MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                   FILED
this Memorandum Decision shall not be                                Oct 15 2018, 6:17 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
Andrew K. Porter                                         Curtis T. Hill, Jr.
Feavel & Porter                                          Attorney General of Indiana
Vincennes, Indiana
                                                         Angela N. Sanchez
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Alex Bise,                                               October 15, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         26A01-1711-PC-2747
        v.                                               Appeal from the Gibson Superior
                                                         Court
State of Indiana,                                        The Honorable Earl G. Penrod,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         26D01-1510-PC-589



Mathias, Judge.




Court of Appeals of Indiana | Memorandum Decision 26A01-1711-PC-2747 | October 15, 2018      Page 1 of 8
[1]   The Gibson Superior Court ordered Alex Bise (“Bise”) to serve forty-three years

      for his Class A felony attempted murder conviction. Bise appeals his sentence

      and raises two issues, which we restate as:


        I. Whether the trial court abused its discretion when it made a statement
           regarding the impact Bise’s offense had on the drug court program; and

       II. Whether Bise’s forty-three-year sentence is inappropriate in light of the
           nature of the offense and the character of the offender.

[2]   We affirm.


                                 Facts and Procedural History
[3]   Bise, who has been convicted of numerous alcohol- and drug-related offenses,

      was a participant in the Gibson County Substance Abuse Treatment Court

      Program. Bise was residing with sixty-seven-year old Anne Myers who was

      assisting Bise with his completion of the program requirements.


[4]   On May 2, 2014, a police officer from the Oakland City Police Department

      arrived at Myers’s home for the purpose of serving an arrest warrant on Bise.

      No one answered the officer’s knock at the door. But the officer entered the

      home because he saw Myers laying on the ground in a fetal position surrounded

      by a pool of blood. Bise was seated on the couch, and he was agitated, smelled

      of alcohol, and had blood on his clothes and hands.


[5]   Myers was severely beaten, and her jaw was obviously broken. The officer saw

      at least four stab wounds on her arms and legs. Myers also had a black eye.

      Myers had been lying on the floor surrounded by her blood for thirty minutes to

      Court of Appeals of Indiana | Memorandum Decision 26A01-1711-PC-2747 | October 15, 2018   Page 2 of 8
      an hour before the officer arrived. Myers was able to tell the officer that Bise

      beat her and that he stated he was going to kill her. Later, Myers told the police

      that Bise beat her with his fists, a cane, and a broom handle, and stabbed her

      with a survival knife. Myers is a diminutive woman, and she was not able to

      defend herself. Fearing that Myers might not make it to the hospital in time to

      save her life, the officer escorted the ambulance to the hospital, and the

      Evansville Police Department blocked intersections to clear the roadway.

[6]   Bise admitted that he beat Myers. He also told the officers that he consumed

      alcohol and used methamphetamine prior to beating Myers. Bise later stated

      that he was angry with Myers and claimed that she was interested in a romantic

      relationship with him.


[7]   Bise was charged with Class A felony attempted murder, and he pleaded guilty

      to the crime approximately one month after he was charged. The trial court

      held Bise’s sentencing hearing on August 13, 2014. The trial court noted as

      aggravating factors Bise’s extensive, although primarily drug- and alcohol-

      related, criminal history and the fact that he committed the crime while serving

      in the drug court program. The trial court also considered the extremely brutal

      nature of the crime and that Myers was beaten repeatedly as aggravating

      circumstances. In addition, the court found that Myers’s age and the fact that

      Bise victimized the person who was supporting him and helping him through

      the drug court program were aggravating circumstances. Finally, the court

      considered the likelihood that Bise will continue to have issues with substance

      abuse as an aggravating factor.

      Court of Appeals of Indiana | Memorandum Decision 26A01-1711-PC-2747 | October 15, 2018   Page 3 of 8
[8]    With regard to mitigating circumstances, the trial court considered Bise’s guilty

       plea during the early stages of the proceedings. The court found that Bise

       accepted responsibility for his crime and expressed remorse. And the court gave

       modest mitigating weight to Bise’s struggle with substance abuse and the impact

       it had on his offense.


[9]    Finally, before pronouncing Bise’s sentence, the trial court noted the impact

       that Bise’s crime had on the community and the drug court program. However,

       the court expressly stated that it was “not going to sentence [Bise] based upon

       this particular factor.” Tr. p. 63. The court then sentenced Bise to serve forty-

       three years in the Department of Correction. Bise now belatedly appeals his

       sentence.


                                      Discussion and Decision
[10]   Bise argues that the trial court improperly considered an aggravating

       circumstance and claims that his forty-three-year sentence is inappropriate in

       light of the nature of the offense and the character of the offender.


                                            I. Abuse of Discretion

[11]   Sentencing decisions rest within the sound discretion of the trial court and are

       reviewed 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. 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. A trial court abuses its discretion if it:

       Court of Appeals of Indiana | Memorandum Decision 26A01-1711-PC-2747 | October 15, 2018   Page 4 of 8
       (1) fails “to enter a sentencing statement at all,” (2) enters “a sentencing

       statement that explains reasons for imposing a sentence—including a finding of

       aggravating and mitigating factors if any—but the record does not support the

       reasons,” (3) enters a sentencing statement that “omits reasons that are clearly

       supported by the record and advanced for consideration,” or (4) considers

       reasons that “are improper as a matter of law.” Id. at 490–91. The relative

       weight or value assignable to reasons properly found, or those which should

       have been found, is not subject to review for abuse of discretion. Id. at 491.


[12]   Bise argues that the trial court relied on an improper aggravating factor, i.e. the

       negative impact Bise’s crime had on the drug court program. The trial court

       made a statement addressing Bise’s participation in the drug court program and

       the negative impact his crime had on that program and the community as a

       whole. However, the trial court expressly stated that it was “not going to

       sentence [Bise] based upon this particular factor, but it was referenced by the

       State and I think it bears mentioning.” Tr. p. 63. After making its statement, the

       court again stated that it was not considering the negative impact on the drug

       court program as an aggravating factor and the court was focused on Bise and

       the crime he committed. Id. at p. 64. We therefore conclude that Bise’s

       argument challenging the court’s statement lacks merit.


[13]   Bise also claims that the trial court did not consider his remorse and guilty plea

       as mitigating circumstances. But the trial court expressly stated that it found

       Bise’s guilty plea and remorse as mitigating circumstances and engaged in a

       thoughtful discussion of those factors. Id. at pp. 58–60. Bise’s claim is more

       Court of Appeals of Indiana | Memorandum Decision 26A01-1711-PC-2747 | October 15, 2018   Page 5 of 8
       appropriately framed as a challenge to the weight the trial court assigned to

       those mitigating factors. But the weight a trial court affords to mitigating

       circumstances is not subject to appellate review. See Anglemyer, 868 N.E.2d at

       491.


[14]   For all of these reasons, we conclude that the trial court did not abuse its

       discretion when it sentenced Bise.


                                        II. Inappropriate Sentence

[15]   Indiana Appellate Rule 7(B) provides that “[t]he Court may revise a sentence

       authorized by statute if, after due consideration of the trial court's decision, the

       Court finds that the sentence is inappropriate in light of the nature of the offense

       and the character of the offender.” In conducting our review, “[w]e do not look

       to determine if the sentence was appropriate; instead we look to make sure the

       sentence was not inappropriate.” Conley v. State, 972 N.E.2d 864, 876 (Ind.

       2012). “[S]entencing is principally a discretionary function in which the trial

       court’s judgment should receive considerable deference.” Cardwell v. State, 895

       N.E.2d 1219, 1222 (Ind. 2008).


[16]   Thus, although we have the power to review and revise sentences, 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.” Id. at 1225. It is Bise’s burden on appeal to establish that




       Court of Appeals of Indiana | Memorandum Decision 26A01-1711-PC-2747 | October 15, 2018   Page 6 of 8
       his sentence is inappropriate. Grimes v. State, 84 N.E.3d 635, 645 (Ind. Ct. App.

       2017), trans. denied.


[17]   When considering the nature of the offense, we observe that “the advisory

       sentence is the starting point the Legislature selected as appropriate for the

       crime committed.” Pierce v. State, 949 N.E.2d 349, 352 (Ind. 2011). On the date

       Bise committed his crime, the advisory sentence for a Class A felony was thirty

       years. See Ind. Code § 35-50-2-4(a). Bise’s forty-three-year sentence is seven

       years less than the maximum fifty-year sentence he could have received. See id.


[18]   Bise brutally and repeatedly beat Myers, a defenseless sixty-seven-year-old

       woman who is half his size. He beat her with his fists, a cane, and a broom

       handle. Bise also stabbed her repeatedly with a survival knife. There is one

       picture of Myers in the record, and the image is horrifying. After Bise beat

       Myers, she lay in a pool of her own blood for thirty minutes to an hour before a

       police officer fortuitously arrived at her residence. Bise did not attempt to

       provide any assistance to Myers. Myers received a police escort to the hospital

       because police officers and EMTs feared that Myers would die on the way to

       the hospital.

[19]   Forty-five-year-old Bise has an extensive criminal record dating back to 1988.

       Although most of his offenses are alcohol- or substance abuse-related

       misdemeanors, Bise also has convictions for Class C felony assisting a criminal,

       Class C felony intimidation, Class A misdemeanor battery resulting in bodily

       injury, and Class A misdemeanor resisting law enforcement. Bise’s probation


       Court of Appeals of Indiana | Memorandum Decision 26A01-1711-PC-2747 | October 15, 2018   Page 7 of 8
       was revoked or he received an unsatisfactory discharge from probation six

       times. When he committed this offense, he was participating in drug court. And

       he committed his offense against the individual providing him assistance and a

       place to live as he attempted to complete the drug court program.


[20]   Bise did not receive the maximum sentence because he pleaded guilty, accepted

       responsibility, and expressed remorse for his actions, all of which reflect

       positively on his character. But the brutal nature of his offense and his inability

       to lead a law-abiding life more than support the trial court’s decision to impose

       a forty-three-year sentence. Considering the nature of the offense and the

       character of the offender, we conclude that Bise’s forty-three-year sentence is

       not inappropriate.


                                                 Conclusion
[21]   The trial court’s sentencing statement thoroughly and thoughtfully sets out its

       reasons for sentencing Bise to serve forty-three years in the Department of

       Correction. The trial court did not abuse its discretion when it sentenced Bise,

       and his sentence is not inappropriate in light of the nature of the offense and the

       character of the offender.


[22]   Affirmed.


       Bailey, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 26A01-1711-PC-2747 | October 15, 2018   Page 8 of 8
