MEMORANDUM DECISION
                                                                   FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                         Sep 13 2016, 8:03 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Deborah Markisohn                                        Gregory F. Zoeller
Marion County Public Defender Agency                     Attorney General of Indiana
Indianapolis, Indiana
                                                         Lyubov Gore
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Basden Breakfield,                                       September 13, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1602-CR-268
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Anne Flannelly,
Appellee-Plaintiff                                       Magistrate
                                                         Trial Court Cause No.
                                                         49G04-1507-F5-23224



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1602-CR-268 | September 13, 2016   Page 1 of 4
[1]   Basden Breakfield appeals the sentence imposed by the trial court after he was

      convicted of Level 5 felony battery against a public safety official. Breakfield

      argues that the trial court erred by declining to find his mental health to be a

      mitigating factor. Finding no error, we affirm.


                                                     Facts
[2]   In June 2015, Breakfield was incarcerated at the Marion County Jail, awaiting

      sentencing in a case in which he had been convicted of eight felonies and two

      misdemeanors. On June 20, 2015, Breakfield was taken out of his cell to be

      processed and have his booking photo taken for a new offense he had been

      charged with. Marion County Deputy Jason Price accompanied Breakfield to

      the processing area. Breakfield was reluctant, slow to follow orders, and

      uncooperative.


[3]   Deputy Price ordered Breakfield to walk over to have his photo taken. The

      deputy ordered Breakfield to stand in a particular place and look at the camera.

      Breakfield slowly walked over to the correct area but refused to look at the

      camera, saying that he did not feel like doing that. Breakfield slowly walked

      back over to the deputies, refusing to comply with Deputy Price’s order to

      return for the photo. Breakfield suddenly lunged at Deputy Price with a closed

      fist, striking the deputy’s face, neck, and shoulder. Deputy Price sustained pain

      and redness as a result of the punches.


[4]   On July 2, 2015, the State charged Breakfield with Level 5 felony battery

      against a public safety official. After a bench trial held on December 10, 2015,

      Court of Appeals of Indiana | Memorandum Decision 49A02-1602-CR-268 | September 13, 2016   Page 2 of 4
      the trial court found Breakfield guilty as charged. A joint sentencing hearing

      was held on January 15, 2016.1 At that hearing, the trial court identified

      Breakfield’s criminal history and the fact that he was in custody at the time he

      committed the instant crime as aggravators. The trial court did not find any

      mitigating circumstances, found that the “aggravating factors outweigh[ed] the

      mitigating factors,” and sentenced Breakfield to four years imprisonment, to be

      served consecutive to the sentences in the other causes. Tr. p. 53-54. Breakfield

      now appeals.


                                    Discussion and Decision
[5]   Breakfield’s sole argument on appeal is that the trial court abused its discretion

      by declining to find his mental health to be a mitigating factor. The trial court

      is afforded broad leeway in determining aggravating and mitigating factors.

      Rogers v. State, 878 N.E.2d 269, 272 (Ind. Ct. App. 2007). Furthermore, the trial

      court is not obligated to accept the defendant’s argument as to what constitutes

      a mitigating factor. Cotto v. State, 829 N.E.2d 520, 525 (Ind. 2005). When a

      defendant alleges that the trial court failed to identify a mitigating

      circumstances, he is required to establish that the mitigator is both significant




      1
        The sentencing hearing pertained to this cause, the cause for which Breakfield was already being held in
      jail, and Cause Number 49G04-1506-F5-22334 (Cause 22334). Breakfield has also appealed his sentence in
      Cause 22334, and our substantially similar opinion in that cause is handed down under appellate cause
      number 49A02-1602-CR-230.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1602-CR-268 | September 13, 2016         Page 3 of 4
      and clearly supported by the record. Anglemyer v. State, 868 N.E.2d 482, 493

      (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007).


[6]   In this case, Breakfield presented no evidence to show that he was mentally ill

      at the time he committed this offense. Specifically, he offered no

      documentation of diagnosis or treatment, testimony from his doctors, or

      records of any medication he had been prescribed. In the presentence

      investigation (PSI) report, Breakfield stated that he had no suicidal thoughts or

      thoughts of harming himself or others, did not experience hallucinations or

      delusions, and did not have a family history of mental illness. Breakfield did

      present evidence that at some point following this offense, he was prescribed

      mental health medication.2 But nothing in the record clearly establishes

      Breakfield’s contention that he was mentally ill at the time he committed this

      offense. Under these circumstances, we find that the trial court did not err by

      declining to find Breakfield’s mental health as a mitigating factor.


[7]   The judgment of the trial court is affirmed.


      Vaidik, C.J., and Najam, J., concur.




      2
        Defense counsel did not even know what Breakfield’s diagnosis was following the mental health evaluation,
      asking that the PSI reflect that “there was a mental health diagnosis at one point and he is receiving treatment
      for what I believe to be a mental health condition.” Tr. p. 47.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1602-CR-268 | September 13, 2016            Page 4 of 4
