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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: MARK I. COX The Mark I. Cox Law Office, LLC Richmond, Indiana

FILED
Aug 31 2010, 9:43 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana JAMES E. PORTER Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
CHARLES E. HUBBARD, Appellant- Defendant, vs. STATE OF INDIANA, Appellee- Plaintiff, ) ) ) ) ) ) ) ) )

No. 89A01-1002-CR-151

APPEAL FROM THE WAYNE SUPERIOR COURT The Honorable Gregory A. Horn, Judge Cause No. 89D02-0809-FA-8

August 31, 2010 MEMORANDUM DECISION - NOT FOR PUBLICATION

ROBB, Judge

Case Summary and Issues Charles Hubbard was convicted of kidnapping and attempted rape, Class A felonies, and criminal confinement, robbery, and carjacking, Class B felonies, and was adjudicated an habitual offender. Upon Hubbard's initial appeal of his 135-year

sentence, this court remanded for the trial court to consider what, if any, mitigating weight to afford Hubbard's mental illness. On remand, the trial court found Hubbard's mental illness was longstanding, limited his overall functioning, and diminished his ability to control his behavior, yet imposed the same 135-year sentence. Hubbard again appeals his sentence, raising a single issue that we restate as two: whether the trial court abused its discretion in sentencing him, and whether Hubbard's sentence is inappropriate in light of the nature of his offenses and his character. Concluding the trial court did not abuse its discretion in sentencing Hubbard, and his sentence is not inappropriate, we affirm. Facts and Procedural History The following facts were recited in Hubbard's previous appeal: On June 22, 2008, sixty-three-year-old M.T. was doing her laundry in a Richmond laundromat when Hubbard walked in. Hubbard asked M.T. if the car parked outside was hers and whether she "t[ook] passengers[,]" claiming that he needed to return to Ohio. When M.T. told Hubbard that she would not give him a ride, he struck her in the face with his open hand, knocking her to the floor, causing pain. Hubbard, who was holding a knife in his hand, told M.T. that if she did not do everything he told her to do that he would kill her and that he would "slash" her throat. Hubbard and M.T. drove in M.T.'s car to a cornfield, where he had her undress. Hubbard attempted to have vaginal intercourse with M.T., but was unable to achieve an erection. Hubbard tied M.T.'s arms and legs with her clothing and left in her car. On September 4, 2008, the State charged Hubbard with a total of ten crimes stemming from the attack on M.T. and alleged that he was a habitual
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offender. As part of an investigation into Hubbard's competence to stand trial, he was examined by Dr. Glenn S. Davidson, Jr., Ph.D. Dr. Davidson concluded that "the defendant is of reduced intellectual ability[,] has had problems with acting out and aggressive behaviors in the past, but it is unclear whether he would have fully met the diagnosis for schizophrenia at the time of the offense." Dr. George Parker, M.D., also examined Hubbard and concluded, inter alia, that "the defendant did have a mental disease and a mental defect at the time of the alleged offenses." On November 14, 2008, the trial court found Hubbard competent to stand trial. On November 21, 2008, a jury found Hubbard guilty but mentally ill ("GBMI") as charged, and Hubbard admitted his habitual offender status. On December 19, 2008, the trial court sentenced Hubbard to forty-five years of incarceration for attempted rape, forty-five years for kidnapping, fifteen years for criminal confinement, fifteen years for robbery, and fifteen years for carjacking. The trial court ordered that Hubbard's attempted rape, kidnapping, and robbery sentences be served consecutively, that the criminal confinement and carjacking sentences would run concurrently with the attempted rape sentence, and that the sentence be enhanced by thirty years by virtue of Hubbard's habitual offender status, for an aggregate sentence of 135 years. The trial court found Hubbard's criminal record to be an aggravating circumstance, found no mitigating circumstances, and made no mention of Hubbard's mental illness or the fact that he had been found GBMI at either the sentencing hearing or in the sentencing statement. Hubbard v. State, No. 89A01-0901-CR-25, slip op. at 2-4 (Ind. Ct. App., Sept. 21, 2009) (record citations omitted). Hubbard appealed his sentence, and this court reversed and remanded. We

concluded that because the record did not show the trial court properly considered Hubbard's mental illness in sentencing him, remand was required for a new sentencing order showing the trial court had applied the criteria set forth in Archer v. State, 689 N.E.2d 678 (Ind. 1997). We "emphasize[d] that the sentence imposed by the trial court was not necessarily improper," slip op. at 6, and accordingly expressed no opinion regarding what weight, if any, the trial court should attribute to Hubbard's mental illness.

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On remand, the trial court held a resentencing hearing. Following argument by counsel, the trial court found Hubbard's mental illness was a mitigating circumstance but declined Hubbard's request to attribute to it significant weight. resentencing order provides in relevant part: The Court finds that on November 21, 2008, a jury returned verdicts finding [Hubbard] Guilty But Mentally Ill (GBMI) . . . . Argument is heard and the Court now specifically considers the following factors that bear on the weight, if any, that should be given to mental illness in sentencing: . . . . .[citation to Archer v. State, 689 N.E.2d 678 (Ind. 1997)] The Court finds that [Hubbard] is less able to control his behavior due to his impairment than one who is not mentally retarded. At the same time, both Dr. Davidson and Dr. Parker found that [Hubbard] was able to distinguish between right and wrong. The Court further finds that [Hubbard]'s mental retardation do [sic] affect [his] overall functioning in a negative manner and the Court finds that [Hubbard]'s mental illness is of a long-standing nature. The Court is unable to conclude that there is a substantial nexus between [Hubbard]'s impairment and the commission of the several crimes committed by [Hubbard]. Again, it is worth noting that despite [Hubbard]'s impairment, both Dr. Davidson and Dr. Parker determined that [Hubbard] was able to differentiate right from wrong. The Court finds no other mitigating circumstances. Appellant's Appendix at 31-32. As in its original sentencing order, the trial court found Hubbard's criminal history and the recent revocation of his probation to be aggravating circumstances. The trial court then explained: In weighing and balancing the aggravating circumstances against the mitigating circumstances in re-sentencing, the Court finds that the aggravating circumstances clearly and vastly outweigh the mitigating circumstances even considering the Archer factors set forth above, and an aggravated sentence is warranted and appropriate and reasonable in this
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The trial court's

cause. Indeed, the criminal history of [Hubbard] in and of itself outweighs the mitigating circumstances and warrants an aggravated sentence. Id. at 33. The trial court imposed the same sentence as before: forty-five years for attempted rape, forty-five years for kidnapping, fifteen years for criminal confinement, fifteen years for robbery, and fifteen years for carjacking. The trial court ordered that Hubbard's attempted rape, kidnapping, and robbery sentences be served consecutively, that the criminal confinement and carjacking sentences run concurrently with the attempted rape sentence, and that the sentence be enhanced by thirty years for Hubbard's habitual offender status, for a total sentence of 135 years. Hubbard now appeals. Discussion and Decision Initially we note that Hubbard's brief is less clear than it should be about the nature of the issues raised on appeal. Hubbard frames the issue as "[w]hether or not the trial court erred when it sentenced [Hubbard] to one hundred and thirty-five (135) years?" Appellant's Brief at 1. This broad statement of the issue fails to distinguish between an inappropriateness claim and an abuse of discretion claim, claims which this court has emphasized counsel should address and analyze separately. King v. State, 894 N.E.2d 265, 267 (Ind. Ct. App. 2008). Although Hubbard clearly challenges the merits of his 135-year sentence, he also refers to the abuse of discretion standard and makes arguments regarding the trial court's alleged failure to find and attribute weight to mitigating circumstances, a comingling of inappropriateness and abuse of discretion claims that we have found "troubl[ing]." Id. The State argues Hubbard has waived his inappropriateness claim by failing to argue it separately from his abuse of discretion claim and by failing to cite Appellate
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Rule 7(B). We have previously held that "failure to offer more than a mere conclusory statement" that a sentence should be reduced waives review of an inappropriateness claim, Gentry v. State, 835 N.E.2d 569, 576 (Ind. Ct. App. 2005), disapproved on other grounds, Freshwater v. State, 853 N.E.2d 941, 944 (Ind. 2006), as does failure to argue an inappropriateness claim independently from an abuse of discretion claim if the result is lack of a cogent argument, see Allen v. State, 875 N.E.2d 783, 788 n.8 (Ind. Ct. App. 2007). While we are troubled by Hubbard's failure to separately analyze the

inappropriateness claim and to cite clearly applicable authority, see Appellate Rule 46(A)(8)(A), Hubbard has provided us with citations to the record and case authority bearing upon his mental illness and the weight properly attributable to it on review for inappropriateness. Hubbard has made a cogent, if barely cogent, argument that the trial court's decision not to reduce his sentence on remand from his first appeal resulted in an inappropriate sentence, and we therefore review both of Hubbard's claims on their merits. I. Abuse of Discretion Hubbard argues the trial court abused its discretion in sentencing him. Under our current sentencing scheme, the trial court "must enter a state ment including reasonably detailed reasons or circumstances for imposing a particular sentence." Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007), clarified on reh'g, 875 N.E.2d 218 (Ind. 2007). "The reasons given, and the omission of reasons arguably supported by the record, are reviewable on appeal for abuse of discretion." Id. The trial court abuses its discretion if it (1) fails to enter a sentencing statement at all, (2) enters "a sentencing statement that explains reasons for imposing a sentence

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