MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                            FILED
this Memorandum Decision shall not be                                         Jan 10 2018, 9:03 am
regarded as precedent or cited before any                                         CLERK
court except for the purpose of establishing                                  Indiana Supreme Court
                                                                                 Court of Appeals
the defense of res judicata, collateral                                            and Tax Court


estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Donald E.C. Leicht                                       Curtis T. Hill, Jr.
Kokomo, Indiana                                          Attorney General of Indiana
                                                         Katherine Cooper
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

John Bush,                                               January 10, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         34A04-1709-CR-2064
        v.                                               Appeal from the Howard Circuit
                                                         Court
State of Indiana,                                        The Honorable Lynn Murray,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         34C01-1506-F4-84



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 34A04-1709-CR-2064 | January 10, 2018           Page 1 of 7
                                Case Summary and Issue
[1]   John Bush pleaded guilty to burglary, a Level 5 felony, and was sentenced to

      two years executed and four years suspended to probation. Pursuant to the plea

      agreement, the placement of the executed portion of Bush’s sentence was left

      open to the trial court’s discretion and the court ordered Bush’s sentence be

      served at the Indiana Department of Correction (“DOC”). Bush now appeals

      his placement, raising a single issue for our review which we restate as whether

      Bush’s placement is inappropriate in light of the nature of his offense and his

      character. Concluding Bush’s placement is not inappropriate, we affirm.



                            Facts and Procedural History
[2]   On June 22, 2015, the State charged Bush with burglary, a Level 4 felony,

      stemming from a break-in which occurred on June 4. On July 19, Bush pleaded

      guilty to the lesser-included charge of burglary, a Level 5 felony, pursuant to a

      plea agreement which provided for a six-year sentence with two years executed

      and four years suspended. The placement of the executed portion of Bush’s

      sentence was left to the trial court’s discretion.


[3]   At the sentencing hearing on August 17, 2017, the State presented evidence and

      argument in favor of Bush serving the entirety of his two-year sentence in the

      DOC. Bush requested in-home detention. Following argument, the trial court

      stated:




      Court of Appeals of Indiana | Memorandum Decision 34A04-1709-CR-2064 | January 10, 2018   Page 2 of 7
        [T]he sentence in this case was by agreement with the State of
        Indiana and you pled guilty in return for the benefit of a lesser
        included offense, a Level 5 instead of a Level 4, which is
        burglarizing a residence, which it was in this case. Also, you
        benefitted in pleading guilty by getting a cap on the two years of
        executed time so, you know, pleading guilty is viewed as a
        mitigating circumstance. I give it low weight in this case. You
        received a substantial benefit by doing so. You also received a
        substantial benefit when your attorney . . . was able to negotiate
        on your behalf early in this case so you could be released from
        jail so that you could go to drug rehab, and I agreed to that. I
        know you did post a bond and Home With Hope [sic] but you
        know you were not able to comply with those rules there and
        relapsed. Your criminal history is extensive. Really the two
        years minimum of executed time is pretty generous in light of
        past attempts to try to rehabilitate you so you’re not committing
        crimes. You have a, between Indiana and California
        convictions, seven prior felony convictions, five prior
        misdemeanor convictions as well as several pending matters out
        of California that have not yet been resolved. Attempts, some of
        those offenses have been also related to taking property . . ., any
        time in which sentences it appears that such as in 2014, that was
        largely suspended, that you violated probation and your
        probation was revoked and you had to serve your entire sentence.
        I don’t see where in-home [detention] is really an option in
        Johnson County and Greenwood in your case, that prior
        opportunities when you haven’t been able to follow the rules.
        I’m going to find that the two years . . . should be executed in the
        Department of Corrections [sic].


Transcript at 25-26. Bush now appeals.




Court of Appeals of Indiana | Memorandum Decision 34A04-1709-CR-2064 | January 10, 2018   Page 3 of 7
                                 Discussion and Decision
                                     I. Abuse of Discretion
[4]   We begin by noting Bush’s appellant’s brief purports to present two issues for

      our review, “Was the sentence imposed an abuse of discretion and/or

      inappropriate.” Brief of Appellant at 4. Under the “Argument” section of his

      brief, Bush frames the first issue as “1.) Abuse of Discretion” before reciting the

      applicable standard of review. Bush then recites facts from the record

      pertaining to his credit time, concluding:


              The Trial Court appears to have correctly calculated actual days
              applicable to the cause on appeal, which trial counsel for Bush
              acknowledged.


      Id. at 7. So, although it appears Bush intended to challenge his placement as an

      abuse of discretion, he provides no such argument. And, to the extent Bush

      challenges the trial court’s calculation of credit time, he concludes by admitting

      the trial court’s number appears to be correctly calculated.


[5]   Put simply, not only are we unable to discern a cogent argument from this

      section of Bush’s brief, we are confused by its very presence. Therefore, to the

      extent Bush intended to raise an abuse of discretion argument, it is waived. See

      Dickes v. Felger, 981 N.E.2d 559, 562 (Ind. Ct. App. 2012) (“A party waives an

      issue where the party fails to develop a cogent argument or provide adequate

      citation to authority and portions of the record.”).




      Court of Appeals of Indiana | Memorandum Decision 34A04-1709-CR-2064 | January 10, 2018   Page 4 of 7
                                              II. Rule 7(B)
[6]   Bush next argues that his placement at the DOC is inappropriate in light of the

      nature of his offense and his character. Article VII, Sections 4 and 6 of the

      Indiana Constitution authorize independent appellate review and revision of

      sentence imposed by the trial court. Anglemyer v. State, 868 N.E.2d 482, 491

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

      7(B) provides that an appellate 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.”


[7]   The location where a sentence is to be served is an appropriate focus for our

      review and revise authority. Biddinger v. State, 868 N.E.2d 407, 414 (Ind. 2007).

      However, a defendant faces a rigorous burden convincing us that a given

      placement is inappropriate. Fonner v. State, 876 N.E.2d 340, 343 (Ind. Ct. App.

      2007) (noting “the question under Appellate Rule 7(B) is not whether another

      sentence is more appropriate; rather, the question is whether the sentence

      imposed is inappropriate.”).


[8]   Regarding the nature of his offense, Bush simply offers, “No one was

      threatened. No one was harmed physically.” Br. of Appellant at 10. While

      thankfully true, our legislature took into consideration the threat of force and

      physical harm while drafting the burglary statute, Indiana Code section 35-43-2-

      1. The statute provides that burglary is a Level 3, Level 2, or Level 1 felony


      Court of Appeals of Indiana | Memorandum Decision 34A04-1709-CR-2064 | January 10, 2018   Page 5 of 7
       dependent upon a victim’s bodily injury or whether the defendant was armed

       with a deadly weapon. Furthermore, Bush pleaded guilty to burglary as a Level

       5 felony even though Bush burglarized a dwelling, an offense which ordinarily

       constitutes a Level 4 felony under the statute. Thus, nothing about the nature

       of Bush’s offense leads us to the conclusion that the DOC is an inappropriate

       placement.


[9]    Turning to the character of the defendant, Bush argues, as he did at sentencing,

       that his medical condition necessitates in-home detention, asking for such

       placement “[a]t least until my medical stuff is cleared up.” Transcript at 21. As

       is too often the case, Bush’s argument focuses on why in-home detention would

       be more appropriate than placement at the DOC, not why placement at the

       DOC is inappropriate. That is not our prerogative under Appellate Rule 7(B).

       See Fonner, 876 N.E.2d at 343.


[10]   Moreover, even a minor criminal record reflects poorly on a defendant’s

       character. Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct. App. 2007). Here,

       Bush’s criminal record consists of seven prior felony convictions, five prior

       misdemeanor convictions, and a history of probation violations. We find

       nothing about Bush’s character rendering his placement inappropriate.



                                               Conclusion
[11]   We conclude neither the nature of Bush’s offense nor his character render his

       placement inappropriate. Accordingly, we affirm.


       Court of Appeals of Indiana | Memorandum Decision 34A04-1709-CR-2064 | January 10, 2018   Page 6 of 7
[12]   Affirmed.


       Crone, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 34A04-1709-CR-2064 | January 10, 2018   Page 7 of 7
