 Pursuant to Ind. Appellate Rule 65(D),
 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.          Sep 12 2014, 6:54 am




ATTORNEY FOR APPELLANT:                            ATTORNEYS FOR APPELLEE:
PATRICIA CARESS McMATH                             GREGORY F. ZOELLER
Indianapolis, Indiana                              Attorney General of Indiana

                                                   JOSEPH Y. HO
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana



                              IN THE
                    COURT OF APPEALS OF INDIANA

ALBERT J. LANE,                                    )
                                                   )
       Appellant-Defendant,                        )
                                                   )
           vs.                                     )        No. 42A01-1401-CR-34
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )

                       APPEAL FROM THE KNOX SUPERIOR COURT
                          The Honorable W. Timothy Crowley, Judge
                               Cause No. 42D01-1008-FB-095


                                       September 12, 2014
                 MEMORANDUM DECISION – NOT FOR PUBLICATION

MATHIAS, Judge
      Albert J. Lane (“Lane”) was convicted in Knox Superior Court of Class B felony

arson. The trial court ordered Lane to serve ten years with six years executed in the

Department of Correction and four years suspended to probation. Lane appeals his

sentence and argues the trial court abused its discretion by considering an aggravating

circumstance not supported by the record.

      We affirm.

                            Facts and Procedural History

      On August 28, 2005, Lane, Chris Armes, and Ian Dutton burglarized a warehouse

in Vincennes, Indiana. Lane and his accomplices stole various items from the warehouse

and then set it on fire to cover up their crime. The warehouse was used to house

numerous personal and collectible items of a local family, which included cars, trucks,

trailers, furniture, tools, and the family’s business records.   The warehouse and its

contents were destroyed by the fire and the total monetary loss was nearly $650,000.

      After a lengthy arson investigation, on August 19, 2010, Lane was charged with

Class B felony arson, Class C felony burglary, and Class D felony theft. A trial date was

set for February 1, 2011, but the date was continued on Lane’s motion. The trial date was

then continued two additional times on Lane’s motions. Finally, on October 31, 2013,

Lane agreed to plead guilty to Class B felony arson, in exchange for dismissal of the

burglary and theft charges and a ten-year cap on the sentence imposed.

      Lane’s sentencing hearing was held on December 30, 2013. Lane argued that he

should be sentenced to home detention or work release because he has six children. Lane

cares for his children and financially supports them. The trial court considered Lane’s

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proposed mitigating circumstance, but observed, that three of Lane’s six children were

born after Lane was charged in 2010. Tr. pp. 162-63.

      During sentencing, the trial court also considered the size of the fire, and the

firefighters and other emergency personnel who risked injury or death fighting the fire.

The State did not submit any evidence to establish the number of responding emergency

personnel or the risks they faced fighting the warehouse fire. The court then listed the

following aggravating factors: 1) that the harm, injury, loss, or damages suffered by the

victims were significant and greater than the elements necessary to prove commission of

the offense; 2) that Lane has a history of criminal and delinquent behavior; and 3) that

“the fire was a significant fire, a large number of emergency personnel involved,

presenting substantial risk to firemen and emergency personnel.” Tr. p. 168. The trial

court considered Lane’s guilty plea and the undue hardship on his dependents as

mitigating circumstances.

      After determining that the aggravating circumstances outweighed the mitigating

circumstances, the trial court ordered Lane to serve a ten-year sentence. The court

ordered six years executed in the Department of Correction and four years suspended to

probation. As a conditions of his probation, Lane was ordered to serve three years in

work release and one year on home detention. Finally, the trial court also ordered

restitution in the amount of $120,000, which represented the amount of damages not

covered by the victims’ insurance policies. Lane now appeals. Additional facts will be

provided as necessary.

                               Discussion and Decision

                                           3
       Lane argues that the trial court abused its discretion when it considered the size of

the fire and the risk to the emergency responders as an aggravating circumstance because

it was not supported by the record.        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), clarified 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.

       A trial court may abuse its sentencing discretion by: (1) failing to enter a

sentencing statement, (2) finding aggravating or mitigating factors unsupported by the

record, (3) omitting mitigating factors clearly supported by the record and advanced for

consideration, or (4) giving reasons that are improper as a matter of law. Id. at 490-91

(emphasis added).     Because a trial court no longer has any obligation to weigh

aggravating and mitigating factors against each other when imposing a sentence, it cannot

now be said to have abused its discretion in failing to properly weigh such factors. Id. at

491. If a trial court abused its discretion in sentencing, 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. Id.

       The challenged aggravating circumstance is only partially supported by the record.

There is evidence to support the trial court’s conclusion that the fire was “significant.”

The warehouse was used to store numerous automobiles, a motor home, trailers, furniture

                                             4
and personal goods. Gasoline or diesel fuel was used to start the fire, which destroyed

the building and its contents. The victim’s insurance company paid over $500,000 for the

loss of the building and certain vehicles. And there is also evidence in the record to

establish that emergency personnel responded to the fire. However, there is no evidence

to support the trial court’s conclusion that “a large number of emergency personnel were

involved, presenting substantial risk to firemen and emergency personnel.” Appellant’s

App. p. 103 (emphasis added). Because the trial court abused its discretion when it

considered that a large number of emergency personnel faced substantial risk while

fighting the fire, we must remand for resentencing if we cannot say with confidence that

the trial court would have imposed the same ten-year sentence had it properly considered

only reasons that are supported by the record. See Anglemyer, 868 N.E.2d 491.

       Lane was convicted of Class B felony arson, which subjected him to a sentence

between six and twenty years, with the advisory sentence being ten years. See Ind. Code

§ 35-50-2-5. However, Lane’s plea agreement placed a ten-year cap on his sentence.

The trial court sentenced Lane to ten years, but ordered six years executed in the

Department of Correction, suspending the remaining four years to probation.

       Here, the trial court also properly considered Lane’s criminal history as an

aggravating circumstance. Lane was twice adjudicated a delinquent child for committing

criminal mischief, theft, criminal trespass, and sexual battery. In 2005, shortly after the

warehouse fire, Lane was convicted in three separate cases with misdemeanor possession

of marijuana, misdemeanor operating a motor vehicle without ever receiving a license,

and misdemeanor resisting law enforcement. In 2008, Lane was again convicted a

                                            5
operating a motor vehicle without ever receiving a license. In 2009, Lane was charged

with misdemeanor disorderly conduct, and in 2011, he was charged with Class D felony

receiving stolen property.        Those two charges were dismissed pursuant to the plea

agreement in this case.

        The trial court also considered the following aggravating circumstance: that the

harm, injury, loss, or damages suffered by the victims were significant and greater than

the elements necessary to prove commission of the offense. On the date Lane committed

his offense,1 to convict the defendant of Class B felony arson, the State was required to

prove that the victim’s pecuniary loss was at least $5,000. See Ind. Code § 35-43-1-1.

The victim’s pecuniary loss in this case was proven to be nearly $650,000. And as we

observed above, the trial court did not abuse its discretion when it considered the fact that

the fire was “significant.”

        Lane argues that these remaining aggravating circumstances are not significant

enough to support his ten-year sentence because of the undue hardship incarceration will

have on his family and because he pleaded guilty to the offense. On the date of his guilty

plea hearing and sentencing Lane was employed and supporting his family financially.

Lane is married and has five children with his wife, and one child from a prior

relationship.

        Lane was charged with this offense in August 2010, and despite knowing that he

faced six to twenty years incarceration, he had three of his six children after he was


1
 Effective July 1, 2014, arson with a pecuniary loss of at least $5,000 is classified as a Level 4 felony.
See I.C. § 35-43-1-1.
                                                    6
charged. Moreover, Lane’s characterization of himself as a responsible family man is

belied by the 2009 and 2011 criminal charges that were dismissed as a result of the plea

agreement in this case. In addition, Lane confessed to his involvement in the arson in

2010, see Appellant’s App. pp. 21-34, but did not agree to plead guilty until October 31,

2013. Lane’s scheduled jury trial was continued three times on his own motion. Because

Lane confessed to the arson, his decision to plead guilty was clearly a pragmatic one.

       For all of these reasons, we can say with confidence that the trial court would have

imposed the same ten-year sentence, with six years executed and four years suspended to

probation, had it not improperly considered that a large number of emergency personnel

faced substantial risk while fighting the fire. Lane’s criminal history and the considerable

size of the fire, which caused significant injury to the victims, are more than sufficient to

support Lane’s advisory ten-year sentence for his Class B felony arson conviction. We

therefore affirm Lane’s ten year sentence, with six years executed and four years

suspended to probation.

       Affirmed.

RILEY, J., and CRONE, J., concur.




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