Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
                                                        Sep 03 2014, 9:59 am
establishing the defense of res judicata,
collateral estoppel, or the law of the
case.


ATTORNEY FOR APPELLANT:                        ATTORNEYS FOR APPELLEE:

TERESA L. CATALDO                              GREGORY F. ZOELLER
Cataldo Law Offices, Inc.                      Attorney General of Indiana
Bristol, Indiana
                                               LARRY D. ALLEN
                                               Deputy Attorney General
                                               Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

BRANDON J. LUNKIN,                             )
                                               )
       Appellant-Defendant,                    )
                                               )
              vs.                              )    No. 20A03-1401-CR-46
                                               )
STATE OF INDIANA,                              )
                                               )
       Appellee-Plaintiff.                     )


                    APPEAL FROM THE ELKHART CIRCUIT COURT
                        The Honorable Terry C. Shewmaker, Judge
                              Cause No. 20C01-1301-FB-4



                                    September 3, 2014

             MEMORANDUM DECISION - NOT FOR PUBLICATION

ROBB, Judge
                                  Case Summary and Issue

       Brandon Lunkin pled guilty to three counts of dealing in cocaine, Class B felonies,

and admitted to being an habitual offender. He received an aggregate sentence of forty-

four years in the Indiana Department of Correction (“DOC”). Lunkin appeals his sentence,

raising only one issue: whether the trial court abused its discretion when it did not find

mental illness as a mitigating factor in determining Lunkin’s sentence. Concluding the

trial court did not abuse its discretion, we affirm.

                                Facts and Procedural History

       On January 8, 2013, the State charged Lunkin with three counts of dealing in

cocaine, Class B felonies, and one count of maintaining a common nuisance, a Class D

felony. On April 8, 2013, the charges were amended to include an allegation that Lunkin

is an habitual offender.

       On July 8, 2013, the day Lunkin’s jury trial was set to begin, Lunkin pled guilty to

three counts of dealing in cocaine and admitted to being an habitual offender. The

sentencing hearing was held on January 9, 2014. At the hearing, Lunkin’s attorney noted

that Lunkin had a seventh grade education, and he requested an evaluation of Lunkin’s

intellectual capabilities by the DOC after sentencing. Counsel went on to say:

              I am perplexed by the fact that Mr. Lunkin’s thought processes, while
       not incompetent, his thought processes I think need some looking at from the
       standpoint of synapsis from A to B, C to D, and how his thought processes
       work. Therefore, I would like a mental health evaluation to be requested in
       his behalf.

              I’m not saying anything that he’s, you know, insane or incompetent
       or anything like that. But I do believe that there are issues there that may be
       of a learning disability nature, but they somehow seem to translate into an

                                               2
       inability to perhaps think in a logical fashion. And I would ask that that be
       – that that be requested as something that the DOC should look at for him.

Transcript at 10.

       Lunkin also gave a fairly lengthy statement to the trial court in which he apologized

for his actions; talked about his religious conversion; said that he was not ready to give up

on himself; and asked that the court not give up on him either. He stated that he did not

understand why he was being punished so harshly when he believed others who have

committed crimes did not receive the same treatment. Lunkin also said he felt “coerced

and threatened” because his attorney warned him he would be “fully prosecuted” if he

proceeded to trial. Id. at 23. After intercession by the trial court, Lunkin clarified that his

guilty plea was not coerced and that he “just wanted to say I’m sorry.” Id. at 26. The trial

court then noted: “[Your attorney] says there are some comprehension problems maybe.

I’ve listened to you talk, and I’ve watched you while you were talking. I don’t think there’s

a lot of comprehension problems. You were fairly eloquent when you were talking with

me . . . .” Id. at 28. The trial court then asked whether Lunkin understood that it was

against the law to sell cocaine, to which Lunkin replied that he understood.

       The trial court found a number of aggravators, including Lunkin’s criminal history,

four past failures to appear, five prior probation violations, and that Lunkin was on

probation when he committed his offenses. The mitigators included Lunkin’s statement at

the hearing, statements by counsel, Lunkin’s acceptance of responsibility, and his addiction

issues. The trial court concluded the aggravators far outweighed the mitigators. It

sentenced Lunkin to twenty years for each count of dealing in cocaine, each to be served


                                              3
concurrently, plus an additional twenty-four years for his habitual offender enhancement.

Thus, Lunkin received an aggregate sentence of forty-four years imprisonment. This

appeal followed.

                                   Discussion and Decision

                                    I. Standard of Review

       “[S]entencing 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,

490 (Ind. 2007), clarified 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.

Id. The trial court may abuse its discretion in sentencing by:

       (1) failing to enter a sentencing statement, (2) entering a sentencing statement
       that explains reasons for imposing the sentence but the record does not
       support the reasons, (3) the sentencing statement omits reasons that are
       clearly supported by the record and advanced for consideration, or (4) the
       reasons given in the sentencing statement are improper as a matter of law.

Kimbrough v. State, 979 N.E.2d 625, 628 (Ind. 2012) (citing Anglemyer, 868 N.E.2d at

490-91).

                             II. Omission of a Mitigating Factor

       Lunkin contends the trial court abused its discretion by failing to consider a proper

mitigating factor—namely, mental illness suffered by Lunkin. Where a defendant alleges

the trial court failed to find a mitigating factor, it is the defendant’s burden to establish that

the mitigating evidence is both significant and clearly supported by the record. Anglemyer,

868 N.E.2d at 493. Lunkin has not met that burden here.



                                                4
          So far as the record shows, the only hint as to potential mental illness suffered by

Lunkin is in his counsel’s argument at the sentencing hearing and request for a mental

health evaluation by the DOC after sentencing. No evidence whatsoever was presented at

the hearing that Lunkin suffers from, or has previously suffered from, any identifiable

mental illness. Further, as the State points out, Lunkin outright pled guilty to the charges

against him—he did not enter a plea of guilty but mentally ill. See Ind. Code § 35-36-2-5.

Moreover, the trial court noted that it observed Lunkin and concluded that he did not have

any trouble comprehending the proceedings, and the trial court even went so far as to

describe Lunkin as “eloquent” in his statement to the trial court at the sentencing hearing.

Tr. at 28. In sum, we cannot conclude the trial court abused its discretion by neglecting to

find mental illness as a mitigating factor.1

                                                      Conclusion

          Concluding the trial court did not abuse its discretion in sentencing Lunkin, we

affirm.

          Affirmed.

BAKER, J., and KIRSCH, J., concur.




         1
           Lunkin also asserts the trial court abused its discretion by failing to explicitly consider the factors set forth
by our supreme court in Weeks v. State, 697 N.E.2d 28, 30 (Ind. 1998), which are used to determine what mitigating
weight should be given to a defendant’s mental illness. However, a finding that mental illness exists is a necessary
prerequisite to consideration of the Weeks factors. Here, there was no finding that Lunkin suffers from mental illness,
nor does the record contain evidence to support such a finding. Therefore, the trial court did not abuse its discretion
by not considering the factors set out in Weeks.

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