MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                              FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                                       Jun 18 2019, 7:13 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Christopher L. Clerc                                     Curtis T. Hill, Jr.
Columbus, Indiana                                        Attorney General of Indiana

                                                         Tiffany A. McCoy
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Randy H. Wilson,                                         June 18, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-2736
        v.                                               Appeal from the Bartholomew
                                                         Superior Court
State of Indiana,                                        The Honorable James D. Worton,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         03D01-1804-F3-2296



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2736 | June 18, 2019                     Page 1 of 5
                                             Case Summary
[1]   Randy H. Wilson appeals his twelve-year aggregate sentence for level 5 felony

      robbery and level 5 felony criminal confinement. Wilson asserts that the trial

      court abused its discretion in failing to find his mental illness as a mitigating

      factor. Finding that Wilson has waived this claim, we affirm.


                                 Facts and Procedural History
[2]   On April 19, 2018, Whitney Mitchell was walking down the street to a friend’s

      house in Columbus. Perry Davis, whom Mitchell knew and considered a

      friend, saw her walking about. Davis called her over to him and led her into a

      residence. Wilson and Ann Bennet were present when Mitchell entered the

      residence. Wilson, Davis, and Bennet accused Mitchell of being a “snitch.” Tr.

      at 27. Davis snatched Mitchell’s purse, dumped her belongings out, and then

      handed Mitchell’s apartment keys to Wilson. All three then battered Mitchell.


[3]   Wilson struck Mitchell in the face and started looking for a cord, while Davis

      pulled out what would be identified as a black BB handgun. Mitchell feared for

      her life and attempted to flee while Wilson and Davis shifted their attention to a

      knock on the door. A neighbor noticed Mitchell’s efforts and cry for help.

      Wilson and Davis let Mitchell leave when they realized the neighbor was

      watching. The neighbor called 911. Police found Mitchell blocks away from

      the residence in tears and with multiple wounds. That night, police arrested

      Davis and Bennet after stopping a suspect automobile. Wilson, who was also

      in the vehicle, fled but was located two months later.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2736 | June 18, 2019   Page 2 of 5
[4]   The State charged Wilson with level 3 felony robbery resulting in bodily injury,

      level 5 felony criminal confinement, level 6 felony battery resulting in moderate

      bodily injury, and class A misdemeanor theft. A jury found Wilson guilty of

      the lesser included offense of level 5 felony robbery and found him guilty as

      charged on the remaining counts. The trial court vacated judgments on the level

      6 felony and class A misdemeanor.


[5]   In its sentencing statement, the trial court found five aggravating factors: (1)

      criminal history; (2) multiple supervisory sentence failures; (3) prior failed

      opportunities for treatment outside of a penal facility; (4) pretrial jail rule

      violations; and (5) severity of the crime’s impact on the victim. The trial court

      found no mitigating factors and sentenced Wilson to six years executed on each

      conviction, to be served consecutively.


                                        Discussion and Decision
[6]   Wilson now appeals his twelve-year aggregate sentence. Wilson contends that

      the trial court abused its discretion when it failed to consider his mental illness

      at sentencing.1 “Generally speaking, sentencing decisions are left to the sound

      discretion of the trial court, and we review the trial court’s decision only for an

      abuse of this discretion.” Singh v. State, 40 N.E.3d 981, 987 (Ind. Ct. App.




      1
        Wilson also argues that the trial court “should have attributed significant mitigating weight to Wilson’s
      mental illness at sentencing.” Appellant’s Br. at 8. Trial courts have no obligation to weigh aggravating and
      mitigating factors against each other when imposing a sentence; “therefore, a trial court can not now be said
      to have abused its discretion in failing to ‘properly weigh’ these factors.” Anglemeyer v. State, 868 N.E.2d 482,
      491 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2736 | June 18, 2019                         Page 3 of 5
      2015), trans. denied (2016). “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.” Anglemeyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on

      reh’g, 875 N.E.2d 218. One of the ways a trial court may abuse its discretion is

      by failing to consider aggravating or mitigating factors that are clearly

      supported by the record and advanced for consideration during sentencing. Id.

      at 490-91. At sentencing, Wilson failed to advance his mental illness as a

      mitigating factor for consideration. Thus, he “is precluded from advancing it as

      a mitigating circumstance for the first time on appeal.” Creekmore v. State, 853

      N.E.2d 523, 530 (Ind. Ct. App. 2006), clarified on denial of reh’g, 858 N.E.2d 230,

      trans. denied.


[7]   Waiver notwithstanding, “[a]n allegation that the trial court failed to identify or

      find a mitigating factor requires the defendant to establish that the mitigating

      evidence is both significant and clearly supported by the record.” Anglemeyer,

      868 N.E.2d at 493. Our supreme court has outlined factors to consider when

      assessing the effect of a defendant’s mental illness on sentencing: (1) the extent

      of the defendant’s inability to control his behavior due to the disorder or

      impairment; (2) overall limitations on functioning; (3) the duration of the

      mental illness; and (4) the extent of any nexus between the disorder or

      impairment and the commission of the crime. Weeks v. State, 697 N.E.2d 28, 30

      (Ind. 1998). Wilson did not proffer any evidence that he was diagnosed with a

      mental illness. Because he refused to be interviewed for the presentence

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2736 | June 18, 2019   Page 4 of 5
      investigation report in this case, the probation officer who compiled the report

      referenced a 2014 presentence investigation report. That report states that

      Wilson claimed he was diagnosed as bipolar at age seven. He reported he

      stopped taking medication for the condition at the age of seventeen; he is now

      twenty-seven. Putting aside Wilson’s bald assertion on appeal, there is no

      indication that his alleged bipolar disorder played any role in his commission of

      the instant crimes. Therefore, we affirm.


[8]   Affirmed.


      Bradford, J., and Tavitas, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2736 | June 18, 2019   Page 5 of 5
