MEMORANDUM DECISION
                                                                          FILED
Pursuant to Ind. Appellate Rule 65(D),                               Apr 20 2016, 9:11 am

this Memorandum Decision shall not be                                     CLERK
regarded as precedent or cited before any                             Indiana Supreme Court
                                                                         Court of Appeals
                                                                           and Tax Court
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
Megan Shipley                                            Gregory F. Zoeller
Marion County Public Defender Agency                     Attorney General of Indiana
Indianapolis, Indiana
                                                         Richard C. Webster
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Antonio Scott,                                           April 20, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1510-CR-1562
        v.                                               Appeal from the Marion County
                                                         Superior Court
State of Indiana,                                        The Honorable Lisa F. Borges,
Appellee-Plaintiff.                                      Judge
                                                         The Honorable Anne M.
                                                         Flannelly, Magistrate
                                                         Trial Court Cause No.
                                                         49G04-1502-F4-6949



Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1510-CR-1562 | April 20, 2016         Page 1 of 7
                                          Case Summary
[1]   On February 26, 2015, Appellant-Defendant Antonio Scott burglarized an

      Indianapolis home. Scott was convicted of Level 4 felony burglary and found

      to be a habitual offender. The trial court sentenced Scott to an aggregate thirty-

      two-year term of incarceration, the maximum permissible sentence. Scott

      appeals his sentence, arguing that (1) the trial court erred by failing to consider

      his remorse as a mitigating factor, and (2) his sentence is inappropriate in light

      of the nature of his offense and his character. We affirm Scott’s sentence.



                            Facts and Procedural History
[2]   On February 26, 2015, at approximately 12:40 p.m., Scott approached Maria

      Hernandez Solis’s home and knocked on the side door of the house. Maria and

      her two-year-old son were inside taking a nap. After hearing the knocking,

      Maria awoke and looked out the window but did not see anyone. Scott

      knocked two more times before Maria finally saw him outside the door talking

      on a cell phone. After knocking a third time, Scott broke into the house by

      kicking in a basement window. Maria locked herself in the bedroom and called

      911.


[3]   Indianapolis Metropolitan Police Officers Sally Kirkpatrick and Fred Hamer

      arrived at Maria’s house a few minutes later. Maria left the bedroom to let the

      officers in the house and, after a short search, they located Scott attempting to

      flee. Scott complied with Officer Hamer’s order to stop and was immediately


      Court of Appeals of Indiana | Memorandum Decision 49A02-1510-CR-1562 | April 20, 2016   Page 2 of 7
      arrested. Officer Kirkpatrick searched Scott and found a Samsung tablet in his

      pocket. The tablet was later identified as belonging to Seth Ayllon, a fourteen-

      year-old relative of Maria’s who also lived at the house.


[4]   Scott was charged with Level 4 felony burglary, Class A misdemeanor theft,

      Class B misdemeanor criminal mischief, and was alleged to be a habitual

      offender. Trial was held on September 3, 2015, and the jury found Scott guilty

      as charged. Scott waived his right to a jury trial on the habitual offender

      allegation and the trial court found that Scott was a habitual offender. The trial

      court merged the three convictions and sentenced Scott to twelve years for

      burglary enhanced by twenty years by virtue of his status as a habitual offender.



                                 Discussion and Decision
[5]   On appeal, Scott claims that (1) the trial court abused its discretion during

      sentencing for failing to consider Scott’s remorse as a mitigating factor, and (2)

      that his sentence is inappropriate in light of the nature of his offense and his

      character.


                                      I. Abuse of Discretion
[6]   “[S]entencing 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) decision clarified 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,

      Court of Appeals of Indiana | Memorandum Decision 49A02-1510-CR-1562 | April 20, 2016   Page 3 of 7
      probable, and actual deductions to be drawn therefrom.’” Id. (quoting K.S. v.

      State, 849 N.E.2d 538, 544 (Ind. 2006)).


              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.


      Id. at 490-91.


[7]   Scott claims that the trial court abused its discretion for failing to consider

      Scott’s remorse to be a mitigating factor. “An 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.” Id. at 493 (citing Carter v. State, 711 N.E.2d 835, 838 (Ind. 1999)).

      However, the trial court is not required to explain why it has declined to

      recognize a particular factor as mitigating. Id.


[8]   In Sharkey v. State, the defendant argued that the court abused its discretion by

      failing to acknowledge his remorse as a mitigating factor. 967 N.E.2d 1074,

      1079 (Ind. Ct. App. 2012). The trial court in that case did not specifically

      address why it declined to recognize defendant’s remorse as a significant

      mitigating factor. Id at 1077. On appeal, we addressed defendant’s argument

      as follows:


      Court of Appeals of Indiana | Memorandum Decision 49A02-1510-CR-1562 | April 20, 2016   Page 4 of 7
               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). Therefore, we are unable to conclude that
               the trial court abused its discretion when it determined that
               Sharkey’s remorse was not a significant mitigator.


       Id. at 1079.


[9]    As in Sharkey, the trial court here did not specifically address why it did not find

       Scott’s remorse to be a significant mitigating factor, nor was it required to.

       Anglemyer, 868 N.E.2d at 493. The trial court either determined that Scott’s

       remorse was insincere or that it was not significant enough to merit

       consideration. In either case, it was within its discretion to do so.


                              II. Appropriateness of Sentence
[10]   “Ind. Appellate Rule 7(B) empowers us to independently review and revise

       sentences authorized by statute if, after due consideration, we find the trial

       court’s decision inappropriate in light of the nature of the offense and the

       character of the offender.” Anderson v. State, 989 N.E.2d 823, 827 (Ind. Ct.

       App. 2013), trans. denied. “An appellant bears the burden of showing both

       prongs of the inquiry favor revision of [his] sentence.” Id. (citing Childress v.

       State, 848 N.E.2d 1073, 1080 (Ind. 2006)). “We must give ‘deference to a trial

       court’s sentencing decision, both because Rule 7(B) requires us to give due

       consideration to that decision and because we understand and recognize the

       Court of Appeals of Indiana | Memorandum Decision 49A02-1510-CR-1562 | April 20, 2016   Page 5 of 7
       unique perspective a trial court brings to its sentencing decisions.’” Gil v. State,

       988 N.E.2d 1231, 1237 (Ind. Ct. App. 2013) (quoting Trainor v. State, 950

       N.E.2d 352, 355-56 (Ind. Ct. App. 2011), trans. denied.).


[11]   Scott’s character is evidenced by his criminal history, which began over thirty

       years ago. Scott had three juvenile adjudications for crimes which would have

       been Class D felonies had he been an adult. As an adult, Scott has amassed six

       prior misdemeanor and eight prior felony convictions, including two burglary

       convictions. Additionally, Scott has had his probation revoked on five separate

       occasions. In short, Scott’s criminal history reveals that he is unwilling or

       unable to reform. Scott testified that he has struggled with a severe crack-

       cocaine addiction for years, it has fueled much of his criminal activity, and he

       was high during the commission of the instant crime. While we sympathize

       with the seemingly debilitating nature of Scott’s drug addiction, we also

       recognize that he has had countless chances to reform his behavior and his

       attempts at substance abuse treatment were unsuccessful. As such, Scott’s

       character certainly merits an enhanced sentence.


[12]   Scott argues that the nature of his crime was far from egregious and did not

       warrant the maximum sentence. Specifically, he points to the facts that he

       believed there was no one in the house when he broke in, he did not threaten or

       use violence, and he immediately surrendered to police. While Scott may have

       believed the house to be empty, that was not the case. A pregnant woman and

       her two-year-old child were inside, locked in the bedroom afraid for their lives.

       In a letter to the prosecutor, Maria indicated that she did not want to testify due

       Court of Appeals of Indiana | Memorandum Decision 49A02-1510-CR-1562 | April 20, 2016   Page 6 of 7
       to the overwhelming “fear, anxiety, and paranoia” she has suffered since the

       burglary. State’s Sentencing Ex. 1. Accordingly, we find that Scott has failed

       to show that either the nature of the offense or his character favor revision of

       this sentence.


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


       Bailey, J., and Altice, J., concur.




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