Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
                                                                          Mar 31 2014, 9:26 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:

JESSE R. POAG                                     GREGORY F. ZOELLER
Newburgh, Indiana                                 Attorney General of Indiana

                                                  MICHAEL GENE WORDEN
                                                  Deputy Attorney General
                                                  Indianapolis, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

DEZMONT HOGAN,                                    )
                                                  )
       Appellant-Defendant,                       )
                                                  )
              vs.                                 )      No. 82A01-1310-CR-475
                                                  )
STATE OF INDIANA,                                 )
                                                  )
       Appellee-Plaintiff.                        )


                 APPEAL FROM THE VANDERBURGH CIRCUIT COURT
                         The Honorable David D. Kiely, Judge
                           Cause No. 82C01-1202-FA-248



                                        March 31, 2014


                MEMORANDUM DECISION - NOT FOR PUBLICATION


NAJAM, Judge
                            STATEMENT OF THE CASE

       Dezmont Hogan appeals his sentence following his convictions for burglary, as a

Class A felony; criminal confinement, as a Class B felony; and theft, as a Class D felony.

Hogan 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
              offenses and his character.

       We affirm.

                       FACTS AND PROCEDURAL HISTORY

       During the early morning hours of February 19, 2012, Hogan, Nalakeio Bennett,

Antwan Jenkins, Jeton Hall, and a fifth man were wearing black ski masks and carrying

handguns when they ambushed Ira Beumer outside of his residence in Vanderburgh

County. The men pointed their guns at Beumer and threatened to shoot him if he did not

disarm the house alarm, and Beumer complied. The men forced their way inside the

house, and they struck Beumer in the head with the butts of their pistols multiple times.

The men emptied two safes of valuables, and they stole coins and an iPad. At one point,

Beumer was on his knees, and one of the men held a gun to his head and said, “I am

going to kill this n*****, I am going to kill this n*****!” Appellant’s App. at 14. Then

Beumer’s wife pulled into the driveway. One of the men alerted the others to her arrival,

and Beumer pleaded with the men not to hurt her. The man with the gun to Beumer’s

head said, “I am going to kill this n***** then I am going to kill this f***ing bitch!” Id.

But the man did not go through with his threats, and all five men fled the scene.



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       The State charged Hogan with burglary, as a Class A felony; criminal

confinement, as a Class B felony; theft, as a Class D felony; and with being a member of

a criminal gang. Hogan pleaded guilty as charged to burglary, criminal confinement, and

theft, without a plea agreement, but the criminal gang enhancement was tried to a jury.

During that trial, the trial court granted Hogan’s motion for a directed verdict. The trial

court sentenced Hogan to forty years for the Class A felony, fifteen years for the Class B

felony, and two years for the Class D felony. And the trial court ordered that the

sentences would run concurrently for a total executed sentence of forty years. This

appeal ensued.

                             DISCUSSION AND DECISION

                     Issue One: Abuse of Discretion in Sentencing

       Hogan first contends that the trial court abused its discretion when it sentenced

him. Sentencing decisions rest within the sound 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 other grounds 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 to

be drawn therefrom. Id.

       One way in which a trial court may abuse its discretion is failing to enter a
       sentencing statement at all. Other examples include entering 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, or the sentencing statement omits reasons that are
       clearly supported by the record and advanced for consideration, or the
       reasons given are improper as a matter of law . . . .


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              [However, b]ecause the trial court no longer has any obligation to
       “weigh” aggravating and mitigating factors against each other when
       imposing a sentence, . . . a trial court cannot now be said to have abused its
       discretion in failing to “properly weigh” such factors.

Id. at 490-91.

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

his remorse as a mitigating circumstance.        The trial court abuses its discretion in

sentencing if it overlooks “substantial” mitigating factors that are “clearly supported by

the record.”     Smith v. State, 929 N.E.2d 255, 259 (Ind. Ct. App. 2010) (quoting

Anglemyer, 868 N.E.2d at 491), trans. denied. We recognize that substantial deference

must be given to a trial court’s evaluation of remorse. Allen v. State, 875 N.E.2d 783,

788 (Ind. Ct. App. 2007). “Remorse, or lack thereof, by a defendant is something better

guarded by a trial judge who views and hears a defendant’s apology and demeanor first

hand and determines the defendant’s credibility.” Phelps v. State, 914 N.E.2d 283, 293

(Ind. Ct. App. 2009). Here, at sentencing, Hogan’s counsel read aloud from a letter

Hogan had written expressing his remorse “for the choices that were made that day.”

Sentencing Transcript at 6. Hogan was present at the sentencing hearing. He does not

explain why he did not express his remorse directly to the court. We cannot say that the

trial court abused its discretion when it did not identify Hogan’s remorse as a mitigator.

                          Issue Two: Inappropriate Sentence

       Hogan also contends that his sentence is inappropriate in light of the nature of the

offenses and his character. Again, the trial court imposed concurrent sentences with an

aggregate executed sentence of forty years. The sentencing range for a Class A felony is

twenty years to fifty years with the advisory sentence being thirty years. Ind. Code § 35-
                                             4
50-2-4. The sentencing range for a Class B felony is six years to twenty years with the

advisory sentence being ten years. Ind. Code § 35-50-2-5. And the sentencing range for

a Class D felony is six months to three years, with the advisory sentence being one and

one-half years. Ind. Code § 35-50-2-7.

       Although a trial court may have acted within its lawful discretion in determining a

sentence, Article VII, 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 original). This

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

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

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

R. 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).

       And our supreme court has stated that “sentencing is principally a discretionary

function in which the trial court’s judgment should receive considerable deference.”

Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008). Indiana’s flexible sentencing

scheme allows trial courts to tailor an appropriate sentence to the circumstances

presented. See id. at 1224. The principal role of appellate review is to attempt to “leaven


                                             5
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.

       Hogan contends that his sentence is inappropriate in light of the nature of the

offenses and his character. Hogan appears to suggest that the nature of the offenses is

such that only the advisory sentence for a Class A felony should be imposed, but his

argument in support of that contention is difficult to follow and unpersuasive. As for his

character, Hogan points out that he “took full responsibility for his actions in his letter to

the court and explained some of the difficulties of his upbringing.” Appellant’s Brief at

9. Hogan also asserts that his young age, family support, and guilty plea reflect on his

good character.

       But the State points out that the nature of the offenses was particularly heinous.

At sentencing, the trial court read aloud from a letter written by Beumer describing, in

detail, the “vicious and violent” crimes committed against him, including the men’s

threats to kill him and his wife. Sentencing Transcript at 11-12.            As for Hogan’s

character, he was only twenty-five years old at the time of sentencing, yet his criminal

history includes a felony conviction for robbery, misdemeanor convictions for auto theft

and resisting law enforcement, and a probation violation. We cannot say that Hogan’s

forty-year sentence is inappropriate in light of the nature of the offenses or his character.

       Affirmed.

VAIDIK, C.J., and BROWN, J., concur.


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