusion
[13]   For the foregoing reasons, we conclude the trial court did not abuse its

       discretion in sentencing Whetstone to the advisory sentence.


[14]   Affirmed.


       Baker, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-685 | October 15, 2018   Page 8 of 8
