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,                     FILED
                                                           Jan 31 2012, 9:29 am
collateral estoppel, or the law of the
case.
                                                                   CLERK
                                                                 of the supreme court,
                                                                 court of appeals and
                                                                        tax court




ATTORNEY FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

JEFFREY SCHLESINGER                             GREGORY F. ZOELLER
Crown Point, Indiana                            Attorney General of Indiana

                                                MONIKA PREKOPA TALBOT
                                                Deputy Attorney General
                                                Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA


JAMES EUBANKS, JR.,                             )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )       No. 45A03-1105-CR-212
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                      APPEAL FROM THE LAKE SUPERIOR COURT
                          The Honorable Salvador Vasquez, Judge
                              Cause No. 45G01-1011-FB-108


                                     January 31, 2012

               MEMORANDUM DECISION - NOT FOR PUBLICATION

BARNES, Judge
                                      Case Summary

       James Eubanks, Jr., appeals his sentence for Class B felony burglary. We affirm.

                                           Issues

       Eubanks raises two issues, which we restate as:

               I.    whether the trial court abused its discretion in
                     sentencing him; and

               II.   whether his sentence is inappropriate in light of the
                     nature of the offense and the character of the offender.

                                            Facts

       On October 30, 2010, a fire damaged the residence of Andrea Fraze and her family

in Hammond. The Fraze family had to move out for a few days, and the residence was

boarded up.     On the early morning of November 1, 2010, Fraze’s neighbor heard

pounding coming from the boarded up house and called police. Officers found Eubanks

in the residence and saw that copper pipes had been cut and were stacked near the back

door. When he was arrested, Eubanks also had Fraze’s jewelry in his pocket. Eubanks

told the officers, “I knew that the house had had a fire. I was just going in there to get the

copper. I figured the insurance would cover it. I wasn’t trying to hurt nobody.” Tr. p.

42.

       The State charged Eubanks with Class B felony burglary, and a jury found him

guilty as charged. At the sentencing hearing, the trial court found Eubanks’s criminal

history to be an aggravator and found no mitigators. The trial court sentenced Eubanks to

nine years in the Department of Correction with the last three years in community

corrections.

                                              2
                                          Analysis

                                   I. Abuse of Discretion

       Eubanks argues that the trial court abused its discretion by failing to consider

certain proposed mitigators. 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. The weight given to those reasons,

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

       According to Eubanks, the trial court failed to consider his homelessness and

mental illnesses as mitigators. Our supreme court has identified four factors “that bear on

the weight, if any, that should be given to mental illness in sentencing.” Weeks v. State,

697 N.E.2d 28, 30 (Ind. 1998). Those factors are: (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.



                                               3
       Eubanks’s counsel argued at sentencing that Eubanks had schizophrenia, a bipolar

disorder, and suicidal tendencies. Eubanks admitted that his family wanted him to seek

treatment, but he refused. His counsel contended that Eubanks is more lucid when he is

taking his medication. Eubanks presented no evidence as to the severity of his mental

illnesses, his ability to control his behavior, limitations on his functioning, or the extent

of a nexus between his mental illness and the commission of the crime.

       Moreover, while the trial court did not identify Eubanks’s homelessness and

mental illnesses as mitigators, it did mention both proposed mitigators in its sentencing

statement. The trial court noted that Eubanks had not sought help for his mental health

issues. Instead, Eubanks had been treating his mental illnesses with alcohol and drugs.

The trial court noted that Eubanks had been “jumping from house to house or state to

state . . . kind of roaming around and looking for [his] next meal.” Tr. p. 115. The trial

court noted that the “system” could only help Eubanks so much and that he needed to

seek treatment. Id. Thus, the trial court did, in fact, consider Eubanks’s proposed

mitigators, but it rejected them. Given the lack of evidence regarding Eubanks’s mental

illnesses and the trial court’s statements during sentencing, we cannot say that the trial

court abused its discretion by failing to identify Eubanks’s homelessness or mental

illnesses as mitigators.

                                II. Inappropriate Sentence

       Eubanks argues that his sentence is inappropriate in light of the nature of the

offenses and the character of the offender. Indiana Appellate Rule 7(B) provides that we

may revise a sentence authorized by statute if, after due consideration of the trial court’s

                                             4
decision, we find that the sentence is inappropriate in light of the nature of the offense

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).

         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 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).

         The nature of the offense is that Eubanks broke into the Fraze family’s residence

shortly after a fire occurred there. Eubanks attempted to take jewelry and copper pipes.

Eubanks claims that the nature of the offense is less serious than a typical burglary

because no one was occupying the house when he entered it.

                                              5
       A review of the character of the offender reveals that Eubanks has a substantial

criminal history of similar offenses.         Twenty-six-year-old Eubanks has multiple

misdemeanor convictions, including convictions for criminal trespass, conversion,

criminal mischief, underage drinking, operating a vehicle while under the influence, and

resisting law enforcement. He also has two felony convictions for theft and one for

burglary. He was on probation at the time of this offense. Eubanks claims to have been

diagnosed with schizophrenia and bipolar disorder, but he refused to take his medication

and refused offers of help from his family.

       The sentence for a Class B felony ranges from six to twenty years with an

advisory sentence of ten years. Ind. Code § 35-50-2-5. We note that, at the sentencing

hearing, Eubanks asked for a sentence of between six and ten years with community

transitions at the end of the sentence. Tr. p. 109. The State asked for a sentence of ten

years. The trial court ordered that Eubanks serve nine years in the Department of

Correction with the last three years in community corrections, which falls within the

range of sentence that Eubanks requested. Despite Eubanks’s claimed mental illnesses,

given his criminal history and his requested sentence, we conclude that the sentence

imposed by the trial court is not inappropriate in light of the nature of the offense and the

character of the offender.

                                        Conclusion

       The trial court did not abuse its discretion in sentencing Eubanks, and the sentence

is not inappropriate in light of the nature of the offense and the character of the offender.

We affirm.

                                              6
      Affirmed.

KIRSCH, J., and BRADFORD, J., concur.




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