MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                          Jun 17 2015, 9:06 am
Memorandum Decision shall not be regarded as
precedent or cited before 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
Brandon E. Murphy                                         Gregory F. Zoeller
Muncie, Indiana                                           Attorney General of Indiana

                                                          Cynthia L. Ploughe
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Jonathon Gustafson,                                      June 17, 2015

Appellant-Defendant,                                     Court of Appeals Cause No.
                                                         05A02-1410-CR-752
        v.                                               Appeal from the Blackford Circuit
                                                         Court
                                                         Cause No. 05C01-1403-FB-89
State of Indiana,
Appellee-Plaintiff.                                      The Honorable Dean A Young,
                                                         Judge




Barnes, Judge.




Court of Appeals of Indiana | Memorandum Decision 05A02-1410-CR-752 | June 17, 2015         Page 1 of 6
                                               Case Summary

[1]   Jonathon Gustafson appeals his twenty-year executed sentence for convictions

      for three counts of burglary as Class B felonies. We affirm.


                                                      Issue

[2]   The issue is whether Gustafson’s twenty-year sentence is inappropriate in light

      of his character and offenses.


                                                      Facts

[3]   Between November 2013 and March 2014, Gustafson broke into three different

      residences and stole property. For these offenses collectively, Gustafson was

      charged with four counts of burglary as Class B felonies, one count of aiding

      burglary as a Class B felony, and two counts of theft as Class D felonies.

      Pursuant to a plea agreement entered with the State, Gustafson pled guilty to

      three counts of burglary as Class B felonies. The State agreed to dismiss the

      remaining counts as well as a case pending in another county. The agreement

      also stipulated that the sentences for the three guilty pleas would run

      concurrently, although the trial court retained discretion as to the duration of

      the sentences.


[4]   At the sentencing hearing, Gustafson explained that he had a drug addiction

      and expressed interest in participating in a State-facilitated treatment program.

      He agreed to pay restitution to the victims and urged the trial court to consider

      a term of probation in his sentence, which would allow him to work to pay the

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      restitution. The State recommended that the trial court impose the maximum

      applicable sentence of twenty years.


[5]   The trial court found Gustafson’s criminal history and his lack of initiative to

      address his substance-abuse problem as aggravating factors. The trial court

      cited hardship to Gustafson’s minor child, his cooperation in the case, and his

      expression of remorse as mitigating factors. The trial court qualified, however,

      that given Gustafson’s criminal history, this articulation of remorse was

      accorded little weight.


[6]   The trial court sentenced Gustafson to the maximum sentence of twenty years

      for each of the three counts, to run concurrently. Gustafson now appeals.


                                                   Analysis

[7]   Gustafson argues that the trial court’s imposition of the twenty-year executed

      sentence is inappropriate. We assess whether Gustafson’s sentence is

      inappropriate under Indiana Appellate Rule 7(B) in light of his character and

      the nature of the offense. See Anglemyer v. State, 868 N.E.2d 482, 491 (Ind.

      2007). Although Rule 7(B) does not require us to be “extremely” deferential to

      a trial court’s sentencing decision, we still must give due consideration to that

      decision. Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007). We

      also understand and recognize the unique perspective a trial court brings to its

      sentencing decisions. Id. “Additionally, a defendant bears the burden of

      persuading the appellate court that his or her sentence is inappropriate.” Id.



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[8]   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. Whether a sentence is inappropriate

      ultimately turns on the culpability of the defendant, the severity of the crime,

      the damage done to others, and myriad other factors that come to light in a

      given case. Id. at 1224. 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).


[9]   Our review of Gustafson’s character reveals that he is twenty-seven years old

      and has one son, whom he has custody of and financially supports. Gustafson

      is addicted to opiates and other prescription medication and believes his

      criminality is motivated by his drug dependency. While Gustafson’s

      recognition of his addiction and professed desire to seek treatment is

      commendable, the fact that Gustafson “has a substance abuse problem is not

      necessarily a factor that weighs in favor of a lesser sentence.” Marley v. State, 17

      N.E.3d 335, 341 (Ind. Ct. App. 2014), trans. denied. The trial court properly

      reasoned that any mitigating treatment accorded to Gustafson’s recognition of


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       his drug problem is tempered by the fact that, although he is aware of his

       problem, he previously has not taken steps to address or treat it. See Hape v.

       State, 903 N.E.2d 977, 1002 (Ind. Ct. App. 2009), trans. denied. Gustafson’s

       criminal history includes a juvenile adjudication and three felony convictions

       for residential entry, receiving stolen property, and burglary. This criminal

       history, involving offenses similar to those underlying Gustafson’s appeal,

       indicates a defiance to rehabilitation and “disregard for law and authority.”

       Clark v. State, 26 N.E.3d 615, 619 (Ind. Ct. App. 2014). Although Gustafson

       expressed remorse for the burglaries, the trial court found that Gustafson’s

       criminal history belied this sentiment, rendering it a “hollow gesture.” Tr. p.

       49. Because it witnessed Gustafson’s apology and demeanor first hand,

       “substantial deference must be given to the trial court’s evaluation of remorse.”

       Sharkey v. State, 967 N.E.2d 1074, 1079 (Ind. Ct. App. 2012).


[10]   As to the nature of the offenses, Gustafson committed three burglaries of

       different residences within less than a six-month period. Cf. Buchanan v. State,

       767 N.E.2d 967, 972 (Ind. 2002) (suggesting that chronological proximity of

       offenses is a factor in sentencing determinations). Moreover, the victim of one

       of these burglaries was an elderly woman. Gustafson argues that imposition of

       the twenty-year maximum sentence is inappropriate as “maximum possible

       sentences are generally most appropriate for the worst offenders.” Id. at 973.

       However, considering Gustafson’s character and the nature of the offenses

       together, it was not inappropriate to sentence Gustafson to the maximum

       sentence. The twenty-year sentence effectively reflects the maximum for one


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       count of burglary as a Class B felony, as the plea agreement stipulated that the

       sentences for Gustafson’s three convictions would run concurrently. Given that

       on appeal we may take into account the effect of “sentencing tools,” such as

       concurrent sentencing, the maximum sentence is not inappropriate. See

       Thompson v. State, 5 N.E.3d 383, 391-93 (Ind. Ct. App. 2014).


[11]   Gustafson argues that his sentence should be revised to the advisory ten-year

       sentence. In light of the number of offenses, Gustafson’s criminal history, and

       his apparent resistance to rehabilitation in the past, however, Gustafson has

       failed to satisfy the burden of persuading us that the sentenced imposed by the

       trial court is inappropriate.


                                                  Conclusion

[12]   Gustafson’s twenty-year executed sentence is not inappropriate. We affirm.


[13]   Affirmed.


[14]   Riley, J., and Bailey, J., concur.




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