MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                    FILED
regarded as precedent or cited before any                           Mar 12 2019, 10:45 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
David W. Stone IV                                        Curtis T. Hill, Jr.
Anderson, Indiana                                        Attorney General of Indiana
                                                         Samantha M. Sumcad
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

David Joe Bott,                                          March 12, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-2455
        v.                                               Appeal from the Madison Circuit
                                                         Court
State of Indiana,                                        The Honorable Thomas Newman,
Appellee-Plaintiff                                       Jr., Judge
                                                         Trial Court Cause No.
                                                         48C03-1301-FC-212



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2455 | March 12, 2019               Page 1 of 5
[1]   David Bott appeals the sentence imposed by the trial court after he pleaded

      guilty to Class C Felony Robbery and Class A Misdemeanor Resisting Law

      Enforcement. Bott argues that the trial court erred by declining to find his

      guilty plea to be a mitigator and that the sentence is inappropriate in light of the

      nature of the offenses and his character. Finding no error and that the sentence

      is not inappropriate, we affirm.


                                                    Facts
[2]   Around midnight on January 27, 2013, David Bott entered a Village Pantry

      store in Anderson. He approached the cashier and said, “I won’t hurt you, but

      give me all the money out of the register.” Appellant’s App. Vol. II p. 22. He

      kept his hands in his pockets, moving one of the pockets around while giving

      the cashier orders, leading the cashier to believe that he had a gun. Bott

      collected $200 from the register and left the store, instructing the cashier not to

      move or call anyone. The cashier recognized him because he had entered the

      store earlier that day.


[3]   At some point, the police were notified and located a vehicle matching the

      description of Bott’s vehicle. Bott attempted to evade the police but was

      eventually forced to stop. He exited the vehicle, threw the money into the air,

      and fled on foot. A police officer K-9 unit was deployed and apprehended Bott;

      the cashier later identified Bott as the robber in a photo array.


[4]   On January 28, 2013, the State charged Bott with Class C felony robbery and

      Class A misdemeanor resisting law enforcement. After multiple failures to

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2455 | March 12, 2019   Page 2 of 5
      appear, continuances, and firing and rehiring of defense counsel, Bott requested

      a jury trial. On August 11, 2016, the morning of his jury trial, Bott pleaded

      guilty without a plea agreement after seeing a surveillance video of the events

      for the first time and learning that it would be played for the jury. On August

      22, 2016, the trial court sentenced Bott to concurrent terms of eight years for

      robbery and one year for resisting law enforcement. Bott now appeals.


                                   Discussion and Decision
[5]   Bott first argues that the trial court should have considered his guilty plea to be

      a mitigating factor. Sentencing is a discretionary function of the trial court, and

      we afford considerable deference to the trial court’s judgment. Eiler v. State, 938

      N.E.2d 1235, 1238 (Ind. Ct. App. 2010). When sentencing a defendant for a

      felony, the trial court must enter a sentencing statement “including reasonably

      detailed reasons or circumstances for imposing a particular sentence.”

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

      218. We no longer review a trial court’s weighing of mitigators and

      aggravators. Id. at 490-91.


[6]   Initially, we note that while Bott pleaded guilty without the benefit of a plea

      agreement, he waited to do so until the morning of his jury trial. Therefore, no

      one was saved the cost and time of preparing for the trial and scheduling the

      jury.


[7]   Furthermore, it is well established that the significance of a guilty plea is

      dramatically reduced if there is substantial incriminating, admissible evidence.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2455 | March 12, 2019   Page 3 of 5
      Primmer v. State, 857 N.E.2d 11, 16 (Ind. Ct. App. 2006). Here, the

      convenience store cashier recognized Bott because he had come into the same

      store earlier that day. She positively identified him from a photo array and his

      vehicle matched the description of the vehicle leaving the scene of the robbery.

      Moreover, it was only after learning that there was a surveillance video

      capturing the robbery that would be played for the jury that Bott decided to

      plead guilty. Given all of this incriminating evidence, it is apparent that his

      decision to plead guilty was merely pragmatic. Wells v. State, 836 N.E.2d 475,

      479-80 (Ind. Ct. App. 2005). Under these circumstances, we cannot say that

      the trial court erred by declining to find this to be a mitigating factor.1


[8]   Next, Bott argues that the sentence is inappropriate in light of the nature of the

      offenses and his character. Indiana Appellate Rule 7(B) provides that this

      Court may revise a sentence if it is inappropriate in light of the nature of the

      offense and the character of the offender. We must “conduct [this] review with

      substantial deference and give ‘due consideration’ to the trial court’s decision—

      since the ‘principal role of [our] review is to attempt to leaven the outliers,’ and

      not to achieve a perceived ‘correct’ sentence . . . .” Knapp v. State, 9 N.E.3d

      1274, 1292 (Ind. 2014) (quoting Chambers v. State, 989 N.E.2d 1257, 1259 (Ind.

      2013)) (internal citations omitted).




      1
        Furthermore, given Bott’s lengthy criminal history, we are confident that even if the trial court had found
      his guilty plea to be a mitigator it would have imposed the same sentence. See Anglemyer, 868 N.E.2d at 491
      (noting that we will remand for resentencing only if we cannot say with confidence that the trial court would
      have imposed the same sentence had it properly considered reasons with support in the record).

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2455 | March 12, 2019                    Page 4 of 5
[9]    For a Class C felony conviction, Bott faced a sentence of two to eight years

       imprisonment, with an advisory term of four years. Ind. Code § 35-50-2-6(a)

       (2013). The trial court imposed a maximum eight-year term. For the Class A

       misdemeanor conviction, Bott received the maximum one-year term, to be

       served concurrently with the eight-year sentence. I.C. § 35-50-3-2.


[10]   The nature of the offenses is relatively unremarkable. Bott robbed a

       convenience store and fled from police when they tried to apprehend him.

       While the store clerk was traumatized as a result of the incident, we see nothing

       particularly egregious in these offenses.


[11]   The nature of Bott’s character, however, is a different story. As a juvenile, he

       was arrested three times; as an adult, he has been arrested fourteen times. He

       has been convicted of maintaining a common nuisance, possession of

       paraphernalia, domestic battery, battery, intimidation, criminal recklessness,

       robbery, theft, resisting law enforcement, operating while intoxicated, public

       intoxication, and illegal consumption. This is his third robbery conviction. He

       has had probation revoked, has absconded from work release, and has failed to

       appear in court on multiple occasions. He was assessed as a high risk to re-

       offend. Given this history, we find that the eight-year sentence imposed by the

       trial court is not inappropriate.


[12]   The judgment of the trial court is affirmed.


       May, J., and Tavitas, J., concur.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2455 | March 12, 2019   Page 5 of 5
