MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                                   FILED
regarded as precedent or cited before any                                      Jun 18 2019, 8:45 am

court except for the purpose of establishing                                       CLERK
                                                                               Indiana Supreme Court
the defense of res judicata, collateral                                           Court of Appeals
                                                                                    and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Nicole A. Zelin                                          Curtis T. Hill, Jr.
Pritzke & Davis, LLP                                     Attorney General of Indiana
Greenfield, Indiana
                                                         Matthew B. MacKenzie
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Dustin Lee Fisher,                                       June 18, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-186
        v.                                               Appeal from the Hancock Circuit
                                                         Court
State of Indiana,                                        The Honorable R. Scott Sirk,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         30C01-1802-F5-419



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-186 | June 18, 2019                      Page 1 of 8
                                               Case Summary
[1]   Dustin Lee Fisher (“Fisher”) pleaded guilty to Failure to Register as a Sex

      Offender, as a Level 5 felony,1 without the benefit of a plea agreement. The

      trial court sentenced him to four years in the Indiana Department of Correction

      (“DOC”), with one year suspended to probation. Fisher now appeals his

      sentence. We affirm.



                                                    Issues
[2]   Fisher presents the following two issues for our review:


                 I.        Whether the trial court abused its discretion by relying on
                           Fisher’s history of criminal and delinquent behavior when
                           imposing a sentence greater than the advisory term; and


                 II.       Whether Fisher’s sentence is inappropriate in light of the
                           nature of his offense and his character.


                                    Facts and Procedural History
[3]   In 2014, under trial court cause number 30C01-1404-FD-613, Fisher pleaded

      guilty to Criminal Confinement, as a Class D felony,2 and was sentenced to




      1
          Ind. Code §§ 11-8-8-17(a)(1) & (b)(1).
      2
          I.C. § 35-42-3-3(a)(1).


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-186 | June 18, 2019       Page 2 of 8
      three years in the DOC. Fisher was also required to register as a sex offender

      for a ten-year period.


[4]   In 2015 and 2016, Fisher pleaded guilty to two separate counts of Failure to

      Register as a Sex Offender, as Level 6 felonies, under trial court cause numbers

      30C01-1506-F6-802 (“cause number F6-802”) and 49G09-1506-F6-20020.


[5]   In early 2018, Fisher failed to timely notify the Hancock County Sheriff’s

      Department that he had changed his place of employment. As a result, Fisher

      was charged with Failure to Register as a Sex Offender, this time as a Level 5

      felony due to his prior convictions for Failure to Register. 3 On November 9,

      2018, Fisher pleaded guilty as charged in open court, without the benefit of a

      plea agreement. The trial court held a sentencing hearing on January 3, 2019,

      and sentenced Fisher to four years in the DOC, with three years executed and

      one year suspended to probation. Fisher now appeals his sentence.



                                    Discussion and Decision
                                           Sentencing Discretion
[6]   Fisher first argues that the trial court abused its discretion by improperly

      considering his criminal history as an aggravating circumstance when imposing

      a sentence greater than the advisory term.




      3
          In the charging information, the State relied only on the conviction under cause number F6-802.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-186 | June 18, 2019                          Page 3 of 8
[7]   Sentencing decisions rest within the sound discretion of the trial court and are

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

      490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007). An abuse of

      discretion occurs if the decision is clearly against the logic and effect of the facts

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

      deductions to be drawn therefrom. Id. (citation and quotation marks omitted).

      Trial courts must enter a sentencing statement whenever imposing a sentence

      for a felony offense, and the statement must include a reasonably detailed

      recitation of the court’s reasons for imposing a particular sentence. Id. “If the

      recitation includes a finding of aggravating or mitigating circumstances, then

      the statement must identify all significant mitigating and aggravating

      circumstances and explain why each circumstance has been determined to be

      mitigating or aggravating.” Id.


[8]   A trial court abuses its discretion if it (1) does not enter a sentencing statement,

      (2) enters a sentencing statement that explains reasons for imposing a sentence

      – including a finding of aggravating and mitigating factors if any – but the

      record does not support the reasons, (3) enters a statement that omits reasons

      that are clearly supported by the record and advanced for consideration, or (4)

      considers reasons that are improper as a matter of law. Jackson v. State, 973

      N.E.2d 1123, 1130 (Ind. Ct. App. 2012) (citing Anglemyer, 868 N.E.2d at 490-

      91), trans. denied.


[9]   A Level 5 felony carries a sentencing range of one to six years, with the

      advisory sentence being three years. I.C. § 35-50-2-6. At the sentencing

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-186 | June 18, 2019   Page 4 of 8
       hearing, the trial court considered as a mitigating circumstance that Fisher took

       responsibility for his offense. As aggravating circumstances, the trial court

       found that Fisher (1) has “a history of criminal delinquent behavior” and (2)

       had recently violated the rules of probation, parole, and community corrections.

       (Tr. Vol. II 72.) Finding that the aggravating circumstances outweighed the

       mitigating circumstance, the trial court sentenced Fisher to four years in the

       DOC, with three years executed and one year suspended to probation. 4


[10]   Fisher argues that by identifying his criminal history as an aggravating

       circumstance, the trial court relied on Fisher’s prior convictions for failure to

       register as a sex offender, and that this reliance was improper because his prior

       convictions comprised a material element of the offense for which he was being

       sentenced. (Appellant’s Br. 8.) Our supreme court has explained that “[w]here

       a trial court’s reason for imposing a sentence greater than the advisory sentence

       includes material elements of the offense, absent something unique about the

       circumstances that would justify deviating from the advisory sentence, that

       reason is ‘improper as a matter of law.’” Gomillia v. State, 13 N.E.3d 846, 852-

       53 (Ind. 2014) (quoting Anglemyer, 868 N.E.2d at 491).


[11]   In sentencing Fisher, the trial court made no specific reference to Fisher’s two

       prior convictions for failure to register as a sex offender, instead identifying only




       4
        The State mischaracterizes Fisher’s sentence as “the advisory sentence” (Appellee’s Br. 4) and later as “the
       advisory executed sentence of three years, with one additional year suspended to probation.” (Appellee’s Br.
       9.) Fisher was sentenced to an aggregate of four years, a deviation from the advisory sentence of three.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-186 | June 18, 2019                      Page 5 of 8
       Fisher’s “history of criminal delinquent behavior” as one of two aggravating

       circumstances it considered. (Tr. Vol. II 72.) We thus disagree with Fisher that

       the trial court’s general reference to Fisher’s criminal history equated to an

       improper reliance on a material element of the crime for which he was being

       sentenced. While Fisher’s two prior convictions for failure to register certainly

       fall under the general category of Fisher’s past criminal behavior, he has

       additional criminal history wholly unrelated to the instant and underlying

       offenses, including at least four adult convictions and four juvenile

       adjudications. The trial court could properly have relied on these unrelated

       convictions and adjudications under the category of “history of criminal

       delinquent behavior” to justify a sentence greater than the advisory term. See

       Gomillia, 13 N.E.3d at 853 (citing McCann v. State, 749 N.E.2d 1116, 1120 (Ind.

       2001)) (holding that even if the trial court relied on an improper factor under

       the aggravating circumstance of ‘nature and circumstances of a crime,’ the

       sentence may be upheld so long as the remaining components of the aggravator

       were proper); Shotts v. State, 53 N.E.3d 526, 538-39 (Ind. Ct. App. 2016)

       (holding that the trial court did not abuse its discretion in considering the

       defendant’s criminal history as an aggravating circumstance where his criminal

       history included the robbery conviction that was an element of the crime for

       which the defendant was being sentenced).


[12]   The trial court did not abuse its discretion in relying on Fisher’s history of

       criminal and delinquent behavior in imposing a sentence greater than the

       advisory term.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-186 | June 18, 2019   Page 6 of 8
                                  Independent Sentence Review
[13]   We turn now to Fisher’s contention that his sentence was inappropriate in light

       of the nature of his offense and his character. Article 7, Section 6 of the Indiana

       Constitution grants this Court authority to independently review and revise a

       sentence imposed by the trial court. To implement this grant of authority,

       Indiana Appellate Rule 7(B) provides: “The 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.” Ind. Appellate Rule 7(B). The analysis is

       not whether another sentence is more appropriate, but whether the sentence

       imposed is inappropriate. Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012). The

       principal role of our review is to leaven the outliers, and our review is very

       deferential to the trial court. Id. The defendant bears the burden of persuading

       the appellate court that his or her sentence is inappropriate. Id.


[14]   As to the nature of the offense, there is nothing remarkable about Fisher’s

       failure to register. Fisher was required to timely inform the Hancock County

       Sheriff’s Department of a change in his place of employment, but did not.


[15]   As to the character of the offender, at the time of sentencing, twenty-three-year-

       old Fisher had accumulated a criminal history including ten juvenile cases and

       referrals, resulting in at least four adjudications, and eight adult cases (one

       waived from juvenile court), resulting in six felony and two misdemeanor

       convictions (including the instant and underlying convictions). He has a well-

       documented history of noncompliance with the rules of probation and
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-186 | June 18, 2019   Page 7 of 8
       community corrections. And as both the probation officer who prepared the

       presentence investigation report and the trial court acknowledged, Fisher had

       been “given chances other offenders are never offered” (Tr. Vol. II 71), such as

       being permitted to return to community corrections work release twice outside

       the normal operating procedures. Nevertheless, the record reveals that Fisher

       failed to take advantage of these alternatives to incarceration, instead engaging

       in a pattern of rule noncompliance.


[16]   Fisher has not demonstrated that a sentence of four years in the DOC, with one

       year suspended to probation, is inappropriate in light of the nature of his offense

       and his character.



                                               Conclusion
[17]   The trial court did not abuse its discretion in sentencing Fisher. Fisher’s

       sentence is not inappropriate.


[18]   Affirmed.


       Riley, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-186 | June 18, 2019   Page 8 of 8
