MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                       Aug 31 2015, 9:07 am

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
Andrew J. Sickmann                                       Gregory F. Zoeller
Boston Bever Klinge Cross & Chidester                    Attorney General of Indiana
Richmond, Indiana
                                                         Katherine Modesitt Cooper
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jeremy Virant,                                           August 31, 2015
Appellant-Defendant,                                     Court of Appeals Cause No.
                                                         89A05-1502-CR-85
        v.                                               Appeal from the Wayne Circuit
                                                         Court
State of Indiana,                                        The Honorable David A. Kolger,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         89C01-1312-FA-33



Barnes, Judge.



Court of Appeals of Indiana | Memorandum Decision 89A05-1502-CR-85 | August 31, 2015   Page 1 of 7
                                             Case Summary
[1]   Jeremy Virant appeals his sentence for Class A felony burglary and his status as

      an habitual offender. We affirm.


                                                     Issue
[2]   Virant raises one issue, which we restate as whether his sentence is

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

      offender.


                                                     Facts
[3]   On December 3, 2013, Lane Deaton and his step-father, Michael Hickmott,

      argued over a broken window in Hickmott’s vehicle, which Deaton had

      borrowed. The police were called, and Officer Stephen Foster of the

      Cambridge City Police Department advised Deaton to leave for a while.

      Deaton walked down the street and saw Brian Hook. Deaton went to Hook’s

      house, where he met Virant. Deaton was upset, and Virant told him, “they

      were going to take care of it tonight. [He] wouldn’t have to worry about it.”

      Tr. p. 301. Officer Foster later stopped to talk to Deaton in front of Hook’s

      house and gave Deaton a ride to a friend’s house.


[4]   Virant, Hook, and Joshua Bishop later went to Hickmott’s house and knocked

      on the door. When Hickmott answered the door, Virant and Hook pushed

      their way into the house and repeatedly punched and hit Hickmott. Hickmott’s

      severely disabled fifteen-year-old daughter was in her bedroom during the

      attack. When Deaton and his friends returned to Hickmott’s residence, Deaton
      Court of Appeals of Indiana | Memorandum Decision 89A05-1502-CR-85 | August 31, 2015   Page 2 of 7
      saw shadows through the front window that were kicking something. When he

      entered the residence, he saw Virant and Hook standing over Hickmott, who

      was bleeding heavily. Hickmott begged for help and said they were trying to

      kill him. Deaton convinced Virant and Hook to talk to him outside. Virant

      said that “they got him good.” Id. at 308. While they were outside, Hickmott

      escaped out the back door and called 911 from a neighbor’s house. When

      Hickmott saw officers at his house, he tried to go back to his house but was

      found unconscious in the yard. He sustained facial and head injuries, bruising

      to his body, and was required to wear an air cast on his ankle for a week.


[5]   The State charged Virant with ten counts: Count I, Class A felony burglary;

      Count II, Class A felony burglary; Count III, Class A felony conspiracy to

      commit burglary; Count IV, Class C felony battery; Count V, Class C felony

      conspiracy to commit burglary; Count VI, Class C felony battery; Count VII,

      Class D felony residential entry; Count VIII, Class D felony conspiracy to

      commit residential entry; Count IX, Class A felony burglary; and Count X,

      Class A felony conspiracy to commit burglary. The State also alleged that

      Virant was an habitual offender. In January 2014, Virant agreed to plead guilty

      to certain charges, but the trial court rejected the plea agreement after Virant

      refused to participate in the presentence investigation report. In February 2014,

      Virant filed a motion to reinstate the plea agreement, which the trial court

      denied. In March 2014, Virant again attempted to plead guilty. However, the

      trial court again rejected the plea agreement, apparently due to allegedly

      perjured testimony at the guilty plea/sentencing hearing.


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[6]   In December 2014, the State filed a motion to dismiss Counts III, V, VII, VIII,

      IX, and X, which the trial court granted. Virant then filed another motion to

      reinstate the plea agreement, which the trial court denied. A jury trial on

      Counts I, II, IV, VI, and the habitual offender allegation was held in January

      2015. The jury found Virant guilty as charged, and Virant admitted the

      habitual offender allegation.


[7]   At sentencing, the trial court entered judgment of conviction only on Count I,

      Class A felony burglary due to double jeopardy concerns. The trial court found

      the following aggravators: Virant’s criminal history, the fact that the offense

      was committed with Hickmott’s disabled daughter in the house, the fact that

      Virant committed the offense while on parole, Virant’s lack of remorse, and his

      jail violations while awaiting trial. The trial court found Virant’s difficult

      childhood and guilty plea to the habitual offender allegation to be minor

      mitigators. The trial court gave no mitigating weight to Virant’s mental health

      issues and intoxication at the time of the offense. The trial court sentenced

      Virant to forty-two years for the Class A felony conviction, enhanced by thirty

      years due to Virant’s status as an habitual offender. Virant now appeals.


                                                  Analysis
[8]   Virant argues that his seventy-two-year sentence is inappropriate. Indiana

      Appellate Rule 7(B) permits us to revise a sentence authorized by statute if,

      after due consideration of the trial court’s decision, we find that the sentence is

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

      offender. Although Appellate Rule 7(B) does not require us to be “extremely”
      Court of Appeals of Indiana | Memorandum Decision 89A05-1502-CR-85 | August 31, 2015   Page 4 of 7
       deferential to a trial court’s sentencing decision, we still must give due

       consideration to that decision. Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct.

       App. 2007). We also understand and recognize the unique perspective a trial

       court brings to its sentencing decisions. Id. “Additionally, a defendant bears

       the burden of persuading the appellate court that his or her sentence is

       inappropriate.” Id.


[9]    The principal role of Appellate 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—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 myriad other factors that come to light in a

       given case. Id. at 1224.


[10]   The nature of the offense is that Virant broke into Deaton’s house and severely

       beat Deaton’s stepfather. Virant admitted that he hit Hickmott thirty to forty

       times. Hickmott’s disabled daughter was in the house at the time, and Virant

       repeatedly threatened to kill Hickmott. Virant only stopped when Deaton

       intervened.




       Court of Appeals of Indiana | Memorandum Decision 89A05-1502-CR-85 | August 31, 2015   Page 5 of 7
[11]   As for Virant’s character, he has a substantial criminal history. He has juvenile

       adjudications for criminal conversion and theft. He has two adult convictions

       for misdemeanor resisting law enforcement and felony convictions for Class B

       felony burglary, Class C felony intimidation, and Class D felony battery

       resulting in bodily injury on a correctional officer. Virant’s probation has been

       revoked three times, and he was on parole at the time of this offense. Two days

       after he was released on his own recognizance in this case, he was arrested for

       Class D felony auto theft. While in jail awaiting trial, he had multiple major

       rule violations. The trial court properly noted that Virant was “a danger to

       everybody that [he came] into contact with.” Tr. p. 542.


[12]   Virant argues that his actions were the result of “circumstances that are unlikely

       to recur.” Appellant’s Br. p. 8. However, the State properly notes that Virant’s

       actions in this case demonstrate further his “propensity for violence and

       breaking the law.” Appellee’s Br. p. 10. Given Virant’s history of violence and

       criminal activity, the trial court properly rejected this proposed mitigator.

       Virant also argues that the trial court should have reduced his sentence due to

       his repeated attempts to plead guilty. The trial court rejected his first attempt to

       plead guilty after he refused to participate in the presentence investigation. The

       trial court later rejected another attempt to plead guilty after he allegedly

       perjured himself. The trial court did give Virant’s guilty plea to the habitual

       offender allegation some mitigating weight. However, given Virant’s

       unsuccessful attempts to plead guilty to the main charges and his lack of




       Court of Appeals of Indiana | Memorandum Decision 89A05-1502-CR-85 | August 31, 2015   Page 6 of 7
       remorse, the trial court properly refused to give his guilty plea attempts

       mitigating weight.


[13]   Given Virant’s senseless attack on a stranger and his substantial criminal

       history, we cannot say that the sentence imposed by the trial court is

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

       offender.


                                                 Conclusion
[14]   The sentence imposed by the trial court is not inappropriate. We affirm.


[15]   Affirmed.


       Kirsch, J., and Najam, J., concur.




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