Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
                                                       Jan 24 2014, 6:13 am
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:

MARK OLIVERO                                       GREGORY F. ZOELLER
Fort Wayne, Indiana                                Attorney General of Indiana

                                                   RICHARD C. WEBSTER
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana




                               IN THE
                     COURT OF APPEALS OF INDIANA

RANDALL CAPATINA,                                  )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )       No. 02A03-1304-CR-131
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                      APPEAL FROM THE ALLEN SUPERIOR COURT
                           The Honorable John F. Surbeck, Judge
                              Cause No. 02D06-1208-FC-278


                                        January 24, 2014

                MEMORANDUM DECISION - NOT FOR PUBLICATION

PYLE, Judge
                                  STATEMENT OF THE CASE

          Randall Capatina (“Capatina”) appeals his sentence following his guilty plea to

Class C felony disarming a law enforcement officer.1

          We affirm.

                                                ISSUE

                        Whether the trial court erred in sentencing Capatina.

                                                FACTS

           On August 26, 2012, Officer Matthew Foote (“Officer Foote”), a police officer

with the City of Fort Wayne, arrested Capatina for invasion of privacy. Officer Foote

transported Capatina to the Allen County Jail, and along the way Capatina made several

threatening statements, such as “I will fuck you up”; “as soon as I’m out of these cuffs,

I’m going to hurt who ever [sic] is around me and myself”; “if we were at Walmart or

McDonald’s and you didn’t have on that badge, I would fuck you up”; and “you let me

out of these handcuffs and it will be the last decision you make[.] I’ve shot someone

before[,] and I beat it, just like I’ll beat this.” (Sentencing Tr.1 25).2 Capatina also asked

for Officer Foote’s address, last name, and wife’s name, and told Officer Foote that he

would “find out who [his] wife is” and “see [him] later.” (Sentencing Tr.1 25). Finally,

Capatina told Officer Foote that he would get an officer’s gun at the jail. Officer Foote

informed Capatina that there were not any guns, and Capatina responded that he would

1
    Ind. Code § 35-44.1-3-2.
2
  Because Capatina’s sentencing hearing was continued, there are two sentencing transcripts. For
purposes of this opinion, “Sentencing Tr.1” will refer to the transcript from the portion of Capatina’s
sentencing hearing held on February 1, 2013, and “Sentencing Tr.2” will refer to the portion of Capatina’s
sentencing hearing held on April 8, 2013.
                                                    2
instead get a pen and stab himself in the eye. Officer Foote later testified that he “got the

sense that [Capatina was] very capable of doing ill will.” (Sentencing Tr.1 26).

       After reaching the jail, Capatina was transported to a hospital to receive

medication. At the hospital, Allen County Police Officer Brandon Garrison (“Officer

Garrison”) relieved the officers watching Capatina. He heard Capatina continue to make

statements threatening to harm himself and believed Capatina to be suicidal. When a

nurse came into Capatina’s room to administer the medication, Officer Garrison removed

Capatina’s arm restraints. Capatina successfully took the medication, but then said “I’m

going to get your gun and shoot myself” and attempted to take Officer Garrison’s

firearm. (Sentencing Tr.1 30). A struggle ensued, and additional officers and nurses

assisted in subduing Capatina before he could reach the firearm.

       On August 30, 2012, the State charged Capatina with Class C felony disarming a

law enforcement officer. Subsequently, on January 7, 2013, Capatina pled guilty to the

charge without the benefit of a plea agreement. The trial court held a sentencing hearing

on February 1, 2013, at which Capatina argued that his minimal criminal history and

history of mental illness were mitigating factors.       Capatina’s counsel testified that

Capatina had undergone a psychiatric evaluation in 2003 after multiple attempted

suicides and has been diagnosed with depression and post-control disorder, as well as a

potential but unconfirmed personality disorder. Capatina’s counsel also argued to the

trial court that depression was an ongoing concern because Capatina had been on suicide

watch for a period of time while incarcerated. At the conclusion of the testimony, the



                                             3
trial court continued the hearing in order to obtain a forensic mental health evaluation

from Community Corrections.

       On April 8, 2013, the trial court resumed the sentencing hearing. At the hearing,

Capatina argued that his guilty plea and the fact that he took responsibility for his actions

were additional mitigating factors. The trial court sentenced Capatina to six (6) years in

the Department of Correction, with four (4) years executed and two (2) years suspended

to probation. Capatina now appeals.

                                         DECISION

       On appeal, Capatina claims that the trial court erred in two respects. First, he

argues that the trial court abused its discretion in imposing a sentence in excess of the

advisory sentence for a Class C felony because the court did not identify any aggravating

factors and overlooked mitigating factors.        Second, he argues that his sentence is

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

A. Aggravating and Mitigating Factors

       Sentencing decisions rest within the sound discretion of the trial court. Anglemyer

v. State, 868 N.E.2d 482, 493 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007).

Under Indiana’s advisory sentencing scheme, “once the trial court has entered a

sentencing statement, which may or may not include the existence of aggravating and

mitigating factors, it may then ‘impose any sentence that is . . . authorized by statute; and

. . . permissible under the Constitution of the State of Indiana.’” Id. at 491 (quoting I.C. §

35-38-1-7.1(d) (stating that a court may impose any sentence authorized by statute

“regardless of the presence or absence of aggravating or mitigating circumstances.”)). As

                                              4
long as the sentence is within the statutory range, it is subject to review only for an abuse

of discretion. Id. at 490. We will find an abuse of discretion where 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. A trial court may

abuse its discretion in a variety of ways, including: (1) failure 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.

       1. Aggravating Factors

       With respect to aggravating factors, Capatina specifically argues that the trial court

abused its discretion because it did not specify its reasons for sentencing him in excess of

the advisory sentence for a Class C felony in its sentencing statement.3 Trial courts are

required to enter a sentencing statement whenever imposing a sentence for a felony

offense. Id. at 490. This statement must include a reasonably detailed recitation of the

trial court’s reasons for imposing a particular sentence. Id. However, when reviewing

the sufficiency of a sentencing statement, this Court may also examine the trial court’s

oral statements in the transcript of the sentencing proceedings in order to determine the

trial court’s findings. See McElroy v. State, 865 N.E.2d 584, 589 (Ind. 2007). In non-

3
  Pursuant to Indiana Code § 35-50-2-6, the minimum sentence for a Class C felony is two years, the
maximum is eight years, and the advisory sentence is four years. Accordingly, Capatina’s six year
sentence is two years more than the advisory sentence of four years, although Capatina’s executed
sentence is equal to the advisory sentence.


                                                5
death penalty cases, it is sufficient if the trial court’s reasons for enhancing a sentence are

clear from a review of the sentencing transcript. Mundt v. State, 612 N.E.2d 566, 568

(Ind. Ct. App. 1993), trans. denied.

       Although the trial court here did not clarify its findings regarding aggravating

factors in its judgment of conviction, its oral comments during the sentencing hearing

adequately explain its reasons for imposing a six-year sentence. The State argued that the

maximum sentence possible was necessary to protect the community because Capatina

“is self-destructive and [] doesn’t care who he hurts along the way.” (Sentencing Tr.2 9).

In response, the trial court stated “I cannot disagree with anything that has been said by

either counsel.” (Sentencing Tr.2 10). Also, the trial court made it clear to Capatina that

his placement in the Department of Correction was “for security” because Capatina was

not cooperating with his treatment and had quit taking his medication. (Sentencing Tr.2

11). The court also stated, “I understand that what’s going on with you is not right, and

you’re not right, but I don’t know how to fix that without your cooperation[,] and at this

point it does not appear that you’re cooperating, and that’s why I impose the sentence that

I do.” (Sentencing Tr.2 12). Based on these comments during the sentencing hearing, we

conclude that the trial court did elaborate its reasons for imposing a six-year sentence and

accordingly did not abuse its discretion.

       2. Mitigating Factors

       Next, Capatina argues that the trial court improperly overlooked multiple

mitigating factors that he advanced at trial, including that he (1) pled guilty without the

benefit of a plea agreement; (2) accepted responsibility for his actions, as illustrated by

                                              6
his apologies to Officer Garrison and hospital staff; (3) suffered from mental health

issues and was suicidal at the time of the event; and (4) had a relatively minor adult

criminal history.

       In order to show that a trial court failed to identify or find a mitigating factor, the

defendant must establish that the mitigating evidence is both significant and clearly

supported by the record.      Anglemyer, 868 N.E.2d at 493.        While a failure to find

mitigating circumstances clearly supported by the record may imply that the sentencing

court improperly overlooked them, the court is obligated neither to credit mitigating

circumstances in the same manner as would the defendant, nor to explain why it has

chosen not to find mitigating circumstances. Roush v. State, 875 N.E.2d 801, 811 (Ind.

Ct. App. 2007). Our Supreme Court has noted that “[i]f the trial court does not find the

existence of a mitigating factor after it has been argued by counsel, the trial court is not

obligated to explain why it has found that the factor does not exist.” Smith v. State, 770

N.E.2d 818, 822-23 (Ind. 2002). Notably, because Capatina argued for all of these

mitigating factors at trial, it is clear that the trial court had the opportunity to consider

each factor and was not obligated to explain why it chose not to find that the factors

existed. See id. Nevertheless, we will address each factor in turn.

       Although a guilty plea may be a mitigating circumstance, it “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 decision to plead guilty is

merely a pragmatic one.” Barker v. State, 994 N.E.2d 306, 312 (Ind. Ct. App. 2013)

(quoting Amalfitano v. State, 956 N.E.2d 208, 212 (Ind. Ct. App. 2011), trans. denied),

                                              7
reh’g denied. Here, there was overwhelming evidence of Capatina’s guilt such that the

decision to plead guilty was merely pragmatic.          In addition to Officer Garrison’s

testimony that Capatina attempted to reach his firearm, there is a video of the incident,

and five to six people had to assist Officer Garrison in subduing Capatina. Accordingly,

the trial court did not abuse its discretion when it did not find that Capatina’s guilty plea

was a mitigating factor.

       With respect to Capatina’s claim regarding his remorse, our Supreme Court has

held that a trial court’s determination of a defendant’s remorse is similar to a

determination of credibility. Pickens v. State, 767 N.E.2d 530, 535 (Ind. 2002). Without

evidence of impermissible consideration by the trial court, a reviewing court will accept

its determination as to remorse. Id. In the instant case, we cannot find any evidence of

an impermissible consideration. Officer Garrison testified that Capatina had apologized

to him and the staff at the hospital, and then Capatina’s counsel reiterated this point in

closing. The trial court never responded to that argument in any manner that could imply

that his consideration was impermissible. Accordingly, we conclude that the trial court

did not abuse its discretion.

       Capatina next challenges the trial court’s implicit denial that his mental illness was

a mitigating circumstance. A guilty but mentally ill defendant “is not automatically

entitled to any particular credit or deduction from his otherwise aggravated sentence[.]”

Smith v. State, 770 N.E.2d 818, 823 (Ind. 2002) (quoting Archer v. State, 689 N.E.2d 678,

684 (Ind. 1997)). Nonetheless, we have held that in sentencing a guilty but mentally ill

defendant, trial courts “‘should at a minimum carefully consider on the record what

                                             8
mitigating weight, if any, to accord to any evidence of mental illness, even though there

is no obligation to give the evidence the same weight the defendant does.’” Id. (quoting

Weeks v. State, 697 N.E.2d 28, 30 (Ind. 1998)). There are several factors that bear on this

determination, including: (1) the extent of the defendant’s inability to control his or her

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. Id. (citing Archer, 689 N.E.2d at 685).

       There is concededly a nexus between Capatina’s depression and the commission

of the crime. As Officer Garrison testified, he heard Capatina state multiple times that he

wanted to hurt himself, to the extent that he believed Capatina was suicidal. Then,

shortly before Capatina reached for Officer Garrison’s firearm, Officer Garrison heard

him say “I’m going to get your gun and shoot myself.” (Sentencing Tr.1 30). Capatina

also presented evidence that his mental illness was longstanding and that he had been

diagnosed with depression in 2003. However, with respect to the other two Archer

factors, there is no evidence in the record that Capatina was unable to control his

behavior or had any limitations on his functioning.

       To the contrary, the trial court implied that Capatina might have overstated his

mental illness and, therefore, his lack of control over his actions. When discussing the

results of the forensic evaluation, the trial court stated that “what turn[ed] up in the

forensic” was that Capatina had “overstated [his] condition.” (Sentencing Tr.2 12).

While the results of the evaluation are not a part of the record on appeal, it is apparent



                                            9
that they played a role in the trial court’s decision.4 During its sentencing statement, the

trial court also stated:

        See, that’s part of the problem here[,] Mr. Capatina, and the other problem
        in the evaluation is that it became clear that at least some of your problems,
        I’m not suggesting that you don’t have a problem, but some of your
        problem is that you tend to overstate your problem as opposed to working
        with it . . . .

(Sentencing Tr.2 11).

        Even absent the results of the forensic evaluation, however, it is clear that the trial

court carefully considered the issue of Capatina’s mental illness, especially in terms of

Capatina’s culpability for his actions. First, the trial court continued the sentencing

hearing after hearing testimony about Capatina’s illnesses in order to obtain a forensic

mental health evaluation from Community Corrections. Then, during its sentencing

statement, the trial court acknowledged:

        I understand all the concerns about ability to control one[’]s actions and
        whether or not we’re guilty but mentally ill or not competent or all of those
        things that don’t comply with . . . the letter of the rules of criminal law that
        require criminal intent together with an act, and all those have gotten real
        gray and real blurred in this case . . . .

(Sentencing Tr.2 12). In light of this careful consideration and the lack of evidence that

Capatina’s illness prevented him from being able to control his actions, we conclude that

the trial court did not abuse its discretion in determining that Capatina’s mental illness

was not a mitigating circumstance.




4
 Notably, the evaluation was filed with the trial court and thus became a part of the Clerk’s Record.
Pursuant to Indiana Appellate Rule 50(B)(1)(a), an appellant in a criminal appeal must include the Clerk’s
Record in its Appendix on appeal.
                                                   10
       Finally, Capatina argues that his prior criminal history is relatively minor and

should have been a mitigating circumstance. Although a lack of criminal history may be

considered a mitigating circumstance, “[t]rial courts are not required to give significant

weight to a defendant's lack of criminal history,” especially “when a defendant's record,

while felony-free, is blemished.” Townsend v. State, 860 N.E.2d 1268, 1272 (Ind. Ct.

App. 2007) (quoting Stout v. State, 834 N.E.2d 707, 712 (Ind. Ct. App. 2005), trans.

denied). “‘In the non-capital context, a single conviction or juvenile adjudication may

negate this mitigating circumstance [of lack of criminal history].’” Id. (quoting Warlick

v. State, 772 N.E.2d 809, 813 (Ind. 2000)). Here, although Capatina does not have any

prior felony convictions, he does have three misdemeanor convictions, including another

charge involving a firearm, Class A misdemeanor pointing firearm at another person.

Based on this history, we conclude that the trial court did not abuse its discretion when it

did not find that Capatina’s criminal history was a mitigating factor.

B. Inappropriate Sentence

       Next, Capatina argues that the trial court’s sentence is inappropriate in light of the

nature of his offense and his character.      He asks us to consider the totality of the

circumstances when considering the nature of the offense, including his mental state and

the fact that he never physically touched Officer Garrison’s weapon.             In addition,

Capatina argues that his guilty plea and his remorse are evidence of good character that

warrant a reduced sentence. In support of this argument, he notes that he apologized to

Officer Garrison and the hospital staff for his actions and that he pled guilty without

attempting to negotiate a plea agreement.

                                             11
       Pursuant to Appellate Rule 7(B), a reviewing court may revise a sentence if, “after

due consideration of the trial court’s decision,” it finds that the sentence is inappropriate

in light of the nature of the offense and the character of the offender. Childress v. State,

848 N.E.2d 1073, 1079-80 (Ind. 2006) (quoting Ind. App. R. 7(B)). Although this Court

is not required to use “great restraint,” we nevertheless exercise deference to a trial

court’s sentencing decision, both because the Appellate Rule 7(b) requires that we give

“due consideration” to that decision and because we recognize the unique perspective a

trial court has when making decisions. Stewart v. State, 866 N.E.2d 858, 865-66 (Ind. Ct.

App. 2007). The “principal role of appellate 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). In addition, the

defendant bears the burden of persuading this court that his sentence is inappropriate.

Childress, 848 N.E.2d at 1080.

       Although there is substantial evidence that Capatina’s actions were influenced by

his history of mental illness and mental state during the incident in question, we cannot

agree that the nature of his offense was not serious. Capatina did not manage to reach

Officer Garrison’s weapon, but it is clear from the record that he put a significant amount

of effort into doing so – to the point that Officer Garrison required the assistance of at

least five other officers and nurses to subdue him. Also, Capatina’s threats to Officer

Garrison, including his statement “I’m going to get your gun and shoot myself,” are



                                             12
evidence that he intended to use Officer Garrison’s firearm in a public facility and in the

proximity of another person once he reached it.

       With respect to his character, it is commendable that Capatina apologized to

Officer Garrison and the hospital staff involved and accepted responsibility for his

actions through a guilty plea.      However, as stated above, his guilty plea has little

significance in light of the overwhelming evidence against him. Instead, we find the trial

court’s sentence appropriate in light of other evidence of Capatina’s character. Both

before and during the incident in question, Capatina demonstrated a lack of regard for the

safety of others and for the law. While Officer Foote was transporting him, Capatina

threatened that “as soon as I’m out of these cuffs, I’m going to hurt who ever [sic] is

around me and myself” and “you let me out of these handcuffs and it will be the last

decision you make[.] I’ve shot someone before[,] and I beat it, just like I’ll beat this.”

(Sentencing Tr.1 25). During Capatina’s attempts to reach Officer Garrison’s firearm, he

also disregarded the risk to Officer Garrison’s safety and the risk to the safety of the

others that came to assist the officer.

       In addition, while Capatina does not have an extensive criminal history, this is not

his first violent offense. He has three prior misdemeanor convictions, including Class A

misdemeanor battery resulting in bodily injury and Class A misdemeanor pointing

firearm at another person, as well as pending charges in another cause. Based on the

above circumstances, we conclude that the trial court’s sentence was appropriate in light

of the nature of Capatina’s offense and his character.



                                            13
      Affirmed.

CRONE, J., and BARNES, J., concur.




                                     14
