MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                   FILED
this Memorandum Decision shall not be                               Oct 12 2016, 8:47 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
Derick W. Steele                                         Gregory F. Zoeller
Deputy Public Defender                                   Attorney General of Indiana
Kokomo, Indiana
                                                         Monika Prekopa Talbot
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Emmanuel Arrington,                                      October 12, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         34A04-1605-CR-1207
        v.                                               Appeal from the Howard Superior
                                                         Court
State of Indiana,                                        The Honorable George A.
Appellee-Plaintiff                                       Hopkins, Judge
                                                         Trial Court Cause No.
                                                         34D04-1408-FC-116

Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 34A04-1605-CR-1207 | October 12, 2016      Page 1 of 8
                                             Case Summary
[1]   Emmanuel Arrington appeals the four-year aggregate sentence imposed for his

      two convictions of class D felony identity deception. Arrington contends that

      the trial court abused its discretion in sentencing him and that his sentence is

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

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

      and that he has failed to carry his burden to show that his sentence is

      inappropriate, we affirm.


                                 Facts and Procedural History
[2]   On June 15, 2014, while on parole, Arrington went to The Social Experience, a

      Kokomo nightclub, and used two counterfeit credit cards. He charged $400 to

      a credit card belonging to Laura Campbell and $700 to a credit card belonging

      to John Keiffner. Later that evening, Arrington was shot at a different

      nightclub. During the investigation of the shooting, the police obtained

      Arrington’s clothing and discovered the counterfeit credit cards that he used at

      The Social Experience. After Arrington was released from the hospital, but

      before he was charged with the current offenses, he reimbursed the owner of

      The Social Experience for the counterfeit credit card transactions.


[3]   In August 2014, the State charged Arrington with four counts of class C felony

      forgery, one count of class C felony corrupt business influence, four counts of

      class D felony fraud, four counts of class D felony counterfeiting, and five




      Court of Appeals of Indiana | Memorandum Decision 34A04-1605-CR-1207 | October 12, 2016   Page 2 of 8
      counts of class D felony identity deception. 1 Arrington was released on bond.

      In February 2016, the State arrested Arrington and charged him with level 1

      felony attempted murder and unlawful possession of a firearm by a serious

      violent felon. The State filed a petition to revoke Arrington’s bond, which the

      trial court granted.


[4]   In April 2016, the State and Arrington entered into a plea agreement, 2 in which

      Arrington agreed to plead guilty to two counts of class D felony identity

      deception, the State agreed to dismiss the remaining charges, and the parties

      agreed that Arrington’s sentence would be capped at four years with any

      executed portion to be determined by the trial court. The trial court accepted

      the plea agreement and held a sentencing hearing. Arrington’s elderly father

      and the mother of Arrington’s two minor children both testified that

      Arrington’s incarceration would impose an undue hardship on them. Arrington

      conceded that he had an extensive criminal history but argued that the undue

      hardship that his incarceration would cause his dependents and his immediate

      restitution to the nightclub were mitigating factors. Arrington asked for a three-

      year aggregate sentence with eighteen months executed and eighteen months

      suspended to probation. The trial court noted that the hardship that

      Arrington’s dependents would suffer as a result of his incarceration would “in

      other situations might be very compelling” but that it could not ignore



      1
          Arrington mistakenly claims that he was charged with four counts of identity deception.
      2
       In November 2015, Arrington and the State entered into the first of two plea agreements. Although the trial
      court accepted this plea agreement, in January 2016 the court granted Arrington’s motion to set it aside.

      Court of Appeals of Indiana | Memorandum Decision 34A04-1605-CR-1207 | October 12, 2016          Page 3 of 8
      Arrington’s extensive criminal history consisting of thirteen felonies and eleven

      misdemeanors, his commission of the current offenses while he was on parole,

      and that he had been charged with new offenses. Tr. at 27. The trial court

      concluded that Arrington should not “be out in the community” and imposed

      two-year executed terms for each conviction, to be served consecutively. Id.

      This appeal ensued.


                                     Discussion and Decision

           Section 1 – The trial court did not abuse its discretion in
                            sentencing Arrington.
[5]   Arrington asserts that the trial court abused its discretion when it sentenced

      him. Sentencing decisions are 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. An abuse of discretion occurs when the trial court’s decision is contrary to

      “the logic and effect of the facts and circumstances before the court or the

      reasonable, probable, and actual deductions to be drawn therefrom.” Williams v.

      State, 997 N.E.2d 1154, 1163 (Ind. Ct. App. 2013). A trial court abuses its

      discretion by (1) failing to enter a sentencing statement at all; (2) entering a

      sentencing statement that explains reasons for imposing a sentence where the

      record does not support the reasons; (3) entering a sentencing statement that

      omits reasons that are clearly supported by the record and advanced for

      consideration; and (4) entering a sentencing statement in which the reasons

      given are improper as a matter of law. Anglemyer, 868 N.E.2d at 490-91.

      Although an appellate court may review the trial court’s reasons for imposing

      Court of Appeals of Indiana | Memorandum Decision 34A04-1605-CR-1207 | October 12, 2016   Page 4 of 8
      sentence and omissions of reasons, the relative weight assigned by the trial

      court to its reasons, i.e., aggravators or mitigators, is not subject to appellate

      review. Id. at 491.


[6]   Arrington contends that that the trial court abused its discretion by failing to

      find as mitigating factors that (1) his incarceration would result in undue

      hardship to his father and children and (2) he made restitution to The Social

      Experience. The trial court is not obligated to accept the defendant’s arguments

      as to what constitutes a mitigating factor and is not required to give the same

      weight to proffered mitigating factors as the defendant does. Healy v. State, 969

      N.E.2d 607, 616 (Ind. Ct. App. 2012), trans. denied. A trial court does not abuse

      its discretion by failing to identify a mitigating factor unless the mitigating

      evidence is both significant and clearly supported by the record. Id.


[7]   As for Arrington’s claim of undue hardship, we note that “[m]any persons

      convicted of serious crimes have one or more children and, absent special

      circumstances, trial courts are not required to find that imprisonment will result

      in an undue hardship.” Dowdell v. State, 720 N.E.2d 1146, 1154 (Ind. 1999).

      Arrington contends that special circumstances exist because he is the primary

      breadwinner for his two minor children as well as the only one who cares for

      his seventy-four-year-old father, who has suffered from two mini-strokes and a

      mild heart attack. Our review of the record shows that the trial court did not

      fail to acknowledge the hardship that would be experienced by Arrington’s

      father and children, as the court observed that Arrington’s witnesses’ testimony

      “would in other situations … be very compelling.” Tr. at 27. However, the

      Court of Appeals of Indiana | Memorandum Decision 34A04-1605-CR-1207 | October 12, 2016   Page 5 of 8
      trial court clearly found that any mitigating weight from their hardship was

      substantially outweighed by the aggravating weight that Arrington’s criminal

      history warranted. The trial court’s weighing of mitigators and aggravators is

      not subject to review on appeal. See Anglemyer, 868 N.E.2d at 491.


[8]   As for Arrington’s payment of restitution to the nightclub, his efforts in this

      regard are probably entitled to some mitigating weight. However, any weight

      that might have been assigned to this proffered mitigator is more than offset by

      the aggravating weight of his extensive criminal history.


[9]   Arrington also argues that the trial court abused its discretion by considering

      that he had been charged with a new crimes while out on bond to be an

      aggravator. 3 We disagree. A charge pending at the time of sentencing is a

      proper aggravating circumstance “and may be considered by a sentencing court

      as being reflective of the defendant’s character and as indicative of the risk that

      he will commit other crimes in the future.” Tunstill v. State, 568 N.E.2d 539,

      545 (Ind. 1991); see also Ind. Code § 35-38-1-7.1 (providing that the trial court

      may consider as an aggravating factor that the defendant “has recently violated

      the conditions of any probation, parole, pardon, community corrections

      placement, or pretrial release granted to the person.”). We conclude that the

      trial court did not abuse its discretion in sentencing Arrington.



      3
        Arrington makes an argument based on Blakely v. Washington, 542 U.S. 296 (2004). However, Blakely
      applies to Indiana’s prior “presumptive” sentencing scheme. Smylie v. State, 823 N.E.2d 679, 683-84 (Ind.
      2005), cert. denied. In April 2005, Indiana’s sentencing statutes were amended to an “advisory” sentencing
      scheme to which Blakely does not apply. Rogers v. State, 897 N.E.2d 955, 963-64 (Ind. Ct. App. 2008), trans.
      denied (2009). Because Arrington committed his crimes in 2014, Blakely does not apply to his sentencing.

      Court of Appeals of Indiana | Memorandum Decision 34A04-1605-CR-1207 | October 12, 2016            Page 6 of 8
       Section 2 - Arrington has failed to carry his burden to establish
                      that his sentence is inappropriate.
[10]   Arrington argues that his four-year executed sentence is inappropriate pursuant

       to Indiana Appellate Rule 7(B), which states, “The Court may revise a sentence

       authorized by statute if, after due consideration of the trial court’s decision, the

       Court finds that the sentence is inappropriate in light of the nature of the offense

       and the character of the offender.” Arrington has the burden to show that his

       sentence is inappropriate. Anglemyer, 868 N.E.2d at 494. In conducting our

       review, we do not look to see whether the defendant’s sentence is appropriate or

       if another sentence might be more appropriate but whether the sentence is

       inappropriate. Fonner v. State, 876 N.E.2d 340, 344 (Ind. Ct. App. 2007).


[11]   Arrington received the maximum sentence possible. 4 Although the maximum

       possible sentences are generally most appropriate for the worst offenders,

       maximum sentences are not inappropriate merely because a worse scenario can

       be imagined, “as it is always possible to identify or hypothesize a significantly

       more despicable scenario.” Wells v. State, 904 N.E.2d 265, 274 (Ind. Ct. App.

       2009), trans. denied. Rather than focusing on whether there are worse scenarios,

       we focus “on the nature, extent, and depravity of the offense for which the

       defendant is being sentenced, and what it reveals about the defendant’s

       character.” Id. Arrington argues that the maximum sentence is inappropriate


       4
         The sentencing range for a class D felony is six months to three years with an advisory sentence of one and
       one-half years. Ind. Code § 35-50-2-7. Although Arrington committed two offenses, they arose out of a
       single episode of criminal conduct, and therefore the maximum sentence that could be imposed could not
       exceed the advisory sentence for a class C felony, which is four years. Ind. Code §§ 35-50-1-2, 35-50-2-6.

       Court of Appeals of Indiana | Memorandum Decision 34A04-1605-CR-1207 | October 12, 2016           Page 7 of 8
       because the nature of his offenses represents typical identity deception and he

       paid restitution even before he was charged. We commend Arrington for

       making restitution to the nightclub, but he ignores that the people whose credit

       cards he counterfeited also suffered, at a minimum, inconvenience and

       emotional distress. Although his offenses are not particularly egregious, we are

       required to examine his character as well.


[12]   Arrington has a long and extensive criminal history, consisting of thirteen

       felonies and eleven misdemeanors. His felonies include dealing in cocaine,

       possession of cocaine, aggravated unlawful use of a weapon or vehicle, and

       synthetic identity deception. He has served periods of community supervision,

       which were revoked on two occasions for noncompliance. He was on parole

       when he committed the instant offenses, and while he was released on bond, he

       was charged with attempted murder and unlawful possession of a firearm by a

       serious violent felon. He has been provided with numerous opportunities to

       change his behavior. Instead, he has chosen to engage in an ongoing pattern of

       criminal activity. We conclude that Arrington has failed to carry his burden to

       show that his four-year sentence is inappropriate in light of the nature of his

       offenses and his character. Therefore, we affirm.


[13]   Affirmed.


       Kirsch, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 34A04-1605-CR-1207 | October 12, 2016   Page 8 of 8
