MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                                          FILED
Memorandum Decision shall not be                                                 Mar 29 2019, 7:02 am
regarded as precedent or cited before any                                            CLERK
court except for the purpose of establishing                                     Indiana Supreme Court
                                                                                    Court of Appeals
the defense of res judicata, collateral                                               and Tax Court


estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
A. David Hutson                                          Curtis T. Hill, Jr.
Hutson Legal                                             Attorney General of Indiana
Jeffersonville, Indiana
                                                         Marjorie Lawyer-Smith
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Justin Thomas Bower,                                     March 29, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-2283
        v.                                               Appeal from the Clark Circuit
                                                         Court
State of Indiana,                                        The Honorable Vicki Carmichael,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         10C04-1709-F1-5



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2283 | March 29, 2019                      Page 1 of 9
                                          Statement of the Case
[1]   Justin Bower (“Bower”) appeals the twenty-five year aggregate sentence

      imposed after he pleaded guilty to Level 2 felony attempted robbery resulting in

      serious bodily injury1 and Level 6 felony obstruction of justice.2 He argues that

      the trial court abused its discretion in sentencing him and that his sentence is

      inappropriate in light of his character and the nature of his offenses.

      Concluding that the trial court did not abuse its discretion and that the sentence

      is not inappropriate, we affirm Bower’s sentence.


[2]   We affirm.


                                                    Issues
                 1.      Whether the trial court abused its discretion in sentencing
                         Bower.

                 2.      Whether Bower’s sentence is inappropriate in light of the
                         nature of his offense and his character.



                                                     Facts
[3]   In September 2017, Bower went to Jack Blanton’s (“Blanton”) house intending

      to steal pills, cash, and a gun. Bower knocked on Blanton’s front door and told

      Blanton that he was interested in purchasing an engine lift. Blanton invited




      1
          IND. CODE §§ 35-42-5-1 and 35-41-5-1.
      2
          IND. CODE § 35-44.1-2-2.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2283 | March 29, 2019   Page 2 of 9
      Bower into his home and made a phone call about the lift. Bower pulled a knife

      out of his pocket and stabbed Blanton in the back, neck, and shoulder between

      eight and fifteen times. Bower then ran out of Blanton’s house with the knife,

      got into his vehicle, and left the knife along the side of the road. As a result of

      the stabbing, Blanton was hospitalized for several months with extensive

      injuries.


[4]   The State charged Bower with: (1) Level 1 felony attempted murder, (2) Level

      2 felony attempted robbery resulting in serious bodily injury, (3) Level 2 felony

      conspiracy to commit robbery resulting in serious bodily injury, and (4) Level 6

      felony obstruction of justice. In August 2018, pursuant to the terms of a plea

      agreement, Bower pleaded guilty to attempted robbery and obstruction of

      justice in exchange for the dismissal of the remaining charges. The agreement

      left sentencing to the trial court’s discretion with the limitations that the

      aggregate sentence was capped at thirty (30) years, the executed sentence was

      capped at seventeen and one-half (17.5) years, and the sentences would run

      concurrent with each other.


[5]   The trial court held a sentencing hearing in September 2018. Blanton testified

      that Bower had stabbed him in the back, shoulders, and neck. According to

      Blanton, he had lost fifteen to eighteen units of blood and had “none of [his]

      own blood.” (Tr. 28). Blanton further testified that he had spent “several

      months” in the hospital and was “still going through treatments.” (Tr. 27).

      According to Blanton, he suffers from brain damage and significant memory

      loss because of the blood loss. In addition, Blanton testified that he had sold his

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2283 | March 29, 2019   Page 3 of 9
      house because he did not “want to be around there no more.” (Tr. 28). He

      moved one hundred miles away to be near his sister but had to leave his friends.


[6]   The Presentence Investigation Report revealed that Bower had two prior

      misdemeanor convictions for theft and failing to possess a driver’s license. In

      addition, Bower’s blind fiancé testified that Bower was her primary caregiver.


[7]   The trial court found as aggravating circumstances Bower’s prior criminal

      history as well as the serious nature of Blanton’s injuries that was “greater than

      the serious bodily injury required under the Level 2 felony[.]” (Tr. 31). The

      trial court further found as a mitigating factor the loss that Bower’s dependents

      and fiancé would suffer based upon the long term of incarceration. The trial

      court sentenced Bower to: (1) twenty-five (25) years for the Level 2 felony, with

      seventeen and one-half (17.5) years executed and seven and one-half years (7.5)

      suspended and (2) two and one-half (2.5) years for the Level 6 felony. The trial

      court further ordered the sentences to run concurrent with each other.


[8]   Bower now appeals his sentence.


                                                  Decision
[9]   Bower argues that: (1) the trial court abused its discretion in determining the

      aggravating factors used to sentence him; and (2) his sentence is inappropriate

      in light of his character and the nature of his offenses. We address each of his

      arguments in turn.


      1. Abuse of Discretion in Sentencing


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2283 | March 29, 2019   Page 4 of 9
[10]   Bower contends that the trial court abused its discretion in sentencing him.

       Sentencing decisions rest within the sound discretion of the trial court.

       Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007). So long as the sentence is

       within the statutory range, it is subject to review only for an abuse of discretion.

       Id. 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 491. A trial

       court may abuse its discretion in a number of ways, including: (1) failing to

       enter a sentencing statement at all; (2) entering a sentencing statement that

       includes aggravating and mitigating factors that are unsupported by the record;

       (3) entering a sentencing statement that omits reasons that are clearly supported

       by the record; or (4) entering a sentencing statement that includes reasons that

       are improper as a matter of law. Id. at 490-91.


[11]   Here, Bower contends that the trial court abused its discretion by including

       improper aggravating factors that were unsupported by the record. Our review

       of the evidence reveals otherwise.


[12]   The trial court’s first aggravating factor took note of the serious nature of

       Blanton’s injuries. Bower argues that the trial court abused its discretion when

       it determined that the serious nature of Blanton’s injury was “greater than the

       serious bodily injury required under the Level 2 felony[.]” (Tr. 31). See IND.

       CODE § 35-42-5-1. However, “[e]ven when serious bodily injury is an element

       of the crime charged, the severity of the injury may serve as a valid aggravating

       circumstance.” Patterson v. State, 846 N.E.2d 723, 731 (Ind. Ct. App. 2006)

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2283 | March 29, 2019   Page 5 of 9
       (relying on Lang v. State, 461 N.E.2d 1110 (Ind. 1984) and finding it was not an

       abuse of discretion to use the serious nature of the victim’s injury as an

       aggravating circumstance to enhance the sentence). This is no different than

       the trial court considering the particularized circumstances of the factual

       elements as aggravating factors when evaluating the nature of the offense. See

       McElroy v. State, 865 N.E.2d 584, 589-90 (Ind. 2007) (explaining that when

       evaluating the nature of the offense, the trial court may properly consider the

       particularized circumstances of the factual elements as aggravating factors). See

       also IND. CODE § 35-38-1-7.1 (“In determining what sentence to impose for a

       crime, the court may consider the following aggravating circumstances . . . the

       harm, injury, loss, or damage suffered by the victim of an offense was . . .

       significant; and . . . greater than the elements necessary to prove the

       commission of the offense.”). Here, our review of the record reveals that Bower

       stabbed Blanton eight to fifteen times, Blanton lost copious amounts of blood,

       Blanton was hospitalized for several months, and Blanton suffers from brain

       damage and significant memory loss because of the blood loss. As a result, the

       trial court did not abuse its discretion by considering these facts as aggravating

       factors in support of its sentence.


[13]   The second challenged aggravating factor is Bower’s criminal history. Bower

       specifically argues that his two misdemeanor convictions are too “insignificant”

       to constitute an aggravating factor. (Bower’s Br. at 12). However, INDIANA

       CODE § 35-38-1-7.1(a) provides that “[i]n determining what sentence to impose

       for a crime, the court may consider the following aggravating circumstances: . .


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2283 | March 29, 2019   Page 6 of 9
       . (2) The person has a history of criminal or delinquent behavior.” At

       sentencing, the significance of a criminal history varies based on the gravity,

       nature and number of prior offenses as they relate to the current offense.

       McElfresh v. State, 51 N.E.3d 103, 112 (Ind. 2016). Thus, the weight of criminal

       history may vary, but consideration of it is not an abuse of discretion. Id. The

       trial court did not abuse its discretion in considering Bower’s criminal history to

       be an aggravating factor.


       2. Inappropriate Sentence


[14]   Bower also argues that his sentence is inappropriate. Indiana Appellate Rule

       7(B) provides that we may revise a sentence authorized by statute if, after due

       consideration of the trial court’s decision, we find that the sentence is

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

       offender. The defendant bears the burden of persuading this Court that his

       sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).

       Whether we regard a sentence as inappropriate turns on the “culpability of the

       defendant, the severity of the crime, the damage done to others, and myriad

       other factors that come to light in a given case.” Cardwell v. State, 895 N.E.2d

       1219, 1224 (Ind. 2008).


[15]   The Indiana Supreme Court has further explained that “[s]entencing is

       principally a discretionary function in which the trial court’s judgment should

       receive considerable deference.” Id. at 1222. “Such deference should prevail

       unless overcome by compelling evidence portraying in a positive light the


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2283 | March 29, 2019   Page 7 of 9
       nature of the offense (such as accompanied by restraint, regard, and lack of

       brutality) and the defendant’s character (such as substantial virtuous traits or

       persistent examples of good character).” Stephenson v. State, 29 N.E.3d 111, 122

       (Ind. 2015).


[16]   When determining whether a sentence is inappropriate, the advisory sentence is

       the starting point the legislature has selected as an appropriate sentence for the

       crime committed. Childress, 848 N.E.2d at 1081. The sentencing range for a

       Level 2 felony is ten (10) to thirty (30) years, and the advisory sentence is

       seventeen and one-half (17.5) years. IND. CODE § 35-50-2-4.5. The sentencing

       range for a Level 6 felony is between six (6) months and two and one-half (2.5)

       years, and the advisory sentence is one (1) year. IND. CODE § 35-50-2-7. Here,

       Bower was sentenced to twenty-five years for the Level 2 felony, with seventeen

       and one-half years executed and seven and one-half years suspended, and to

       two and one-half years for the Level 6 felony. The trial court further ordered

       the sentences to run concurrently to each other.


[17]   Regarding Bower’s character, we note that this was not Bower’s first contact

       with the criminal justice system. Bower has prior misdemeanor convictions for

       theft and failing to be in possession of a driver’s license. Even a minor criminal

       history is a poor reflection of a defendant’s character. Moss v. State, 13 N.E.3d

       440, 448 (Ind Ct. App. 2014), trans. denied.


[18]   Regarding the nature of the offense, we note that after having been invited into

       Blanton’s home, Bower stabbed Blanton in the back, neck, and shoulder


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2283 | March 29, 2019   Page 8 of 9
       between eight and fifteen times. The attack was unprovoked, and Blanton had

       no opportunity to defend himself. As a result of the stabbing, Blanton was

       hospitalized for several months with extensive injuries. Specifically, Blanton

       lost copious amounts of blood from his body and he suffers from brain damage

       and has significant memory loss due to the blood loss. In addition, Blanton

       sold his house because he no longer felt comfortable living there following the

       attack.


[19]   Bower has failed to meet his burden to persuade this Court that his aggregate

       twenty-five year sentence, which includes an executed sentence of seventeen

       and one-half years, is inappropriate.


[20]   Affirmed.


       Najam, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2283 | March 29, 2019   Page 9 of 9
