MEMORANDUM DECISION                                                        FILED
                                                                      Nov 08 2017, 10:09 am
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      CLERK
                                                                       Indiana Supreme Court
regarded as precedent or cited before any                                 Court of Appeals
                                                                            and Tax Court
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
Theodore J. Minch                                       Curtis T. Hill Jr.
Sovich Minch, LLP                                       Attorney General of Indiana
Indianapolis, Indiana
                                                        Larry D. Allen
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Ace Michaels,                                           November 8, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        73A01-1705-CR-1061
        v.                                              Appeal from the Shelby Superior
                                                        Court
State of Indiana,                                       The Honorable David N. Riggins,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause Nos.
                                                        73D02-1605-F6-180
                                                        73D02-1605-F6-190



Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 73A01-1705-CR-1061 | November 8, 2017        Page 1 of 7
                                          Case Summary
[1]   Appellant-Defendant Ace Michaels pled guilty to Level 6 felony criminal

      confinement and Level 6 felony failure to register as a sex offender. The trial

      court sentenced Michaels to 730 days executed for the criminal confinement

      conviction and 365 days suspended for failure to register as a sex offender. The

      sentences were ordered to be served consecutively.


[2]   Michaels raises the following restated issues: 1) whether the trial court abused

      its discretion in ordering consecutive sentences and 2) whether Michaels’s

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

      Because the trial court did not abuse its discretion and Michaels’s sentence is

      not inappropriate, we affirm.



                            Facts and Procedural History
[3]   Michaels moved in with L.L. and L.L.’s three-year-old grandson in May of

      2016 in exchange for some him completing work around her house. On May

      10, 2016, L.L. became angry because Michaels returned to the house very

      intoxicated. When L.L.’s anger became evident, Michaels responded by

      running towards L.L. screaming and cursing. App. Vol. II, p. 17. L.L.

      attempted to leave with her grandson but was stopped when Michaels slammed

      the front door closed, punched L.L. in the stomach, and slapped her across the

      face. L.L was eventually able to get away from Michaels with her grandson

      and called the police from a neighbor’s house.


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[4]   The State subsequently charged Michaels with criminal confinement,

      intimidation, and battery in cause number 73D02-1605-F6-180 (“Cause 180”).

      Michaels is also a convicted sex offender in Illinois and is required to register as

      a sex offender in Indiana. Because Michaels failed to register his address as

      required, the State charged Michaels with Level 6 felony failure to register in

      cause number 73D02-1605-F6-190 (“Cause 190”). On March 13, 2017,

      Michaels pled guilty to Level 6 felony criminal confinement in Cause 180 and

      to failing to register as a sex offender in Cause 190.


[5]   The trial court sentenced Michaels to 730 days of incarceration in Cause 180 on

      April 10, 2017. That same day, in Cause 190, the trial court sentenced

      Michaels to one year, all suspended to probation. The trial court ordered that

      the sentence for Cause 190 be served consecutively to the sentence for Cause

      180.



                            Discussion and Decision
[6]   Michaels argues that the trial court abused its discretion when it ordered him to

      serve his sentences consecutively. Additionally, Michaels argues that his

      sentence is inappropriate in light of the nature of his offense and character.


                            I.         Abuse of Discretion
[7]   We begin by noting that sentencing 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), modified on other grounds on

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      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.


              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.


[8]   Id. at 490-91. “The decision to impose consecutive sentences lies within the

      discretion of the trial court. However, a trial court is required to state its

      reasoning for imposing consecutive sentences. In order to impose consecutive

      sentences, a trial court must find at least one aggravating circumstance.”

      McBride v. State, 992 N.E.2d 912, 919 (Ind. Ct. App. 2013).


[9]   In claiming that the trial court abused its discretion in sentencing him, Michaels

      argues that the trial court improperly balanced the aggravating and mitigating

      circumstances. This is a request for us to reweigh the aggravators and

      mitigators which we will not do. See Anglemyer, 868 N.E.2d at 491. Moreover,




      Court of Appeals of Indiana | Memorandum Decision 73A01-1705-CR-1061 | November 8, 2017   Page 4 of 7
       based upon a review of the record, there was ample evidence to support the trial

       court’s findings.


[10]   The trial court found that Michaels’s criminal history was an aggravating

       circumstance, which justified the consecutive sentences. Specifically, the trial

       court said that Michaels has “past criminal history [that] haunts” him. Tr. p.

       33. This aggravating circumstance alone was sufficient to justify Michaels’s

       consecutive sentences. See Anglemyer, 868 N.E.2d at 491. Therefore, the trial

       court did not abuse its discretion in sentencing Michaels to consecutive

       sentences.


                    II.         Appropriateness of Sentence
[11]   Under Indiana Appellate Rule 7(B), “[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.” When reviewing such claims, we

       “concentrate less on comparing the facts of the [case at issue] to others, whether

       real or hypothetical, and more on focusing on the nature, extent, and depravity

       of the offense for which the defendant is being sentence, and what it reveals

       about the defendant’s character.” Paul v. State, 888 N.E.2d 818, 825 (Ind. Ct.

       App. 2008) (internal quotes and citations omitted). Michaels, as the defendant,

       bears the burden of persuading us that his sentence is inappropriate. Sanchez v.

       State, 891 N.E.2d 174, 176 (Ind. Ct. App. 2008). Michaels received

       approximately two years executed and one year suspended for his two Level 6


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       felony convictions. This sentence is significantly shorter than the maximum six

       years of incarceration he could have potentially received for the two

       convictions.


[12]   With respect to the nature of the offense, Michaels physically and verbally

       lashed out at his victim and confined her in a drunken rage. This violence

       occurred in the presence of the victim’s three-year-old grandson. Michaels

       attempts to downplay his crimes by saying “the offense, although I understand

       was traumatic and everything, it ended up, it could have been a lot worse, I

       guess.” Tr. p. 33. We do not believe that hitting and confining a victim in the

       presence of a young child should be downplayed.


[13]   As for his character, Michaels has an extensive criminal history of convictions.

       Michaels’s criminal history includes: being convicted of sexual abuse in

       Illinois, a registry-related conviction in Bartholomew County, a registry-related

       conviction in Illinois; a conviction for robbery in California, and an unlawful

       use of a deadly weapon conviction in Missouri. Michaels also has convictions

       for battery, invasion of privacy, resisting law enforcement, public intoxication,

       and criminal mischief.


[14]   Michaels, however, argues that the trial court should have given more weight to

       the fact that he suffers from mental illness, he had a difficult childhood, and his

       efforts to seek treatment. This is a request for us to reweigh the aggravating and

       mitigating factors which we will not do. See Anglemyer, 868 N.E.2d at 491.




       Court of Appeals of Indiana | Memorandum Decision 73A01-1705-CR-1061 | November 8, 2017   Page 6 of 7
       Based on the above-mentioned evidence of Michaels’s character and nature of

       his offense, he has failed to establish that his sentence was inappropriate.



                                          Conclusion
[15]   After reviewing the record, we conclude that the trial court did not abuse its

       discretion when it ordered Michaels’s sentences to run consecutively. We also

       conclude that Michaels failed to establish that his sentence was inappropriate in

       light of his character and the nature of his offense. Consequently, we affirm the

       trial court’s judgment.


       May, J., and Barnes, J., concur.




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