MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                      Nov 12 2015, 6:04 am
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Mark Small                                              Gregory F. Zoeller
Indianapolis, Indiana                                   Attorney General of Indiana

                                                        Christina D. Pace
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Robert J. Fugate, Jr.,                                  November 12, 2015
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        84A01-1505-CR-411
        v.                                              Appeal from the Vigo Superior
                                                        Court
State of Indiana,                                       The Honorable John T. Roach,
Appellee-Plaintiff                                      Judge
                                                        Trial Court Cause No.
                                                        84D01-1404-FB-1008



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 84A01-1505-CR-411| November 12, 2015   Page 1 of 4
                                               Case Summary
[1]   Robert J. Fugate, Jr., appeals the ten-year sentence imposed by the trial court

      following his guilty plea to class B felony rape. He asserts that his sentence is

      inappropriate in light of his character. Concluding that he has waived our

      review of the appropriateness of his sentence, we affirm.


                                   Facts and Procedural History
[2]   On April 9, 2015, Fugate raped his neighbor T.G. The State charged Fugate

      with class B felony rape, class D felony sexual battery, and with being a repeat

      sexual offender. Fugate and the State subsequently entered into a plea

      agreement pursuant to which Fugate pled guilty to class B felony rape, with a

      sentencing cap of ten years (the advisory sentence for a class B felony 1), in

      exchange for the dismissal of the remaining charges. During sentencing, the

      trial court noted Fugate’s guilty plea as a mitigating factor, but determined that

      his decision to plead guilty was entitled to no mitigating weight in light of the

      substantial benefit Fugate received in exchange for his plea, namely the

      dismissal of the additional charges. 2 The trial court found Fugate’s extensive

      criminal history, which included multiple felonies, as an aggravating factor. At




      1
          Ind. Code § 35-50-2-5.
      2
       The trial court found that additional mitigating factors proffered by Fugate were unsupported by the
      evidence.

      Court of Appeals of Indiana | Memorandum Decision 84A01-1505-CR-411| November 12, 2015            Page 2 of 4
      the conclusion of the hearing, the trial court imposed the maximum sentence

      allowable under the plea agreement, which was ten years. This appeal ensued.


                                    Discussion and Decision
[3]   Pursuant to Indiana Appellate Rule 7(B), 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 offense and the character

      of the offender.” Whether we regard a sentence as inappropriate at the end of

      the day turns on “our sense of the culpability of the defendant, the severity of

      the crime, the damage done to others, and myriad other facts that come to light

      in a given case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). The

      defendant bears the burden to persuade this Court that his or her sentence is

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

      is principally a discretionary function of the trial court to which appellate courts

      owe considerable deference. Cardwell, 895 N.E.2d at 1222. “Such deference

      should prevail unless overcome by compelling evidence portraying in a positive

      light the nature of the offense (such as accompanied by restraint, regard, and

      lack of brutality) and the defendant’s character (such as substantial virtuous

      traits or persistent examples of good character.” Stephenson v. State, 29 N.E.3d

      111, 122 (Ind. 2015).


[4]   The argument section of Fugate’s appellate brief is incredibly short and

      comments only scantly on his character. However, revision of a sentence

      pursuant to Appellate Rule 7(B) requires the appellant to demonstrate that his


      Court of Appeals of Indiana | Memorandum Decision 84A01-1505-CR-411| November 12, 2015   Page 3 of 4
      sentence is inappropriate in light of both the nature of his offense and his

      character. Williams v. State, 891 N.E.2d 621, 633 (Ind. Ct. App. 2008). Because

      Fugate presents no argument, scant or otherwise, regarding the appropriateness

      of his sentence in light of the nature of his offense, we conclude that he has

      waived our review. See id.


[5]   Waiver notwithstanding, the advisory sentence is the starting point the

      legislature has selected as an appropriate sentence for the crime committed.

      Abbott v. State, 961 N.E.2d 1016, 1019 (Ind. 2012). The sentencing range for a

      class B felony is between six and twenty years, with an advisory sentence of ten

      years. Ind. Code § 35-50-2-5. Because Fugate received the advisory ten-year

      sentence for his offense, we cannot conclude that his sentence is excessive.


[6]   As for Fugate’s character, we need look no further than his extensive criminal

      history, which includes a child molesting conviction along with numerous other

      felonies. There is nothing about Fugute’s character that convinces us that his

      ten-year sentence is inappropriate. Accordingly, we affirm the sentence

      imposed by the trial court.


[7]   Affirmed.


      May, J., and Bradford, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 84A01-1505-CR-411| November 12, 2015   Page 4 of 4
