MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                     FILED
regarded as precedent or cited before any                             Oct 24 2019, 9:36 am
court except for the purpose of establishing
                                                                          CLERK
the defense of res judicata, collateral                               Indiana Supreme Court
                                                                         Court of Appeals
estoppel, or the law of the case.                                          and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Steven E. Ripstra                                        Curtis T. Hill, Jr.
Calvin K. Miller                                         Attorney General of Indiana
Jasper, Indiana
                                                         Samantha M. Sumcad
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Michael L. Pate,                                         October 24, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-557
        v.                                               Appeal from the Dubois Superior
                                                         Court
State of Indiana,                                        The Honorable Mark R.
Appellee-Plaintiff                                       McConnell, Judge.
                                                         Trial Court Cause No.
                                                         19D01-1703-F6-311



Altice, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-557 | October 24, 2019               Page 1 of 6
                                                  Case Summary


[1]   Michael Pate appeals his sentence following his plea of guilty to auto theft, a

      Level 6 felony. Pate raises two issues on appeal: whether the trial court abused

      its discretion by failing to find a mitigating factor; and whether Pate’s sentence

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


[2]   We affirm.


                                         Facts & Procedural History


[3]   On February 14, 2017, Denise Varner invited Pate to her residence so that he

      could help her get rid of cardboard boxes. When Varner went to the bathroom,

      Pate took her car keys and drove off with her car. The following day, Varner

      reported her car stolen and gave a statement to the police, identifying Pate as

      the thief. On February 17, 2017, Officer Greg Brescher located the stolen

      vehicle at a Super 8 Motel parking lot. On March 23, 2017, the State charged

      Pate with auto theft. Pate was arrested on a bench warrant on November 9,

      2018. Pate chose to proceed pro se and entered a plea of guilty.


[4]   A sentencing hearing was held on November 28, 2018. The trial court identified

      Pate’s substantial criminal history and his history of violating previous

      probation and community correction sentences as aggravating circumstances.

      Pate argued to the court, “I have literally no violence in my criminal history.”

      Transcript at 18. In response, the trial court reviewed Pate’s prior convictions,

      which include multiple serious crimes such as battery, resisting law


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-557 | October 24, 2019   Page 2 of 6
      enforcement, burglary, grand larceny, and possession of a firearm or a

      concealed weapon by a convicted felon. The trial court expressly determined

      that there were no mitigating factors. The trial court then sentenced Pate to a

      two-year executed sentence. Pate now appeals.


                                            Discussion & Decision


                                            I.     Abuse of Discretion


[5]   Sentencing decisions rest within the 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 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 drawn therefrom. Id. One way in which a trial court may

      abuse its discretion is by entering a sentencing statement that omits mitigating

      circumstances that are clearly supported by the record and advanced for

      consideration. Id. at 490-91. Under such circumstance, “remand for

      resentencing may be the appropriate remedy if we cannot say with confidence

      that the trial court would have imposed the same sentence had it properly

      considered reasons that enjoy support in the record.” Id. at 491.


[6]   Pate contends that the trial court abused its discretion by failing to identify his

      decision to plead guilty as a mitigating circumstance. Indeed, a defendant who

      pleads guilty generally deserves “some” mitigating weight to be afforded to the

      plea. Anglemyer, 875 N.E.2d at 220 (citing McElroy v. State, 865 N.E.2d 584,

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-557 | October 24, 2019   Page 3 of 6
      591 (Ind. 2007)). However, our Supreme Court has recognized that a trial court

      does not necessarily abuse its discretion by failing to recognize a defendant’s

      guilty plea as a significant mitigating circumstance. Id. at 221. Instead, a trial

      court is required only to identify mitigating circumstances that are both

      significant and supported by the record. Id. at 220-21.


[7]   Here, the trial court identified Pate’s significant criminal history as an

      aggravating circumstance. As set out below, Pate’s criminal history shows that

      he is a career criminal offender. Even if we assumed that the trial court abused

      its discretion by failing to identify Pate’s guilty plea as a mitigating

      circumstance, based on the facts of this case, we are confident that the trial

      court would have imposed the same sentence even if it had recognized his

      guilty plea as a mitigating circumstance. Thus, the trial court did not abuse its

      discretion in sentencing Pate.


                                         II.    Inappropriate Sentence

[8]   Article 7, Section 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). This appellate authority is

      implemented through Indiana Appellate Rule 7(B). Id. We may revise a

      sentence if the sentence is “inappropriate in light of the nature of the offense

      and the character of the offender.” App. R.7(B). The defendant bears the

      burden of persuading the court that the sentence is inappropriate. Rutherford v.

      State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007).


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-557 | October 24, 2019   Page 4 of 6
[9]    When determining if a sentence is inappropriate, the question is not whether

       another sentence is more appropriate, but rather whether the sentence imposed

       is inappropriate. King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008).

       Deference to the trial court “prevail[s] unless overcome by compelling evidence

       portraying in a positive light the nature of the offense (such as accompanied by

       restraint, regard, and lack of brutality) and the defendant’s character (such as

       substantial virtuous traits or persistent examples of good character).” Stephenson

       v. State, 29 N.E.3d 111, 122 (Ind. 2015).


[10]   With regard to the nature of the offense, we acknowledge that there was

       nothing particularly egregious about the facts giving rise to the auto theft.

       However, Pate has shown himself to be a person of particularly bad character.

       “The character of the offender is found in what we learn from the offender’s life

       and conduct.” Croy v. State, 953 N.E.2d 660, 664 (Ind. Ct. App. 2011). When

       considering the character of the offender, “‘one relevant fact is the defendant’s

       criminal history,’ and [t]he significance of criminal history varies based on the

       gravity, nature, and number of prior offenses in relation to the current offense.”

       Sanders v. State, 71 N.E.3d 839, 844 (Ind. Ct. App. 2017) (quoting Garcia v. State,

       47 N.E.3d 1249, 1251 (Ind. Ct. App. 2015), trans. denied), trans. denied.


[11]   Pate has a significant history of violating the law. Pate’s criminal history spans

       over twenty-four years and includes forty-nine total criminal cases resulting in

       thirty-five convictions of various misdemeanors and felonies. As pointed out by

       the trial court, Pate has been convicted of a variety of offenses including battery,

       resisting law enforcement, burglary, grand larceny, and possession of a firearm

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-557 | October 24, 2019   Page 5 of 6
       or a concealed weapon by a convicted felon. In addition, nearly early every

       time Pate has been given the opportunity for a community corrections sentence,

       that sentence has been revoked. Pate’s criminal history demonstrates that he

       has consistently disobeyed our laws and has shown no effort to change his

       behavior.


[12]   Pate faced a sentencing range of six months to two-and-a-half-years for the

       Level 6 felony conviction. Ind. Code § 35-50-2-7(b). The advisory sentence is

       one year. Id. The trial court imposed an aggravated sentence of two years,

       which is well within the sentencing range, and less than the trial court could

       have imposed. Under these circumstances, we cannot say that Pate’s sentence

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


       Judgment affirmed.



       Brown, J. and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-557 | October 24, 2019   Page 6 of 6
