Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be                             FILED
regarded as precedent or cited before any                  Jan 20 2012, 8:30 am
court except for the purpose of establishing
the defense of res judicata, collateral                           CLERK
                                                                of the supreme court,
estoppel, or the law of the case.                               court of appeals and
                                                                       tax court




ATTORNEY FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

ELIZABETH B. SEARLE                             GREGORY F. ZOELLER
Ball Eggleston PC                               Attorney General of Indiana
Lafayette, Indiana
                                                RICHARD C. WEBSTER
                                                Deputy Attorney General
                                                Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

LOUIS L. BLACKNELL, JR.,                        )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )       No. 79A02-1106-CR-690
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                    APPEAL FROM THE TIPPECANOE SUPERIOR COURT
                          The Honorable Donald C. Johnson, Judge
                               Cause No. 79D01-0307-FB-33



                                     January 20, 2012


               MEMORANDUM DECISION - NOT FOR PUBLICATION


BRADFORD, Judge
          Appellant-Defendant Louis Blacknell pled guilty to, and was convicted of

Murder,1 a felony, and sentenced to an executed term of fifty-five years in the

Department of Correction. In this belated appeal, Blacknell challenges his sentence. We

affirm.

                              FACTS AND PROCEDURAL HISTORY

          On June 29, 2003, Blacknell, Cleveland Colston, Rhyaquim Stovall, Lashaun

Virgin, and Patrick Lucas gathered in Lafayette. Blacknell and his cohorts had arranged

a marijuana deal with Fernando Albavera and Jesus Molina and planned to rob them in

the process. When the parties reached the site of the deal, Blacknell planned to step out

of his vehicle and act as a lookout, and Colston and Stovall would hold Albavera and

Molina at gunpoint. As planned, Colston and Stovall entered Albavera and Molina’s

vehicle. Blacknell, who was carrying a 9 mm loaded gun at the time, stepped out of his

vehicle to act as a lookout. Blacknell became nervous, pulled the trigger, and shot

Albavera, killing him. Blacknell was aiding Colston and Stovall’s attempted robbery at

the time, and he was aware that pulling the trigger of his loaded gun could kill someone.

          On July 18, 2003, the State charged Blacknell with Class B felony conspiracy to

commit robbery (Count I), Class D felony conspiracy to deal marijuana (Count II), Class

D felony dealing in marijuana (Count III), and Class D felony possession of marijuana

(Count IV). On April 22, 2004, the State moved to amend its charges, adding murder

(Count V), felony murder (Count VI), Class A felony robbery (Count VII), and two

counts of Class B felony robbery (Counts VIII and IX). On May 10, 2004, Blacknell
          1
              Ind. Code § 35-42-1-1 (2002).


                                              2
entered into a plea agreement whereby he agreed to plead guilty to felony murder in

Count VI, and the State agreed to dismiss all remaining charges. The plea agreement

further provided that Blacknell’s sentence was not to exceed fifty-five years executed.

       Blacknell entered a guilty plea on May 12, 2004. Following a June 7, 2004

sentencing hearing, the trial court accepted the plea and imposed a sentence of fifty-five

years in the Department of Correction. In imposing this sentence, the trial court found

as an aggravating factor that Blacknell had pulled the trigger. The trial court found as

mitigating factors that Blacknell had been in the Job Corps and had worked in welding

and landscaping since that time, and that he had strong family support. The trial court

concluded that the aggravating and mitigating factors balanced.

       On June 1, 2011 Blacknell filed a verified petition to file a belated appeal, which

the trial court granted. This appeal follows.

                            DISCUSSION AND DECISION

                               I.     Abuse of Discretion

                               A.     Standard of Review

       Blacknell’s challenges on appeal are to his sentence.          Notably, Blacknell

committed his crime in 2003, so we apply the presumptive sentencing scheme in effect

prior to the 2005 sentencing amendments creating advisory sentences. See Gutermuth v.

State, 868 N.E.2d 427, 431 n.4 (Ind. 2007) (“[T]he sentencing statute in effect at the time

a crime is committed governs the sentence for that crime.”). We specifically observe that

the rule articulated in Anglemyer v. State (Anglemyer I), 868 N.E.2d 482, 491 (Ind. 2007),



                                                3
clarified on reh’g, 875 N.E.2d 218 (Ind. 2007), that the relative weight of aggravators

and mitigators is not reviewable for abuse of discretion, does not apply here.

       Sentencing determinations, including whether to adjust the presumptive sentence,

are within the discretion of the trial court. Ruiz v. State, 818 N.E.2d 927, 928 (Ind. 2004).

Based upon the law applicable to Blacknell at the time of his sentence, if a trial court

relied on aggravating or mitigating circumstances to modify the presumptive sentence, it

was required to do the following: (1) identify all significant aggravating and mitigating

circumstances; (2) explain why each circumstance is aggravating or mitigating; and (3)

articulate the evaluation and balancing of the circumstances. Id.

       When a defendant offers evidence of mitigators, the trial court has the discretion to

determine whether the factors are mitigating, and the trial court is not required to explain

why it does not find the proffered factors to be mitigating. Stout v. State, 834 N.E.2d

707, 710 (Ind. Ct. App. 2005), trans. denied. The trial court is not required to give the

same weight as the defendant does to mitigating evidence. See Fugate v. State, 608

N.E.2d 1370, 1374 (Ind. 1993). A single aggravating circumstance is sufficient to justify

an enhanced sentence. McNew v. State, 822 N.E.2d 1078, 1082 (Ind. Ct. App. 2005). An

allegation that the trial court failed to identify or find a mitigating factor requires the

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

supported by the record. Matshazi v. State, 804 N.E.2d 1232, 1239 (Ind. Ct. App. 2004),

trans. denied.   Further, a trial court is not required to include within the record a

statement that it considered all proffered mitigating circumstances, but rather only those

that it considered significant. Id.

                                             4
                                  B.        Sentencing Factors

                                  1.        Mitigating Factors

       Blacknell claims that the trial court abused its discretion in failing to assign

significant mitigating weight to his lack of criminal history and guilty plea.

                             a.        Lack of Criminal History

       A defendant’s lack of criminal history is generally recognized as a substantial

mitigating factor.   See Loveless v. State, 642 N.E.2d 974, 976 (Ind. 1994).          While

Blacknell lacked a criminal history, his Pre-sentence Investigation Report indicated that

he used marijuana twice a week for the four years prior to the instant crime. Not

insignificantly, the instant crime revolved around a marijuana deal. Given Blacknell’s

frequent illegal drug use, establishing that he had not led an entirely law-abiding life, the

trial court was within its discretion in refusing to consider his lack of criminal history to

be a significant mitigating factor. See Bostick v. State, 804 N.E.2d 218, 225 (Ind. Ct.

App. 2004) (concluding that lack of criminal history was not a significant mitigator

where defendant had led a “less than law-abiding life”).

                                       b.      Guilty Plea

       Blacknell contends that the trial court abused its discretion by failing to give

significant mitigating weight to his guilty plea. The Indiana Supreme Court has held that

a defendant who pleads guilty deserves “some” mitigating weight be given to the plea in

return. Anglemyer v. State (Anglemyer II), 875 N.E.2d 218, 220 (Ind. 2007). The

significance of a guilty plea as a mitigating factor varies from case to case. Id. at 221.

For example, a guilty plea may not be significantly mitigating when it does not

                                                 5
demonstrate the defendant’s acceptance of responsibility or when the defendant receives

a substantial benefit in return for the plea. Id. Here, Blacknell received a significant

benefit from his plea, namely the State’s dropping multiple additional charges against

him, including those reflecting his admitted agreement to robbery and involvement in

drug dealing.2 We must conclude that Blacknell’s decision to plead guilty was as much a

pragmatic decision as an effort at taking responsibility. We find no abuse of discretion.

                                  2.      Aggravating Factor

       Blacknell next challenges the trial court’s consideration of the fact that he was the

triggerman as a significant aggravating factor. Blacknell argues the court’s consideration

of this fact thwarts the effect of the plea agreement to dismiss his murder count in Count

V. It is true that a trial court may not circumvent a plea agreement by finding as

aggravating those facts comprising dismissed charges. See Farmer v. State, 772 N.E.2d

1025, 1027 (Ind. Ct. App. 2002). But a trial court certainly is not precluded from

considering facts shared by both a conviction and a dismissed charge, especially when

that dismissed charge merely reflects an alternative theory of guilt. The factual basis for

the instant conviction included the fact that Blacknell was the admitted triggerman. The

nature and circumstances of a crime are a well-observed, proper aggravating

circumstance. See McCann v. State, 749 N.E.2d 1116, 1120 (Ind. 2001). Given that a

person need not be the triggerman to be convicted of felony murder, the fact that he is

one certainly paints a more complete picture of the crime and his attendant culpability.


       2
         We are aware that not all of the charges, such as both Count V (murder) and Count VI (felony
murder) could have sustained separate convictions.


                                                 6
The trial court was fully within its discretion to consider Blacknell’s status as triggerman

in sentencing him to felony murder.

                                            3.      Weight

        Based upon his claims of error regarding the sentencing factors, Blacknell further

argues that they should now be reweighed.                   Having found no error, we decline

Blacknell’s invitation. The trial court was fully within its discretion to place great weight

upon Blacknell’s status as triggerman and find that it balanced against the mitigating

factors of employment and family support.

                                     II.      Appropriateness

        Blacknell     further    claims     that   his   fifty-five-year     executed     sentence     is

inappropriately harsh in light of the nature of his offense and his character.3             Article VII,

Sections 4 and 6 of the Indiana Constitution “‘authorize[] independent appellate review

and revision of a sentence imposed by the trial court.’” Anglemyer I, 868 N.E.2d at 491

(quoting Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006) (emphasis and internal

quotations omitted)). Such appellate authority is implemented through Indiana Appellate

Rule 7(B), which provides that the “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.” We

exercise deference to a trial court’s sentencing decision, both because Rule 7(B) requires

        3
          Technically, Blacknell claims that his sentence is manifestly unreasonable. Effective January 1,
2003, Indiana Appellate Rule 7(B) requires that a sentence be “inappropriate” rather than “manifestly
unreasonable” to warrant appellate revision. See Polk v. State, 783 N.E.2d 1253, 1260-61 (Ind. Ct. App.
2003), trans. denied. This 2003 amendment is applicable to the case at hand, where the crime at issue did
not even occur until June of 2003.


                                                    7
that we give “due consideration” to that decision and because we recognize the unique

perspective a trial court has when making sentencing decisions. Stewart v. State, 866

N.E.2d 858, 866 (Ind. Ct. App. 2007). It is the defendant’s burden to demonstrate that

his sentence is inappropriate. Childress, 848 N.E.2d at 1080.

      Indiana Code section 35-50-2-3 (2002), which was in effect at the time of

Blacknell’s crime, provided that the range for a murder sentence was from forty-five to

sixty-five years, with a presumptive sentence of fifty-five years. Blacknell received a

presumptive fifty-five-year executed term, which was the presumptive sentence under

the statute and the maximum under the plea.

      This sentence is not inappropriate. Blacknell, an admitted drug user, approached

a drug deal armed with a loaded weapon and shot his victim in a robbery attempt. While

Blacknell’s history of employment, strong family support, and lack of official criminal

history would tend to show he is of better character, his ability to commit felony murder

while motivated by robbery demonstrates to the contrary. These facts are sufficiently

egregious to warrant a presumptive executed sentence.

      The judgment of the trial court is affirmed.

KIRSCH, J., and BARNES, J., concur.




                                              8
