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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: TAFFANEE L. KEYS Marion County Public Defender Indianapolis, Indiana ATTORNEYS FOR APPELLEE: STEVE CARTER Attorney General of Indiana RICHARD C. WEBSTER Deputy Attorney General Indianapolis, Indiana

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

No. 49A02-0602-CR-143

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Jane Magnus-Stinson, Judge Cause Nos. 49G06-0502-FB-18316 and 49G06-0502-FB-20763

January 31, 2007 MEMORANDUM DECISION - NOT FOR PUBLICATION DARDEN, Judge

STATEMENT OF THE CASE James Williams appeals the sentence imposed by the trial court after he pleaded guilty to seven felony offenses (one count of robbery as a class B felony; five counts of robbery as class C felonies; and one count of criminal confinement as a class D felony) and being an habitual offender. We affirm. ISSUE Whether the trial court erred in its consideration of aggravating and mitigating circumstances or its order that Williams serve his sentences consecutively. FACTS On February 7, 2005, for incidents alleged to have taken place at four separate businesses on February 3rd, 4th, and 5th of 2005, the State charged Williams under Cause Number 49G06-0502-FB-018316 ("#316") with one count of robbery resulting in bodily injury, a class B felony, and three counts of robbery as class C felonies. The State subsequently added to #316 the allegation that Williams was an habitual offender. On February 10, 2005, for incidents alleged to have taken place on January 13th and 18th, 2005, at another business, the State charged Williams under Cause Number 49G06-0502FB0920763 (#"763") with two counts of robbery while armed with a deadly weapon, a class B felony; one count of criminal confinement as a class C felony; two counts of possession of a firearm by a serious violent felon, a class B felony; and two counts of carrying a handgun without a license, a class A misdemeanor. An habitual offender allegation was subsequently added to this information as well. 2

On November 14, 2005, the morning of Williams' scheduled trial, a plea agreement between Williams and the State as to both #316 and #763 was tendered to the trial court providing as follows. Williams would plead guilty to one count of class B felony for the robbery inflicting bodily injury; he would also plead guilty to the lesser offenses on the other five counts of robbery -- as class C felonies not involving a gun, to criminal confinement as a class D felony, and to being an habitual offender. The State would reduce the five robbery charges to lesser offenses and would dismiss the other charges involving guns. Sentencing would be argued to the trial court. The trial court conducted a plea hearing on November 14, 2005, and advised Williams of the rights he waived by entering guilty pleas. The trial court also advised Williams that the sentencing range was from six to seventy-four years. After the State specified the facts that its evidence would show, and Williams averred that these facts were true, the trial court found "that for each count, with respect to each victim, a separate factual basis ha[d] been made" and that Williams "was in fact an habitual offender." (Tr. 25, 25-26). The trial court accepted Williams' pleas, found him guilty on the seven counts and of being an habitual offender, and entered judgment. On January 19, 2006, the trial court held the sentencing hearing. Williams

informed the court that he was "sorry" for having been "inconsiderate to [the victims]," that it was a result of his involvement with drugs, and that he "want[ed] to tell everybody [he was] sorry." (Tr. 33, 34, 35). His counsel asked that the trial court consider as mitigating circumstances that Williams was willing to accept responsibility, had not required a jury trial, had a drug problem, and was remorseful. 3

The trial court stated that it did not "find in mitigation that time and expense were saved because of the fact of the eve of trial plea," but that his guilty plea was "entitled to some weight" and that the trial court would "afford it weight in mitigation." (Tr. 39). The trial court noted Williams' "criminal history, including a 1985 conviction for robbery, 1990 conviction for burglary, [and] 1991 conviction for robbery with a twentyyear sentence," finding this to constitute a "significant criminal history" that "indicates a pattern of criminal conduct that just hasn't stopped." (Tr. 39-40). The trial court acknowledged Williams' argument about having a drug problem, but observed that the offenses he chose to commit "put people in fear and interrupt[ed] their livelihood, . . . ma[d]e them afraid to work as a clerk." (Tr. 40). The trial court then concluded that Williams' criminal history "[wa]s significant aggravation." Id. Thereafter, the trial court imposed sentences as follows. In #316, Williams was sentenced to ten years for the robbery as a class B felony, 1 to four years for one robbery as a class C felony, 2 and to four years plus an habitual status enhancement of three years on the other robbery as a class C felony. These sentences were ordered served

consecutively, for a total of twenty-five years. In #763, Williams was sentenced to four years each on the two robberies as class C felonies, and to one and one-half years on the

1

At the time Williams committed the offenses, the presumptive sentence for a class B felony offense was ten years, with the possible sentencing range being from six to twenty years. See I.C.

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