MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                       FILED
this Memorandum Decision shall not be                                   Dec 21 2018, 10:48 am
regarded as precedent or cited before any
                                                                             CLERK
court except for the purpose of establishing                             Indiana Supreme Court
                                                                            Court of Appeals
the defense of res judicata, collateral                                       and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Kimberly A. Jackson                                     Curtis T. Hill, Jr.
Indianapolis, Indiana                                   Attorney General of Indiana
                                                        Angela N. Sanchez
                                                        Assistant Section Chief, Criminal
                                                        Appeals
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Timothy M. Brown III,                                   December 21, 2018
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A-CR-1327
        v.                                              Appeal from the Knox Circuit
                                                        Court
State of Indiana,                                       The Honorable Sherry B. Gregg
Appellee-Plaintiff.                                     Gilmore, Judge
                                                        Trial Court Cause No.
                                                        42C01-1707-F5-39



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1327 | December 21, 2018                Page 1 of 7
                                       Statement of the Case
[1]   Timothy Brown, III (“Brown”), appeals the three-year sentence imposed after

      he pled guilty to Level 5 felony escape.1 Brown specifically argues that: (1) the

      trial court abused its discretion in sentencing him; and (2) his sentence is

      inappropriate in light of his character and the nature of his offenses.

      Concluding that the trial court did not abuse its discretion in sentencing Brown,

      and that his sentence is not inappropriate, we affirm the trial court’s sentencing

      order.


[2]   We affirm.


                                                    Issues
                 1.      Whether the trial court abused its discretion in sentencing
                         Brown.


                 2.      Whether Brown’s sentence is inappropriate in light of the
                         nature of his offense and his character.



                                                     Facts
[3]   In July 2017, Brown was serving a sentence at the Wabash Valley Regional

      Community Corrections Facility (“the Facility”) for two misdemeanor

      convictions. While on an authorized smoke break in the parking lot, Brown




      1
          IND. CODE § 35-44.1-3-4.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1327 | December 21, 2018   Page 2 of 7
      walked away from the facility without authorization. When a corrections

      officer found Brown walking in the street approximately fifteen to eighteen

      minutes later, Brown refused to get into the officer’s van. The State charged

      Brown with Level 5 felony escape.


[4]   At the May 2018 plea acceptance and sentencing hearing, Brown testified that

      he had left the facility to go home and talk to his fourteen-year-old son, who

      was associating with a bad crowd. However, Brown also testified that he knew

      that he could have used the facility’s telephone to contact his son.


[5]   The evidence at the sentencing hearing further revealed that Brown has a

      seventeen-year criminal history that includes eight felony and twenty-eight

      misdemeanor convictions. Brown’s felony convictions include attempted

      robbery, possession of a controlled substance, sale of a controlled substance,

      uttering a forged instrument, possession of methamphetamine, and residential

      entry. His misdemeanor convictions include battery resulting in bodily injury,

      criminal trespass, possession of drug paraphernalia, theft, disorderly conduct,

      and operating a motor vehicle without ever receiving a license. Brown has also

      been unsuccessfully discharged from probation several times.


[6]   The trial court found that Brown’s criminal history was an aggravating factor.

      The court also found as an aggravating factor that there were violent offenses in

      Brown’s criminal history. The trial court found Brown’s guilty plea and

      expression of remorse to be mitigating factors.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1327 | December 21, 2018   Page 3 of 7
      Thereafter, the trial court concluded that there were “arguments on both sides

      of the aisle,” and sentenced Brown to the Level 5 felony advisory sentence of

      three (3) years in the Department of Correction. (Tr. 44). Brown now appeals.


                                                  Decision
      1. Abuse of Discretion in Sentencing


[1]   Brown first argues that the trial court abused its discretion in sentencing him.

      Sentencing decisions rest within the sound discretion of the trial court.

      Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d

      218 (Ind. 2007). So long as the sentence is in the statutory range, it is subject to

      review only for an abuse of discretion. Id. 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. Id. at 491. A trial court may abuse its discretion in a number of

      ways, including: (1) failing to enter a sentencing statement at all; (2) entering a

      sentencing statement that includes aggravating and mitigating factors that are

      unsupported by the record; (3) entering a sentencing statement that omits

      reasons that are clearly supported by the record; or (4) entering a sentencing

      statement that includes reasons that are improper as a matter of law. Id. at 490-

      91.


[2]   Here, Brown argues that the trial court abused its discretion because it failed to

      find the circumstances of his offense to be a mitigating factor. Specifically,

      Brown claims that he “merely walked from the work release center toward his

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1327 | December 21, 2018   Page 4 of 7
      family home for purpose of talking to his wayward son and trying to ensure his

      son did not repeat Brown’s mistakes.” (Brown’s Br. 8). According to Brown,

      he intended to return to the work release center after talking to his son. Brown

      also points out that he was only gone from the facility for fifteen to eighteen

      minutes and that he was wearing a GPS tracking device.


[3]   However, a trial court is not obligated to accept a defendant’s claim as to what

      constitutes a mitigating circumstance. Rascoe v. State, 736 N.E.2d 246, 249 (Ind.

      2000). A trial court has discretion to determine whether the factors are

      mitigating, and it is not required to explain why it does not find the defendant’s

      proffered factors to be mitigating. Haddock v. State, 800 N.E.2d 242, 245 (Ind.

      Ct. App. 2003). A claim that the trial court failed to find a mitigating

      circumstance requires the defendant to establish that the mitigating evidence is

      both significant and clearly supported by the record. Anglemyer, 868 N.E.2d at

      493.


[4]   Here, our review of the record reveals that Brown left the Facility without

      authorization. When the officer found him and told him to get into the officer’s

      van, Brown refused. Brown also admitted that he could have contacted his son

      by telephone. Based on these facts, the trial court did not abuse its discretion in

      failing to consider the circumstances of the offense as a mitigating factor.


      2. Inappropriate Sentence


[5]   Brown further argues that his three-year sentence is inappropriate. Indiana

      Appellate Rule 7(B) provides that we may revise a sentence authorized by

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1327 | December 21, 2018   Page 5 of 7
      statute if, after due consideration of the trial court’s decision, we find that the

      sentence is inappropriate in light of the nature of the offense and the character

      of the offender. The defendant bears the burden of persuading this Court that

      his sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind.

      2006). Whether we regard a sentence as inappropriate 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.” Cardwell v. State, 895

      N.E.2d 1219, 1224 (Ind. 2008).


[6]   When determining whether a sentence is inappropriate, the advisory sentence is

      the starting point the legislature has selected as an appropriate sentence for the

      crime committed. Childress, 848 N.E.2d at 1081. The sentencing range for

      Level 5 felony is one to six years. IND. CODE § 35-50-2-6. The advisory

      sentence is three years. Id. Here, the trial court sentenced Brown to three years,

      which is the advisory sentence.


[7]   Regarding the nature of the offense, we note that Brown left a community

      corrections facility without authorization. When a corrections officer found

      him walking in the street approximately fifteen to eighteen minutes later,

      Brown refused to get into the officer’s van. Turning to Brown’s character, we

      note that he has a seventeen-year criminal history that includes thirty-six prior

      convictions, including eight felony convictions and twenty-eight misdemeanor

      convictions. These multiple convictions reflect poorly on Brown’s character.

      See Moss v. State, 13 N.E.3d 440, 448 (Ind. Ct. App. 2014) (explaining that

      “even a minor criminal history is a poor reflection of a defendant’s character”),

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1327 | December 21, 2018   Page 6 of 7
      trans. denied. In fact, the multiple convictions could likely support a longer

      sentence. See McCullough v. State, 900 N.E.2d 745, 749 (Ind. 2009) (holding that

      “appellate review and revise authority derived from Article 4 of the Indiana

      Constitution likewise includes the power to either reduce or increase a criminal

      sentence on appeal”). Nevertheless, Brown has failed to meet his burden to

      persuade this Court that his three-year sentence for his Level 5 felony escape

      conviction is inappropriate.


[8]   Affirmed.


      Najam, J., and Altice, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1327 | December 21, 2018   Page 7 of 7
