MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                               Jun 26 2019, 9:06 am

court except for the purpose of establishing                                CLERK
the defense of res judicata, collateral                                 Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Frederick Vaiana                                         F. Aaron Negangard
Voyles Vaiana Lukemeyer Baldwin                          Chief Deputy Attorney General
& Webb
Indianapolis, Indiana                                    Lauren A. Jacobsen
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Anthony Larkins,                                         June 26, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-2820
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Marc T.
Appellee-Plaintiff                                       Rothenberg, Judge
                                                         Trial Court Cause No.
                                                         49G02-1708-F1-30662



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2820 | June 26, 2019                   Page 1 of 6
                                             Case Summary
[1]   Anthony Larkins appeals his thirty-one-year aggregate sentence for level 1

      felony attempted murder and class A misdemeanor carrying a handgun without

      being licensed. Larkins asserts that the trial court abused its discretion in failing

      to find his mental illness as a significant mitigating circumstance. We affirm.


                                 Facts and Procedural History
[2]   On August 7, 2017, Andrew Black hosted a barbecue at his Indianapolis

      apartment and invited his recent acquaintance, Teddy Dunbar, Jr., to attend.

      Shortly thereafter, MacReynolds, Javon Lewis, and Larkins arrived at Black’s

      apartment. Dunbar had known MacReynolds and Larkins for years. While at

      the barbecue, a group including Larkins, Dunbar, MacReynolds, and Lewis

      “[j]ust hung out. Just talked.” Tr. Vol. 2 at 36. MacReynolds, Lewis, and

      Larkins all carried semiautomatic pistols, but no one at the barbecue could

      recall any issues between any of the men. There were no arguments or physical

      altercations. After about an hour, the trio left the barbecue.


[3]   Larkins called Dunbar about fifteen minutes after departing the barbecue,

      wanting to know where Dunbar was and if he could buy marijuana from him.

      Dunbar told him that he was sitting in his truck outside Black’s apartment.

      Larkins returned alone and parked his vehicle next to Dunbar’s truck, now

      occupied by Dunbar and Black. He walked around the back of Dunbar’s truck

      to the open driver’s side window. Larkins began to say, “[H]ey man[,]” when

      he abruptly fired multiple shots into Dunbar at point-blank range. Id. at 64.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2820 | June 26, 2019   Page 2 of 6
      Dunbar suffered nine gunshot wounds from five shots to his neck, chest, and

      abdomen. Black was startled by the gunshots and took off running. Larkins ran

      back to his car and drove away. Dunbar survived the attack. Police arrived at

      Black’s apartment along with medics, who took Dunbar to the hospital.


[4]   The State charged Larkins with level 1 felony attempted murder, level 5 felony

      battery with a deadly weapon, and class A misdemeanor carrying a handgun

      without being licensed. The trial court granted Larkins’s request to appoint two

      medical professionals to evaluate him for competency to stand trial and for a

      potential insanity defense. Drs. Don Olive and George Parker evaluated

      Larkins; both found that while he did have certain mental health issues, he was

      competent to stand trial and was not affected by any mental illness during the

      commission of the crimes.1 A jury convicted Larkins as charged, and the trial

      court vacated the level 5 felony conviction.


[5]   At sentencing, Larkins argued that his mental illness should be a mitigating

      factor. The trial court found Larkins’s criminal history and the nature and

      circumstance of the crimes as aggravators. The trial court stated that the

      aggravators “slightly outweigh[ed]” the lone mitigator—hardship on Larkins’s




      1
        Dr. Olive reported diagnostic impressions of unspecified schizophrenia and other psychotic disorder,
      cannabis use disorder, and features of antisocial personality disorder, while Dr. Parker reported that Larkins
      meets the criteria for diagnoses of borderline intellectual functioning and unspecified psychosis. Ultimately,
      Dr. Olive concluded that Larkins understood what he was doing and was in control of his actions at the time
      of the offense. Dr. Parker opined that Larkins did not suffer from a mental disease during the commission of
      the crime.



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2820 | June 26, 2019                      Page 3 of 6
      dependents. Tr. Vol. 3 at 82. A level 1 felony carries a sentence of

      imprisonment for a term between twenty and forty years, with the advisory

      sentence being thirty years. Ind. Code § 35-50-2-4(b). A class A misdemeanor

      carries a sentence of imprisonment for a term not exceeding one year. Ind.

      Code § 35-50-3-2. The trial court sentenced Larkins to thirty years on the level 1

      felony and one year on the class A misdemeanor, to be served consecutively, all

      executed. This appeal followed.


                                        Discussion and Decision
[6]   Larkins contends that the trial court erred by not considering his mental illness

      as a mitigating factor. “Generally speaking, sentencing decisions are left to the

      sound discretion of the trial court, and we review the trial court’s decision only

      for an abuse of this discretion.” Singh v. State, 40 N.E.3d 981, 987 (Ind. Ct. App.

      2015), trans. denied (2016).2 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. Anglemeyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g,

      875 N.E.2d 218.




      2
        Citing Cox v. State, 780 N.E.2d 1150 (Ind. Ct. App. 2002), Larkins asserts that failure to give “[d]ocumented
      mental illness” mitigating weight is prima facie error. Appellant’s Br. at 9. We disagree. The court in Cox
      employed the prima facie error standard because the State had failed to respond to the defendant’s argument
      regarding his mental illness; which is akin to failing to file a brief. Here, the State has responded to Larkins’s
      argument regarding his mental illness. As such, we apply the abuse of discretion standard of review.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2820 | June 26, 2019                         Page 4 of 6
[7]   “[W]hile a sentencing court must consider all evidence of mitigating

      circumstances presented by a defendant, the finding of mitigating circumstances

      rests within the sound discretion of the court.” Newsome v. State, 797 N.E.2d

      293, 301 (Ind. Ct. App. 2003), trans. denied (2004). One way a trial court may

      abuse its discretion is by failing to consider or identify mitigating factors that are

      significant and clearly supported by the record, and advanced for consideration

      during sentencing. Anglemeyer, 868 N.E.2d at 490-91, 493. A trial court is not

      obligated to find a circumstance as mitigating simply because it has been

      advanced by the defendant. Spears v. State, 735 N.E.2d 1161, 1167 (Ind. 2000).

      Furthermore, a trial court is not required to consider alleged mitigating

      circumstances that are highly disputable in nature, weight, or significance.

      Newsome, 797 N.E.2d at 301. A trial court does not have to explain why it has

      found a factor does not exist. Anglemeyer, 868 N.E.2d at 493.


[8]   Our supreme court has outlined factors to consider when assessing the effect of

      a defendant’s mental illness on sentencing: (1) the extent of the defendant’s

      inability to control his behavior due to the disorder or impairment; (2) overall

      limitations on functioning; (3) the duration of the mental illness; and (4) the

      extent of any nexus between the disorder or impairment and the commission of

      the crime. Weeks v. State, 697 N.E.2d 28, 30 (Ind. 1998). We cannot say that

      Larkins has established that his mental illnesses—as described above—were

      longstanding, or that they affected his abilities to function and to control his

      behavior. Likewise, Larkins has failed to establish a nexus between the




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2820 | June 26, 2019   Page 5 of 6
       commission of his crimes and his impairments. We conclude that the trial court

       did not abuse its sentencing discretion.


[9]    Even if the trial court had abused its discretion by omitting mental illness as a

       mitigating factor, there would be no need to remand for resentencing. The trial

       court gave Larkins the advisory sentence of thirty years despite finding that the

       aggravating circumstances outweighed the mitigator. Put differently, the trial

       court gave Larkins a sentence that does not reflect the aggravated nature of his

       offenses. Therefore, we affirm.


[10]   Affirmed.


       Bradford, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2820 | June 26, 2019   Page 6 of 6
