Pursuant to Ind.Appellate Rule 65(D),                                             Oct 08 2013, 5:26 am
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT:                           ATTORNEYS FOR APPELLEE:

MARK S. LENYO                                     GREGORY F. ZOELLER
South Bend, Indiana                               Attorney General of Indiana

                                                  KARL SCHARNBERG
                                                  Deputy Attorney General
                                                  Indianapolis, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

DAVID LEE O’BANION,                               )
                                                  )
       Appellant-Defendant,                       )
                                                  )
              vs.                                 )       No. 71A04-1303-CR-124
                                                  )
STATE OF INDIANA,                                 )
                                                  )
       Appellee-Plaintiff.                        )


                    APPEAL FROM THE ST. JOSEPH SUPERIOR COURT
                       The Honorable Roland W. Chamblee, Jr., Judge
                              Cause No. 71D08-1106-FA-14



                                        October 8, 2013


                MEMORANDUM DECISION - NOT FOR PUBLICATION


NAJAM, Judge
                            STATEMENT OF THE CASE

      David Lee O’Banion appeals his sentence after he pleaded guilty but mentally ill

to burglary, as a Class A felony. O’Banion raises the following two issues for our

review:

      1.     Whether the trial court abused its discretion when it sentenced
             O’Banion.

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

      We affirm.

                      FACTS AND PROCEDURAL HISTORY

      On June 29, 2011, the State charged O’Banion with burglary, as a Class A felony.

On January 17, 2013, O’Banion, without an agreement from the State, pleaded guilty but

mentally ill to the charge. The trial court accepted O’Banion’s plea and sentenced him to

forty-five years, with ten years suspended to probation. This appeal ensued.

                           DISCUSSION AND DECISION

                            Issue One: Abuse of Discretion

      O’Banion first argues on appeal that the trial court abused its discretion when it

sentenced him. “[S]entencing decisions rest within the sound discretion of the trial court

and are reviewed on appeal only for an abuse of discretion.” Anglemyer v. State, 868

N.E.2d 482, 490 (Ind. 2007), clarified on other grounds 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. (quotation omitted).


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       As our supreme court has explained:

       One way in which a trial court may abuse its discretion is failing to enter a
       sentencing statement at all. Other examples include entering 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, or the sentencing statement omits reasons that are
       clearly supported by the record and advanced for consideration, or the
       reasons given are improper as a matter of law. Under those circumstances,
       remand for resentencing may be the appropriate remedy 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.

               Because the trial court no longer has any obligation to “weigh”
       aggravating and mitigating factors against each other when imposing a
       sentence . . . a trial court can not now be said to have abused its discretion
       in failing to “properly weigh” such factors. . . .

Id. at 490-91 (citations omitted).

       Here, the trial court’s written sentencing statement declares that the court found

“no mitigation.” Appellant’s App. at 13. O’Banion seizes on this statement on appeal

and asserts that the trial court erred in disregarding his mental illness and guilty pleas as

mitigators. O’Banion is incorrect.

       The trial court’s written sentencing statement is not consistent with its oral

sentencing statement. At the sentencing hearing, the trial court explained:

       Clearly the mental history speaks for itself. It has been documented.

                                           ***

              [O’Banion’s lawyer] has talked about mitigating circumstances[,]
       that being [O’Banion’s] mental health issues across the course of time.
       And I will agree that poses a tremendous problem when we’re dealing with
       people and what do we do with them after they commit crimes because
       mental illness goes with a lot of this . . . .
              The alcohol and the non-prescription drugs. The $100 worth of
       crack and however much you were drinking that cuts against you, okay? It
       is substance abuse. [A]nd I have been doing drug court for a long time and
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       I know once you make a stupid mistake and you start using drugs, you keep
       using drugs. But, you know, we have to deal in this particular situation and
       with every crime with behavior . . .
               . . . I would love to see that the sentence[,] when I take your plea of
       guilty but mentally ill[,] means they will send you to a hospital and help
       work with you and your issues[.] . . . Can I bet the [D]epartment of
       [C]orrection[] will do that? No. But I still have to take that into
       account. . . . [Y]ou are mentally ill. That was the plea we took.

                                           ***

              Do I think there are some mitigating circumstances? Yeah. And I
       considered them . . . . I’m going to suspend ten years of the sentence in
       part because I think that he is right the longer you stay in the [D]epartment
       of [C]orrection[] with what I think will be minimal, if any, mental health
       stuff we are going to have some issues. We’re going to have issues no
       matter what. But I would like to see at the end of this whole process you’re
       on a probationary period.

Sentencing Transcript at 16, 19-20, 26-27. Thus, the trial court’s oral pronouncement

makes clear that the court considered O’Banion’s mental illness and his guilty plea as

mitigating circumstances, even though the court concluded that those mitigators were

clearly outweighed by O’Banion’s criminal history, history of substance abuse, and the

impact of O’Banion’s crime on his ninety-four-year-old victim.

       When the trial court’s oral and written sentencing statements are in conflict, “[t]his

Court has the option of crediting the statement that accurately pronounces the sentence or

remanding for resentencing.” McElroy v. State, 865 N.E.2d 584, 589 (Ind. 2007). Here,

both statements reflect a forty-five year term with ten years suspended to probation. But

only the trial court’s oral statements reflect the court’s rationale to both impose a forty-

five year term and to suspend ten years of that term to probation. Accordingly, we credit

the oral statement as the statement that accurately pronounced O’Banion’s sentence. As



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such, O’Banion’s argument that the trial court failed to consider his mental illness and

guilty plea as mitigating circumstances is without merit.

                            Issue Two: Appellate Rule 7(B)

       O’Banion also asserts that his sentence is inappropriate in light of the nature of the

offense and his character. Although a trial court may have acted within its lawful

discretion in determining a sentence, Article VII, Sections 4 and 6 of the Indiana

Constitution “authorize[] independent appellate review and revision of a sentence

imposed by the trial court.” Roush v. State, 875 N.E.2d 801, 812 (Ind. Ct. App. 2007)

(alteration original). This appellate authority is implemented through Indiana Appellate

Rule 7(B). Id. Revision of a sentence under Appellate Rule 7(B) requires the appellant

to demonstrate that his sentence is inappropriate in light of the nature of his offenses and

his character. See Ind. Appellate Rule 7(B); Rutherford v. State, 866 N.E.2d 867, 873

(Ind. Ct. App. 2007). We assess the trial court’s recognition or non-recognition of

aggravators and mitigators as an initial guide to determining whether the sentence

imposed was inappropriate. Gibson v. State, 856 N.E.2d 142, 147 (Ind. Ct. App. 2006).

However, “a defendant must persuade the appellate court that his or her sentence has met

th[e] inappropriateness standard of review.”       Roush, 875 N.E.2d at 812 (alteration

original).

       Moreover, “sentencing is principally a discretionary function in which the trial

court’s judgment should receive considerable deference.” Cardwell v. State, 895 N.E.2d

1219, 1222 (Ind. 2008). Indiana’s flexible sentencing scheme allows trial courts to tailor

an appropriate sentence to the circumstances presented. See id. at 1224. The principal


                                             5
role of appellate review is to attempt to “leaven the outliers.” Id. at 1225. 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.

       We cannot say that O’Banion’s sentence is inappropriate. Although O’Banion

suffers from mental illness and pleaded guilty but mentally ill, he also has a long history

of crime, including crimes of violence. In particular, O’Banion’s criminal history began

when he was seven years old, and since then he has juvenile adjudications for drug

violations, public intoxication, shoplifting, and two incidents of theft. O’Banion’s adult

history includes Class B felony burglary, Class C felony burglary, and two battery

convictions. He has also previously violated the terms of his probation. Finally, the

instant offense was against a ninety-four-year-old woman who had hired him to help to

maintain her lawn, and in the course of his crime he caused her physical injury that

resulted in $1,000 of medical expenses.       In light of the nature of the offense and

O’Banion’s character, we cannot say that a forty-five-year term, with ten years

suspended, is inappropriate.

       Affirmed.

MATHIAS, J., and BROWN, J., concur.




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