MEMORANDUM DECISION
                                                                       FILED
Pursuant to Ind. Appellate Rule 65(D),                             Mar 30 2016, 9:02 am
this Memorandum Decision shall not be                                  CLERK
regarded as precedent or cited before any                          Indiana Supreme Court
                                                                      Court of Appeals
court except for the purpose of establishing                            and Tax Court


the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Timothy P. Broden                                        Gregory F. Zoeller
Lafayette, Indiana                                       Attorney General of Indiana
                                                         Paula J. Beller
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

John E. Bulington,                                       March 30, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         79A05-1507-CR-956
        v.                                               Appeal from the Tippecanoe
                                                         Superior Court
State of Indiana,                                        The Honorable Sean M. Persin,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         79D05-1502-F6-67



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 79A05-1507-CR-956 | March 30, 2016       Page 1 of 4
[1]   John E. Bulington appeals the two-year sentence imposed by the trial court after

      Bulington pleaded guilty to one count of Theft,1 a Level 6 Felony. Bulington

      argues that the sentence is inappropriate in light of the nature of the offense and

      his character. Finding that the sentence is not inappropriate, we affirm.


                                                    Facts
[2]   On February 16, 2015, Bulington went to a Payless Supermarket in Lafayette.

      He used the store’s U-Scan self-service checkout. After he scanned and bagged

      his merchandise, but before paying, he told the store’s associate that he wanted

      to pick up a few more items in the store before completing his purchase.

      Bulington then left the U-Scan area and attempted to exit the building with the

      items for which he had not paid. Bulington was arrested by the store’s loss-

      prevention officer.


[3]   On February 17, 2015, the State charged Bulington with one count of Level 6

      Felony theft. On May 20, 2015, Bulington pleaded guilty to one count of theft.

      On June 23, 2015, the trial court sentenced Bulington to two years in the

      Department of Correction, with credit given for time served. Bulington now

      appeals.




      1
          Ind. Code § 35-43-4-2.


      Court of Appeals of Indiana | Memorandum Decision 79A05-1507-CR-956 | March 30, 2016   Page 2 of 4
                                   Discussion and Decision
[4]   Bulington has one argument on appeal: that the two-year sentence is

      inappropriate. Indiana Appellate Rule 7(B) allows this Court to independently

      review and revise a sentence authorized by statue if, after due consideration, we

      find the trial court’s sentence inappropriate in light of the nature of the offense

      and the character of the offender. Anderson v. State, 989 N.E. 2d 823, 827 (Ind.

      Ct. App. 2013). On appeal, Bulington bears the burden of persuading this court

      that the sentence is inappropriate. See Childress v. State, 848 N.E.2d. 1080 (Ind.

      2006).


[5]   As previously noted, the trial court imposed a two-year sentence for the theft

      conviction. Indiana code section 35-50-2-7(b) provides that a person who

      commits a Level 6 felony shall be imprisoned for a fixed term of between six

      months and two and one-half years, with the advisory sentence being one year.

      Therefore, Bulington received more than the advisory but less than the

      maximum sentence.


[6]   Turning to the nature of Bulington’s offense, he intentionally lied to the store

      associate to facilitate his theft. His conduct in the store demonstrates that he

      had a premeditated plan, including how he would obtain store bags to complete

      the theft and where and how he would exit the store to avoid detection. He did

      not anticipate the store associate not falling for his ruse. Bulington does not

      dispute the fact that he shoplifted the merchandise; he merely minimizes his

      theft because it did not involve the theft of entertainment or luxury items.


      Court of Appeals of Indiana | Memorandum Decision 79A05-1507-CR-956 | March 30, 2016   Page 3 of 4
      Bulington argues that his offense should be excused because he was stealing

      food; yet, there is no evidence to suggest he was malnourished or could not

      legally obtain food. The fact that Bulington had a Hoosier Works card issued by

      the State of Indiana Family and Social Services Agency suggests that he

      understood the process for obtaining financial assistance.


[7]   Turning to Bulington’s character, his lengthy criminal history must be

      acknowledged. He was convicted of the following over a period of fourteen

      years: in 2000, felony fraud and identity deception; in 2003, financial

      transaction card fraud; in 2009, two convictions for conversion; in 2010,

      conversion; in 2013, two convictions for felony theft; in 2014, two convictions

      for felony theft; and in 2015, three convictions for check deception. He was on

      probation in two different counties for felony theft at the time he committed this

      offense. As the trial court said to Bulington at sentencing, “The only gaps that

      you have from committing the crime of theft and stealing from other people has

      either you have been in jail or you have been in rehab [for a stroke]. Otherwise

      you are committing the crime of theft or fraud nonstop”. Tr. P. 31. Bulington

      has evinced an inability or unwillingness to comply with the laws of society.

      We do not find his sentence inappropriate in light of the nature of the offense

      and his character.


[8]   The judgment of the trial court is affirmed.


      Bradford, J., and Pyle, J., concur.



      Court of Appeals of Indiana | Memorandum Decision 79A05-1507-CR-956 | March 30, 2016   Page 4 of 4
