ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
R. Patrick Magrath                                        Gregory F. Zoeller
Madison, Indiana                                          Attorney General of Indiana

                                                          Stephen R. Creason
                                                          Joseph Y. Ho
                                                          Deputies Attorney General
                                                          Indianapolis, Indiana
______________________________________________________________________________



                               In the                                           FILED
                                                                            Jul 26 2012, 11:17 am
                       Indiana Supreme Court
                           _________________________________                          CLERK
                                                                                   of the supreme court,
                                                                                   court of appeals and
                                                                                          tax court


                                   No. 40S01-1206-CR-309


ROGER L. BUSHHORN,
                                                          Appellant (Defendant below),

                                              v.

STATE OF INDIANA,
                                                     Appellee (Plaintiff below).
                           _________________________________

                            Appeal from the Jennings Circuit Court
                                   No. 40C01-1001-FA-10
                            The Honorable Jon W. Webster, Judge

                           _________________________________

     On Petition To Transfer from the Indiana Court of Appeals, No. 40A01-1107-CR-315
                          _________________________________

                                        July 26, 2012

Per Curiam.

       Roger Bushhorn coordinated an escape attempt from the Jennings County jail with his

cellmate, James Smith, and another inmate, Ryan Renfroe. They were armed with sharpened

pieces of metal, or “shanks,” that the men had fashioned from a metal hanger in preparation for
the escape attempt. Shortly after midnight, Bushhorn asked 54-year-old jail officer Vicki Day to

let him out of the holding cell so he could use the restroom, and Day allowed Bushhorn to exit.

Smith asked to leave the cell too, but his request was denied. As Day was shutting the cell door,

Smith forced it open and forced Day to the floor. Bushhorn took the keys from the officer, used

them to open Renfroe’s cell and handed him one of the shanks. Then Bushhorn handcuffed the

officer and took her chemical agent container. At Smith’s direction, Bushhorn used the officer’s

radio to tell the jail controller to open the door into another area of the jail or Smith would kill

the officer. The door did not open, and Smith began stabbing Day. When two other jail officers,

Shawn McDaniel and 67-year-old Walter Peace, entered the area, Bushhorn sprayed the

chemical agent at them and handcuffed them. At that point, numerous police officers entered the

area and took the three inmates into custody.



       Bushhorn was charged with three counts of kidnapping (class A felonies), three counts of

criminal confinement while armed with a deadly weapon and resulting in serious bodily injury

(class B felonies), one count of attempted escape while armed with a deadly weapon (a class B

felony), one count of attempted escape resulting in bodily injury to the officers (a class B

felony), and three counts of battery while armed with a deadly weapon and resulting in serious

bodily injury (class C felonies).



       Bushhorn pled guilty to kidnapping officer Day, the confinement charges relating of

officers Peace and McDaniel, and attempted escape. This was an open plea, so sentencing was

left to the trial court. The trial court imposed an enhanced 35-year sentence (with three years

suspended) for the kidnapping, and minimum 6-year sentences for the four class B felonies. The



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trial court ordered the kidnapping sentence and the two confinement sentences to be served

consecutive to each other, and the attempted escape sentence to be served concurrently with the

other sentences. Thus, the aggregate sentence was forty-seven years with three years suspended.



       As aggravating factors, the trial court identified: Bushhorn’s criminal history (including

possession of alcohol by a minor, three juvenile adjudications for theft-related offenses he

committed while a teenager, and the two 2009 theft-related felonies for which he had been

serving his sentence during the attempted escape); the planned nature of the escape (including

preparing the shanks and learning the routine of jail staff); the selection of the female officer as

the first target; Bushhorn’s several opportunities to break off the escape, which he did not take;

and other circumstances of the events. As mitigating factors, the trial court noted Bushhorn’s

guilty plea; his GED certificate; his remorse (he had apologized in person and by letter to the jail

officers); and his relatively young age (he was 20 at the time of the attempted escape).



       Bushhorn appealed, arguing that a substantial portion of the aggravating factors relied

upon by the trial court were not adequately supported by the record, and that imposition of an

aggravated kidnapping sentence plus consecutive sentencing on other counts was an abuse of the

trial court’s discretion. In addition, he argued that the aggregate sentence was inappropriate in

light of the nature of the offense and the character of the offender. See Appellate Rule 7(B).



       Citing that rule, the Court of Appeals concluded that Bushhorn had met his burden of

establishing that the sentence was inappropriate, and it revised the sentence so that the four class

B felonies were concurrent with the thirty-five year kidnapping sentence, for an aggregate



                                                 3
sentence of thirty-five years. Because of that resolution, the Court of Appeals did not decide

whether the trial court had abused its discretion. Bushhorn v. State, No. 40A01-1107-CR-315,

slip op. (Ind. App. Feb. 16, 2012).



       We granted the State’s petition to transfer jurisdiction to this Court and heard oral

argument. Having reviewed the matter, our collective judgment is that the trial court’s sentence

is not inappropriate under Appellate Rule 7(B) and there was no abuse of discretion. See

Cardwell v. State, 895 N.E.2d 1219, 1222-1225 (Ind. 2008) (discussing appellate review of

sentencing and claims of abuse of discretion in sentencing under the current sentencing scheme);

Anglemyer v. State, 868 N.E.2d 482, 490-91 (Ind. 2007) (discussing appellate review of

sentences under the current sentencing scheme); (Serino v. State, 798 N.E.2d 852, 856-857 (Ind.

2003) (discussing the adoption of Appellate Rule 7(B)’s present language and noting that

enhanced and consecutive sentences can be appropriate when the same offense is committed

against two victims).



       Accordingly, we affirm the sentence imposed by the trial court and summarily affirm the

decision of the Court of Appeals in all other respects. See Ind. Appellate Rule 58(A).



Dickson, C.J., and Rucker, David, and Massa, JJ., concur.
Sullivan, J., would deny transfer.




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