MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                    FILED
this Memorandum Decision shall not be                                Jun 14 2016, 8:29 am
regarded as precedent or cited before any                                 CLERK
court except for the purpose of establishing                          Indiana Supreme Court
                                                                         Court of Appeals
                                                                           and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Dorothy Ferguson                                         Gregory F. Zoeller
Anderson, Indiana                                        Attorney General of Indiana

                                                         Ian McLean
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Dustin Arbuckle,                                         June 14, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         48A02-1510-CR-1596
        v.                                               Appeal from the Madison Circuit
                                                         Court
State of Indiana,                                        The Honorable David A. Happe,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         48C04-1503-F3-305, 48C04-1507-
                                                         F6-1109, and 48C04-1508-F4-1263



Altice, Judge.


                                         Case Summary



Court of Appeals of Indiana | Memorandum Decision 48A02-1510-CR-1596 | June 14, 2016          Page 1 of 13
[1]   Dustin Arbuckle pled guilty to multiple offenses under three separate cause

      numbers and received an aggregate sentence of fifty years executed in the

      Department of Correction followed by three years suspended to probation.

      Arbuckle now appeals, arguing that the trial court abused its discretion in

      sentencing him and that the sentence imposed is inappropriate.


[2]   We affirm.


                                       Facts & Procedural History

[3]   In the early morning hours of February 26, 2015, Jeffrey Monday was asleep in

      his home in Elwood, Indiana when he awoke to find Arbuckle standing over

      him, yelling at him to get on the floor or he would be killed. When Monday

      looked up at Arbuckle, Arbuckle struck him in the face with what appeared to

      be a pistol. Both Monday and Arbuckle fell to the floor and struggled as

      Arbuckle attempted to take Monday’s wallet. Monday was able to get away

      from Arbuckle and grab an aluminum baseball bat. Arbuckle rushed at

      Monday and a struggle over the bat ensued. Monday managed to escape and

      run to a neighbor’s house for help. As he fled, Monday saw Arbuckle leave the

      house with the aluminum bat. When police arrived, they were able to follow

      footprints in the snow leading from Monday’s house to another residence.

      When police obtained a search warrant and knocked on the door, Arbuckle

      answered the door. Upon searching the house, police found a toy gun in

      Arbuckle’s bedroom, shoes matching the footprints between the two residences,

      Monday’s aluminum baseball bat, and a pair of Monday’s sunglasses. As a

      Court of Appeals of Indiana | Memorandum Decision 48A02-1510-CR-1596 | June 14, 2016   Page 2 of 13
      result of these events, Arbuckle was arrested and charged under cause number

      38C04-1503-F3-305 (F3-305) with Level 3 felony burglary, Level 3 felony

      robbery, and Level 3 felony attempted robbery. Arbuckle was released on bail

      on May 9, 2015.


[4]   On July 17, 2015, a patrolling police officer observed a vehicle leave the

      roadway and drive left of center. The officer conducted a traffic stop and the

      driver, Arbuckle, provided an Indiana identification card and told the officer

      that he had been texting and did not have a valid driver’s license. A records

      check revealed that Arbuckle’s license had been suspended after he was

      determined to be a habitual traffic violator (HTV) in August 2012.

      Additionally, upon searching the vehicle, the officer located a marijuana

      cigarette. As a result, Arbuckle was charged under cause number 48C04-1507-

      F6-1109 (F6-1109) with operating a vehicle after being determined to be a HTV,

      a Level 6 felony, and class B misdemeanor possession of marijuana. Arbuckle

      was released on bail on August 1, 2015.


[5]   Just six days later, on August 7, 2015, Shawn Young woke up in his Elwood

      home to find Arbuckle going through a pair of his pants. When Young

      confronted him, Arbuckle fled through the front door of the home. About

      twelve hours later, James Jackson saw Arbuckle approach his Elwood home.

      Jackson was best friends with Arbuckle’s brother and had known Arbuckle for

      approximately thirty years. Jackson watched as Arbuckle walked onto his

      porch, removed his shoes and socks, placed his socks on his hands, and put his

      shoes back on. Arbuckle then called Jackson’s phone, and when Jackson did

      Court of Appeals of Indiana | Memorandum Decision 48A02-1510-CR-1596 | June 14, 2016   Page 3 of 13
      not answer, knocked on the front door. When Jackson did not come to the

      door, Arbuckle tried to push the front door open. When that did not work,

      Arbuckle went to a bedroom window and tried to push it open. Arbuckle then

      removed a window air conditioning unit, and Jackson confronted him and

      asked what he was doing. Arbuckle asked Jackson for money and then left.

      About an hour later, Arbuckle arrived at Michael McGuire’s home in Elwood.

      A neighbor watched as Arbuckle peered over McGuire’s privacy fence before

      climbing it. Arbuckle opened McGuire’s garage door and entered the garage.

      At that time, the neighbor confronted Arbuckle. Arbuckle said that the

      homeowner was his friend and then fled down the street to a waiting vehicle.

      Police later found Arbuckle hiding in the bushes in the back yard of another

      residence. As a result of the events of August 7, 2015, Arbuckle was arrested

      and charged under cause number 48C04-1508-F4-1263 (F4-1263) with burglary

      and attempted burglary, both as Level 4 felonies; burglary as a Level 5 felony,

      three counts of theft as Level 6 felonies; three counts of attempted theft as class

      A misdemeanors; and criminal mischief, a class B misdemeanor.


[6]   On August 27, 2015, Arbuckle pled guilty to the charges filed under F3-305, F6-

      1109, and F4-1263 without the benefit of a plea agreement. With regard to the

      offenses charged under F3-305, the trial court found that the theft charges

      merged into the remaining convictions and imposed fourteen-year executed

      sentences on each of the three Level 3 felony charges. The sentences for

      robbery and attempted robbery were to be served concurrently, but consecutive




      Court of Appeals of Indiana | Memorandum Decision 48A02-1510-CR-1596 | June 14, 2016   Page 4 of 13
       to the sentence for burglary. Thus, Arbuckle received an aggregate twenty-

       eight-year sentence for the offenses charged under F3-305.


[7]    In F4-1263, the trial court imposed consecutive sentences of nine years each on

       the Level 4 felony burglary and attempted burglary convictions and four years

       for the Level 5 burglary conviction. The trial court found that the attempted

       theft and theft convictions merged into the burglary convictions and assessed

       only a fine and costs on the misdemeanor criminal mischief count. Thus,

       Arbuckle received an aggregate twenty-two-year sentence for the offenses

       charged under F4-1263.


[8]    With regard to the offenses charged under F6-1109, the trial court imposed a

       sentence of two and a half years for the HTV offense and six months for

       possession of marijuana, to be served consecutively. The entirety of the

       aggregate three-year sentence under F6-1109 was suspended to probation.


[9]    As required by statute, the sentences imposed under each cause number were

       ordered to be served consecutive to one another. Thus, for all three cause

       numbers, Arbuckle received an aggregate sentence of fifty years executed and

       three years suspended to probation. Arbuckle now appeals.


                                           Discussion & Decision


[10]   Before addressing the merits of Arbuckle’s appeal, we note that his argument

       conflates two separate sentencing standards: whether the trial court abused its

       discretion in identifying mitigating and aggravating factors and whether


       Court of Appeals of Indiana | Memorandum Decision 48A02-1510-CR-1596 | June 14, 2016   Page 5 of 13
       Arbuckle’s sentence is inappropriate pursuant to Indiana Appellate Rule 7. “As

       our Supreme Court has made clear, inappropriate sentence and abuse of

       discretion claims are to be analyzed separately.” King v. State, 894 N.E.2d 265,

       267 (Ind. Ct. App. 2008). Accordingly, “an inappropriate sentence analysis

       does not involve an argument that the trial court abused its discretion in

       sentencing the defendant.” Id.


[11]   With respect to Arbuckle’s argument concerning the trial court’s consideration

       of aggravating and mitigating factors, we note that sentencing decisions rest

       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. So long as the sentence

       is within the statutory range, it is subject to review only for an abuse of

       discretion. Id. “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. at 490

       (quoting K.S. v. State, 849 N.E.2d 538, 544 (Ind. 2006)).


[12]   A trial court may abuse its sentencing discretion in a number of ways,

       including: (1) failing to enter a sentencing statement at all; (2) entering a

       sentencing statement that includes aggravating and mitigating factors that are

       unsupported by the record; (3) entering a sentencing statement that omits

       reasons that are clearly supported by the record; or (4) entering a sentencing

       statement that includes reasons that are improper as a matter of law. Id. at 490-

       91. If the trial court abuses its discretion in one of these or another way,

       remand for resentencing is the appropriate remedy “if we cannot say with

       Court of Appeals of Indiana | Memorandum Decision 48A02-1510-CR-1596 | June 14, 2016   Page 6 of 13
       confidence that the trial court would have imposed the same sentence had it

       properly considered reasons that enjoy support in the record.” Id. at 491.


[13]   On appeal, Arbuckle notes that the trial court found aggravating and mitigating

       circumstances, but argues that the court failed to explain “why the aggravators

       outweigh the mitigators or the rationale for an aggravated sentence above the

       advisory sentence.” Appellant’s Brief at 11. The basis of this argument is

       unclear. To the extent that Arbuckle argues that the trial court did not properly

       weigh the aggravating and mitigating factors, we note that trial courts are no

       longer obligated to weigh such factors against each other when imposing a

       sentence. Anglemyer, 868 N.E.2d at 491. Thus, a trial court cannot be said to

       have abused its discretion in failing to properly weigh such factors. Id.


[14]   To the extent that Arbuckle claims the trial court failed to enter a sufficiently

       detailed sentencing statement, we note that when imposing a sentence for a

       felony offense, a trial court must enter a sentencing statement that “include[s] a

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

       particular sentence.” Id. at 490. In this case, the trial court carefully explained

       its reasoning when imposing Arbuckle’s sentence. As aggravating

       circumstances, the trial court noted Arbuckle’s extensive criminal history,

       which will be detailed further below, as well as the fact that Arbuckle

       committed multiple crimes against multiple victims. As mitigating

       circumstances, the trial court noted that Arbuckle accepted responsibility by

       pleading guilty and expressed remorse. The court went on to find that “the

       aggravation strongly outweighs the mitigation here, and it does call for an

       Court of Appeals of Indiana | Memorandum Decision 48A02-1510-CR-1596 | June 14, 2016   Page 7 of 13
       aggravated sentence.” Transcript at 54. This is a sufficiently detailed sentencing

       statement.


[15]   Arbuckle also argues that the trial court abused its discretion by overlooking

       significant mitigating circumstances. An allegation that the trial court failed to

       identify a mitigating factor 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. A sentencing court is not obligated to find a

       circumstance to be mitigating merely because it is advanced as such by the

       defendant, nor is it required to explain why it chose not to make a finding of

       mitigation. Felder v. State, 870 N.E.2d 554, 558 (Ind. Ct. App. 2007). A trial

       court does not abuse its discretion in failing to find a mitigating factor that is

       highly disputable in nature, weight, or significance. Rogers v. State, 878 N.E.2d

       269, 272 (Ind. Ct. App. 2007), trans. denied.


[16]   Arbuckle appears to argue that the trial court abused its discretion by failing to

       recognize his history of substance abuse as a mitigating factor. A trial court is

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

       circumstance. James v. State, 643 N.E.2d 321, 323 (Ind. 1994). In fact,

       substance abuse may be considered an aggravating circumstance where the

       defendant is aware of his addiction and does not seek treatment. See Caraway v.

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

       admitted to abusing drugs and alcohol beginning at twelve years old. However,

       Arbuckle reported that the only treatment he ever received was substance abuse

       classes while incarcerated and a short inpatient stay following a heroin

       Court of Appeals of Indiana | Memorandum Decision 48A02-1510-CR-1596 | June 14, 2016   Page 8 of 13
       overdose. In light of Arbuckle’s continued drug use and failure to seek out help

       to battle his addiction, the trial court did not abuse its discretion in declining to

       find his substance abuse problem to be a mitigating circumstance.


[17]   Arbuckle also seems to suggest that the trial court should have identified the

       presence of a number of his family members at the sentencing hearing, as

       compared to the absence of any of his victims, as a mitigating factor. Arbuckle

       has made no attempt to explain why these facts should be considered

       mitigating, and he has not directed our attention to any authority remotely

       supporting such a conclusion. The trial court did not abuse its discretion in

       declining to recognize these circumstances as a mitigating factor.


[18]   Finally, Arbuckle claims that the trial court abused its discretion by failing to

       identify his employment history as a significant mitigating factor. We note,

       however, that the pre-sentence investigation report establishes that Arbuckle’s

       employment was sporadic and short-lived due to his many incarcerations. The

       trial court did not abuse its discretion in declining to find Arbuckle’s

       employment history to be a significant mitigating factor. For all of these

       reasons, we cannot conclude that the trial court abused its discretion in

       imposing Arbuckle’s sentence.


[19]   Turning now to Arbuckle’s challenge to the appropriateness of his sentence, we

       note that although a trial court may have acted within its lawful discretion in

       imposing a sentence, Article 7, Sections 4 and 6 of the Indiana Constitution

       authorize independent appellate review and revision of a sentence imposed by


       Court of Appeals of Indiana | Memorandum Decision 48A02-1510-CR-1596 | June 14, 2016   Page 9 of 13
       the trial court. Alvies v. State, 905 N.E.2d 57, 64 (Ind. Ct. App. 2009) (citing

       Anglemyer, 868 N.E.2d at 491). This appellate authority is implemented

       through Indiana Appellate Rule 7(B), which provides that a 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.” Anglemyer, 868 N.E.2d at 491.

       Nevertheless, “we must and should exercise deference to a trial court’s

       sentencing decision, both because Rule 7(B) requires us to give ‘due

       consideration’ to that decision and because we understand and recognize the

       unique perspective a trial court brings to its sentencing decisions.” Stewart v.

       State, 866 N.E.2d 858, 866 (Ind. Ct. App. 2007). The appellant bears the

       burden of persuading us that his sentence is inappropriate. Childress v. State, 848

       N.E.2d 1073, 1080 (Ind. 2006).


[20]   Whether we regard a sentence as appropriate “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.” Cardwell v.

       State, 895 N.E.2d 1219, 1224 (Ind. 2008). Additionally, our review “should

       focus on the forest—the aggregate sentence—rather than the trees—consecutive

       or concurrent, number of counts, or length of the sentence on any individual

       count.” Id. at 1225.




       Court of Appeals of Indiana | Memorandum Decision 48A02-1510-CR-1596 | June 14, 2016   Page 10 of 13
[21]   Arbuckle was convicted of three Level 3 felonies, 1 two Level 4 felonies,2 a Level

       5 felony,3 a Level 6 felony,4 and two class B misdemeanors.5 At the sentencing

       hearing, Arbuckle and the State agreed that the maximum aggregate sentence

       the trial court could have imposed for all three cause numbers was sixty-five

       and a half years. Thus, Arbuckle’s sentence of fifty years executed followed by

       three years suspended to probation was well below the maximum he could have

       received.


[22]   On appeal, Arbuckle devotes very little effort to discussing the nature of the

       offenses, merely stating that “the only stolen item was an aluminum baseball

       bat, and the only injury was a minor injury to one victims [sic] face.”

       Appellant’s Brief at 12. Arbuckle has grossly understated the seriousness of his

       offenses. Arbuckle broke into Monday’s home and threatened his life before

       striking him in the face. Arbuckle then wrestled with Monday in an attempt to

       take his wallet and then a baseball bat. Shortly after being released on bail for

       these offenses, Arbuckle was caught driving after being adjudicated an HTV




       1
         Ind. Code § 35-50-2-5 provides that “[a] person who commits a Level 3 felony . . . shall be imprisoned for a
       fixed term of between three (3) and sixteen (16) years, with the advisory sentence being nine (9) years.”
       2
         I.C. § 35-50-2-5.5 provides that “[a] person who commits a Level 4 felony shall be imprisoned for a fixed
       term of between two (2) and twelve (12) years, with the advisory sentence being six (6) years.”
       3
         I.C. § 35-50-2-6 provides that “[a] person who commits a Level 5 felony . . . shall be imprisoned for a fixed
       term of between one (1) and six (6) years, with the advisory sentence being three (3) years.”
       4
         I.C. § 35-50-2-7 provides that “[a] person who commits a Level 6 felony . . . shall be imprisoned for a fixed
       term of between six (6) months and two and one-half (2 ½ ) years, with the advisory sentence being one (1)
       year.”
       5
         I.C. § 35-50-3-3 provides that “[a] person who commits a Class B misdemeanor shall be imprisoned for a
       fixed term of not more than one hundred eighty (180) days[.]”

       Court of Appeals of Indiana | Memorandum Decision 48A02-1510-CR-1596 | June 14, 2016              Page 11 of 13
       and found to be in possession of marijuana. Just days after being released on

       bail yet again, Arbuckle went on a crime spree during which be burglarized or

       attempted to burglarize three residences. Although it appears that the only

       items Arbuckle actually managed to steal in the course of committing the

       offenses at issue were Monday’s aluminum baseball bat and a pair of

       sunglasses, it was not for lack of trying. The fact that Arbuckle’s multiple

       attempts to steal items were ultimately unsuccessful does nothing to mitigate

       the seriousness of these offenses.


[23]   Nor does Arbuckle’s character support a revision of his sentence. His criminal

       history standing alone would be sufficient to justify the sentence imposed.

       Arbuckle has eight prior felony convictions for offenses including theft,

       burglary, obstruction of justice, possession of a controlled substance, and

       operating a vehicle while intoxicated, and according to his own testimony, he

       has committed numerous burglaries, thefts, and OWI offenses for which he was

       never caught. He has also violated his probation numerous times, and he was

       out on bail for the offenses in F3-305 when he committed the offenses in F6-

       1109, and he was released on bond in F6-1109 a mere six days before

       committing the offenses in F4-1263. Defense counsel noted that Arbuckle, who

       was thirty-four years old at the time of sentencing, had already spent eleven

       years of his adult life behind bars. Despite his numerous contacts with the

       criminal justice system and the leniency afforded him in the past, Arbuckle has

       continued to abuse drugs and engage in a pattern of criminal activity that has




       Court of Appeals of Indiana | Memorandum Decision 48A02-1510-CR-1596 | June 14, 2016   Page 12 of 13
       escalated in seriousness over time. For all of these reasons, we cannot conclude

       that Arbuckle’s sentence is inappropriate.


[24]   We affirm.


[25]   Bailey, J. and Bradford, J., concur.




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