MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                         FILED
regarded as precedent or cited before any                                Sep 10 2019, 9:07 am
court except for the purpose of establishing                                  CLERK
the defense of res judicata, collateral                                   Indiana Supreme Court
                                                                             Court of Appeals
estoppel, or the law of the case.                                              and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Nicholas F. Wallace                                      Curtis T. Hill, Jr.
Leonard, Hammond, Thoma & Terrill                        Attorney General of Indiana
Fort Wayne, Indiana
                                                         Benjamin J. Shoptaw
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Trevor M. Houlihan,                                      September 10, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-449
        v.                                               Appeal from the Allen Superior
                                                         Court
State of Indiana,                                        The Honorable John F. Surbeck,
Appellee-Plaintiff.                                      Jr., Judge
                                                         Trial Court Cause No.
                                                         02D06-1802-F4-12



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-449 | September 10, 2019                 Page 1 of 12
                                       Statement of the Case
[1]   Trevor Houlihan appeals his sentence following his convictions for arson, as a

      Level 4 felony, and intimidation, as a Level 6 felony. Houlihan presents two

      issues for our review:


              1.       Whether the trial court abused its discretion when it
                       sentenced him.

              2.       Whether his sentence is inappropriate in light of the nature
                       of the offenses and his character.


[2]   We affirm.


                                 Facts and Procedural History
[3]   In February 2018, after he found out that his ex-girlfriend, C.O., had started

      dating someone else, Houlihan threatened to kill C.O. Houlihan also drove to

      C.O.’s house, dropped a lit match in the gas tank of her car, and drove away.

      The car caught fire. Tyler Treesh with the Huntertown Fire Department

      responded to the fire and, while he was trying to extinguish it, “a large portion

      of magnesium in that vehicle exploded in [his] face.” Sent. Tr. at 18. That

      explosion damaged Treesh’s protective gear “beyond repair.” Id.


[4]   When Allen County Police Department officers arrived at C.O.’s house, both

      C.O. and her parents told them that they suspected that Houlihan had started

      the fire. When officers went to Houlihan’s house, he admitted that he had set

      her car on fire. Houlihan told the officers that he had no remorse and that he

      considered it “mission accomplished.” Appellant’s App. Vol. 2 at 14.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-449 | September 10, 2019   Page 2 of 12
[5]   The State charged Houlihan with arson, as a Level 4 felony, and intimidation,

      as a Level 6 felony. After the charges were filed, Houlihan sought treatment for

      alcohol abuse with Dr. Stephen Ross, who diagnosed Houlihan with severe

      alcohol abuse disorder, cannabis use disorder, and impulse control disorder.

      Dr. Ross recommended that Houlihan undergo inpatient treatment in

      Cleveland, and he completed that treatment. In October 2018, Houlihan

      pleaded guilty as charged. The trial court entered judgment of conviction

      accordingly and sentenced Houlihan to: ten years for arson, with six years

      executed and four years suspended to probation; and one year for intimidation,

      to be served concurrent with the sentence for arson. This appeal ensued.


                                     Discussion and Decision
                            Issue One: Abuse of Discretion in Sentencing

[6]   Houlihan first contends that the trial court abused its discretion when it

      sentenced him. Sentencing decisions lie within the sound discretion of the trial

      court. Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008). 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.” Gross v. State, 22 N.E.3d 863, 869 (Ind. Ct.

      App. 2014) (citation omitted), trans. denied.


[7]   A trial court abuses its discretion in sentencing if it does any of the following:


              (1) fails “to enter a sentencing statement at all;” (2) enters “a
              sentencing statement that explains reasons for imposing a
              sentence—including a finding of aggravating and mitigating
      Court of Appeals of Indiana | Memorandum Decision 19A-CR-449 | September 10, 2019   Page 3 of 12
              factors if any—but the record does not support the reasons;” (3)
              enters a sentencing 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.”


      Id. (quoting Anglemyer v. State, 868 N.E.2d 482, 490-491 (Ind.), clarified on reh’g

      other grounds, 875 N.E.2d 218 (Ind. 2007)).


[8]   The sentencing range for a Level 4 felony is two years to twelve years, with an

      advisory sentence of six years. Ind. Code § 35-50-2-5.5 (2019). The sentencing

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

      advisory sentence of one year. I.C. § 35-50-2-7. Here, the trial court did not

      identify any aggravators or mitigators in its written sentencing statement.

      However, at the sentencing hearing, the trial court noted Houlihan’s complete

      lack of remorse and the nature and circumstances of the offenses, and the court

      acknowledged Houlihan’s guilty plea as indicative of his “acceptance of

      responsibility.” Sent. Tr. at 32. The court sentenced Houlihan to ten years,

      with six years executed and four years suspended to probation for his arson

      conviction and a concurrent one year executed sentence for his intimidation

      conviction.


[9]   Houlihan contends that the trial court “erred by enhancing the presumptive

      sentence without identifying any aggravating circumstances.” Appellant’s Br.

      at 16. He also asserts that the trial court abused its discretion when it failed to

      identify proffered mitigating circumstances. We address each contention in

      turn.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-449 | September 10, 2019   Page 4 of 12
                                         Aggravating Circumstances

[10]   First, as the State correctly points out, our courts no longer impose

       “presumptive” sentences, and “‘a sentence toward the high end of the

       [applicable sentencing] range is no longer an “enhanced sentence” in the sense

       that the former regime provided.’” Appellee’s Br. at 10 (quoting Pedraza v.

       State, 887 N.E.2d 77, 80 (Ind. 2008)). Second, while the trial court did not

       identify any aggravating circumstances in its written sentencing statement, the

       court explained its reasons for imposing the sentence during the sentencing

       hearing as follows:


               I’m very troubled by—I read the Probable Cause Affidavit,
               followed by the remarks made by you at the time, and the event
               itself, . . . one of the thoughts I had was that I cannot imagine
               throwing a match into an open gas tank. I just—it’s just beyond
               comprehension to me that you could be so out of control and so
               hateful that you could do that, . . . clearly endangering yourself
               as well as a number of other people. I’m not allowed to give a
               great deal of weight to victim impact, but very clearly you have
               had an extraordinary negative impact upon these people for
               absolutely no reason other than you and your ego for lack of a
               better explanation.

                                                       ***

               The other thing that I heard, that I was shocked at actually, to
               hear that you continued to drink after the event until the last
               thirty (30) days, which is not only after the event, but after
               therapy. Unless . . . I’m mistaken here with anything please
               correct me, but that’s what I heard, I believe, which tells me that
               you got nothing out of the treatment agency that Dr. Ross tells us
               is the second best in the country. It sounds to me as I think mom
               said, I’m not sure you got it yet. I also know . . . that you’re in
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-449 | September 10, 2019   Page 5 of 12
               serious need of treatment, but I’m not sure that you’re prepared
               to accept that treatment or accept the consequences of your own
               conduct thereby being an incentive to accept treatment. That
               conduct has its consequences.

                                                       ***

               I can’t . . . get pas[t] the visual of throwing a lighted match into a
               car’s gas tank and then seeing these exhibits, and saying to the
               fire fighter that you didn’t really care what happened to anybody.
               And I think that’s the acceptable true statement about your
               remorse. I don’t think you have any remorse in spite of the
               remarks made since then that you’ve come to be remorseful. I
               think the only thing you’re remorseful about is the fact that you
               got caught and now you’re standing here subject to the possibility
               of a Department of Correction sentence.

                                                       ***

               You have not demonstrated any significant remorse. Significant
               remorse would be quit drinking because that’s what you did
               when you were drinking. You should [have] quit the next
               morning, and certainly after treatment. So I’m gonna order you
               committed to the Indiana Department of Correction for ten (10)
               years on the Arson Charge; one (1) year on the Intimidation.


       Sent. Tr. at 30-32.


[11]   We hold that the trial court’s statement at the sentencing hearing was

       sufficiently detailed to support the imposition of the sentence. See Gleason v.

       State, 965 N.E.2d 702, 711 (Ind. Ct. App. 2012).




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-449 | September 10, 2019   Page 6 of 12
                                          Mitigating Circumstances

[12]   Houlihan also contends that the trial court abused its discretion when it did not

       find mitigating: his lack of criminal history; the likelihood that he would

       respond affirmatively to probation or short-term incarceration; he is unlikely to

       commit another crime; he has made or will make restitution to his victim; that

       his incarceration will result in undue hardship to him; and his guilty plea. The

       finding of mitigating circumstances is within the discretion of the trial court.

       Rascoe v. State, 736 N.E.2d 246, 248-49 (Ind. 2000). An allegation that the trial

       court failed to identify or find a mitigating circumstance requires the defendant

       to establish that the mitigating evidence is both significant and clearly supported

       by the record. Id. at 249. The trial court is not obligated to accept the

       defendant’s contentions as to what constitutes a mitigating circumstance. Id.


[13]   Houlihan cites Indiana Code Section 35-38-1-7.1(b)(6) as support for his

       contention that he “has no criminal history whatsoever and the trial court

       obviously did not take that into consideration before sentencing” him.

       Appellant’s Br. at 18. That statute provides that a trial court may consider

       mitigating a defendant’s lack “of delinquency or criminal activity,” and Houlihan

       ignores his adjudication as a delinquent for an alcohol-related offense just four

       years before the instant offenses. I.C. § 35-38-1-7.1(b)(6) (emphasis added).

       The trial court noted that juvenile adjudication in its sentencing statement. The

       trial court did not abuse its discretion when it did not find Houlihan’s lack of

       criminal history to be mitigating.



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-449 | September 10, 2019   Page 7 of 12
[14]   With regard to whether Houlihan is likely to respond affirmatively to probation

       or short-term incarceration and unlikely to commit another crime, he directs us

       to the evidence that he completed an inpatient treatment program, he had

       expressed remorse and apologized to C.O. and her family, and Dr. Ross

       testified at the sentencing hearing that “if [Humphrey] follows through on [Dr.

       Ross’] recommendations he could control his drinking issues and his negative

       impulses[.]” Sent. Tr. at 8. However, as the trial court pointed out, Humphrey

       continued to consume alcohol even after undergoing treatment, and the court

       did not find Humphrey to be remorseful. We cannot say that the trial court

       abused its discretion when it did not identify those proffered mitigators.


[15]   Houlihan also asserts that, because he is gainfully employed, he “could make

       restitution” to C.O., but his incarceration would cause him to lose his job,

       “thereby creating an undue hardship on [Humphrey] and affecting his ability to

       pay the restitution in this case.” Appellant’s Br. at 20. This argument is

       unpersuasive. Houlihan does not explain how his loss of employment creates

       an undue hardship, as many convicted felons lose their employment. And

       Houlihan has not shown that his ability to pay restitution is a significant

       mitigating factor. Houlihan does not explain, for example, how much he could

       afford to pay C.O. and over what period of time.


[16]   Finally, Houlihan contends that the trial court should have given mitigating

       weight to his guilty plea in light of his acceptance of responsibility and his

       alcoholism. However, Houlihan ignores that, at sentencing, the trial court

       acknowledged that his guilty plea showed “an acceptance of responsibility.”

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-449 | September 10, 2019   Page 8 of 12
       Sent. Tr. at 32. To the extent Houlihan asserts that his guilty plea deserves

       more mitigating weight, that claim is not subject to appellate review.

       Anglemyer, 868 N.E.2d at 491. We cannot say that the trial court abused its

       discretion when it declined to adopt these proffered mitigators. Houlihan has

       not demonstrated any abuse of discretion by the trial court in imposing

       sentence.


                               Issue Two: Inappropriateness of Sentence

[17]   Finally, Houlihan asserts that his ten-year aggregate sentence is inappropriate in

       light of the nature of the offenses and his character. Indiana Appellate Rule

       7(B) provides that “[t]he 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.” This Court has recently held that “[t]he advisory sentence is

       the starting point the legislature has selected as an appropriate sentence for the

       crime committed.” Sanders v. State, 71 N.E.3d 839, 844 (Ind. Ct. App. 2017).

       And the Indiana Supreme Court has explained that:


               The principal role of appellate review should be to attempt to
               leaven the outliers . . . but not achieve a perceived “correct”
               result in each case. Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.
               2008). Defendant has the burden to persuade us that the
               sentence imposed by the trial court is inappropriate. [Anglemyer,
               868 N.E.2d at 494].


       Shoun v. State, 67 N.E.3d 635, 642 (Ind. 2017) (omission in original).



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-449 | September 10, 2019   Page 9 of 12
[18]   Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate

       sentence to the circumstances presented, and the trial court’s judgment “should

       receive considerable deference.” Cardwell, 895 N.E.2d at 1222. 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.” Id. at 1224.

       The question is not whether another sentence is more appropriate, but rather

       whether the sentence imposed is inappropriate. King v. State, 894 N.E.2d 265,

       268 (Ind. Ct. App. 2008). Deference to the trial court “prevail[s] 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).


[19]   An appellant bears the burden of showing that both prongs of the inquiry favor

       revision of his sentence. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).

       Here, Houlihan contends only that his sentence is inappropriate in light of his

       character, but he makes no argument regarding the nature of the offenses.

       Accordingly, we agree with the State that Houlihan has waived this issue for

       our review. See Anderson v. State, 989 N.E.2d 823, 827 (Ind. Ct. App. 2013),

       trans. denied.


[20]   Waiver notwithstanding, Houlihan’s argument on appeal is without merit.

       Regarding the nature of the offenses, Houlihan threatened to kill his ex-

       girlfriend when she started dating someone else, and the fire Houlihan started

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-449 | September 10, 2019   Page 10 of 12
       was so severe that it caused an explosion that destroyed a fireman’s protective

       gear beyond repair. We cannot say that Houlihan’s sentence is inappropriate in

       light of the nature of the offenses.


[21]   Houlihan contends that his sentence is inappropriate in light of his character

       because he: is a young man and has no criminal history; he expressed “a great

       deal of remorse in his allocution statement” and “asked for forgiveness”; he

       suffers from “severe alcoholism” and a lack of “impulse control”; and he has

       undertaken “extraordinary efforts to correct his behavior by seeking out

       treatment from professionals and following through with their

       recommendations.” Appellant’s Br. at 23. However, as the State points out,

       Houlihan admitted to underage alcohol consumption, for which he was

       adjudicated a delinquent in 2014, and he admitted to regular use of marijuana

       for a few years. Thus, while Houlihan does not have a criminal history, he

       admittedly has regularly violated the law. Further, the trial court did not

       believe Houlihan’s expression of remorse or request for forgiveness. And the

       court noted that Houlihan continued to drink even after completing the

       inpatient treatment program. We cannot say that Houlihan’s sentence of ten

       years with six years executed and four years suspended to probation is

       inappropriate in light of his character.


[22]   Finally, we note that Houlihan suggests that the trial court was biased against

       him because of his race and imposed his sentence because of that alleged bias.

       In particular, Houlihan states that



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-449 | September 10, 2019   Page 11 of 12
               Judge Surbeck was aware that an influential article was being
               written for the Fort Wayne Journal Gazette that implied that
               Judge Surbeck sentences African-American defendants more
               harshly than white defendants. . . . [Humphrey] is a white male
               and his case presented an opportunity for Judge Surbeck to show
               that he sentences white defendants as harshly as African-
               American defendants. Without any other reasonable explanation
               for the aggravated sentence, one must assume that the sentence
               imposed in his case was a reaction by Judge Surbeck to
               counteract the impression that he sentences persons differently
               based on race.


       Appellant’s Br. at 24-25. We reject Houlihan’s contention on this issue.

       Houlihan does nothing more than speculate that his sentence is based on his

       race and asks that we “assume” that the trial court was biased against him.

       Without any evidence of the trial court’s bias, Houlihan’s contention fails.


[23]   Affirmed.


       Bailey, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-449 | September 10, 2019   Page 12 of 12
