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                            May 21 2014, 6:46 am
judicata, collateral estoppel, or the law
of the case.




ATTORNEY FOR APPELLANT:                              ATTORNEYS FOR APPELLEE:

KIMBERLY A. JACKSON                                  GREGORY F. ZOELLER
Indianapolis, Indiana                                Attorney General of Indiana

                                                     KATHERINE MODESITT COOPER
                                                     Deputy Attorney General
                                                     Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

BRANDAN L. MARTIN,                                   )
                                                     )
        Appellant-Defendant,                         )
                                                     )
               vs.                                   )     No. 52A02-1311-CR-966
                                                     )
STATE OF INDIANA,                                    )
                                                     )
        Appellee-Plaintiff.                          )


                       APPEAL FROM THE MIAMI SUPERIOR COURT
                           The Honorable Daniel C. Banina, Judge
                               Cause No. 52D02-1302-FC-26


                                            May 21, 2014

                 MEMORANDUM DECISION – NOT FOR PUBLICATION

BARNES, Judge
                                        Case Summary

        Brandan Martin appeals his four-year sentence for Class D felony possession of

marijuana and Class A misdemeanor battery. We affirm.

                                            Issues

       Martin raises two issues, which we restate as:

               I.      whether the trial court abused its discretion when it
                       sentenced him; and

               II.     whether his sentence is inappropriate.

                                            Facts

       On February 5, 2013, Martin went to L.N.’s apartment in Peru, and they argued.

Martin pushed L.N., who was pregnant, resulting in bodily injury to her. After Martin’s

arrest, he was searched at the jail, and officers located marijuana in his pocket.

Ultimately, the State charged Martin with Class C felony battery resulting in bodily

injury to a pregnant woman, Class D felony possession of marijuana, and Class D felony

residential entry. Martin pled guilty to Class D felony possession of marijuana and Class

A misdemeanor battery, and the State dismissed the remaining charges. Sentencing was

left to the trial court’s discretion.

       At the sentencing hearing, the trial court found Martin’s guilty plea to be a

mitigating factor. However, the trial court found Martin’s criminal history to be an

“overwhelming” aggravator. Tr. p. 53. The trial court sentenced Martin to one year on

the misdemeanor conviction consecutive to a three-year sentence on the Class D felony

conviction, for an aggregate sentence of four years. Martin now appeals.


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                                            Analysis

                                    I. Abuse of Discretion

       Martin argues 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. However, a

trial court may be found to have abused its sentencing discretion in a number of ways,

including: (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. Id. at 490-91. The

reasons or omission of reasons given for choosing a sentence are reviewable on appeal

for an abuse of discretion. Id. The weight given to those reasons, i.e. to particular

aggravators or mitigators, is not subject to appellate review. Id.

       According to Martin, the record does not support the trial court’s sentencing

statement. At the sentencing hearing, Martin testified that, while incarcerated in the jail,

he had been participating in drug and alcohol treatment through the Four County

Counseling Center.1 His attorney stated that Martin was likely to serve his sentence in

the county jail and that he would not have substance abuse treatment available to him




1
 In the presentence investigation report, Martin described the treatment at Four County Counseling
Center as anger management.
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other than the Four County program. During the sentencing statement, the trial court

stated:

                 Brandan the things you are doing at Four County you can
                 continue to do while you are in the Department of Correction.
                 Uh, again actions speak louder than words. If you are truly
                 committed to being a better person, uh, now’s the time to do
                 it. You can do it within the DOC. You can do it in the
                 Miami County Jail.

Tr. p. 54. On appeal, Martin argues that he is still incarcerated in the jail, not the

Department of Correction, and that “the trial court was incorrect in finding that Martin

could continue in IDOC the substance abuse program which the trial court appeared to

agree was important to Martin’s rehabilitation.” Appellant’s Br. p. 9.

          Martin misinterprets the trial court’s statement. The trial court merely stated that,

whether Martin was in the jail or the DOC, he could continue with his treatment and

continue improving himself. Even his attorney implied that the Four County program

would still be available to Martin at the county jail, and there is no evidence in the record

that the program is unavailable to Martin. The trial court did not abuse its discretion in

making its sentencing statement.

          Martin also argues that the trial court overlooked his employment as a mitigator.

Martin testified that his former employer had a job for him after he got out of jail. 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 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,


                                                4
868 N.E.2d at 493. We have held that “[m]any people are gainfully employed such that

this would not require the trial court to note it as a mitigating factor . . . .” Newsome v.

State, 797 N.E.2d 293, 301 (Ind. Ct. App. 2003), trans. denied. We cannot say that

Martin’s proposed employment is a significant mitigator that the trial court overlooked.

The trial court did not abuse its discretion when it did not determine Martin’s

employment was a mitigator.

                                  II. Inappropriateness

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

the offenses and the character of the offender. Indiana Appellate Rule 7(B) provides that

we may revise a sentence authorized by 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

offenses and the character of the offender. When considering whether a sentence is

inappropriate, we need not be “extremely” deferential to a trial court’s sentencing

decision. Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007). Still, we must

give due consideration to that decision. Id. We also understand and recognize the unique

perspective a trial court brings to its sentencing decisions. Id. Under this rule, the burden

is on the defendant to persuade the appellate court that his or her sentence is

inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).

       The principal role of Rule 7(B) review “should be to attempt to leaven the outliers,

and identify some guiding principles for trial courts and those charged with improvement

of the sentencing statutes, but not to achieve a perceived ‘correct’ result in each case.”

Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). We “should focus on the forest—

                                             5
the aggregate sentence—rather than the trees—consecutive or concurrent, number of

counts, or length of the sentence on any individual count.” Id. When reviewing the

appropriateness of a sentence under Rule 7(B), we may consider all aspects of the penal

consequences imposed by the trial court in sentencing the defendant, including whether a

portion of the sentence was suspended. Davidson v. State, 926 N.E.2d 1023, 1025 (Ind.

2010).

         The nature of Martin’s offenses is that he committed battery on a pregnant woman

and that he had marijuana in his pocket when he was arrested for the battery. The

character of the offender is reflected by Martin’s significant criminal history. Even

though Martin is only twenty-four years old, he has amassed numerous convictions and

probation violations. As a thirteen-year-old juvenile, Martin was adjudicated delinquent

in 2003 for criminal mischief and was placed on probation for one year. He violated that

probation three times, and the probation was terminated unsuccessfully. In 2005, he was

adjudicated delinquent for battery resulting in bodily injury, and he was placed on

probation until he was eighteen years old. He violated that probation three times and was

ultimately placed on home detention.       In 2007, he was adjudicated delinquent for

possession of marijuana. As an adult, he was convicted of disorderly conduct in 2007,

sentenced to 180 days suspended to probation, and violated his probation twice. In 2009,

he was convicted of Class D felony dealing in marijuana. In 2011, he was convicted of

theft and was sentenced to three years with one and one-half years on home detention and

one and one-half years suspended to probation. His home detention was revoked, and he

violated his probation. Martin admitted that he started smoking marijuana at the age of

                                             6
eight, and he started drinking alcohol at the age of ten. His current drugs of choice are

marijuana and opiates.

       We acknowledge Martin’s guilty plea, but we note that he received a substantial

benefit when the battery charge was dropped from a Class C felony to a Class A

misdemeanor. We also acknowledge Martin’s argument regarding his mental health.

However, no evidence was presented at the sentencing hearing regarding his alleged

mental illnesses, and no evidence was presented that his alleged mental illnesses played a

part in these crimes. Despite Martin’s arguments, we agree with the trial court that

Martin’s criminal history is an overwhelming aggravator. Despite many opportunities

and leniencies, Martin continues to abuse drugs and commit more crimes. Given his

criminal history, we cannot say that the four-year sentence is inappropriate.

                                       Conclusion

       The trial court did not abuse its discretion when it sentenced Martin, and Martin’s

four-year sentence is not inappropriate. We affirm.

       Affirmed.

BAKER, J., and CRONE, J., concur.




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