MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                          FILED
regarded as precedent or cited before any                            Oct 19 2017, 8:39 am

court except for the purpose of establishing                              CLERK
                                                                      Indiana Supreme Court
the defense of res judicata, collateral                                  Court of Appeals
                                                                           and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Ronald J. Moore                                          Curtis T. Hill, Jr.
The Moore Law Firm, LLC                                  Attorney General of Indiana
Richmond, Indiana
                                                         Chandra K. Hein
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

James N. Hamilton,                                       October 19, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         89A04-1703-CR-649
        v.                                               Appeal from the Wayne County
                                                         Circuit Court
State of Indiana,                                        The Honorable David A. Kolger,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         89C01-1505-F2-14



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 89A04-1703-CR-649 | October 19, 2017.       Page 1 of 8
[1]   James N. Hamilton appeals the thirty-one-year sentence he received for

      committing Level 4 felony burglary 1 as a habitual offender. 2 He argues the

      sentence is inappropriate based on the nature of the offense and his character.

      We affirm.



                                Facts and Procedural History
[2]   On Friday, May 22, 2015, Gary Robinson, III left for a Memorial Day weekend

      camping trip with his father. While Robinson was away, Hamilton broke into

      Robinson’s home and stole a shotgun, ammunition, foreign currency,

      approximately sixty canned food items including “Spam, Treat [sic], Chef

      Boyardee Ravioli and spaghetti,” (App. Vol. 2 at 13), and “approximately sixty

      (60) bags of deer meat[.]” (Id.)


[3]   Robinson and his father returned home Sunday morning, May 24. Robinson

      immediately realized someone had broken into the house because “someone

      had torn off the latch to the garage door,” (id.), and the window in the backdoor

      was broken. Throughout the entire home, drawers and doors were left open,

      and items had been moved around. A paper towel roll and a water bottle were

      propping open a window. Robinson noticed a tire iron lying on the garage

      floor, which had previously been in the front seat of his unlocked car in the




      1
          Ind. Code § 35-43-2-1(1) (2014).
      2
          Ind. Code § 35-50-2-8 (2014).


      Court of Appeals of Indiana | Memorandum Decision 89A04-1703-CR-649 | October 19, 2017.   Page 2 of 8
      garage. The tire iron had “traces of white paint” consistent with the paint color

      of the door to the garage. (Id. at 14.) The garage door looked like it had been

      pried open. Robinson had several working security cameras on his property

      which captured Hamilton committing the burglary. Robinson watched the

      surveillance footage of Hamilton rummaging through the house and stealing

      items. Robinson then called the police to report the burglary.


[4]   Deputy Seth Biava and Deputy Cary Martin of Wayne County Sheriff’s Office

      responded to Robinson’s call. Robinson showed Deputies Biava and Martin

      the surveillance footage. Robinson did not recognize Hamilton as the person

      on the surveillance video, but Deputy Martin identified Hamilton based on

      prior interaction with him through the criminal justice system. Robinson,

      Deputy Biava, and Deputy Martin observed Hamilton take the shotgun and

      proceed to rummage through the rest of the house while holding the shotgun.

      The surveillance video showed Hamilton wearing gloves throughout the

      burglary. According to the surveillance footage, Hamilton broke into

      Robinson’s home around 11:05 p.m. on Saturday, May 23, and was there until

      approximately 5:28 a.m. on Sunday, May 24. The value of the items stolen

      totaled roughly $5,649.00.


[5]   After gathering evidence at Robinson’s home, Deputies Biava and Martin went

      to Hamilton’s home, but he was not there. The next day, May 25, Deputy

      Biava, assisted by Patrolman Andy Grover, returned to Hamilton’s home and

      arrested him for burglary. The State charged Hamilton with Level 4 felony

      burglary and alleged he was a habitual offender. A jury found Hamilton guilty

      Court of Appeals of Indiana | Memorandum Decision 89A04-1703-CR-649 | October 19, 2017.   Page 3 of 8
      of burglary as a Level 4 felony, and then Hamilton pled guilty to being a

      habitual offender.


[6]   On March 7, 2017, the trial court held a sentencing hearing and sentenced

      Hamilton to twelve years for burglary, enhanced by nineteen years for being a

      habitual offender, for an aggregate sentence of thirty-one years.



                                   Discussion and Decision
[7]   Hamilton asserts his thirty-one-year sentence is inappropriate. Specifically, he

      argues the trial court erred in assigning only “a peppercorn of mitigation” to

      Hamilton’s admission he was a habitual offender. 3 (Appellant’s Br. at 11.) He

      also argues he is neither “beyond redemption” nor the “worst of the worst.” Id.


[8]   Under Indiana Appellate Rule 7(B), we may revise a sentence if, after due

      consideration of the trial court’s decision, we find the sentence is inappropriate

      in light of the nature of the offense and the character of the offender. Williams v.

      State, 891 N.E.2d 621, 633 (Ind. Ct. App. 2008). Our review is deferential to

      the trial court’s decision, and our goal is to determine whether the defendant’s

      sentence is inappropriate, not whether some other sentence would be more



      3
        Despite this declaration at the beginning of his argument, Hamilton does not develop the argument the trial
      court did not give proper weight to this proffered mitigator, and thus the argument is waived. See Hollowell v.
      State, 707 N.E.2d 1014, 1025 (Ind. Ct. App. 1999) (failure to present cogent argument waives that issue for
      appellate review). Waiver notwithstanding, the trial court is not required to give a proffered mitigator the
      same weight as the defendant would propose, Rascoe v. State, 736 N.E.2d 246, 248-9 (Ind. 2000), and we do
      not review the weight given to aggravators and mitigators. Anglemyer v. State, 868 N.E.2d 482, 491 (Ind.
      2007), clarified on reh’g 878 N.E.2d 218 (2007). Accordingly, we conclude the trial court did not abuse its
      discretion.

      Court of Appeals of Indiana | Memorandum Decision 89A04-1703-CR-649 | October 19, 2017.             Page 4 of 8
       appropriate. Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012), reh’g denied. The

       appellant bears the burden of demonstrating his sentence is inappropriate.

       Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). We consider not only the

       aggravators and mitigators found by the trial court, but also any other factors

       appearing in the record. Johnson v. State, 986 N.E.2d 852, 856 (Ind. Ct. App.

       2013).


[9]    When considering the nature of the offense, the advisory sentence is the starting

       point for determining the appropriateness of a sentence. Anglemyer v. State, 868

       N.E.2d 482, 494 (Ind. 2007), clarified on reh’g 878 N.E.2d 218 (2007). The

       statutory range for a Level 4 felony burglary is two to twelve years, with the

       advisory sentence being six years. Ind. Code § 35-50-2-5.5 (2014). If a person

       has been convicted of a Level 4 felony and is a habitual offender, the court shall

       sentence that person to an additional fixed term between six and twenty years.

       Ind. Code § 35-50-2-8(i)(1). The trial court sentenced Hamilton to twelve years

       for Level 4 felony burglary and enhanced his sentence by nineteen years based

       on his adjudication as a habitual offender for an aggregate sentence of thirty-

       one years.


[10]   One factor we consider when determining the appropriateness of a deviation

       from the advisory sentence is whether there is anything more or less egregious

       about the offense committed by the defendant that makes it different from the

       “typical” offense accounted for by the legislature when it set the advisory

       sentence. Rich v. State, 890 N.E.2d 44, 54 (Ind. Ct. App. 2008), trans. denied. In

       assessing the nature of the offense, the trial court noted Hamilton “was in no

       Court of Appeals of Indiana | Memorandum Decision 89A04-1703-CR-649 | October 19, 2017.   Page 5 of 8
       hurry,” (Tr. Vol. II at 53), when committing the crime, taking over five hours to

       remove a gun, ammunition, foreign currency, and food, including sixty pounds

       of deer meat. Robinson’s property sustained substantial damage, such as “the

       garage door was busted open and had been pried open. . . . [the backdoor]

       window had been busted out, or pried out of the - of the casing there.” (Tr. Vol.

       I at 179.) The State presented evidence Hamilton opened and rummaged

       through almost every drawer in the house.


[11]   When considering the character of the offender, one relevant fact is the

       defendant’s criminal history. Johnson, 986 N.E.2d at 857. The significance of

       criminal history varies based on the gravity, nature, and number of prior

       offenses in relation to the present offense. Id. Here, the trial court noted

       Hamilton has been convicted of nine felonies, beginning with his first felony

       conviction in 1974. He was convicted of Class D felony theft in 1979; Class D

       felony receiving stolen property in 2004, 2008, and 2011; and various alcohol,

       traffic, and drug related offenses through the years. The trial court noted

       Hamilton


               has been a recipient of a myriad of sentencing alternatives, all of
               which were aimed at rehabilitating the defendant and dissuading
               him from engaging in further criminal history. [sic]


               More specifically, the defendant was given totally suspended
               misdemeanor sentences. The defendant was given partially
               suspended misdemeanor sentences. The defendant was given
               totally executed misdemeanor sentences. The defendant was
               given concurrent misdemeanor sentences. The defendant was
               given consecutive misdemeanor sentences. The defendant has

       Court of Appeals of Indiana | Memorandum Decision 89A04-1703-CR-649 | October 19, 2017.   Page 6 of 8
               been the recipient of alternative misdemeanor sentencing. He
               was given suspended, partially suspended felony sentences.
               Totally executed felony sentences. He’s been given presumptive
               felony sentences. He’s been given aggravated felony sentences.
               He’s been adjudicated to be an habitual offender. He’s been
               placed on probation unsuccessfully. He’s had many, many
               charges and habitual offenders dismissed on plea agreements.
               None, and have to repeat that again, none of these sentencing
               alternatives have dissuaded Mr. Hamilton from committing more
               criminal acts.


               You would think, and I’m taking a pause here, quite frankly, that
               after forty years of engaging in criminal behavior that someone
               would eventually grow out of it. Or grow tired of victimizing
               people. But this defendant apparently has never grown tired of
               that.


       (Tr. Vol. II at 59-60.)


[12]   Given the fact Hamilton has been consistently committing felonies since the

       1970s, is still committing crimes at the age of sixty, and committed the crime at

       issue here eighteen days after his release from incarceration, we agree with the

       trial court’s sentiment that Hamilton is clearly beyond rehabilitation. We see

       nothing inappropriate about his thirty-one-year sentence. See, e.g., Johnson, 986

       N.E.2d at 857 (affirming sentence as not inappropriate based on criminal

       history).



                                               Conclusion
[13]   In light of Hamilton’s character and the nature of the offense, his sentence is

       not inappropriate. Accordingly, we affirm.
       Court of Appeals of Indiana | Memorandum Decision 89A04-1703-CR-649 | October 19, 2017.   Page 7 of 8
[14]   Affirmed.


       Barnes, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 89A04-1703-CR-649 | October 19, 2017.   Page 8 of 8
