      MEMORANDUM DECISION
                                                                         Feb 17 2015, 10:02 am
      Pursuant to Ind. Appellate Rule 65(D), this
      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
      Joanne Baitup                                             Gregory F. Zoeller
      Law Office of Joanne Baitup                               Attorney General of Indiana
      Valparaiso, Indiana
                                                                Richard C. Webster
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                   IN THE
             COURT OF APPEALS OF INDIANA

      Dominick Fazzini,                                         February 17, 2015

      Appellant-Defendant,                                      Court of Appeals Cause No.
                                                                64A04-1406-CR-296
                 v.                                             Appeal from the
                                                                Porter Superior Court
      State of Indiana,                                         The Honorable Roger V. Bradford,
                                                                Judge
      Appellee-Plaintiff.
                                                                64D01-1208-FA-8167




      Kirsch, Judge.

[1]   Dominck Fazzini (“Fazzini”) appeals his conviction of burglary as a Class A

      felony1. He presents one issue on appeal: whether his sentence was



      1
          See Ind. Code § 35-43-2-1


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

      offender.


[2]   We affirm.


                                 Facts and Procedural History
[3]   Fazzini received information that Cheri Baruch (“Baruch”) had money and

      several guns locked in a safe in her basement. Fazzini recruited Michael

      Sprague (“Sprague”), Jordan Wilkerson (“Wilkerson”), and Shawn Duffy

      (“Duffy”) to join him in burglarizing and robbing Baruch. Because the money

      and guns were located in Baruch’s safe, Fazzini told his accomplices that they

      would need to commit their crime while Baruch was home so that she could

      open the safe for them.


[4]   On August 8, 2012, Fazzini and the other men drove to Baruch’s house.

      Wilkerson attempted to gain entry by asking Baruch if he could come in. When

      she refused, Wilkerson asked her for some water. When she opened the door to

      give Wilkerson the water, Wilkerson forced himself inside. Fazzini and Duffy

      entered behind Wilkerson. Both were armed with handguns. Duffy pointed his

      gun at Baruch, and Wilkerson knocked her to the floor and held her down.

      Baruch sustained injuries to her head, back, and knee.


[5]   One of the men grabbed Baruch’s keys from her, and then the group forced her

      down to the basement safe. The group threatened to shoot her if she did not

      open the safe. Baruch complied, and Fazzini and his accomplices took the guns



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      and money. They then made Baruch put on a new shirt and attempted to

      destroy their fingerprints with bleach.


[6]   While Fazzini and his accomplices were still at Baruch’s residence, her

      neighbor, James Filby (“Filby”), arrived causing the men to flee. After hearing

      about what happened, Filby called 911 and gave chase. The pursuit concluded

      when the vehicle in which Fazzini and his accomplices were traveling crashed.

      Fazzini, Sprague, and Wilkerson all fled, but were apprehended shortly

      afterward. During the encounter, Duffy exchanged gunfire with the police—

      shooting Filby in the hand in the process—before turning his gun on himself

      and taking his own life.


[7]   The State charged Fazzini with burglary as a Class A felony, robbery as a Class

      B felony, and criminal confinement as a Class B felony. Fazzini agreed to plead

      guilty to burglary as a Class A felony in exchange for the dismissal of the two

      lesser charges as well as an executed sentence cap of 40 years. All remaining

      charges were dismissed. Fazzini was sentenced to 35 years executed and 5

      years suspended. Fazzini now appeals.


                                     Discussion and Decision
[8]   Appellate courts may revise a sentence after careful review of the trial court's

      decision if they conclude that the sentence is inappropriate based on the nature

      of the offense and the character of the offender. Ind. Appellate Rule 7(B). Even

      if the trial court followed the appropriate procedure in arriving at its sentence,

      the appellate court still maintains a constitutional power to revise a sentence it

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       finds inappropriate. Hope v. State, 834 N.E.2d 713, 718 (Ind. Ct. App. 2005).

       While the trial court is not afforded excessive deference, “we must and should

       exercise deference to a trial court’s sentencing decision” in part because of the

       trial court’s unique perspective on sentencing decisions. Rutherford v. State, 866

       N.E.2d 867, 873 (Ind. Ct. App. 2007)


[9]    Fazzini contends that trial court abused its discretion because his sentence was

       inappropriate in light of the character of the offender. Fazzini is conflating two

       entirely separate analyses: “[I]nappropriate sentence and abuse of discretion

       claims are analyzed separately. . . . [A]n inappropriate sentence analysis does

       not involve an argument that the trial court abused its discretion in sentencing

       the defendant.” King v. State, 894 N.E.2d 265, 267 (Ind. Ct. App. 2008). Our

       Supreme Court has stated that an abuse of discretion at sentencing occurs when

       the trial court “fails to enter a sentencing statement . . . enters a sentencing

       statement that explains reasons for imposing a sentence 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.” Anglemyer v. State, 868 N.E.2d 482, 490 (Ind.

       2007), clarified on reh’g 875 N.E.2d 218 (Ind. 2007).


[10]   Fazzini does not explicitly contend the trial court committed any of the

       aforementioned errors. Rather, Fazzini claims that the trial court abused its

       discretion in failing to find that the mitigating factors of the case outweighed the

       aggravating factors. However, our Supreme Court has held that “[b]ecause the

       trial court no longer has any obligation to ‘weigh’ aggravating and mitigating

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       factors against each other when imposing a sentence . . . a trial court cannot

       now be said to have abused its discretion in failing to ‘properly weigh’ such

       factors.” Id. at 491. Fazzini’s argument is incorrect as a matter of law.


[11]   Regarding the claim that a sentence is inappropriate in light of the nature of the

       offense and the character of the offender, the defendant has the burden of

       persuading the appellate court that his sentence is inappropriate. King, 894

       N.E.2d at 267. Here, the trial court determined that the damage done to the

       victim, the danger the crime posed to the community, and Fazzini’s role as the

       mastermind behind the crime justified a sentence higher than the advisory

       sentence. We see no reason to disagree. Fazzini was the mastermind behind a

       brutal attack on an innocent woman. This is not his first offense. Finally, the

       nature of the offense is particularly heinous: a pre-planned attack on a

       defenseless woman in her own home that ultimately left one dead and two

       injured. Fazzini’s sentence is not inappropriate in light of the nature of the

       offense and the character of the offender.


[12]   Affirmed.


       Friedlander, J., and Crone, J., concur.




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