MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                             FILED
regarded as precedent or cited before any                                    Jul 13 2018, 10:29 am

court except for the purpose of establishing                                      CLERK
the defense of res judicata, collateral                                       Indiana Supreme Court
                                                                                 Court of Appeals
                                                                                   and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Christopher L. Clerc                                     Curtis T. Hill, Jr.
Columbus, Indiana                                        Attorney General of Indiana
                                                         Katherine Cooper
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Brian R. Sosbe,                                          July 13, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-16
        v.                                               Appeal from the Bartholomew
                                                         Circuit Court
State of Indiana,                                        The Honorable Kelly S. Benjamin,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         03C01-1704-F5-2035




Friedlander, Senior Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-16| July 13, 2018                            Page 1 of 5
[1]   On January 19, 2017, Deputy Nick Martoccia of the Bartholomew County

      Sheriff’s Department responded to a traffic accident. According to a witness,

      Brian R. Sosbe crashed a vehicle into a tree and fled on foot carrying a bag.

      Deputy Jarod Dougan found Sosbe hiding in a nearby field with a bag. Sosbe

      admitted that he had “messed up” and that the bag was his. Appellant’s App.

      Vol. II, p. 103. The deputy discovered a white powdery substance inside the

      bag which Sosbe admitted was methamphetamine. That same day, Deputy

      Jarod Aspenson obtained a search warrant for a blood sample from Sosbe. It

      was later determined that methamphetamine and marijuana were present in

      Sosbe’s blood.


[2]   Captain Christopher Roberts continued the investigation and determined that

      the vehicle had been reported stolen on January 16, 2017. Inside the truck,

      Captain Roberts found an i-Pad belonging to the Indian Creek schools which

      had been reported as stolen on January 18, 2017. Captain Roberts also

      reviewed the records from the Indiana Bureau of Motor Vehicles and

      determined that Sosbe’s license had been suspended for life. During his

      investigation, Captain Roberts also learned that Sosbe had been previously

      convicted of theft.


[3]   On April 7, 2017, Sosbe was charged with (1) Level 5 felony operating a motor

      vehicle after forfeiture of license for life, (2) Level 6 felony receiving stolen auto

      parts, (3) Level 6 felony theft, (4) Level 6 felony possession of

      methamphetamine, and (5) Class B misdemeanor leaving the scene of an

      accident. On September 29, 2017, Sosbe was additionally charged with Class C

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-16| July 13, 2018    Page 2 of 5
      misdemeanor operating a vehicle with a schedule I or II controlled substance or

      its metabolite in the body. On November 2, 2017 Sosbe pled guilty to Level 5

      felony operating a motor vehicle after forfeiture of license for life and Level 6

      felony receiving stolen auto parts. In exchange for the guilty plea, the State

      agreed to concurrent sentences and to dismiss the remaining four charges

      against Sosbe.


[4]   At the sentencing hearing, the trial court identified the following aggravating

      factors: Sosbe’s criminal history, which included seven felony convictions and

      seven misdemeanor convictions; Sosbe has violated the terms of his probation

      in the past; when Sosbe has been offered treatment in the past he refused or the

      treatment was not effective; Sosbe had been released from jail for three weeks

      when he committed the instant offenses; Sosbe was under the influence of a

      controlled substance when he crashed the vehicle; Sosbe hid from police after

      he fled from the scene of the accident; and Sosbe had multiple disciplinary

      write-ups while incarcerated in both the county jail and the Department of

      Correction. The trial court did not find any mitigating factors. Sosbe was

      sentenced to a six-year aggregate executed term, with credit for 249 actual days.


[5]   Sosbe contends that the trial court abused its discretion in sentencing him by

      failing to consider certain mitigating factors. Specifically, Sosbe contends that

      the trial court should have given more weight to his guilty plea and mental

      illness. We begin by noting that 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 (Ind. 2007), modified on other

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-16| July 13, 2018   Page 3 of 5
      grounds 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. at 490.


              One way in which a trial court may abuse its discretion is failing
              to enter a sentencing statement at all. Other examples include
              entering a sentencing statement that explains reasons for
              imposing a sentence—including a finding of aggravating and
              mitigating factors if any—but the record does not support the
              reasons, or the sentencing statement omits reasons that are
              clearly supported by the record and advanced for consideration,
              or the reasons given are improper as a matter of law. Under
              those circumstances, 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. at 490-91. Sosbe argues that the trial court should have considered certain

      mitigating factors. “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.” Id. at 493. “If the trial

      court does not find the existence of a mitigating factor after it has been argued

      by counsel, the trial court is not obligated to explain why it has found that the

      factor does not exist.” Id.


[6]   In any event, there is also evidence that Sosbe received a significant benefit by

      pleading guilty. In exchange for his guilty plea to Level 5 felony operating a

      motor vehicle after forfeiture for life and Level 6 felony receiving stolen auto


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-16| July 13, 2018   Page 4 of 5
      parts, the State agreed to dismiss the other four counts filed against him and

      that the sentences could run concurrent with one another. As for his claims

      that he was mentally ill, there was no evidence that he was mentally ill at the

      time he committed the crime, or any evidence that he had long-term mental

      health issues, much less any nexus to his crimes. See Archer v. State, 689 N.E.2d

      678 (Ind. 1997). Because the trial court did not abuse its discretion in

      sentencing Sosbe, we affirm the trial court’s sentence.


[7]   Affirmed.


      Riley, J., and Crone, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-16| July 13, 2018   Page 5 of 5
