                                                                    FILED
MEMORANDUM DECISION                                            Jun 23 2016, 9:34 am

                                                                    CLERK
                                                                Indiana Supreme Court
Pursuant to Ind. Appellate Rule 65(D),                             Court of Appeals
                                                                     and Tax Court
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
Anthony C. Lawrence                                      Gregory F. Zoeller
Anderson, Indiana                                        Attorney General of Indiana

                                                         Ian McLean
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Joshua Rigney,                                           June 23, 2016
Appellant-Defendant,                                     Court of Appeals Cause No.
                                                         33A01-1508-CR-1301
        v.                                               Appeal from the Henry Circuit
                                                         Court
State of Indiana,                                        The Honorable Mary G. Willis,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         33C01-1311-FB-97



Barnes, Judge.



Court of Appeals of Indiana | Memorandum Decision 33A01-1508-CR-1301 | June 23, 2016    Page 1 of 9
                                             Case Summary
[1]   Joshua Rigney appeals his fourteen-year sentence for Class B felony possession

      of a firearm by a serious violent felon. We affirm.


                                                     Issues
[2]   Rigney raises two issues, which we restate as:


                       I.      whether the trial court abused its discretion
                               when it sentenced Rigney; and

                       II.     whether the fourteen-year sentence is
                               inappropriate in light of the nature of the
                               offense and the character of the offender.

                                                     Facts
[3]   On November 1, 2013, Myron Crabtree discovered that four guns were missing

      from his house. Crabtree’s brother, Kenny Riddle, who lived with Crabtree,

      owed money to Rigney. Later that day, Rigney’s girlfriend, Leslie Catron, saw

      Rigney with several large gun bags. Rigney told Catron that he thought the

      guns belonged to Riddle. When Crabtree learned that Rigney might have the

      guns, he confronted him. Rigney then gave the guns back to Crabtree.


[4]   The State charged Rigney with Class B felony burglary, Class B felony

      possession of a firearm by a serious violent felon, Class D felony receiving

      stolen property, and Class B misdemeanor criminal mischief. After a jury trial,

      Rigney was found guilty of Class B felony possession of a firearm by a serious

      violent felon. At the sentencing hearing, the trial court found two

      aggravators—Rigney’s criminal history and the fact that he had recently

      Court of Appeals of Indiana | Memorandum Decision 33A01-1508-CR-1301 | June 23, 2016   Page 2 of 9
      violated multiple conditions of probation and has numerous pending cases.

      The trial court sentenced Rigney to fourteen years in the Department of

      Correction. Rigney now appeals.


                                                  Analysis
                                           I. Abuse of Discretion

[5]   Rigney argues that the trial court abused its discretion when it sentenced him.

      Sentencing decisions are within the sound discretion of the trial court.

      Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d

      218. However, a trial court may be found to have abused its sentencing

      discretion in a number of ways, including: (1) failing to enter a sentencing

      statement at all; (2) entering a sentencing statement that explains reasons for

      imposing a sentence where the record does not support the reasons; (3) entering

      a sentencing statement that omits reasons that are clearly supported by the

      record and advanced for consideration; and (4) entering a sentencing statement

      in which the reasons given are improper as a matter of law. Id. at 490-91. The

      reasons or omission of reasons given for choosing a sentence are reviewable on

      appeal for an abuse of discretion. Id. at 491. The weight given to those reasons,

      i.e. to particular aggravators or mitigators, is not subject to appellate review. Id.


[6]   Rigney argues that the trial court abused its discretion because it did not find his

      mental health and physical health as mitigating factors. A trial court is not

      obligated to accept a defendant’s claim as to what constitutes a mitigating

      circumstance. Rascoe v. State, 736 N.E.2d 246, 249 (Ind. 2000). A claim that


      Court of Appeals of Indiana | Memorandum Decision 33A01-1508-CR-1301 | June 23, 2016   Page 3 of 9
      the trial court failed to find a mitigating circumstance requires the defendant to

      establish that the mitigating evidence is both significant and clearly supported

      by the record. Anglemyer, 868 N.E.2d at 493.


[7]   There was no evidence presented at the sentencing hearing regarding Rigney’s

      physical or mental health. The only information concerning his physical and

      mental health was provided in the presentence investigation report, which

      stated:


                On June 27, 2012, [Rigney] was in a car accident which resulted
                in his having a broken nose, broken orbital sockets, broken C1-
                C3, broken L1-L5, his head was degloved, his left arm was
                degloved, and his left ulna was broken. In addition, he has
                suffered from post-traumatic stress disorder and other mental
                trauma. He has been treated since the accident for the various
                injuries. He started a process to stretch the skin on his head so
                that a plate could be placed to protect his brain. He was
                incarcerated on the probation violation in 33C01-0901-FB-
                000001 before the process could be completed. He stated that
                medical staff at the DOC reviewed his case and did not continue
                the process and the materials placed in his head were removed.


                The defendant indicated being on [various medications]. The
                defendant stated that he has experienced more seizures lately, he
                believes due to stress.


                                                   *****


                The defendant participated in counseling at CMHS (now
                Meridian Services) when he was a juvenile. He attempted
                suicide in the past by cutting himself, but believes it was more
                because he was mad and not truly trying to kill himself.

      Court of Appeals of Indiana | Memorandum Decision 33A01-1508-CR-1301 | June 23, 2016   Page 4 of 9
              The defendant was in patient at the psychiatric unit of Ball
              Hospital in 2008 followed by treatment at Meridian Services. He
              was diagnosed with Anxiety Disorder, Borderline Bipolar
              Disorder and ADHD.


              The defendant has suffered from Post-Traumatic Stress Disorder
              and other mental trauma since his car accident in June of 2012.
              He participated in counseling with Sharon Bertram at Meridian
              Services through the summer of 2014.


              The defendant stated that he undergoes psychiatric care at the
              IDOC. He sees a counselor on a monthly basis and a psychiatrist
              every 3 months.


      App. p. 201.


[8]   We first address Rigney’s physical health. Significant illnesses can be

      considered a mitigating circumstance. See Moyer v. State, 796 N.E.2d 309, 313-

      14 (Ind. Ct. App. 2003). However, “[i]f the defendant does not advance a

      factor to be mitigating at sentencing, we will presume that it is not significant,

      and the defendant is precluded from advancing it as a mitigating circumstance

      for the first time on appeal.” Id. Rigney did not mention his physical health

      during the sentencing hearing or argue that it was a mitigator.


[9]   Waiver notwithstanding, in Moyer, extensive evidence regarding the defendant’s

      illnesses and necessary medical treatments was presented at the sentencing

      hearing. Here, Rigney presented no evidence concerning his physical health at

      the sentencing hearing. The only evidence concerning his physical health was

      provided in the PSI, which explained that Rigney was in a car accident in June

      Court of Appeals of Indiana | Memorandum Decision 33A01-1508-CR-1301 | June 23, 2016   Page 5 of 9
       2012, that he had various injuries as a result, that he had been undergoing a

       process to stretch the skin on his head so that a plate could be placed to protect

       his brain, but that the DOC did not continue the process. However, unlike

       Moyer, Rigney presented no evidence regarding medical hardships that he

       would endure if incarcerated, no evidence that the prison was unable to

       accommodate his medical issues, and no evidence that he suffered medical

       problems from the DOC’s discontinuing the stretching process. The proposed

       mitigator is not clearly supported by the record. The trial court did not abuse its

       discretion when it did not consider his physical health as a mitigator.


[10]   As for Rigney’s mental health, he did advance that as a proposed mitigator at

       the sentencing hearing. However, again, he did not present any evidence

       concerning his mental health at the sentencing hearing. The only information

       concerning his mental health is provided in the PSI, which notes that Rigney

       has post-traumatic stress from the car accident, an anxiety disorder, borderline

       bipolar disorder, and ADHD. He has attempted suicide, was hospitalized for

       psychiatric treatment in 2008, and currently attends counseling.


[11]   Our supreme court has held there is “the need for a high level of discernment

       when assessing a claim that mental illness warrants mitigating weight.”

       Covington v. State, 842 N.E.2d 345, 349 (Ind. 2006). The court identified several

       factors to consider in weighing the mitigating force of a mental health issue,

       including “the extent of the inability to control behavior, the overall limit on

       function, the duration of the illness, and the nexus between the illness and the

       crime.” Id. Rigney presented no evidence concerning the extent of his inability

       Court of Appeals of Indiana | Memorandum Decision 33A01-1508-CR-1301 | June 23, 2016   Page 6 of 9
       to control his behavior, the overall limit on his ability to function, or the nexus

       between his mental health and his offense. Given the lack of evidence on these

       factors, Rigney has not shown that his mental health was significant or clearly

       supported by the record. The trial court did not abuse its discretion when it did

       not recognize Rigney’s mental health as a mitigator.


                                         II. Inappropriate Sentence

[12]   Rigney argues that his sentence is inappropriate under Indiana Appellate Rule

       7(B). Appellate Rule 7(B) provides that we may 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 offenses and the character

       of the offender. When considering whether a sentence is inappropriate, we

       need not be “extremely” deferential to a trial court’s sentencing decision.

       Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007). Still, we must

       give due consideration to that decision. Id. We also understand and recognize

       the unique perspective a trial court brings to its sentencing decisions. Id. Under

       this rule, the burden is on the defendant to persuade the appellate court that his

       or her sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind.

       2006).


[13]   The principal role of 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
       Court of Appeals of Indiana | Memorandum Decision 33A01-1508-CR-1301 | June 23, 2016   Page 7 of 9
       the trees—consecutive or concurrent, number of counts, or length of the

       sentence on any individual count.” Id. When reviewing the appropriateness of

       a sentence under Rule 7(B), we may consider all aspects of the penal

       consequences imposed by the trial court in sentencing the defendant, including

       whether a portion of the sentence was suspended. Davidson v. State, 926 N.E.2d

       1023, 1025 (Ind. 2010).


[14]   The nature of the offense is that Rigney had four guns in his possession despite

       his status as a serious violent felon. As for Rigney’s character, we note that

       thirty-two-year-old Rigney has a significant criminal history. As a juvenile,

       Rigney was adjudicated delinquent for what would have been Class C felony

       burglary. As an adult, Rigney has convictions for Class D felony receiving

       stolen property, Class A misdemeanor operating a vehicle while intoxicated,

       Class A misdemeanor criminal trespass, Class B felony burglary, Class A

       misdemeanor resisting law enforcement, and Class A misdemeanor aggressive

       driving. He has had home detention and a suspended sentence revoked, and he

       was on probation at the time of the current offense. At the time of the

       sentencing hearing, he had pending charges for Class D felony unlawful sale of

       a precursor, Class A misdemeanor resisting law enforcement, Class B

       misdemeanor false informing, Level 6 felony forgery, Level 6 felony theft, Level

       2 felony burglary with a deadly weapon, Class A misdemeanor theft, Class B

       misdemeanor criminal mischief, Level 4 felony burglary, and Level 6 felony

       theft.




       Court of Appeals of Indiana | Memorandum Decision 33A01-1508-CR-1301 | June 23, 2016   Page 8 of 9
[15]   Rigney argues that he has a mental illness that was exacerbated by his 2012 car

       accident and that he desires substance abuse treatment. Despite Rigney’s

       physical and mental injuries from his car accident, he has continued to

       accumulate numerous criminal charges and convictions. Although his desire

       for substance abuse treatment is commendable, it does not negate his significant

       criminal history and continued criminal activity. The fourteen-year sentence

       imposed by the trial court is not inappropriate.


                                                 Conclusion
[16]   Rigney’s sentence is not inappropriate. We affirm.


[17]   Affirmed.


       Vaidik, C.J., and Mathias, J., concur.




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