MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                          Aug 27 2015, 8:59 am
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.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke                                    Gregory F. Zoeller
Special Asst. to State Public Defender                   Attorney General of Indiana
Wieneke Law Office, LLC
                                                         Karl M. Scharnberg
Plainfield, Indiana                                      Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Paul R. Hoffert,                                         August 27, 2015
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         84A05-1503-CR-102
        v.                                               Appeal from the Vigo Superior
                                                         Court
State of Indiana,                                        The Honorable John T. Roach,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         84D01-1210-FC-3358



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 84A05-1503-CR-102 | August 27, 2015   Page 1 of 7
                                          Statement of the Case
[1]   Appellant/Defendant, Paul R. Hoffert (“Hoffert”), appeals his sentence for his

      convictions of two counts of Class C felony burglary.1 Hoffert pled guilty to

      both counts in exchange for a combined sentencing cap of eight (8) years.

      Subsequently, the trial court sentenced him to four (4) years for each

      conviction, with two (2) years of each suspended to probation, and ordered the

      sentences to run concurrently. On appeal, Hoffert now argues that the trial

      court abused its discretion in sentencing him because it did not issue an

      adequate sentencing statement. We agree that the trial court did not issue an

      adequate sentencing statement, but we affirm because we conclude that

      Hoffert’s sentence was not inappropriate under Appellate Rule 7(B).


[2]   We affirm.


                                                         Issue
               Whether the trial court abused its discretion in sentencing Hoffert
               by failing to issue an adequate sentencing statement.2

                                                         Facts
[3]   On October 19, 2012, the State charged Hoffert with two counts of Class C

      felony burglary. On February 9, 2015, Hoffert pled guilty to both counts in



      1
       IND. CODE § 35-43-2-1. The burglary statute was amended effective July 1, 2014, and Hoffert’s offense
      would now be considered a Level 5 felony. However, because he committed his offense in 2012, we will
      consider the version of the statute in effect at that time.
      2
       Hoffert also preemptively argues that he did not waive his right to challenge his sentence by pleading guilty.
      Because the State concedes that waiver does not apply, we need not address the issue.

      Court of Appeals of Indiana | Memorandum Decision 84A05-1503-CR-102 | August 27, 2015               Page 2 of 7
      exchange for a combined sentencing cap of eight (8) years. At his plea hearing,

      Hoffert admitted to breaking and entering into two storage units at You-Store-

      It, a storage facility in Terre Haute, with the intent to commit thefts.


[4]   That same day, the trial court held a sentencing hearing. At the hearing,

      Hoffert testified that, since his offense, he had completed addictions counseling

      and would be willing to complete any additional programs that the court might

      order. He also stated that he had last been convicted of a felony in 1989 but

      had been convicted of “some” misdemeanor charges since then. (Tr. 16). In

      addition, he testified that when he was questioned as a suspect in the instant

      case, he confessed to the police officers that he had taken the items. The State

      told the trial court that one of Hoffert’s victims had contacted the State and

      requested restitution in the amount of $29,000 for the items taken from his

      storage unit. However, the State did not argue for any aggravating factors.


[5]   At the conclusion of the hearing, the trial court sentenced Hoffert to four (4)

      years for each conviction, with two (2) years of each suspended to probation,

      and ordered the sentences to run concurrently. In its oral sentencing statement,

      the trial court stated:

              You would be a candidate for Community Corrections except for
              they don’t have anywhere to put you. The range of sentence that
              you’re facing on these is two [(2)] to eight (8) years with an
              advisory of four (4) [years]. I’m gonna give you a sentence of
              four (4) years, and I’m gonna [sic] that two (2) years be executed
              and that two (2) years be suspended to formal probation. I’m not
              ordering restitution at this point[.] [U]h, I’m going to allow the
              victim to contact the Probation Department. If he wants a

      Court of Appeals of Indiana | Memorandum Decision 84A05-1503-CR-102 | August 27, 2015   Page 3 of 7
               hearing on restitution, he can ask [for] one through probation
               and we will have a hearing. I’m not going to do it based on the
               estimate that was turned in at the last minute. Uh, from what I
               know of the case, I’m a bit incredulous about [$29,000] in a You-
               Store-It facility, but he’ll just have to bring his evidence in. He
               can always pursue you civilly as well, so, that’s the way I’ll leave
               it on that. You’ve got sixteen (16) actual plus good time, so
               you’ve got thirty-two days credit against the two (2) years. I’m
               gonna recommend you for any alcohol and drug counseling that
               the DOC has available to you. Okay. Based on the time served,
               I’m going to waive fines, costs, and fees in this case and you’re
               remanded to custody.


      (Tr. 17-19).3 Hoffert now appeals his sentence.


                                                       Decision

[6]   On appeal, Hoffert argues that the trial court erred in sentencing him because it

      failed to issue an adequate sentencing statement explaining the reasons for its

      sentence.


[7]   Sentencing is within the trial court’s discretion. Ramos v. State, 869 N.E.2d

      1262, 1263 (Ind. Ct. App. 2007). Accordingly, we review a sentence for an

      abuse of discretion. Id. Under Indiana’s current sentencing scheme, “‘[t]he trial

      court must enter a statement including reasonably detailed reasons or

      circumstances for imposing a particular sentence’” when sentencing a

      defendant for a felony. Eiler v. State, 938 N.E.2d 1235, 1238 (Ind. Ct. App.




      3
        The trial court did not add any additional details or reasoning to support Hoffert’s sentence in its written
      sentencing order.

      Court of Appeals of Indiana | Memorandum Decision 84A05-1503-CR-102 | August 27, 2015                 Page 4 of 7
      2010) (quoting Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on

      reh’g, 875 N.E.2d 218), reh’g denied. The purpose behind this requirement is to:

      (1) guard against arbitrary and capricious sentencing and (2) provide an

      adequate basis for appellate review. Moore v. State, 882 N.E.2d 788, 795 (Ind.

      Ct. App. 2008). We will consider a sentencing statement adequate if it provides

      a sufficient basis for appellate review of the sentence. See Anglemyer, 868

      N.E.2d at 482.


[8]   We agree with Hoffert that the trial court did not enter an adequate statement

      because it did not include reasonably detailed reasons or circumstances for

      imposing his sentence. See Eiler, 938 N.E.2d at 1238 (finding that the

      sentencing statement was inadequate because the trial court did not explain

      why it chose to sentence Eiler to the number of years to which it sentenced

      him). While the trial court discussed its reasons for not imposing restitution or

      placing Hoffert in Community Corrections, it did not identify its reason for

      sentencing him to the advisory sentence. It is clear that the trial court

      considered at least one of Hoffert’s proposed mitigating factors as the court

      suspended two (2) years of Hoffert’s sentence to probation, but it is not clear

      which factors it considered.


[9]   However, where a trial court has erred in sentencing a defendant, we have

      “‘several options[.]’” Id. at 1238 (quoting Windhorst v. State, 868 N.E.2d 504.

      507 (Ind. 2007), reh’g denied). “‘Without a trial court sentencing order that

      meets the requirements of the law,’ we have the option to remand to the trial

      court for a clarification or new sentencing determination.” Id. at 1238-39

      Court of Appeals of Indiana | Memorandum Decision 84A05-1503-CR-102 | August 27, 2015   Page 5 of 7
       (quoting Windhorst, N.E.2d at 507). We also may exercise our authority to

       review and revise the sentence and address whether it is inappropriate under

       Indiana Appellate Rule 7(B). See id. at 1239.


[10]   Pursuant to Appellate Rule 7(B), a reviewing court may revise a sentence if,

       “after due consideration of the trial court’s decision,” it finds that the sentence

       is inappropriate in light of the nature of the offense and the character of the

       offender. Childress v. State, 848 N.E.2d 1073, 1079-80 (Ind. 2006) (quoting App.

       R. 7(B)). Although this Court is not required to use “great restraint,” we

       nevertheless exercise deference to a trial court’s sentencing decision, both

       because Appellate Rule 7(B) requires that we give “due consideration” to that

       decision and because we recognize the unique perspective a trial court has when

       making decisions. Stewart v. State, 866 N.E.2d 858, 865-66 (Ind. Ct. App.

       2007). The “principal role of appellate review should be to attempt to leaven

       the outliers and identify some guiding principles for trial courts and those

       charged with improvement of the sentencing statutes, but not to achieve a

       perceived ‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225

       (Ind. 2008). In addition, the defendant bears the burden of persuading this

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


[11]   The sentencing range for a Class C felony conviction is between two (2) and

       eight (8) years, with an advisory sentence of four (4) years. Here, Hoffert

       received the advisory sentence for both convictions with two years suspended

       and concurrent terms.



       Court of Appeals of Indiana | Memorandum Decision 84A05-1503-CR-102 | August 27, 2015   Page 6 of 7
[12]   Although Hoffert raised several potential mitigating factors at his sentencing

       hearing, we cannot conclude that his sentence was inappropriate. While he was

       sentenced to the advisory sentence, his aggregate sentence for his two Class C

       felony convictions was equivalent to the advisory sentence for one Class C

       felony conviction. He also had two years suspended to probation, so his

       aggregate executed sentence for two convictions was equivalent to the

       minimum sentence for one Class C felony. In addition, Hoffert had a criminal

       history that was evidence of his poor character and supports his sentence. See

       Williams v. State, 891 N.E.2d 621, 633 (Ind. Ct. App. 2008) (stating that revision

       of a sentence under Indiana Appellate Rule 7(B) requires the appellant to

       demonstrate that his sentence is inappropriate in light of both the nature of his

       offenses and his character). He had one felony conviction, also for burglary,

       and numerous misdemeanor convictions. In light of these factors, we decline to

       revise Hoffert’s sentence. Thus, we affirm the trial court’s sentence in spite of

       the fact that the trial court did not adequately discuss its reasons for imposing

       the sentence.


[13]   Affirmed.


       Vaidik, C.J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 84A05-1503-CR-102 | August 27, 2015   Page 7 of 7
