MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                              Dec 22 2017, 6:31 am

court except for the purpose of establishing                                CLERK
the defense of res judicata, collateral                                 Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke                                   Curtis T. Hill, Jr.
Wieneke Law Office, LLC                                 Attorney General of Indiana
Brooklyn, Indiana
                                                        Katherine Cooper
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Mark Bailey,                                            December 22, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        33A05-1705-CR-1174
        v.                                              Appeal from the Henry Circuit
                                                        Court
State of Indiana,                                       The Honorable Kit C. Dean Crane,
Appellee-Plaintiff                                      Judge
                                                        Trial Court Cause No.
                                                        33C02-1608-F6-271



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 33A05-1705-CR-1174 | December 22, 2017        Page 1 of 8
                                             Case Summary
[1]   Mark Bailey pled guilty to level 6 felony resisting law enforcement, class A

      misdemeanor driving while suspended, and a habitual offender count. He

      appeals his six-year aggregate sentence, claiming that the trial court failed to

      consider his guilty plea as a mitigating circumstance. He also asserts that his

      sentence is inappropriate in light of the nature of the offenses and his character.

      Finding that the trial court acted within its discretion in its treatment of Bailey’s

      guilty plea and concluding that Bailey has failed to meet his burden of

      demonstrating that his sentence is inappropriate, we affirm.


                                 Facts and Procedural History
[2]   On August 5, 2016, a Henry County Sheriff’s Department deputy attempted to

      perform a traffic stop on a vehicle driven by Bailey. As the deputy exited his

      patrol car, Bailey sped off. After a high-speed chase, Bailey crashed the vehicle

      he was driving. The deputy discovered that the vehicle had been listed as stolen

      and that Bailey was driving on a suspended license.


[3]   The State charged Bailey with level 6 felony auto theft, level 6 felony resisting

      law enforcement, class A misdemeanor driving while suspended, class C

      misdemeanor reckless driving, and nine infractions for the traffic offenses of

      disregarding a lighted signal, failure to signal for turn or lane change, and

      speeding. The State later amended the charging information to add a habitual

      offender count.




      Court of Appeals of Indiana | Memorandum Decision 33A05-1705-CR-1174 | December 22, 2017   Page 2 of 8
[4]   On the morning of his jury trial, the State moved to dismiss the auto theft

      charge. Bailey then pled guilty to level 6 felony resisting law enforcement, class

      A misdemeanor driving while suspended, and being a habitual offender, and

      the State dismissed all remaining counts. At sentencing, the trial court

      identified as aggravating circumstances Bailey’s lengthy criminal history and

      repeated violations of probation and parole. The court did not identify Bailey’s

      guilty plea as a mitigating circumstance, noting that he waited until the day of

      trial to plead guilty. The court sentenced Bailey to a two-year term for resisting

      law enforcement, with one year suspended to probation, a four-year executed

      term for his habitual offender enhancement, and a one-year suspension of his

      driver’s license for his driving while suspended conviction.


[5]   Bailey now appeals. Additional facts will be provided as necessary.


                                     Discussion and Decision

         Section 1 – The trial court acted within its discretion in its
            treatment of Bailey’s guilty plea during sentencing.
[6]   Bailey challenges the trial court’s treatment of his guilty plea during sentencing.

      Sentencing decisions rest within the sound discretion of the trial court, and as

      long as a sentence is within the statutory range, it is subject to review 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. An abuse of discretion occurs where the trial

      court’s decision is clearly against the logic and effect of the facts and

      circumstances before it, or the reasonable, probable, and actual deductions to be


      Court of Appeals of Indiana | Memorandum Decision 33A05-1705-CR-1174 | December 22, 2017   Page 3 of 8
      drawn therefrom. Sloan v. State, 16 N.E.3d 1018, 1026 (Ind. Ct. App. 2014). A

      trial court may abuse its discretion if the sentencing statement omits mitigating

      factors that are clearly supported by the record and advanced for consideration.

      Anglemyer, 868 N.E.2d at 490-91.


[7]   Bailey specifically contends that the trial court abused its discretion by declining

      to identify his guilty plea as a mitigating circumstance. The trial court is not

      obligated to accept the defendant’s argument concerning what constitutes a

      mitigating factor. Healey v. State, 969 N.E.2d 607, 616 (Ind. Ct. App. 2012),

      trans. denied. Moreover, if the trial court does not find the existence of a

      mitigator after it has been argued by counsel, the court is not obligated to

      explain why it found the circumstance not to be mitigating. Anglemyer, 868

      N.E.2d at 493.


[8]   Here, Bailey advanced his guilty plea for consideration as a mitigating

      circumstance. The trial court considered the plea and the circumstances

      surrounding it and simply did not find it to be mitigating. Despite its lack of

      obligation to do so, the court explained its decision as follows:


              I do recall Mr. Bailey we were here for Jury Trial. The Jury was
              literally outside that door with the Bailiff. The closed door and
              she was looking through the window when you folks decided to
              enter those guilty pleas so uh I don’t find that as a mitigating
              circumstance. Might have been a mitigating circumstance if it’d
              have [sic] taken place three or four months before but when the
              jury is waiting right out there ready to come in I, I don’t buy or
              accept the fact when somebody says I manned up. That’s not
              manning up when the Jury is right there ready to come in, ok.


      Court of Appeals of Indiana | Memorandum Decision 33A05-1705-CR-1174 | December 22, 2017   Page 4 of 8
       Tr. Vol. 2 at 26.


[9]    In short, the trial court did not overlook a mitigator clearly supported by the

       record and advanced for consideration. The fact that Bailey disagrees with the

       court’s conclusion regarding the effect of his guilty plea on his sentence does

       not create an abuse of discretion on the court’s part. See Healey, 969 N.E.2d at

       616. The trial court acted within its discretion in its treatment of Bailey’s guilty

       plea.


            Section 2 – Bailey has failed to meet his burden of
       demonstrating that his sentence is inappropriate in light of the
                 nature of the offenses and his character.
[10]   Bailey asks that we review and revise his sentence pursuant to Indiana

       Appellate Rule 7(B), which states that we “may revise a sentence authorized by

       statute if, after due consideration of the trial court’s decision, [this] Court finds

       that the sentence is inappropriate in light of the nature of the offense and the

       character of the offender.” When a defendant requests appellate review and

       revision of his sentence, we have the power to affirm or reduce the sentence.

       Akard v. State, 937 N.E.2d 811, 813 (Ind. 2010). In conducting our review, we

       may consider all aspects of the penal consequences imposed by the trial court in

       sentencing, i.e., whether it consists of executed time, probation, suspension,

       home detention, or placement in community corrections, and whether the

       sentences run concurrently or consecutively. Davidson v. State, 926 N.E.2d

       1023, 1025 (Ind. 2010). We do not look to see whether the defendant’s

       sentence is appropriate or if another sentence might be more appropriate; rather,

       Court of Appeals of Indiana | Memorandum Decision 33A05-1705-CR-1174 | December 22, 2017   Page 5 of 8
       the test is whether the sentence is “inappropriate.” Fonner v. State, 876 N.E.2d

       340, 344 (Ind. Ct. App. 2007). A defendant bears the burden of persuading this

       Court that his sentence meets the inappropriateness standard. Anglemyer, 868

       N.E.2d at 490.


[11]   In considering the nature of Bailey’s offenses, “the advisory sentence is the

       starting point the Legislature has selected as an appropriate sentence.” Id. at

       494. When determining the appropriateness of a sentence that deviates from an

       advisory sentence, we consider whether there is anything more or less egregious

       about the offense as committed by the defendant that “makes it different from

       the typical offense accounted for by the legislature when it set the advisory

       sentence.” Holloway v. State, 950 N.E.2d 803, 807 (Ind. Ct. App. 2011).


[12]   Bailey pled guilty to one level 6 felony, one class A misdemeanor, and a

       habitual offender count. The sentencing range for a level 6 felony is six months

       to two and one-half years, with a one-year advisory term. Ind. Code § 35-50-2-

       7(b). A class A misdemeanor carries a sentence of not more than one year.

       Ind. Code § 35-50-3-2. A habitual offender finding for a defendant convicted of

       a level 6 felony mandates a nonsuspendible, fixed additional term of two to six

       years. Ind. Code § 35-50-2-8(i)(2).


[13]   We find Bailey’s resistance of law enforcement offense to be more egregious

       than a typical offense, such as when a defendant refuses to pull over, flees on

       foot, or wiggles out of handcuffs. Bailey sped away during the traffic stop and

       precipitated a high-speed chase. In so doing, he endangered himself, law


       Court of Appeals of Indiana | Memorandum Decision 33A05-1705-CR-1174 | December 22, 2017   Page 6 of 8
       enforcement officers, and other drivers and pedestrians who might have been in

       his path. He did all this while operating on a suspended license, for which he

       received an additional one-year suspension of his driver’s license. His elevated

       two-year term for his level 6 felony comprised one year executed and one

       suspended to probation. As for his habitual offender finding, which accounts

       for the majority of his aggregate six-year sentence, the court appears to have

       split the difference in the statutory sentencing range, which could be deemed

       lenient, since the record indicates that he has a previous habitual offender

       finding. The nature of Bailey’s offenses does not merit a shorter term.


[14]   Similarly, Bailey’s character does not militate toward a shorter sentence. We

       conduct our review of his character by engaging in a broad consideration of his

       qualities. Aslinger v. State, 2 N.E.3d 84, 95 (Ind. Ct. App. 2014), clarified on other

       grounds on reh’g, 11 N.E.3d 571. The presentence investigation report shows

       Bailey to be a career criminal whose offenses span two decades, six different

       Indiana counties, and Ohio, where he was convicted of breaking and entering,

       theft, and receiving stolen property. His felony record includes three robbery

       convictions, multiple convictions for theft, auto theft, and receiving stolen

       property, and one conviction each for cocaine possession, resisting law

       enforcement, and attempted fraud. His misdemeanor record includes

       convictions for check deception, possession of paraphernalia, criminal trespass,

       driving while suspended, and criminal conversion. Bailey’s record is peppered

       with probation and parole violations/revocations, which indicates that previous

       attempts at leniency have failed. Even so, the trial court built leniency into his


       Court of Appeals of Indiana | Memorandum Decision 33A05-1705-CR-1174 | December 22, 2017   Page 7 of 8
       current sentence by suspending one year of his level 6 felony sentence. Bailey

       admitted that he has been a regular user of cocaine for nearly two decades and

       that most of his criminal conduct has been related to his drug habit. Though we

       acknowledge his solid community service record and recent completion of a

       substance abuse program, he simply has not demonstrated that his character

       merits a reduced sentence.


[15]   Simply put, Bailey has failed to meet his burden of showing that his sentence is

       inappropriate in light of the nature of the offenses and his character.

       Accordingly, we affirm.


[16]   Affirmed.


       Robb, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 33A05-1705-CR-1174 | December 22, 2017   Page 8 of 8
