MEMORANDUM DECISION
                                                                                  FILED
Pursuant to Ind. Appellate Rule 65(D),
                                                                             09/06/2017, 10:03 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.


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Mark K. Leeman                                           Curtis T. Hill, Jr.
Logansport, Indiana                                      Attorney General of Indiana
Andrew A. Achey                                          Laura Renee Anderson
Logansport, Indiana                                      Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Thomas A. Roper,                                         September 6, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         09A04-1704-CR-718
        v.                                               Appeal from the Cass Superior
                                                         Court
State of Indiana,                                        The Honorable Richard A.
Appellee-Plaintiff.                                      Maughmer, Judge
                                                         Trial Court Cause No.
                                                         09D02-1404-FC-9



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 09A04-1704-CR-718 | September 6, 2017         Page 1 of 10
                                STATEMENT OF THE CASE
[1]   Appellant-Defendant, Thomas A. Roper (Roper), appeals his sentence

      following his conviction for intimidation with the use of a deadly weapon, a

      Class C felony, Ind. Code § 35-45-2-1(a)(2),(b)(2)(A) (2013).


[2]   We affirm.


                                                   ISSUES
[3]   Roper raises one issue, which we restate as the following two issues:

      (1) Whether the trial court abused its discretion in sentencing Roper by failing

      to consider certain mitigating evidence; and

      (2) Whether Roper’s sentence is inappropriate in light of the nature of the

      offense and his character.


                      FACTS AND PROCEDURAL HISTORY
[4]   On the evening of April 3, 2014, the Cass County Sheriff’s Department was

      dispatched to the Logansport, Indiana, home of Roper based on a report that

      Roper had threatened his then-roommate with a firearm. According to Roper,

      he and his roommate had been involved in a “huge argument,” and he “was

      throwing her out” of the house. (Plea Tr. p. 9). Roper admittedly pointed the

      gun at his roommate in order to scare her.


[5]   On April 7, 2014, the State filed an Information, charging Roper with Count I,

      intimidation with the use of a deadly weapon, a Class C felony, I.C. § 35-45-2-

      1(a)(2),(b)(2)(A) (2013); Count II, pointing a firearm, a Class D felony, I.C. §

      Court of Appeals of Indiana | Memorandum Decision 09A04-1704-CR-718 | September 6, 2017   Page 2 of 10
      35-47-4-3(b) (2013); Count III, possession of marijuana with a prior conviction,

      a Class D felony, I.C. § 35-48-4-11(1) (2013); Count IV, maintaining a common

      nuisance, a Class D felony, I.C. § 35-48-4-13(b)(1) (2013); and Count V,

      possession of paraphernalia, a Class A misdemeanor, I.C. § 35-48-4-

      8.3(a)(1),(b) (2013). On January 23, 2015, the State additionally charged Roper

      with Count VI, criminal confinement, a Class B felony, I.C. § 35-42-3-

      3(a)(1),(b)(2)(A) (2013).


[6]   On February 21, 2017, Roper pled guilty to Count I, intimidation as a Class C

      felony. The same day, the State moved to dismiss Counts II through VI. The

      trial court accepted Roper’s open guilty plea and entered a judgment of

      conviction for one Count of intimidation as a Class C felony. On March 21,

      2017, the trial court held a sentencing hearing and ordered Roper to execute

      eight years in the Indiana Department of Correction.


[7]   Roper now appeals. Additional facts will be provided as necessary.


                              DISCUSSION AND DECISION
                                      I. Abuse of Sentencing Discretion

[8]   Roper claims that the trial court abused its discretion by failing to identify his

      mental health issues as a mitigating factor in formulating his sentence.

      Sentencing decisions are a matter of trial court discretion and are reviewed on

      appeal only for an abuse of discretion. Anglemyer v. State, 868 N.E.2d 482, 490,

      clarified on reh’g, 875 N.E.2d 218 (Ind. 2007). It is an abuse of discretion if the

      trial court’s decision “is ‘clearly against the logic and effect of the facts and

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      circumstances before the court, or the reasonable, probable, and actual

      deductions to be drawn therefrom.’” Id. (quoting K.S. v. State, 849 N.E.2d 538,

      544 (Ind. 2006)). In order to “guard[] against arbitrary and capricious

      sentencing” and “provide[] an adequate basis for appellate review,” trial courts

      are required, for all felony offenses, to enter sentencing statements that “include

      a reasonably detailed recitation of the trial court’s reasons for imposing a

      particular sentence.” Id. at 489-90. A trial court “may impose any sentence

      within the statutory range without regard to the existence of aggravating or

      mitigating factors.” Id. at 489. However, if the trial court “‘finds’ the existence

      of ‘aggravating circumstances or mitigating circumstances’ then the trial court is

      required to give ‘a statement of the court’s reasons for selecting the sentence

      that it imposes.’” Id. at 490 (quoting I.C. § 35-38-1-3(3)).


[9]   On appeal, a trial court may be found to have abused its discretion by failing to

      enter a sentencing statement at all; entering a sentencing statement that explains

      its reasons for imposing a sentence where such reasons are not supported by the

      record or are improper as a matter of law; or entering a sentencing statement

      that omits reasons which are clearly supported by the record and advanced for

      consideration. Id. at 490-91. A trial court may not be said to have abused its

      discretion by failing to properly weigh aggravating and mitigating factors. Id. at

      491. Additionally, a trial court is under no obligation “to accept a defendant’s

      claim as to what constitutes a mitigating circumstance.” Weedman v. State, 21

      N.E.3d 873, 893 (Ind. Ct. App. 2014), trans. denied. In fact, “[w]here the trial

      court does not find the existence of a mitigating factor after it has been argued

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       by counsel, the trial court is not obligated to explain why it has found that the

       factor does not exist.” Phelps v. State, 969 N.E.2d 1009, 1019 (Ind. Ct. App.

       2012), trans. denied. “A claim that the trial court failed to find a mitigating

       circumstance requires the defendant to establish that the mitigating evidence is

       both significant and clearly supported by the record.” Weedman, 21 N.E.3d at

       893. Ultimately, if we find that the trial court has abused its sentencing

       discretion, our court will remand for resentencing “if we cannot say with

       confidence that the trial court would have imposed the same sentence had it

       properly considered reasons that enjoy support in the record.” Anglemyer, 868

       N.E.2d at 491.


[10]   “A person who commits a Class C felony shall be imprisoned for a fixed term

       of between two (2) years and eight (8) years, with the advisory sentence being

       four (4) years.” I.C. § 35-50-2-6(a) (2013). In this case, the trial court imposed

       the maximum eight-year sentence for Roper’s intimidation conviction. During

       the sentencing hearing, the trial court identified Roper’s guilty plea “on the

       verge of trial” as a factor in mitigation. (Sentencing Tr. p. 8). However, the

       trial court found as aggravating circumstances that Roper has a history of

       criminal and delinquent behavior and that he had recently violated a condition

       of probation. The trial court found the aggravating factors to “substantially”

       outweigh those tending to mitigate. (Sentencing Tr. p. 8). Roper now claims

       that the trial court abused its discretion because it’s sentencing statement “did

       not make any reference to Rope’s mental health despite the issue being raised




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       [during the sentencing hearing] and identified in the pre-sentence [investigation]

       [PSI] report.” (Appellant’s Br. p. 14).


[11]   “Mental illness is not necessarily a significant mitigating factor; ‘rather, [it] is a

       mitigating factor to be used in certain circumstances, such as when the evidence

       demonstrates longstanding mental health issues or when the jury finds that a

       defendant is mentally ill.’” Townsend v. State, 45 N.E.3d 821, 831 (Ind. Ct. App.

       2015) (alteration in original), trans. denied. “[I]n order for a [defendant’s]

       mental history to provide a basis for establishing a mitigating factor, there must

       be a nexus between the defendant’s mental health and the crime in question.”

       Weedman, 21 N.E.3d at 894 (second alteration in original).


[12]   Although he did not specifically identify his mental health issues as a mitigating

       factor for the trial court to consider, during the sentencing hearing, Roper did

       argue that some of the “recent incidents that have taken place”—i.e., Roper

       angrily lashed out at the probation officer who prepared the PSI report and

       subsequently attempted to confront said probation officer prior to the

       sentencing hearing—“could ultimately be accounted for based on his paranoid

       schizophrenia.” (Sentencing Tr. p. 7). During the PSI interview, Roper self-

       reported that he had previously received outpatient mental health treatment for

       his diagnoses of bipolar disorder and paranoid schizophrenia. Roper also

       claimed to suffer from posttraumatic stress disorder. No supporting evidence of

       such diagnoses was presented to the court. Also, Roper’s self-reported mental

       health issues are directly contradicted by his testimony during his guilty plea

       hearing, wherein he affirmed that he suffers from no mental or emotional

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       disability and has never been treated for any mental illness. Thus, Roper failed

       to establish a “longstanding mental health issue[]” that is significant and clearly

       supported by the record. Townsend, 45 N.E.3d at 831.


[13]   Furthermore, Roper offered no evidence linking his purported mental health

       issues to his commission of the intimidation offense. See Weedman, 21 N.E.3d

       at 894. During his PSI interview, Roper stated that he had dreams of hurting

       his former roommate and declared, “I hope the bitch that did this burns in hell.

       I didn’t do this.” (Appellant’s Conf. App. Vol. II, p. 166). Other than

       displaying “an obvious anger problem” and reflecting wrathfully about a crime

       that he committed nearly three years prior to his PSI interview, Roper offered

       no evidence that his mental health issues motivated his crime or that they

       affected his ability to control his behavior at the time of the crime. (Appellant’s

       Conf. App. Vol. II, p. 166); Phelps, 969 N.E.2d at 1019-20; Steinberg v. State, 941

       N.E.2d 515, 534 (Ind. Ct. App. 2011), trans. denied. Accordingly, we find that it

       was well within the discretion of the trial court to reject Roper’s mental health

       issues as a mitigating circumstance.


                                           II. Inappropriate Sentence

[14]   Roper also claims that his eight-year sentence is inappropriate. In cases where a

       trial court imposes a sentence that is authorized by statute, our court may revise

       the sentence 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.” Ind. Appellate Rule 7(B). Appellate Rule 7(B)

       provides for sentence review in an “attempt to leaven the outliers, and identify

       Court of Appeals of Indiana | Memorandum Decision 09A04-1704-CR-718 | September 6, 2017   Page 7 of 10
       some guiding principles for trial courts and those charged with improvement of

       the sentencing statutes, but not to achieve a perceived ‘correct’ result in each

       case.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). Ultimately,

       “whether we regard a sentence as appropriate 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 factors that come to light in a given case.” Id.

       at 1224. Our court focuses on “the length of the aggregate sentence and how it

       is to be served.” Id. Roper bears the burden of persuading this court that his

       sentence is inappropriate. Corbally v. State, 5 N.E.3d 463, 471 (Ind. Ct. App.

       2014).


[15]   “[T]he advisory sentence is the starting point [that] our legislature has selected

       as [an] appropriate sentence for the crime committed.” Richardson v. State, 906

       N.E.2d 241, 247 (Ind. Ct. App. 2009) (citing Anglemyer, 868 N.E.2d at 494). As

       already noted, the advisory sentence for intimidation as a Class C felony is four

       years, with a minimum term of two years and a maximum term of eight years.

       I.C. § 35-50-2-6(a) (2013). The trial court imposed the maximum sentence, but

       based on his mental illness and the limited information available about the facts

       in this case, Roper contends that his sentence should be reduced to five years,

       with two-and-one-half years suspended to probation.


[16]   With respect to the nature of the offense, we agree with Roper that the facts

       presented in this case were limited. It is clear that, while arguing with his

       roommate, Roper became enraged and used a firearm in an attempt to scare

       her. Based on the police investigation, Roper was charged with several other

       Court of Appeals of Indiana | Memorandum Decision 09A04-1704-CR-718 | September 6, 2017   Page 8 of 10
       offenses, including several drug-related offenses. However, these charges were

       all dismissed in exchange for his guilty plea. Nevertheless, evidence concerning

       Roper’s character clearly establishes that he did not receive an inappropriate

       sentence. Roper has an extensive criminal history, dating back to age ten when

       he was arrested for theft. As an adult, he amassed thirteen misdemeanor

       convictions and six felony convictions. His criminal resume includes

       convictions for battery (multiple), possession of stolen property, improper

       exhibition of a firearm, carrying a concealed weapon, disorderly conduct,

       larceny (multiple), burglary, driving under the influence and with a suspended

       license, fraud/impersonation, resisting arrest, failure to register as a convicted

       felon, possession of marijuana and paraphernalia, felon in possession of a

       firearm, and escape. He has served time in jail and in prison in both Florida

       and Indiana, as well as federal prison. Roper also has repeatedly violated

       probation in these cases.


[17]   We are unpersuaded by Roper’s attempt to excuse his criminal history as being

       the result of his mental illness. Roper lacks credibility regarding his self-

       reported mental health diagnoses, and there is no evidence in the record that

       any such mental illness prevents him from leading a law-abiding life. Roper has

       repeatedly demonstrated his uncontrolled anger. Aside from the unchecked

       anger that resulted in the present conviction, Roper was belligerent with the

       probation officer during the PSI interview, and he even attempted to

       subsequently confront the probation officer about the effect her report would

       have on his sentence. Roper has repeatedly shown himself to be deceitful, and


       Court of Appeals of Indiana | Memorandum Decision 09A04-1704-CR-718 | September 6, 2017   Page 9 of 10
       he clearly lacks respect for the law. Therefore, we cannot say that Roper’s

       eight-year sentence is inappropriate in light of the nature of the offense and his

       character.


                                             CONCLUSION
[18]   Based on the foregoing, we conclude that the trial court did not abuse its

       sentencing discretion in considering mitigating factors, and Roper’s sentence is

       not inappropriate in light of the nature of the offense and his character.


[19]   Affirmed.


[20]   Robb, J. and Pyle, J. concur




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