Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                         Oct 06 2014, 6:29 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:

PAUL J. PODLEJSKI                                           GREGORY F. ZOELLER
Anderson, Indiana                                           Attorney General of Indiana

                                                            LARRY D. ALLEN
                                                            Deputy Attorney General
                                                            Indianapolis, Indiana



                               IN THE
                     COURT OF APPEALS OF INDIANA

STEVEN BROWNING,                                    )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )   No. 48A05-1402-CR-78
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                      APPEAL FROM THE MADISON CIRCUIT COURT
                           The Honorable David A. Happe, Judge
                             Cause No. 48C04-1112-FA-2273


                                          October 6, 2014

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

BAILEY, Judge
                                            Case Summary

        Steven Browning (“Browning”) pleaded guilty to and was convicted of Robbery

Resulting in Serious Bodily Injury, as a Class A felony.1 Browning was sentenced to a term

of imprisonment of forty-five years. He now appeals, challenging only his sentence.

        We affirm.

                                                  Issues

        Browning presents a single issue for our review, which we divide and restate as:

          I.    Whether the trial court abused its discretion in finding mitigating
                factors; and

         II.    Whether Browning’s sentence was inappropriate.

                                   Facts and Procedural History

        On December 5, 2011, Browning, together with three other individuals, all of whom

were using methamphetamine and narcotics, lured H.P. to a residential area in Elwood. After

luring H.P. to this location, Browning and the other individuals robbed H.P. Browning

struck H.P. several times with a machete, causing severe lacerations to H.P.’s head, a skull

fracture, and a displacement fracture of H.P.’s right shoulder.

        At some point in the attack, one of Browning’s companions attempted to stop

Browning from striking H.P. further and was injured by the machete. Browning and his three

companions travelled to St. Vincent Mercy Hospital; contradictory explanations were given

for the reported injury.


1
 Ind. Code § 35-42-5-1 (West 2013). In light of recent changes to Indiana’s criminal statutes, all statutory
citations refer to substantive provisions in effect at the time of Browning’s offense and conviction.

                                                     2
          At around the same time, H.P. was found walking along a roadway in Elwood, and

was transported to the same hospital. H.P. discovered that his cell phone was missing; when

police attempted to locate the phone, they discovered it in the pocket of one of Browning’s

companions. Upon locating H.P.’s phone, police issued Miranda warnings to Browning, who

admitted his role in the robbery.

          On December 9, 2011, Browning was charged with Robbery Resulting in Serious

Bodily Injury. On November 27, 2013, the charging information was amended to add

charges of Attempted Murder, as a Class A felony.2 On December 5, 2013, the State again

amended the charging information, adding a count of Attempted Robbery, as a Class A

felony.3

          On December 13, 2013, Browning entered an open plea as to Robbery Resulting in

Serious Bodily Injury; the State dismissed the other charges.

          On January 27, 2014, a sentencing hearing was conducted. During the hearing,

testimony was heard concerning Browning having been a victim of child abuse and his

history of substance abuse. At the hearing’s conclusion, the trial court sentenced Browning

to forty-five years imprisonment in the Department of Correction.

          This appeal ensued.




2
    I.C. §§ 35-41-5-1 & 35-42-1-1.

3
    I.C. §§ 35-41-5-1 & 35-42-5-1.

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                                 Discussion and Decision

                                 Mitigating Circumstances

       In his appeal, Browning contends that the trial court abused its discretion in finding

and weighing mitigating circumstances at sentencing, and argues that his sentence is

inappropriate.

       Our supreme court held in Anglemyer v. State:

       [T]he imposition of sentence and the review of sentences on appeal should
       proceed as follows:

       1. The trial court must enter a statement including reasonably detailed reasons
       or circumstances for imposing a particular sentence.

       2. The reasons given, and the omission of reasons arguably supported by the
       record, are reviewable on appeal for abuse of discretion.

       3. The relative weight or value assignable to reasons properly found or those
       which should have been found is not subject to review for abuse.

       4. Appellate review of the merits of a sentence may be sought on the grounds
       outlined in Appellate Rule 7(B).

Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218

(Ind. 2007).

       We review sentencing decisions for an abuse of discretion. Id. at 490. While a trial

court may abuse its discretion by issuing a sentencing statement that “omits reasons that are

clearly supported by the record and advanced for consideration,” a trial court can no longer

“be said to have abused its discretion in failing to ‘properly weigh’ such factors.” Id.

(quoting Jackson v. State, 728 N.E.2d 147, 155 (Ind. 2000); Morgan v. State, 675 N.E.2d

1067, 1073-74 (Ind. 1996)).


                                             4
       Browning argues that the trial court did not find as mitigating factors his abuse as a

child and his history of substance abuse; he also argues that, if those factors were taken into

account, they were not properly weighed. We remind counsel that since 2007, the second of

these complaints is no longer a basis for appellate review. Id. at 491.

       Moreover, we cannot agree that the trial court did not take Browning’s abuse as a

child and his history of substance abuse into account in reaching a sentencing decision. Yet

Browning himself observes that the trial court acknowledged that “no child should have to go

through that … [what] happened to you, that’s a terrible thing, I agree with that.” (Tr. at 70.)

The trial court also acknowledged Browning’s history of “long term extensive drug abuse.”

(Tr. at 71.) The court, however, declined to give these any weight in light of the “grisly,

ugly, violent, bloody scene” Browning’s offense created, and took specific note of the need

to look to “the nature and circumstances of the crime.” (Tr. at 72.)

       We find no abuse of discretion associated with the trial court’s determination of

mitigating circumstances.

                                      Inappropriateness

       We turn now to Browning’s contention that his forty-five year sentence was

inappropriate.

       The authority granted to this Court by Article 7, § 6 of the Indiana Constitution

permitting appellate review and revision of criminal sentences is implemented through

Appellate Rule 7(B), which provides: “The Court may revise a sentence authorized by statute

if, after due consideration of the trial court’s decision, the Court finds that the sentence is


                                               5
inappropriate in light of the nature of the offense and the character of the offender.” Under

this rule, and as interpreted by case law, appellate courts may revise sentences after due

consideration of the trial court’s decision, if the sentence is found to be inappropriate in light

of the nature of the offense and the character of the offender. Cardwell v. State, 895 N.E.2d

1219, 1222-25 (Ind. 2008); Serino v. State, 798 N.E.2d 852, 856-57 (Ind. 2003). The

principal role of such review is to attempt to leaven the outliers. Cardwell, 895 N.E.2d at

1225.

        Browning was convicted of Robbery Resulting in Serious Bodily Injury, as a Class A

felony.   Upon conviction of a Class A felony, Browning faced a possible term of

imprisonment running from twenty to fifty years, with an advisory term of thirty years. I.C. §

35-50-2-4. The trial court sentenced him to forty-five years imprisonment.

        Browning’s offense was, as the trial court observed in its sentencing statement,

“grisly, ugly, violent, [and] bloody.” (Tr. at 71.) Browning, together with three others—

while all of them were under the influence of methamphetamine and narcotic drugs—lured

H.P. to a home, where they planned to steal from him. Browning used a machete to violently

attack H.P., whose injuries were assessed as life-threatening by emergency room doctors; at

the time of sentencing H.P. continued to suffer from pain and other after-effects of his

wounds. Indeed, Browning’s attack was so violent that one of his companions had to

intervene to stop Browning from continuing to wound H.P.

        Moreover, Browning’s criminal history and history of substance abuse speak poorly of

his character. Prior to the instant offense, Browning was convicted of Theft, Possession of a


                                                6
Controlled Substance, and Possession of Methamphetamine. He has previously violated the

terms of his probation, and admitted during a presentencing investigation to gang

membership. Browning dropped out of high school in the ninth grade, and during the

presentencing investigation admitted that he “never bothered to get a G.E.D. because he

thought he would just ‘wait until prison.’” (App’x at 57.) He also admitted to an extensive

history of drug abuse, including methamphetamine, marijuana, PCP, cocaine, hashish,

ecstasy, and various narcotics. Despite court-offered drug treatment opportunities, Browning

never completed a substance abuse treatment program.

       Taken together, we cannot conclude that the forty-five year sentence is inappropriate.

                                        Conclusion

       The trial court did not abuse its discretion in entering its sentencing statement.

Browning’s forty-five year sentence is not inappropriate.

       Affirmed.

NAJAM, J., and BRADFORD, J., concur.




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