Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                     Oct 17 2014, 9:49 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:

RANDY M. FISHER                                   GREGORY F. ZOELLER
Deputy Public Defender                            Attorney General of Indiana
Fort Wayne, Indiana
                                                  JESSE R. DRUM
                                                  Deputy Attorney General
                                                  Indianapolis, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

TONY P. FITTS,                                    )
                                                  )
       Appellant-Defendant,                       )
                                                  )
              vs.                                 )        No. 02A03-1403-CR-77
                                                  )
STATE OF INDIANA,                                 )
                                                  )
       Appellee-Plaintiff.                        )


                     APPEAL FROM THE ALLEN SUPERIOR COURT
                          The Honorable Frances C. Gull, Judge
                            Cause No. 02D04-1304-FC-106



                                       October 17, 2014


                MEMORANDUM DECISION - NOT FOR PUBLICATION


NAJAM, Judge
                             STATEMENT OF THE CASE

       Tony P. Fitts appeals his sentence following his conviction for carrying a handgun

without a license, as a Class C felony, pursuant to a guilty plea. Fitts presents two issues

for our review:

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

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

       We affirm.

                       FACTS AND PROCEDURAL HISTORY

       On April 17, 2013, at approximately 8:00 p.m., Fitts argued with his girlfriend,

Samra Sims, at her home, where she resided with the couple’s two children. During the

argument, Sims observed that Fitts possessed a handgun. At some point, Fitts left, and

Sims locked him out of her home. However, at approximately 11:00 p.m., Fitts returned

uninvited and intoxicated, and he tried to enter Sims’ home. From her kitchen window,

Sims observed the gun in Fitts’ waistband, and she called the police. When the officers

arrived, they discovered Fitts in a detached garage and found two handguns in a trash bin

also located inside of the garage. Sims identified to the police the handgun that she had

observed in Fitts’ possession.

       On April 22, the State charged Fitts, a convicted felon, with carrying a handgun

without a license, as a Class C felony, and, on January 29, 2014, Fitts pleaded guilty as

charged without the benefit of a plea agreement. The court held a sentencing hearing on

February 20, at which Fitts offered as mitigators that he had accepted responsibility by

pleading guilty; that he had enrolled in college courses during the pendency of the
                                             2
prosecution; and that he has two dependent, minor children. Fitts conceded that his

criminal history was an aggravator but argued that he had only one prior felony

conviction. The trial court sentenced him to six years executed in the Department of

Correction. In doing so, the court stated:

       I do find mitigating circumstances in your case[,] Mr. Fitts. You did in fact
       plead guilty. You accepted responsibility for your behavior. . . . I do find
       as aggravating circumstances your prior criminal record and failed efforts at
       rehabilitation. From 1998 to 2013[,] you’ve got ten (10) Misdemeanor
       convictions, one (1) prior Felony conviction. You have been on probation.
       You have been in Home Detention. You’ve been in jail. You’ve been in
       the Department of Correction. You’ve been on the Re-entry Court
       Program. You’ve been through the Community Transition Program, and[,]
       apparently[,] you were also in the Drug Court Program. And you continue
       your criminal behavior. I’m not sure[,] Mr. Fitts[,] what more it is that
       we’re suppose [sic] to do. You’re thirty-four years old. You haven’t been
       gainfully employed in some time. You’ve got substantial arrearage with
       your child support. Your license is suspended, and you just continue.

Tr. at 11-12. This appeal ensued.

                            DISCUSSION AND DECISION

                             Issue One: Abuse of Discretion

       Fitts asserts that the trial court abused its discretion when it sentenced him. Under

the advisory sentencing scheme, “the trial court must enter a statement including

reasonably detailed reasons or circumstances for imposing a particular sentence.”

Anglemyer v. State, 868 N.E.2d 482, 490 (Ind.2007), clarified in part on other grounds,

875 N.E.2d 218 (Ind. 2007). We review the sentence for an abuse of discretion. Id. An

abuse of discretion occurs if “the decision is clearly against the logic and effect of the

facts and circumstances.” Id.




                                             3
       A trial court abuses its discretion if it (1) fails “to enter a sentencing statement at

all[,]” (2) enters “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,” (3) enters a sentencing statement that “omits reasons that are clearly

supported by the record and advanced for consideration,” or (4) considers reasons that

“are improper as a matter of law.” Id. at 490–91. If the trial court has abused its

discretion, we will remand for resentencing “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.     However, the relative weight or value

assignable to reasons properly found, or to those which should have been found, is not

subject to review for abuse of discretion. Id.

       Moreover, a finding of mitigating circumstances also lies within the trial court’s

discretion. Widener v. State, 659 N.E.2d 529, 533 (Ind. 1995). The court need not state

in the record those mitigating circumstances that it considers insignificant. See Sensback

v. State, 720 N.E.2d 1160, 1163 (Ind. 1999). And the trial court is not obligated to

explain why it did not find a factor to be significantly mitigating. Chambliss v. State, 746

N.E.2d 73, 78 (Ind. 2001). Nor is the sentencing court required to place the same value

on a mitigating circumstance as does the defendant. Beason v. State, 690 N.E.2d 277,

283-84 (Ind. 1998).

       Fitts first contends that the trial court abused its discretion when it did not identify

two mitigators that he argued at his sentencing hearing: (1) the hardship his sentence

would place on his two minor children and (2) his enrollment in college courses.


                                              4
However, the record makes clear that the trial court did consider—and rejected—Fitts’

first proffered mitigator.   Specifically, the court found that Fitts had failed both to

maintain gainful employment and to pay child support. In other words, Fitts failed to

support his dependent children, and, therefore, his detention in DOC would not work a

hardship upon them.      Further, Fitts presented little evidence to support his second

proffered mitigator. The trial court heard evidence only that Fitts had been enrolled in

college courses between September and December 2013. Fitts did not offer evidence that

he had successfully completed his classes or that he maintained enrollment at the time of

sentencing.   Indeed, his presentence investigation report (“PSI”) lists “returning to

college as an educational goal” only. PSI App. at 7. Thus, the trial court could have

regarded this proffered mitigator as insignificant and, therefore, did not mention it in the

record.

       Fitts also asserts that the trial court abused its discretion because it “failed to

consider alternatives when ordering the executed sentence served in the Department of

Correction.” Appellant’s Br. at 10. But the record again demonstrates that the trial court

both considered and rejected sentencing alternatives. Notably, the court stated:

       You have been on probation. You have been in Home Detention. You’ve
       been in jail. You’ve been in the Department of Correction. You’ve been
       on the Re-entry Court Program. You’ve been through the Community
       Transition Program, and[,] apparently[,] you were also in the Drug Court
       Program. And you continue your criminal behavior. I’m not sure[,] Mr.
       Fitts[,] what more it is that we’re suppose [sic] to do.

Tr. at 11-12. Alternative sentencing “is a matter of grace and a conditional liberty that is

a favor, not a right,” and the trial court could rationally conclude that Fitts had not earned

that favor. Holmes v. State, 923 N.E.2d 479, 482 (Ind. Ct. App. 2010) (quotations
                                              5
omitted). In fact, in addition to Fitts’ repeated failures with alternative sentencing cited

by the trial court, Fitts “has had two (2) suspended sentences revoked and two (2)

suspended sentences modified. He has had his home detention placement revoked once.”

PSI App. at 6. Thus, the trial court did not abuse its discretion, and we affirm on this

issue.

                              Issue Two: Appellate Rule 7(B)

         Next, Fitts contends that his sentence is inappropriate in light of the nature of the

offense and his character.      Article 7, 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 in original).

This appellate authority is implemented through Indiana Appellate Rule 7(B).               Id.

Revision of a sentence under Rule 7(B) requires the appellant to demonstrate that his

sentence is inappropriate in light of the nature of his offenses and his character. 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 or her sentence has met th[e] inappropriateness standard of

review.” Roush, 875 N.E.2d at 812 (alteration original).

         Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate

sentence to the circumstances presented, and the trial court’s judgment “should receive

considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222, 1224 (Ind. 2008).


                                               6
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.

       With respect to the nature of the offense, Fitts asserts that we should revise his

sentence because he “merely possessed a handgun without a license—no one was

physically harmed or threatened in this case.” Appellant’s Br. at 13. But Fitts ignores

the context in which his crime occurred. He carried a weapon during an altercation with

his girlfriend, Sims, which occurred in her home where Fitts’ children also resided. This

altercation resulted in Sims locking Fitts out of the home. Fitts then returned to the home

uninvited, intoxicated,1 and still in possession of the handgun, and he attempted to enter

the home. While no one was injured, Sims must have felt threatened because she called

9-1-1. Thus, the nature of the offense does not support revision of Fitts’ sentence.

       Despite his attempts to diminish his criminal history, Fitts’ character also does not

support his Appellate Rule 7(B) claim. Although it is true that Fitts had only one prior

felony conviction, he also had ten prior misdemeanor convictions. And, as the trial court

observed, while Fitts received several alternative sentences for his prior convictions, he

did not rehabilitate himself. Indeed, we again point out that Fitts previously had two

suspended sentences and one home detention placement revoked, and he had two

suspended sentences modified.               Therefore, we cannot state that Fitts’ sentence is

inappropriate in light of either the nature of the offense or his character.



       1
           Fitts was too intoxicated for questioning after officers transported him to the police station.
                                                       7
                                         Conclusion

       In sum, we hold that the trial court did not abuse its discretion when it did not

identify or accept two of Fitts’ proffered mitigators or when it refused to impose an

alternative sentence.   Further, we reject Fitts’ Appellate Rule 7(B) challenge.        His

sentence is not inappropriate in light of the nature of the offense or his character.

       Affirmed.

BAILEY, J., and PYLE, J., concur.




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