                                                               FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
                                                             Oct 10 2012, 9:14 am
any court except for the purpose of
establishing the defense of res judicata,
                                                                    CLERK
collateral estoppel, or the law of the case.                      of the supreme court,
                                                                  court of appeals and
                                                                         tax court




ATTORNEY FOR APPELLANT:                            ATTORNEYS FOR APPELLEE:

DONALD C. SWANSON, JR.                             GREGORY F. ZOELLER
Deputy Public Defender                             Attorney General of Indiana
Fort Wayne, Indiana
                                                   JOSEPH Y. HO
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

JUDSON D. GARRETT,                                 )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )       No. 02A04-1205-CR-231
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                      APPEAL FROM THE ALLEN SUPERIOR COURT
                           The Honorable Frances C. Gull, Judge
                             Cause No. 02D05-1108-FB-168



                                        October 10, 2012


                MEMORANDUM DECISION - NOT FOR PUBLICATION


BRADFORD, Judge
       Appellant-Defendant Judson D. Garrett appeals the sentence imposed by the trial court

following his guilty plea to and conviction for Class B felony robbery.1 Specifically, Garrett

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

inappropriate. We affirm.

                           FACTS AND PROCEDURAL HISTORY

       The stipulated factual basis entered during the March 12, 2012 guilty plea hearing

provides that on July 28, 2011, Garrett, along with two other individuals, knowingly and

intentionally took money from Theresa Bets while she was working in her position as an

employee of a McDonald’s restaurant. Garrett and his cohorts carried out the robbery while

armed with a deadly weapon, i.e., a firearm, and threatened its use against Bets.

       On August 4, 2011, the State charged Garrett with one count of Class B felony

robbery.2 On March 12, 2012, the trial court conducted a hearing at which Garrett pled guilty

“straight up” to the robbery charge. Guilty Plea Tr. p. 8. The trial court accepted Garrett’s

guilty plea and conducted a sentencing hearing on April 9, 2012, at which the court sentenced

Garrett to a fifteen-year term. This appeal follows.

                                DISCUSSION AND DECISION

       Garrett contends that the trial court abused its discretion in sentencing him and that his

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

                                      I. Abuse of Discretion


       1
           Ind. Code § 35-42-5-1 (2011).
       2
           The State amended the charging information on October 27, 2011.
                                                   2
       Sentencing 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), modified on other grounds 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, probable, and actual deductions to be

drawn therefrom.” Id. (quotation omitted). When imposing a sentence in a felony case, the

trial court must provide a reasonably detailed sentencing statement explaining its reason for

imposing the sentence. Id.

       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. Under those circumstances, remand for resentencing may
       be the appropriate remedy if we cannot say with confidence that the trial court
       would have imposed the same sentence had it properly considered reasons that
       enjoy support in the record.

Id. at 490-91.

       In arguing that the trial court abused its discretion in sentencing him, Garrett “requests

this Court to reweigh the aggravating and mitigating” factors. Appellant’s Br. p. 6.

However, in Anglemyer, the Indiana Supreme Court held that “because the trial court no

longer has any obligation to ‘weigh’ aggravating and mitigating factors against each other

when imposing a sentence … a trial court can not now be said to have abused its discretion in

failing to ‘properly weigh’ such factors.” Id. at 491. Thus, “the relative weight or value


                                               3
assignable to reasons properly found or those which should have been found is not subject to

review for abuse.” Id. Accordingly, in light of the Indiana Supreme Court’s holding in

Anglemyer, we decline Garrett’s request that we reweigh the aggravating and mitigating

factors found by the trial court.3

                                  II. Appropriateness of Sentence

         Garrett also challenges his sentence by claiming that it is inappropriate in light of the

nature of his offense and his character. Indiana Appellate Rule 7(B) provides that “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.” The defendant bears the burden of persuading us

that his sentence is inappropriate. Sanchez v. State, 891 N.E.2d 174, 176 (Ind. Ct. App.

2008).

         With respect to the nature of Garrett’s offense, the record demonstrates that Garrett,

along with two others, robbed a McDonald’s restaurant while armed with a firearm and

threatened to use the firearm against the McDonald’s employee, Bets. Garrett forced Bets to

take him to a back office and instructed her to open the safe and to place the money within

the safe in a plastic bag. Garrett’s actions put Bets in great fear.

         With respect to Garrett’s character, the record demonstrates that Garrett had three

prior felony convictions for robbery, auto theft, and resisting law enforcement as well as a


         3
         We note that the cases relied on by Garrett in support of his request that we reweigh the aggravating
and mitigating factors apply to the pre-Blakely statutory regime which was overturned long before Garrett
committed the instant offense.
                                                      4
misdemeanor conviction for operating a vehicle having never received a license. Garrett had

previously had his probation revoked and was on parole under an unrelated cause number at

the time he committed the present offense. Garrett argues that his prior felony criminal

convictions should not be given great weight because the convictions were from 2005, and he

had not committed any additional felonies in the intervening seven years. Garrett, however,

was incarcerated for most of the intervening seven years and committed the instant robbery

less than one year after having been released from incarceration for his prior felony robbery

conviction.

       Garrett also argues that it reflects well on his character that he accepted responsibility

for his actions and pled guilty. At sentencing, the trial court found Garrett’s guilty plea and

acceptance of responsibility to be mitigating factors. However, the trial court told Garrett

that it did not “weight [sic] that very heavily … because your trial was set to commence

March 13th, and you pled guilty on March 12th, which in my mind is more of a tactical

decision on your part as opposed to a true acceptance of responsibility, but you did plead

guilty.” Sentencing Tr. p. 11. We agree with the trial court that Garrett’s decision to plead

guilty one day before his trial was scheduled to begin appears to be more of a tactical

decision than a desire to accept responsibility for his actions. Thus, in light of Garrett’s

actions, which included robbing a McDonald’s restaurant while armed with and having

threatened use of a firearm against a McDonald’s employee; Garrett’s criminal history, which

included a prior felony robbery conviction; and his prior failure to respond positively to

probation, we cannot say that his fifteen-year sentence in inappropriate.

                                               5
      The judgment of the trial court is affirmed.

ROBB, C.J., and BAKER, J., concur.




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