MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                      Feb 29 2016, 9:12 am
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.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Kimberly A. Jackson                                      Gregory F. Zoeller
Indianapolis, Indiana                                    Attorney General of Indiana

                                                         Karl M. Scharnberg
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Adam K. Bales,                                           February 29, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         77A01-1501-CR-12
        v.                                               Appeal from the Sullivan Superior
                                                         Court
State of Indiana,                                        The Honorable Robert E. Springer,
Appellee-Plaintiff                                       Magistrate
                                                         Trial Court Cause No.
                                                         77D01-1307-FA-372



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 77A01-1501-CR-12 | February 29, 2016       Page 1 of 9
                                              Case Summary
[1]   Adam K. Bales (“Bales”) brings a belated appeal1 to challenge the sentence

      imposed upon him following his plea of guilty to Attempted Murder, a Class A

      felony.2 We affirm the aggregate sentence, but remand to the trial court with

      instructions to vacate the fine imposed as part of the habitual offender

      enhancement and to enter a sentencing order that provides that Bales received a

      forty-year sentence, enhanced by thirty years, as opposed to consecutive

      sentences.



                                                        Issues
[2]   Bales presents four issues for review:

                 I.       Whether the trial court abused its sentencing discretion by
                          failing to enter a proper sentencing statement;


                 II.      Whether the trial court abused its sentencing discretion by
                          failing to recognize remorse as a mitigating circumstance;




      1
        After Bales initiated an appeal and filed an appellant’s brief, the State filed an appellee’s brief and
      contended that Bales’s appeal should be dismissed due to failure to file a timely notice of appeal. Bales filed a
      petition for remand, for the purpose of filing a petition to file a belated notice of appeal. This Court
      remanded the matter and permitted Bales ten days to file his petition for a belated appeal in the trial court.
      The trial court granted the petition on September 15, 2015, and this Court permitted Bales to file an amended
      brief and a belated notice of appeal.
      2
          Ind. Code §§ 35-42-1-1(1) & 35-41-5-1.


      Court of Appeals of Indiana | Memorandum Decision 77A01-1501-CR-12 | February 29, 2016               Page 2 of 9
              III.     Whether the habitual offender enhancement was
                       improperly designated a consecutive sentence and
                       accompanied by a fine; and


              IV.      Whether Bales’s sentence is inappropriate.


                            Facts and Procedural History
[3]   On June 29, 2013, Bales struck his girlfriend, Joann Pierce (“Pierce”)

      repeatedly, using his fists and a rifle. He grabbed a knife and cut Pierce as she

      tried to disarm him. Bales then pursued Pierce as she attempted to flee,

      shooting her multiple times. Pierce collapsed on the lawn, having been shot in

      her neck, face, leg, and right arm.


[4]   Bales called 9-1-1 and reported the shooting. He was arrested and charged with

      Attempted Murder. After Bales pled guilty to the charge against him, and

      admitted his status as a habitual offender, he received a seventy-year aggregate

      sentence and two fines of $100.00 each. This appeal ensued.



                                 Discussion and Decision
                  Abuse of Discretion – Sentencing Statement
[5]   At the time of Bales’s offense, Indiana Code Section 35-50-2-4 provided that a

      person convicted of a Class A felony faced a sentencing range of twenty to fifty

      years, with the advisory sentence being thirty years. Bales received a sentence

      of ten years more than the advisory sentence. The Attempted Murder sentence



      Court of Appeals of Indiana | Memorandum Decision 77A01-1501-CR-12 | February 29, 2016   Page 3 of 9
      was enhanced by thirty years, due to Bales’s status as a habitual offender. I.C. §

      35-50-2-8.


[6]   “So long as the sentence is within the statutory range, it is subject to review

      only for abuse of discretion.” Anglemyer v. State, 868 N.E.2d 482, 490 (Ind.

      2007), clarified on other grounds, 875 N.E.2d 218 (Ind. 2007) (Anglemyer II). This

      includes the finding of an aggravating circumstance and the omission to find a

      proffered mitigating circumstance. Id. at 490-91. When imposing a sentence

      for a felony, the trial court must enter “a sentencing statement that includes a

      reasonably detailed recitation of its reasons for imposing a particular sentence.”

      Id. at 491.


[7]   The trial court’s reasons must be supported by the record and must not be

      improper as a matter of law. Id. However, a trial court’s sentencing order may

      no longer be challenged as reflecting an improper weighing of sentencing factors.

      Id. A trial court abuses its discretion if its reasons for imposing a particular

      sentence are 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. Hollin v. State, 877 N.E.2d 462, 464 (Ind. 2007).


[8]   Here, the trial court made an oral sentencing statement and entered a written

      sentencing statement.           Bales contends that these statements irreconcilably

      conflict. The oral sentencing statement provided:

              [T]he court’s going to find that the aggravators listed in the Pre-
              Sentence report are appropriate, in that the person does have a
              criminal history, and clearly, with this type of crime and that he
      Court of Appeals of Indiana | Memorandum Decision 77A01-1501-CR-12 | February 29, 2016   Page 4 of 9
              was actually on probation when he committed this crime. Also
              [I am] going to consider the method in which the crime was
              committed and the seriousness of the defendant’s [sic] injuries. I
              believe it is significant that he, this whole episode took a good
              deal of time; he had several opportunities to abandon what he,
              what he was doing. It is a mitigator that he’s admitting his guilt.
              And I believe, of course the seriousness of the offense and the
              seriousness of her injuries are aggravators as well. … So there’ll
              be seventy (70). Had you not called 9-1-1 and admitted your
              guilt it would have been eighty (80) Mr. Bales.


      (Tr. at 76-77.) The written Sentencing Order included the trial court’s

      statement that the Pre-Sentence Investigation Report had been considered, and

      the following aggravators and mitigators were specifically found: “The

      Defendant has a history of criminal behavior; The Defendant has recently

      violated the conditions of probation; The Court considers the method of the

      crime; The Defendant called 911 to report the crime; and The Defendant is

      admitting his guilt.” (App. at 83-84.) The written order also stated that an

      aggregate sentence of seventy years had been imposed.


[9]   We do not find the oral and written statements to be in irreconcilable conflict.

      In each instance, the trial court clearly conveyed that the court had considered

      the circumstances reflected in the Pre-Sentence Investigation Report. In each

      instance, the trial court specifically articulated its consideration of the manner

      in which the crime was committed, Bales’s criminal history, and his acceptance

      of responsibility after commission of the instant crime. In each instance, the

      aggregate sentence referenced was the same. The trial court need not have used

      identical language. We find no abuse of discretion.

      Court of Appeals of Indiana | Memorandum Decision 77A01-1501-CR-12 | February 29, 2016   Page 5 of 9
                Abuse of Discretion – Mitigating Circumstance
[10]   Bales claims that the trial court abused its discretion by failing to consider his

       remorse as a mitigating circumstance. An allegation that the trial court failed to

       identify or find a mitigating factor requires the defendant to establish that the

       mitigating evidence is not only supported by the record but also that the

       mitigating evidence is significant. Anglemyer II, 875 N.E.2d at 220-21. The trial

       court is not obligated to explain why it did not find a particular circumstance to

       be significantly mitigating. Sherwood v. State, 749 N.E.2d 36, 38 (Ind. 2001).


[11]   The trial court accorded mitigating weight to Bales’s taking responsibility for his

       actions by calling 9-1-1 and pleading guilty. To the extent that Bales believes he

       manifested his remorse apart from those actions, he did not present an

       argument in this regard to the trial court. The trial court will not be found to

       have abused its discretion by failing to find a mitigator not advanced for

       consideration. Anglemyer II, 875 N.E.2d at 221.


                             Habitual Offender Enhancement
[12]   Bales admitted his status as a habitual offender and the trial court accordingly

       adjudicated him a habitual offender. The trial court then purportedly imposed

       a “consecutive sentence” for “Count II,” and assessed a separate $100.00 fine.

       (App. at 84.) As Bales argues, and the State concedes, this was in error, as

       Bales was not subject to a separate sentence and fine.


[13]   At the time of Bales’s offense, Indiana Code Section 35-50-2-8(a) provided that

       the State could seek to have a person sentenced as a habitual offender by
       Court of Appeals of Indiana | Memorandum Decision 77A01-1501-CR-12 | February 29, 2016   Page 6 of 9
       alleging that the person had accumulated two prior unrelated felony

       convictions. Section (h) provided that the court should sentence a person found

       to be a habitual offender to an “additional fixed term” not less than the advisory

       sentence for the underlying offense and not more than three times the advisory

       sentence for the underlying offense, capped at thirty years. Upon his

       adjudication as a habitual offender, Bales was subject to an enhancement but

       not a separate sentence or fine. We remand for correction of the sentencing

       order in accordance with the relevant statute.


                                 Appropriateness of Sentence
[14]   Under Indiana Appellate Rule 7(B), this “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.” In performing our review, we assess “the

       culpability of the defendant, the severity of the crime, the damage done to

       others, and myriad other factors that come to light in a given case.” Cardwell v.

       State, 895 N.E.2d 1219, 1224 (Ind. 2008). The principal role of such review is

       to attempt to leaven the outliers. Id. at 1225. A defendant ‘“must persuade the

       appellate court that his or her sentence has met th[e] inappropriateness standard

       of review.”’ Anglemyer, 868 N.E.2d at 494 (quoting Childress v. State, 848

       N.E.2d 1073, 1080 (Ind. 2006)).


[15]   As for the nature of the offense, Bales armed himself with a gun and knife and

       waited for Pierce to return home. Bales first attacked Pierce with his fists, then


       Court of Appeals of Indiana | Memorandum Decision 77A01-1501-CR-12 | February 29, 2016   Page 7 of 9
       cut her with the knife. He smashed her forehead with the end of a rifle and

       threw lamps at her as she fled through the house. Bales picked up a shotgun

       and began to fire at Pierce, stopping to re-load his weapon. One shot struck

       Pierce in the hand, taking off two fingers and leaving “hunks of flesh” lying on

       the kitchen floor. (Tr. at 22.) One shot shattered Pierce’s tibia. Also, her

       carotid artery was nicked.


[16]   The police officer who responded to Bales’s 9-1-1 call found Pierce collapsed

       next to a vehicle; he did not expect Pierce to survive. She required

       hospitalization for over one month and has undergone multiple surgeries. One

       surgery involved the insertion of a steel rod in her leg.


[17]   As to the character of the offender, Bales has a criminal history consisting of

       three prior felonies and four misdemeanors. Two of the felony convictions

       stemmed from attacks on prior girlfriends. He held a butcher knife to the throat

       of one girlfriend; he beat another with a lamp. He had been released from work

       release just six weeks, and was on probation, when he committed the present

       offense.


[18]   Having reviewed the matter, we conclude that the trial court did not impose an

       inappropriate sentence under Appellate Rule 7(B), and the sentence does not

       warrant appellate revision. Accordingly, we decline to disturb the sentence

       imposed by the trial court.



                                               Conclusion

       Court of Appeals of Indiana | Memorandum Decision 77A01-1501-CR-12 | February 29, 2016   Page 8 of 9
[19]   Bales has not shown that the trial court abused its sentencing discretion. The

       aggregate sentence imposed for Attempted Murder is not inappropriate.

       However, we remand to the trial court with instructions to vacate the $100.00

       fine imposed as part of the habitual offender enhancement and to enter a

       sentencing order that shows Bales received a forty-year sentence, enhanced by

       thirty years, due to his status as a habitual offender, as opposed to consecutive

       sentences.


[20]   Affirmed and Remanded.


       Vaidik, C.J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 77A01-1501-CR-12 | February 29, 2016   Page 9 of 9
