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
establishing the defense of res judicata,
collateral estoppel, or the law of the case.


ATTORNEY FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

JILL M. ACKLIN                                   GREGORY F. ZOELLER
Acklin Law Office, LLC                           Attorney General of Indiana
Westfield, Indiana
                                                 JOSEPH Y. HO
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana
                                                                               FILED
                                                                           Apr 18 2012, 9:31 am

                               IN THE
                                                                                   CLERK
                    COURT OF APPEALS OF INDIANA                                  of the supreme court,
                                                                                 court of appeals and
                                                                                        tax court




JUSTIN A. STAPLES,                               )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )      No. 90A04-1109-CR-490
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                      APPEAL FROM THE WELLS CIRCUIT COURT
                         The Honorable Kenton W. Kiracofe, Judge
                              Cause No. 90C01-0807-FD-62


                                       April 18, 2012

               MEMORANDUM DECISION – NOT FOR PUBLICATION

RILEY, Judge
                              STATEMENT OF THE CASE

       Appellant-Defendant, Justin A. Staples (Staples), appeals his sentence for aiding,

inducing, or causing theft, a Class D felony, Ind. Code § 35-43-4-2.

       We affirm.

                                           ISSUE

       Staples raises one issue on appeal, which we restate as: Whether Staples’ sentence

is appropriate in light of his character and the nature of the crime.

                        FACTS AND PROCEDURAL HISTORY

       On May 13, 2008, while at a Wal-Mart in Blufton, Indiana, Staples removed a

security device from a digital camera. He then handed the camera to Cheryl Smith

(Smith), who took it out of the store without paying for it. On July 17, 2008, the State

filed an Information charging Staples with aiding, inducing, or causing theft, a Class D

felony. On July 21, 2011, Staples pled guilty without the benefit of a written guilty plea.

Pursuant to an oral agreement—which is not disputed by the State—the State agreed not

to make a recommendation on sentencing.           On September 20, 2011, the trial court

conducted a sentencing hearing and stated as follows:

       [I]n reviewing the presentence investigation report and considering the
       arguments of counsel and the testimony of [Staples] today, the [c]ourt does
       after considering the sentencing factors find as aggravating factors that he
       has a history of criminal or delinquent behavior in that his criminal history
       has spanned almost 20 years. [Defense counsel] points out that he has only
       one felony in his past, but I can’t help but ignore the fact that he admitted
       and was sentenced on a felony while awaiting disposition in this matter, the
       theft in Madison County. In addition, he committed, and this is another
       aggravating factor is he violated the conditions of his probation, parole,
       pardon, community corrections, placement on pretrial release granted to the


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      person, when he committed a felony he also committed a misdemeanor
      offense while awaiting disposition of this matter. So he has committed two
      new law violations and by my account has been arrested at least five times
      while awaiting disposition of this matter. The [c]ourt finds no mitigating,
      statutory mitigating factors favoring suspending of the sentence and
      imposing probation. I think his attitude regarding the nature of these
      offenses are summed up pretty fairly by the fact that he didn’t even bother
      to call [p]robation that he was hospitalized in the State of Kentucky and did
      not participate in the presentence investigation report. Therefore, they were
      not able to get his input on many of the items necessary to make a
      determination in the presentence investigation report. Quite frankly, I find
      his attitude on the witness stand today, the fact that he failed to I think more
      than once was asked if he committed new violations while he was awaiting
      disposition and he said no and tried to argue that point with the [State],
      despite clear record he had in this presentence investigation report. I think
      it shows some level of unrepentant about his activities.

(Transcript pp. 30-31). At the close of the sentencing hearing, the trial court sentenced

Staples to three years executed, to run consecutive to sentences imposed in three other

cause numbers.

      Staples now appeals. Additional facts will be provided as necessary.

                            DISCUSSION AND DECISION

      Staples contends that the trial court abused its discretion when it imposed a three

year sentence for his conviction for aiding, inducing, or causing theft, a Class D felony.

A person who commits a Class D felony shall be imprisoned for a fixed term of between

six months and three years, with the advisory sentence being one and one-half years. I.C.

§ 35-50-2-7. Here, the trial court imposed the maximum sentence under the statute.

      As long as the sentence is within the statutory range, it is subject to review only

for an abuse of discretion. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), aff’d on

reh’g, 875 N.E.2d 218 (Ind. 2007). An abuse of discretion occurs if the decision is



                                             3
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. Although a trial

court may have acted within its lawful discretion in determining a sentence, Appellate

Rule 7(B) provides that the appellate court may revise a sentence authorized by statute if

the appellate court finds that the sentence is inappropriate in light of the nature of the

offense and the character of the offender. Id. On appeal, it is the defendant’s burden to

persuade us that the sentence imposed by the trial court is inappropriate. Childress v.

State, 848 N.E.2d 1073, 1080 (Ind. 2006).

       With respect to the nature of his crime, Staples argues that he should not be given

the maximum sentence because he was not the most culpable since it was Smith who

actually stole the camera. While we do not dispute that Smith’s actions completed the

theft, it should be noted that Staples’ actions substantially contributed to the crime.

Specifically, Staples removed the security device which enabled Smith to take the camera

out of the store.

       Turning to his character, we reach a similar result. At the time of sentencing,

Staples was thirty-four years old, with a juvenile and adult criminal history spanning

twenty years. Furthermore, while he was out on bond in the instant cause, he was

arrested at least five times and convicted of three new crimes in two cases. In both cases,

Staples received probation; in both cases, he subsequently violated his probation. While

he now points to his guilty plea as evidence of good character, we find the argument

misplaced. Not only did it take three years for him to enter a guilty plea, we have also

previously acknowledged that, like in the instant case, “a guilty plea does not rise to the


                                             4
level of significant mitigation where . . . the decision to plead guilty is merely a

pragmatic one.” Powell v. State, 895 N.E.2d 1259, 1262-63 (Ind. Ct. App. 2008). As a

final argument, Staples asserts that “it cannot be overlooked that [he] is battling

cancer[.]” (Appellant’s Br. p. 8). While we sympathize with his battle, we note that he

was diagnosed over fifteen years ago and despite of his condition, has continued a life of

crime. Based on the evidence before us, we affirm the trial court’s imposition of a three

year sentence.

                                      CONCLUSION

       Based on the foregoing, we conclude that Staples’ sentence is appropriate in light

of his character and the nature of the crime.

       Affirmed.

NAJAM, J. and DARDEN, J. concur




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