Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                                  Aug 15 2013, 5:30 am
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:

TERRY E. IACOLI                                  GREGORY F. ZOELLER
Martinsville, Indiana                            Attorney General of Indiana

                                                 AARON J. SPOLARICH
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

MARK A. ATHERTON,                                )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )      No. 55A01-1211-CR-537
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                    APPEAL FROM THE MORGAN CIRCUIT COURT
                        The Honorable Matthew G. Hanson, Judge
                             Cause No. 55C01-1204-FB-590


                                      August 15, 2013


               MEMORANDUM DECISION - NOT FOR PUBLICATION

BARNES, Judge
                                    Case Summary

       Mark Atherton appeals his forty-year sentence for Class B felony burglary and for

being an habitual offender. We affirm.

                                          Issues

       Atherton raises two issues, which we restate as:

              I.    whether the trial court abused its discretion when it
                    sentenced him; and

              II.   whether his sentence is inappropriate.

                                          Facts

       On April 30, 2012, Atherton took a significant amount of Xanax and broke into

the Martinsville home of Victor and Amber Spina, who were at home asleep with their

two children. Atherton took things out of the refrigerator, some money, and an iPod.

Amber was awakened by the opening of the refrigerator door, and Victor chased Atherton

out of the house.

       Police eventually detained Atherton, who was charged with Class B felony

burglary, Class D felony theft, and Class B misdemeanor criminal mischief. The State

also alleged that Atherton was an habitual offender. Without the benefit of a plea

bargain, Atherton pled guilty to the burglary charge and the habitual offender allegation,

and the remaining charges were dismissed.

       At the October 31, 2012 sentencing hearing, the trial court considered Atherton’s

criminal history and the fact that he violated “the sanctity of someone’s own home” as

aggravators. Tr. pp. 26-27. The trial court considered the fact that it was not a violent


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crime and Atherton’s guilty plea as mitigators. The trial court found that the aggravators

outweighed the mitigators and sentenced Atherton to fifteen years on the burglary charge

enhanced by twenty-five years for being an habitual offender, for a total sentence of forty

years. Atherton now appeals.

                                          Analysis

                                   I. Abuse of Discretion

       Atherton first argues the trial court abused its discretion when it sentenced him.

We evaluate a sentence under the current “advisory” sentencing scheme pursuant to

Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007), clarified on reh’g by Anglemyer v.

State, 875 N.E.2d 218 (Ind. 2007). The trial court must issue a sentencing statement that

includes “reasonably detailed reasons or circumstances for imposing a particular

sentence.” Anglemyer, 868 N.E.2d at 491. The reasons or omission of reasons given for

choosing a sentence are reviewable on appeal for an abuse of discretion. Id. “The

relative weight or value assignable to reasons properly found or those which should have

been found is not subject to review for abuse.” Id.

       At the sentencing hearing, there was evidence of the impact the crime had on the

Spinas’ children, who were home asleep when Atherton broke in and was chased out by

Victor. In a letter, Victor explained that the family’s sense of “security and stability has

been taken away[.]” Ex. A. He stated that they now sleep with the lights on and that the

children now keep baseball bats beside their beds at night. In sentencing Atherton, the

trial court noted, “these people are affected forever.” Tr. p. 25. The trial court later listed

as an aggravator the intrusion on “the sanctity of someone’s own home.” Id. at 26-27.

                                              3
       Atherton argues that the trial court abused its discretion by considering the

intrusion on the sanctity of someone’s home as an aggravator because it was an element

of the Class B felony burglary charge that he broke into a dwelling. In Pedraza v. State,

887 N.E.2d 77, 80 (Ind. 2008), however, our supreme court observed that, after the 2005

modifications to the sentencing scheme, “a sentence toward the high end of the range is

no longer an ‘enhanced sentence’ in the sense that the former regime provided.” The

court concluded that using a material element of crime as an aggravator “is no longer an

inappropriate double enhancement.” Pedraza, 887 N.E.2d at 80. To the extent the trial

court considered the breaking and entering of a dwelling as an aggravator, it is no longer

an improper double enhancement under the new sentencing scheme.

       Moreover, it is clear that the trial court was focused on the fact that dwelling was

occupied by sleeping children when Atherton broke in, as opposed to the breaking and

entering of an unoccupied dwelling.         This was a proper assessment of nature and

circumstances of the crime. The trial court did not abuse its discretion by considering the

intrusion into the home as an aggravator.

                                   II. Inappropriateness

       Atherton also argues that his forty-year sentence is inappropriate in light of the

nature of the offense and his character. Indiana Appellate Rule 7(B) permits us to 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 offenses and the

character of the offender. Although Rule 7(B) does not require us to be “extremely”

deferential to a trial court’s sentencing decision, we still must give due consideration to

                                              4
that decision. Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007). We also

understand and recognize the unique perspective a trial court brings to its sentencing

decisions. Id. “Additionally, a defendant bears the burden of persuading the appellate

court that his or her sentence is inappropriate.” Id.

       The principal role of Rule 7(B) 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.”

Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). We “should focus on the forest—

the aggregate sentence—rather than the trees—consecutive or concurrent, number of

counts, or length of the sentence on any individual count.” Id. Whether a sentence is

inappropriate ultimately 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. Id. at 1224. When reviewing the appropriateness of a sentence under Rule 7(B),

we may consider all aspects of the penal consequences imposed by the trial court in

sentencing the defendant, including whether a portion of the sentence was suspended.

Davidson v. State, 926 N.E.2d 1023, 1025 (Ind. 2010).

       In considering the nature of the offense, Atherton asserts that it was a non-violent

offense committed while he was under the influence of Xanax and not part of a well-

conceived burglary. Although that might be the case, it is notable that the Spinas were

asleep in their home and were awoken by Atherton opening the refrigerator. Moreover,

Atherton’s Xanax use does not mitigate the nature of the offense. Forty-three-year-old

Atherton had been abusing Xanax since his early twenties. Although he had not taken it

                                              5
in two years, on the night of the offense, he found a bottle when he was cleaning the

bathroom and took so many that he blacked out and does not remember committing the

offense.

       As for the character of the offender, we recognize that Atherton pled guilty

without the benefit of a plea agreement and apologized to the Spinas. Nevertheless,

Atherton has an extensive criminal history which includes ten felony convictions and

seven misdemeanor convictions and has been found to have violated probation on at least

four occasions. Many of the convictions are alcohol or substance abuse related and

others are for trespass, sexual battery, burglary, auto theft, and theft. Atherton testified

that, as an adult, the longest he has been out of prison is two years, and even his attorney

described his criminal history as “awful.” Tr. p. 22. Based on Atherton’s lengthy history

of drug abuse and his extensive criminal history, he has not established that the total

sentence of forty years for the Class B felony conviction and the habitual offender

enhancement was inappropriate.

                                       Conclusion

       Atherton has not established that the trial court abused its discretion when it

sentenced him or that his sentence is inappropriate in light of the nature of the offense

and the character of the offender. We affirm.

       Affirmed.

CRONE, J., and PYLE, J., concur.




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