                                                              FILED
                                                        Feb 23 2018, 11:47 am

                                                              CLERK
                                                         Indiana Supreme Court
                                                            Court of Appeals
                                                              and Tax Court




                       IN THE

Indiana Supreme Court
          Supreme Court Case No. 18S-CR-33

                Jacob O. Robinson,
                  Appellant (Defendant),

                            –v–

                  State of Indiana,
                    Appellee (Plaintiff).


  Argued: February 15, 2018 | Decided: February 23, 2018

Appeal from the Floyd Circuit Court, No. 22C01-1402-FD-377
              The Honorable J. Terrence Cody

 On Petition to Transfer from the Indiana Court of Appeals,
                  No. 22A01-1604-CR-856



                   Per Curiam Opinion
                    All Justices concur.
Per Curiam.


Facts and Procedural History
   On February 21, 2014, Jacob O. Robinson fled from police on foot,
attempted to enter a house without the owner’s permission, and broke the
doorknob. The State charged Robinson under Case No. 22C01-1402-FD-
377 (“Case 377”) with Class D felony attempted residential entry, Class D
felony possession of methamphetamine, Class D felony unlawful
possession of a syringe, Class A misdemeanor possession of marijuana,
Class A misdemeanor possession of paraphernalia, and Class A
misdemeanor resisting law enforcement. The State also alleged Robinson
is a habitual offender and a habitual substance offender.

   In November 2014, while out on bond, Robinson fled from police while
driving his car. The State charged Robinson under Case No. 22C01-1411-
F6-1932 (“Case 1932”) with Level 6 felony resisting law enforcement and
alleged he is a habitual offender.

   In Case No. 377, Robinson pleaded guilty to Class D felony attempted
residential entry. See Ind. Code §§ 35-43-2-1.5 (effective 1991 to June 30,
2014), 35-41-5-1 (effective 1977 to June 30, 2014). He also admitted to being
a habitual substance offender. In Case No. 1932, Robinson pleaded guilty
to Level 6 felony resisting law enforcement. In exchange, the State
dismissed all other charges in Case No. 377 and, in both cases, dropped
the allegation that Robinson is a habitual offender.

  At the guilty plea hearing, the trial court scheduled a sentencing
hearing for September 24, 2015, at 10:30 a.m., and instructed Robinson to
make an appointment with the probation department for purposes of the
presentence investigation report. (Tr. pp. 20-21.) Robinson failed to attend
two scheduled appointments.

   Robinson also failed to appear at his sentencing hearing. His attorney
appeared late due to a trial in another county. Counsel orally moved for a
continuance of the sentencing hearing, informing the court he had
received a text from Robinson that morning at 6:34 a.m. asking counsel to



Indiana Supreme Court | Case No. 18S-CR-33 | February 23, 2018       Page 2 of 6
“get this case laid over” because Robinson had a real estate closing
“coming up in the next few days” and “wish[ed] to get his ducks in line.”
(Tr. p. 25.) Counsel had tried to call Robinson, but Robinson’s phone did
not accept calls, only texts, and counsel was unable to send a text due to
problems with his service provider.

   The trial court denied a continuance, indicating

      Mr. Robinson was in Court on the day that this hearing was
      scheduled and he blew off two appointments with . . . the
      probation officer [ ] in preparation of the Report and that leads
      me to the conclusion that Mr. Robinson isn’t taking this matter
      seriously so that’s why I’m denying the continuance[.]


(Tr. p. 27.)

   The court held the hearing in Robinson’s absence, and counsel
presented argument in Robinson’s defense. The presentence investigation
report filed with the court indicates Robinson has an extensive criminal
history that includes multiple drug related convictions. The court
sentenced Robinson to three years executed on the attempted residential
entry conviction and two years executed on the resisting law enforcement
conviction, with the sentences to be served consecutively. The court
withheld sentencing on the habitual substance offender enhancement
until Robinson appeared in court and issued a warrant for his arrest.

   Robinson was arrested in January 2016. He appeared with counsel at
the second sentencing hearing on March 3, 2016. The court imposed a
three-year sentence on the habitual substance offender enhancement, with
one and one-half years executed and one and one-half years suspended to
probation.

   Robinson appealed and raised two issues. First, whether the trial court
abused its discretion in denying his motion to continue the sentencing
hearing. Second, whether the maximum sentence on the attempted
residential entry conviction was inappropriate under Appellate Rule 7(B).
The Court of Appeals addressed neither issue and, instead, sua sponte



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reversed on other grounds. Robinson v. State, 84 N.E.3d 652 (Ind. Ct. App.
2017), vacated.

  Having granted transfer, we address the issues Robinson raised on
appeal.1


Discussion and Decision

I. The Trial Court Did Not Abuse Its Discretion in Denying
a Continuance.
   Rulings on non-statutory motions for continuance are within the trial
court’s discretion and will be reversed only for an abuse of that discretion
and resultant prejudice. Maxey v. State, 730 N.E.2d 158, 160 (Ind. 2000). An
abuse occurs only where the trial court’s decision is clearly against the
logic and effect of the facts and circumstances. Palmer v. State, 704 N.E.2d
124, 127 (Ind. 1999). “There is a strong presumption that the trial court
properly exercised its discretion.” Warner v. State, 773 N.E.2d 239, 247 (Ind.
2002).

   We conclude the trial court did not abuse its discretion in denying
Robinson’s request to continue the sentencing hearing. Robinson sought a
last-minute continuance on grounds he had a real estate closing within the
next few days and desired to “get his ducks in line.” He also failed to
attend two appointments with the probation department.


II. The Trial Court’s Sentence for Attempted Residential
Entry Is Not Inappropriate.
   The Indiana Constitution authorizes appellate review and revision of a
trial court’s sentencing decision. Ind. Const. art. 7, §§ 4, 6; Serino v. State,




1The State raised a single issue on cross-appeal, whether Robinson timely filed his Notice of
Appeal. We find it unnecessary to address this issue.



Indiana Supreme Court | Case No. 18S-CR-33 | February 23, 2018                       Page 4 of 6
798 N.E.2d 852, 856 (Ind. 2003). This authority is implemented through
Indiana Appellate Rule 7(B), which permits an appellate court to revise a
sentence if, after due consideration of the trial court’s decision, the
sentence is found to be inappropriate in light of the nature of the offense
and the character of the offender. Serino, 798 N.E.2d at 856. The principal
role of such review is to attempt to leaven the outliers. Cardwell v. State,
895 N.E.2d 1219, 1225 (Ind. 2008). The burden is on the defendant to
persuade the reviewing court that the sentence is inappropriate. Bowman
v. State, 51 N.E.3d 1174, 1181 (Ind. 2016).

   Under the statute then in effect, the sentence for a Class D felony was a
fixed term between six months and three years, with an advisory term of
one and one-half years. I.C § 35-50-2-7 (effective July 1, 2013 to June 30,
2014). The trial court sentenced Robinson to three years executed on the
conviction for Class D felony attempted residential entry, finding
Robinson’s criminal history outweighed any mitigating factors. (Tr. p. 35.)

   Our judgment is that the sentence imposed by the trial court is not
inappropriate under Appellate Rule 7(B) and does not warrant appellate
revision.


Conclusion
   We affirm the trial court.


All Justices concur.



A TT O RN E Y F O R A P P ELLA N T

R. Patrick Magrath
Alcorn Sage Schwartz & Magrath, LLP
Madison, Indiana




Indiana Supreme Court | Case No. 18S-CR-33 | February 23, 2018       Page 5 of 6
A TT O RN E YS FO R A P PELL EE

Curtis T. Hill, Jr.
Attorney General of Indiana

Tyler G. Banks
Deputy Attorney General
Indianapolis, Indiana




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