MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                    FILED
this Memorandum Decision shall not be                                Jul 15 2016, 10:07 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
Randy M. Fisher                                          Gregory F. Zoeller
Leonard, Hammond, Thoma & Terrill                        Attorney General of Indiana
Fort Wayne, Indiana
                                                         Tyler G. Banks
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Mark D. Priest,                                          July 15, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         02A03-1601-CR-118
        v.                                               Appeal from the Allen Superior
                                                         Court
State of Indiana,                                        The Honorable Wendy W. Davis,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         02D05-1509-F6-833



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 02A03-1601-CR-118 | July 15, 2016           Page 1 of 9
                                        Statement of the Case
[1]   Mark Priest (“Priest”) appeals the sentence imposed following his convictions

      for Level 6 felony residential entry,1 Class B misdemeanor criminal mischief,2

      and Class B misdemeanor battery.3 He specifically contends that (1) the trial

      court abused its discretion by failing to consider his proposed mitigating factors;

      and (2) the two and one-half-year sentence imposed for his Level 6 felony

      residential entry conviction is inappropriate in light of the nature of the offense

      and his character. Because we conclude that the trial court did not abuse its

      discretion in failing to consider Priest’s proposed mitigating circumstances and

      that his sentence is not inappropriate, we affirm.


[2]   We affirm.


                                                     Issues
                   1. Whether the trial court abused its discretion in failing to
                   consider Priest’s proposed mitigating factors.


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




      1
          IND. CODE § 35-43-2-1.5.
      2
          I.C. § 35-43-1-2.
      3
          I.C.   § 35-42-2-1.

      Court of Appeals of Indiana | Memorandum Decision 02A03-1601-CR-118 | July 15, 2016   Page 2 of 9
                                                     Facts
[3]   On September 2, 2015, Karrie Packer (“Packer”) was in the leasing office of her

      new apartment complex when she met Priest, a forty-six-year-old maintenance

      worker. Packer asked Priest to help her move boxes into her apartment, and

      Priest told her he could help her after he had finished his work day. Later that

      afternoon, Priest helped Packer with her boxes, and Packer offered to cook him

      dinner in return for his help. Packer subsequently told Priest that she “was still

      working on [her] walk with God and that [she planned] on going back to

      church.” (Tr. 94). Priest respond that he was a “dark angel on the other side

      against God, and that he was not really a human that he was a spirit.” (Tr. 94).

      Priest’s comments made Packer feel “fearful and offended,” and she asked

      Priest to leave. (Tr. 97). An angry Priest grabbed his phone and told Packer

      that she did not know who he was and what he could do.


[4]   Packer went to sleep about 8:30 p.m. She was awakened three hours later when

      Priest busted down her front door, ran towards her bed, and jumped on top of

      her. As he landed on the bed, Priest told Packer that she was “going to meet

      God tonight.” (Tr. 103). Packer, fearful that she was going to lose her life,

      apologized to Priest for asking him to leave earlier that night and told him that

      they should be together. When Priest relaxed and moved off Packer, she was

      able to run outside to the parking lot and scream for help. Bystanders

      telephoned the police.


[5]   Fort Wayne Police Department Officers Lisa Woods and Christopher Reed

      were dispatched to the scene. They found Priest inside Packer’s apartment. His
      Court of Appeals of Indiana | Memorandum Decision 02A03-1601-CR-118 | July 15, 2016   Page 3 of 9
      pants were unzipped and partially pulled down, and he had bloodshot eyes,

      slurred speech, and the odor of alcohol on his breath. After the officers had

      taken Priest to the police department for an interview, Packer returned to her

      apartment to find broken dishes and a hole in the kitchen wall. She also

      realized that a bracelet was missing. Police officers later noticed that Priest was

      wearing the missing bracelet.


[6]   Priest was subsequently convicted in a jury trial of Level 6 felony residential

      entry, Class B misdemeanor criminal mischief, and Class B misdemeanor

      battery. Evidence presented at the sentencing hearing revealed that Priest had

      six prior misdemeanor convictions, including convictions for operating while

      suspended, public intoxication, reckless driving, operating a motor vehicle

      while intoxicated, and invasion of privacy. Priest also had four prior felony

      convictions, including convictions for operating a motor vehicle while

      intoxicated with a prior conviction and failure to appear. In addition, he had

      had two probation revocations and one parole violation, and, at the time he

      committed the offenses in this case, he was on probation for one offense and

      parole for another offense. At the time of sentencing, Priest was also wanted on

      an active warrant in another county. The evidence further revealed that he had

      three children, two of whom were adults and one of whom was an eighteen-

      year-old dependent child. In addition, Priest was $5,000 in arrears on child

      support. Lastly, Priest told the trial court that he had a twenty-eight-year work

      history and that he was capable of full-time work.




      Court of Appeals of Indiana | Memorandum Decision 02A03-1601-CR-118 | July 15, 2016   Page 4 of 9
[7]   At the end of the sentencing hearing, the trial court sentenced Priest to two and

      one-half years (2½) for the Level 6 felony and one hundred and eighty (180)

      days for each Class B misdemeanor. The trial court further ordered the

      sentences to run concurrently to each other for a total executed sentence of two

      and one-half (2½) years. Priest now appeals his sentence.


                                                  Decision
[8]   Priest argues that (1) the trial court abused its discretion by failing to consider

      his proposed mitigating factors; and (2) the two and one-half year sentence

      imposed for his Level 6 felony residential entry conviction is inappropriate in

      light of the nature of the offense and his character. We address each of his

      contentions in turn.


      1. Abuse of Discretion

[9]   Sentencing decisions are within the sound discretion of the trial court.

      Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d

      218. However, a trial court may be found to have abused its sentencing

      discretion in a number of ways, including: (1) failing to enter a sentencing

      statement; (2) entering a sentencing statement that explains reasons for

      imposing a sentence where the record does not support the reasons; (3) entering

      a sentencing statement that omits reasons that are clearly supported by the

      record and advanced for consideration; and (4) entering a sentencing statement

      in which the reasons given are improper as a matter of law. Id. at 491. The




      Court of Appeals of Indiana | Memorandum Decision 02A03-1601-CR-118 | July 15, 2016   Page 5 of 9
       weight given to those reasons, i.e., to particular aggravators or mitigators, is not

       subject to appellate review. Id.


[10]   Priest argues that the trial court abused its discretion because it did not find his

       twenty-eight-year work history, his history of substance abuse, and the hardship

       to his dependent child to be mitigating factors. A trial court is not obligated to

       accept a defendant’s claim as to what constitutes a mitigating circumstance.

       Rascoe v. State, 736 N.E.2d 246, 249 (Ind. 2000). 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.

       Anglemyer, 868 N.E.2d at 493.


[11]   Priest first contends that the trial court erred because it failed to find that his

       “twenty-eight (28) year work history” was a mitigating factor. (Sentencing Tr.

       12). However, this Court has previously held that the trial court did not abuse

       its discretion in failing to find that employment was a significant mitigating

       factor where the defendant failed to provide a detailed work history,

       performance reviews, or attendance records. See Bennett v. State, 787 N.E.2d

       938, 948 (Ind. Ct. App. 2003), trans. denied. Priest has also failed to provide

       such information. Rather, as the State points out, the only work history

       available to the trial court was information in the presentence investigation

       report, which indicates that Priest’s first job was in 2010 and that he quit one

       job and lost two others when he was incarcerated. The trial court did not abuse

       its discretion in failing to find that Priest’s work history was a mitigating factor.

       See id.

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[12]   Priest also contends that the trial court abused its discretion because it failed to

       find that his substance abuse was a mitigating factor. However, a trial court is

       not required to consider a defendant’s substance abuse as a mitigating factor.

       James v. State, 643 N.E.2d 321, 323 (Ind. 1994). In fact, substance abuse may be

       considered an aggravating factor where the defendant is aware of a substance

       abuse problem but has not taken appropriate steps to treat it. See Caraway v.

       State, 959 N.E.2d 847, 852 (Ind. Ct. App. 2011), trans. denied. Here, our review

       of the evidence reveals that Priest has a twenty-two-year history of committing

       both misdemeanors and felonies while intoxicated. We agree with the State

       that Priest “had to have been aware of his substance abuse issues after this

       string of intoxication-related convictions and orders to get substance abuse

       treatment. He failed in all of these efforts.” (State’s Br. 16). The trial court did

       not abuse its discretion in failing to recognize Priest’s substance abuse as a

       significant mitigating factor.


[13]   Last, Priest argues that the trial court erred in failing to find the hardship to his

       dependent eighteen-year-old child as a mitigating factor. A trial court is not

       required to find that a defendant’s incarceration would result in undue hardship

       to his dependents. Davis v. State, 835 N.E.2d 1102, 1116 (Ind. Ct. App. 2005),

       trans. denied. Indeed, many defendants have one or more children, and absent

       special circumstances, trial court are not required to find that imprisonment will

       result in an undue hardship. Dowdell v. State, 720 N.E.2d 1146, 1154 (Ind.

       1999). Here, Priest has failed to allege special circumstances causing undue

       hardship to his eighteen-year-old child. Further, Priest’s $5,000.00 child


       Court of Appeals of Indiana | Memorandum Decision 02A03-1601-CR-118 | July 15, 2016   Page 7 of 9
       support arrearage reveals that he has not even been supporting this child.

       Under these circumstances, the trial court did not abuse its discretion in failing

       to find hardship to Priest’s child as a mitigating factor.


       2. Inappropriate Sentence

[14]   Priest argues that his two and one-half year sentence for his Level 6 felony

       residential entry conviction is inappropriate. Indiana Appellate Rule 7(B)

       provides that 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. The defendant bears the burden of persuading this Court that his

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

       Whether we regard a sentence as inappropriate turns on 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.” Cardwell v. State, 895 N.E.2d

       1219, 1224 (Ind. 2008).


[15]   When determining whether a sentence is inappropriate, we acknowledge that

       the advisory sentence is the starting point the Legislature has selected as an

       appropriate sentence for the crime committed. Childress, 848 N.E.2d at 1081.

       Here, Priest was convicted of Level 6 felony residential entry. The sentencing

       range for a Level 6 felony is between six months and two and one-half years,

       with an advisory sentence of one year. I.C. § 35-50-2-7. Priest is correct that the

       trial court sentenced him to the maximum sentence for the Level 6 felony.



       Court of Appeals of Indiana | Memorandum Decision 02A03-1601-CR-118 | July 15, 2016   Page 8 of 9
[16]   With regard to the nature of the offense, an intoxicated Priest busted down the

       front door of Packer’s apartment in the middle of the night, jumped on her

       while she was in bed sleeping, and scared her to the point that she believed she

       was going to be killed. After she left the apartment, Priest broke items and

       busted a hole in her kitchen wall.


[17]   With regard to his character, Priest has six prior misdemeanor convictions,

       including convictions for operating while suspended, public intoxication,

       reckless driving, operating a motor vehicle while intoxicated, and invasion of

       privacy. He also has four prior felony convictions, including convictions for

       operating a motor vehicle while intoxicated with a prior conviction and failure

       to appear. In addition, he has had two probation revocations and one parole

       violation, and at the time he committed the offenses in this case, he was on

       probation for one offense and parole for another offense. Additionally, at the

       time of sentencing in this case, there was an outstanding warrant on a third

       offense. Clearly, Priest’s former contacts with the law have not caused him to

       reform himself. See Jenkins v. State, 909 N.E.2d 1080, 1086 (Ind. Ct. App.

       2009), trans. denied. Based on the nature of the offense and his character, Priest

       has failed to persuade this Court that his two and one-half-year sentence for

       Level 6 felony residential entry is inappropriate.


[18]   Affirmed.


       Kirsch, J., and Riley, J., concur.



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