MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                  FILED
regarded as precedent or cited before any
court except for the purpose of establishing                      Apr 19 2017, 10:15 am

the defense of res judicata, collateral                                CLERK
                                                                   Indiana Supreme Court
estoppel, or the law of the case.                                     Court of Appeals
                                                                        and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Jeffery A. Earl                                          Curtis T. Hill, Jr.
Danville, Indiana                                        Attorney General of Indiana
                                                         Katherine Cooper
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Bryan Tate,                                              April 19, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         32A01-1611-CR-2589
        v.                                               Appeal from the Hendricks
                                                         Superior Court
State of Indiana,                                        The Honorable Karen M. Love,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         32D02-1602-F5-19



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 32A01-1611-CR-2589 | April 19, 2017      Page 1 of 3
[1]   Bryan Tate appeals the sentence imposed by the trial court after Tate pleaded

      guilty to Level 5 Felony Robbery.1 Tate contends that the trial court erred by

      failing to consider two mitigating circumstances. Finding no error, we affirm.


[2]   On January 25, 2016, Tate robbed a Subway restaurant in Hendricks County by

      using or threatening the use of force and/or by putting the Subway employee in

      fear. On October 25, 2016, Tate pleaded guilty as charged pursuant to a plea

      agreement that capped his sentence at five years and required that he pay

      restitution to Subway in the amount of $300. Tate had been sentenced in

      another cause to a nine-year term for Level 5 felony robbery and it was left to

      the trial court’s discretion whether his sentence in this cause would be

      concurrent with or consecutive to the other sentence. Following a sentencing

      hearing that same day, the trial court found Tate’s criminal history, which

      includes seven adult convictions and three juvenile adjudications, as an

      aggravating factor. Finding no mitigators, the trial court imposed a five-year

      sentence to be served consecutively to the nine-year term. Tate now appeals.


[3]   Tate’s sole argument is that the trial court erred by failing to find two mitigating

      circumstances: the fact that he pleaded guilty and the fact that he agreed to pay

      restitution to Subway. According to Tate, had these mitigators been

      considered, the trial court would have ordered his sentence served concurrently,

      rather than consecutively.




      1
          Ind. Code § 35-42-5-1.


      Court of Appeals of Indiana | Memorandum Decision 32A01-1611-CR-2589 | April 19, 2017   Page 2 of 3
[4]   Under the advisory sentencing scheme, we may reverse if a trial court finds

      aggravators that are not supported by the record or are improper as a matter of

      law or omits mitigators that are clearly supported by the record and advanced

      for consideration. Anglemyer v. State, 868 N.E.2d 482, 490-91 (Ind. 2007),

      clarified on reh’g, 875 N.E.2d 218 (Ind. 2007). Even if we find an error in this

      regard, we will remand for resentencing only 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 491.


[5]   Tate makes a reasonable argument that his guilty plea, pursuant to which he did

      not reap a substantial benefit, and his agreement to pay restitution should have

      been mitigating circumstances. The trial court, however, was clearly aware of

      both facts, inasmuch as it presided over the guilty plea hearing and approved

      the agreement itself, which contained the restitution provision. That the trial

      court did not label them as mitigators does not mean that it was unaware of

      their existence. Given that, given Tate’s lengthy criminal history, and given the

      fact that Tate had been sentenced in another cause for precisely the same crime

      to which he pleaded guilty in this one, we are confident that the trial court

      would have imposed the same sentence even if it had considered both

      mitigators proffered by Tate. Accordingly, we decline to remand for

      resentencing.


[6]   The judgment of the trial court is affirmed.


      Barnes, J., and Crone, J., concur.

      Court of Appeals of Indiana | Memorandum Decision 32A01-1611-CR-2589 | April 19, 2017   Page 3 of 3
