Pursuant to Ind.Appellate Rule 65(D),
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:

ADAM G. FORREST                                  GREGORY F. ZOELLER
Boston Bever Klinge Cross & Chidester            Attorney General of Indiana
Richmond, Indiana
                                                 IAN MCCLEAN
                                                 Deputy Attorney General

                                                                               FILED
                                                 Indianapolis, Indiana

                                                                           Dec 14 2012, 9:16 am

                              IN THE                                               CLERK
                                                                                 of the supreme court,

                    COURT OF APPEALS OF INDIANA                                  court of appeals and
                                                                                        tax court




BERT S. WATKINS II,                              )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )        No. 89A01-1203-CR-103
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                      APPEAL FROM THE WAYNE CIRCUIT COURT
                          The Honorable David A. Kolger, Judge
                             Cause No. 89C01-0912-CR-103



                                      December 14, 2012


                MEMORANDUM DECISION - NOT FOR PUBLICATION


NAJAM, Judge
                              STATEMENT OF THE CASE

       Bert S. Watkins II appeals his sentence following his conviction for obstruction of

justice, a Class D felony, and the court’s adjudication that Watkins is an habitual

offender. Watkins raises a single issue for our review, which we restate as the following

three issues:

       1.       Whether the trial court abused its discretion when it sentenced
                Watkins;

       2.       Whether Watkins’ sentence is inappropriate in light of the nature of
                the offense and his character; and

       3.       Whether his habitual offender enhancement             violates   the
                Proportionality Clause of the Indiana Constitution.

       We affirm.

                        FACTS AND PROCEDURAL HISTORY

       On December 26, 2009, Watkins and several other family members gathered at

Watkins’ apartment in Richmond. After a few hours, Watkins got into a heated argument

with his cousin, James Robertson, and Watkins pointed a firearm at him. Watkins then

lowered his firearm and left the room. Robertson left the apartment and had a neighbor

call the police.

       City of Richmond police officers arrived shortly thereafter and set up a perimeter

around Watkins’ apartment. Officer James Rice and Deputy Sheriff Martel Winburn

observed Watkins exit his apartment through a back door and climb onto the roof of the

apartment below. The officers observed Watkins throwing a “shiny[,] chrome, metallic

type object” into a neighbor’s yard. Transcript at 571. The officers later recovered the

object, which was Watkins’ loaded firearm, and arrested Watkins.
                                              2
        On December 28, the State charged Watkins with battery, as a Class C felony, and

for being an habitual offender. The State later amended its information to include a

charge of obstruction of justice, a Class D felony. In January of 2012, a jury acquitted

Watkins of battery but found him guilty of obstruction of justice and found that he was an

habitual offender. Following a sentencing hearing, the trial court ordered Watkins to

serve three years executed for obstruction of justice, enhanced by three years for being an

habitual offender.1 This appeal ensued.

                                 DISCUSSION AND DECISION

                                 Issue One: Abuse of Discretion

        We first address Watkins’ argument that the trial court abused its discretion when

it relied on his criminal history to impose both an enhanced sentence for his underlying

conviction and his enhancement for being an habitual offender. Sentencing decisions rest

within the sound discretion of the trial court and are reviewed on appeal only for an abuse

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

grounds on reh’g, 875 N.E.2d 218 (Ind. 2007). 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. Id.

        One way in which a trial court may abuse its discretion is failing to enter a
        sentencing statement at all. Other examples include entering a sentencing
        statement that explains reasons for imposing a sentence—including a
        finding of aggravating and mitigating factors if any—but the record does
        not support the reasons, or the sentencing statement omits reasons that are

        1
          The advisory sentence for a Class D felony is one and one-half years, and the maximum term is
three years. See Ind. Code § 35-50-2-7. For an habitual offender, the court “shall sentence a person . . .
to an additional fixed term that is not less than the advisory sentence for the underlying offense nor more
than three (3) times the advisory sentence for the underlying offense. However, the additional sentence
may not exceed thirty (30) years.” I.C. § 35-50-2-8(h).
                                                    3
       clearly supported by the record and advanced for consideration, or the
       reasons given are improper as a matter of law. . . .

              [However, 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.

Id. at 490-91.

       Watkins states that the “Trial Court is permitted to utilize his criminal history in

developing an appropriate sentence; however, he disagrees with the Trial Court emphasis

on the same in the instant matter in light of the . . . further penalty to be imposed as a

result of the Habitual Offender adjudication.”      Appellant’s Br. at 8.     In sentencing

Watkins, the trial court stated as follows:

       When it all comes out, he’s committed, before . . . this felony conviction
       and this habitual offender adjudication, he has seven felonies and seven
       misdemeanors. So I will say I am going to attribute substantial weight to
       that aggravating circumstance. And . . . the Court would note . . . [t]hat
       he’s been the recipient of a number of pretty creative and—and lenient
       sentencing alternatives.      He’s received partially suspended felony
       convictions. He’s received totally executed felony convictions. He’s
       received mitigated sentences. He’s received aggravated sentences. He’s
       received advisory . . . sentences. He’s been placed on probation numerous
       times. He’s received consecutive sentences, concurrent sentences. He’s
       committed crimes while on bond and while on probation [on] numerous
       occasions. And none of this has worked. None of this has in any way,
       shape[,] or form dissuaded him from engaging in further criminal activity.

Transcript at 889-90. Thus, the trial court identified two aggravating circumstances:

Watkins’ extensive criminal history as well as the ineffectiveness of prior “creative . . .

and lenient sentencing . . . [to] dissuade[] him from engaging in further criminal activity.”

Id.




                                              4
       The trial court’s enhancement of Watkins’ sentence for his conviction and its

imposition of his habitual offender enhancement was not an abuse of its discretion. At no

point did the trial court state that it was enhancing Watkins’ sentence for his conviction

based exclusively on the predicate offenses underlying his habitual offender

enhancement, and the trial court did not twice enhance Watkins’ sentence based on a

single aggravator. To the contrary, the trial court plainly relied on two aggravators, one

of which was the extensive nature of Watkins’ total criminal history, when it imposed his

sentence. As such, the trial court did not abuse its discretion when it sentenced Watkins.

                            Issue Two: Appellate Rule 7(B)

       Watkins next asserts that his three-year sentence for obstruction of justice is

inappropriate in light of the nature of the offense and his character. Although a trial court

may have acted within its lawful discretion in determining a sentence, Article VII,

Sections 4 and 6 of the Indiana Constitution “authorize[] independent appellate review

and revision of a sentence imposed by the trial court.” Roush v. State, 875 N.E.2d 801,

812 (Ind. Ct. App. 2007) (alteration original). This appellate authority is implemented

through Indiana Appellate Rule 7(B). Id. Revision of a sentence under Appellate Rule

7(B) requires the appellant to demonstrate that her sentence is inappropriate in light of the

nature of her offense and her character. See Ind. Appellate Rule 7(B); Rutherford v.

State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007). We assess the trial court’s recognition

or non-recognition of aggravators and mitigators as an initial guide to determining

whether the sentence imposed was inappropriate. Gibson v. State, 856 N.E.2d 142, 147

(Ind. Ct. App. 2006). However, “a defendant must persuade the appellate court that his


                                             5
or her sentence has met th[e] inappropriateness standard of review.” Roush, 875 N.E.2d

at 812 (alteration original).

       Moreover, “sentencing is principally a discretionary function in which the trial

court’s judgment should receive considerable deference.” Cardwell v. State, 895 N.E.2d

1219, 1222 (Ind. 2008). Indiana’s flexible sentencing scheme allows trial courts to tailor

an appropriate sentence to the circumstances presented. See id. at 1224. The principal

role of appellate review is to attempt to “leaven the outliers.” Id. at 1225. Whether we

regard a sentence as inappropriate at the end of the day turns on “our sense of the

culpability of the defendant, the severity of the crime, the damage done to others, and

myriad other facts that come to light in a given case.” Id. at 1224.

       Here, Watkins argues that his three-year sentence is inappropriate because

“Obstruction of Justice[] is not the type of offense that has any real victim.” Appellant’s

Br. at 5. We cannot agree. Watkins threw a loaded firearm into an adjacent yard and, in

doing so, he completely disregarded the safety of the nearby officers and his neighbors.

Thus, Watkins’ sentence is not inappropriate in light of the nature of the offense.

       Watkins also asserts that he is not “the worst of the worst . . . and, as such, the . . .

maximum sentence for a Class D Felony conviction was not appropriate.” Id. But it is

well established that the test for imposing the maximum sentence is not to compare facts

of hypothetical cases but to focus on the facts of the instant case. See, e.g., Brown v.

State, 760 N.E.2d 243, 248 (Ind. Ct. App. 2002). Here, as explained by the trial court,

Watkins has an extensive criminal history and prior attempts at rehabilitation have been

futile. Further, Watkins’ possession of the firearm was a violation of the terms of his


                                               6
bond on a separate, pending charge. Hence, we cannot say that Watkins’ sentence is

inappropriate in light of his character.

                           Issue Three: Proportional Sentence

       Finally, Watkins contends that his three-year habitual offender enhancement

violates the Proportionality Clause of Indiana’s Constitution. The Proportionality Clause

of Indiana’s Constitution mandates that “[a]ll penalties shall be proportioned to the nature

of the offense.” Ind. Const. Art. I, § 16. As we have stated:

       This court has observed that challenges to the constitutionality of a statute
       begin with a presumption in favor of the statute’s constitutionality and will
       not be overcome absent a clear showing to the contrary. This standard
       arguably is more deferential where the challenge is based on the
       Proportionality Clause, as our supreme court has stated repeatedly that[,]
       because criminal sanctions are a legislative prerogative, separation-of-
       powers principles require a reviewing court to afford substantial deference
       to the sanction the legislature has chosen. Accordingly, we will not disturb
       the legislative determination of the appropriate penalty for criminal
       behavior except upon a showing of clear constitutional infirmity.

Mann v. State, 895 N.E.2d 119, 122 (Ind. Ct. App. 2008) (citations, quotations, and

alterations omitted).

       Further, our supreme court has held that

       the fact that appellant’s sentence falls within parameters affixed by the
       legislature does not relieve this Court of the constitutional duty to review
       the duration of appellant’s sentence as it is possible for the statute under
       which appellant is convicted to be constitutional, and yet be
       unconstitutional as applied to appellant in this particular instance.

                                           ***

             . . . This Court has held that the proportionality analysis of a habitual
       offender penalty has two components. First, a reviewing court should make
       an inquiry into the “nature” and gravity of the present felony. Second, a
       reviewing court should consider the “nature” of the predicate felonies upon
       which the habitual offender sentence is based.
                                             7
Clark v. State, 561 N.E.2d 759, 765-66 (Ind. 1990).

       Here, the present felony is of a serious nature. Again, in his attempt to flee police

and hide evidence, Watkins threw a loaded firearm into an adjacent yard. In doing so,

Watkins disregarded the safety of the nearby officers and his neighbors. And Watkins’

possession of the firearm was a violation of his terms of bond on a separate, pending

charge.    Moreover, the two predicate felonies underlying his habitual offender

allegation—a 1999 conviction for carrying a handgun without a license, as a Class C

felony, and a 2004 conviction for resisting law enforcement, as a Class D felony—are of

a similar nature to the facts that resulted in Watkins’ present conviction.

       Accordingly, we cannot say that Watkins’ three-year enhancement for being an

habitual offender has a “clear constitutional infirmity” justifying a reconsideration of his

sentence under Article I, Section 16 of the Indiana Constitution.

                                      CONCLUSION

       In sum, the trial court did not abuse its discretion when it sentenced Watkins, and

Watkins’ sentence for obstruction of justice is not inappropriate. Further, Watkins’

habitual offender enhancement does not violate the Proportionality Clause of the Indiana

Constitution. As such, we affirm Watkins’ sentence.

       Affirmed.

FRIEDLANDER, J., and BRADFORD, J., concur.




                                              8
