Preview:

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: PATRICIA CARESS MCMATH Indianapolis, Indiana

ATTORNEYS FOR APPELLEE: STEVE CARTER Attorney General of Indiana ARTHUR THADDEUS PERRY Deputy Attorney General Indianapolis, Indiana

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

No. 47A02-0604-CR-325

APPEAL FROM THE LAWRENCE SUPERIOR COURT The Honorable William G. Sleva, Judge Cause No. 47D02-0112-CF-1150

October 26, 2006

MEMORANDUM DECISION - NOT FOR PUBLICATION

NAJAM, Judge

STATEMENT OF THE CASE James E. Smith appeals his sentence following his conviction for Burglary, as a Class C felony, pursuant to a guilty plea. He presents a single issue for our review, namely, whether his sentence is inappropriate in light of the nature of the offense and the character of the offender. We affirm. FACTS AND PROCEDURAL HISTORY On December 27, 2001, Smith broke into the C and R Quik Stop Convenience Store ("Quik Stop") in Lawrence County with the intent to commit theft. Smith pried open the doors to the Quik Stop, tripping an alarm. Someone then saw Smith exit the Quik Stop carrying bags, although he dropped two of them. Officer Roberts, the first officer on the scene, found the bags, which contained cartons of cigarettes. Shortly thereafter, another officer located Smith in a drainage ditch in possession of a trash bag and over $4,000 in cash. On December 28, the State charged Smith with burglary, as a Class C felony. The State amended the charging information on January 4, 2002, to include an additional count of Theft, as a Class D felony, and an allegation that Smith was an habitual offender. Over four years later, on January 27, 2006, two business days before trial against Smith was scheduled to begin, Smith pleaded guilty to the charge of burglary and to being an habitual offender. In exchange for the guilty plea, the State agreed to dismiss the additional charge of theft and not to file any new criminal charges against Smith for any offenses he may have committed in Lawrence County prior to January 27, 2006, in
2

which he was already a suspect. In addition, to support the habitual offender plea, Smith acknowledged two prior, unrelated Class D felony convictions in 1990 and 1991. On February 24, 2006, the trial court sentenced Smith. The trial court found as a mitigating circumstance the hardship of incarceration on Smith's mother and son, and the trial court found as aggravators his criminal history and Smith's violation of federal parole terms in December of 2002. In discussing Smith's criminal history, the trial court recited fifteen different convictions between 1974 and the instant offense, including at least five felonies between 1991 and 2000. However, the trial court made no mention, either at the sentencing hearing or in its sentencing order, of Smith's guilty plea as a possible mitigating circumstance. After finding that the aggravators "greatly

outweigh[ed]" the mitigators, the trial court sentenced Smith to eight years imprisonment for burglary, as a Class C felony, the maximum sentence allowed, and enhanced that sentence by twelve years for his habitual offender status, also the maximum. Transcript at 43. This appeal ensued. DISCUSSION AND DECISION Smith contends that his sentence is inappropriate in light of the nature of the offense and the character of the offender. We exercise with great restraint our

responsibility to review and revise sentences, recognizing the special expertise of the trial bench in making sentencing decisions. Bennett v. State, 787 N.E.2d 938, 949 (Ind. Ct. App. 2003), trans. denied. If the sentence imposed is authorized by statute, we will not revise or set aside the sentence unless it is inappropriate in light of the nature of the

3

offense and the character of the offender. Ind. Appellate Rule 7(B); McCann v. State, 749 N.E.2d 1116, 1121 (Ind. 2001). As an initial matter, we emphasize that Smith, in his Reply Brief, does not challenge whether the trial court abused its discretion in sentencing him, but only whether his sentence is inappropriate under Appellate Rule 7(B). As stated by our supreme court, "[t]hese are two separate inquiries reviewed under different standards." Noojin v. State, 730 N.E.2d 672, 678 (Ind. 2000). Hence, we do not consider whether the trial court erred in its findings of aggravators and mitigators. See also Weiss v. State, 848 N.E.2d 1070 (Ind. 2006). That said, Smith argues that "[t]he maximum allowable sentence . . . is inappropriate where the defendant accepted responsibility by pleading guilty and where the convictions used to prove the habitual offender status are over ten years old." Appellant's Brief at 3. We cannot agree. Smith pleaded guilty to burglary, as a Class C felony, and to being an habitual offender. In 2001, the year the crime was committed, 1 the presumptive sentence for a Class C felony was four years, with not more than four additional years available for aggravating circumstances. Ind. Code

Download James E. Smith v. State of Indiana.pdf

Indiana Law