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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.

FILED
Dec 30 2010, 9:23 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEY FOR APPELLANT: JOHN ANDREW GOODRIDGE Evansville, Indiana

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana ANDREW KOBE Deputy Attorney General Indianapolis, Indiana

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

No. 82A01-1006-CR-299

APPEAL FROM THE VANDERBURGH CIRCUIT COURT The Honorable Carl A. Heldt, Judge Cause No. 82C01-0702-FB-243

December 30, 2010

MEMORANDUM DECISION - NOT FOR PUBLICATION

CRONE, Judge

Case Summary Kenneth Hopper went on a spree of bizarre criminal behavior resulting in eight criminal charges filed against him. Pursuant to a plea agreement, Hopper pled guilty to five of the counts. Hopper asserted mental illness and, thereafter, the trial court entered judgment of conviction of guilty but mentally ill. The court sentenced Hopper to the advisory sentence on each criminal count to be served concurrently with one another. On appeal, Hopper contends that the trial court abused its discretion when it imposed concurrent advisory sentences. Finding no abuse of discretion, we affirm. Facts and Procedural History The relevant facts indicate that on February 27, 2007, Hopper approached Wendy James, who was walking her dog outside of the Charter Oaks Apartments in Evansville. Hopper spoke to James and then began hitting her repeatedly in the face and head. Hopper forced her to the ground and began strangling her. James's dog eventually bit Hopper, which caused him to halt the attack. At the time of the attack, Hopper's arms and legs were covered in blood. Police officers responded to the scene and went to Hopper's apartment looking for him. In addition to the assault on James, officers were alerted that, earlier that evening, a witness had seen Hopper break into one of the apartments by breaking the side window of the apartment with a rock. Several items were discovered missing from that apartment. Officers eventually located Hopper hiding inside yet another apartment, the model apartment. Hopper had broken the sliding door of that apartment to gain entry. At the time officers found

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Hopper, he had suffered several cuts on his feet. Officers arrested Hopper and transported him to the hospital to treat his injuries. Once at the hospital, a nurse attempted to take Hopper's temperature rectally. Hopper began to fight. As police officers tried to restrain Hopper, he resisted violently, causing one of the officers to suffer a severely dislocated thumb. Hopper managed to punch another officer in the head and face several times, causing injuries. Hopper also stuck his bloody fingers inside an officer's mouth as they struggled. The State charged Hopper with eight criminal counts including: class D felony residential entry; class D felony battery by body waste; class C felony battery; class D felony battery; class D felony attempted strangulation; class A misdemeanor battery; and two counts of class A misdemeanor criminal mischief. On May 9, 2008, pursuant to a written agreement with the State, Hopper pled guilty to class D felony battery by body waste, class C felony battery, class D felony battery, class A misdemeanor battery, and one count of class A misdemeanor criminal mischief. During the guilty plea hearing, Hopper asserted that he wished to plead guilty but mentally ill to the charges and agreed that sentencing would be left to the trial court's discretion. The trial court approved the guilty plea but took the issue of Hopper's mental state under advisement until sentencing. Hopper was subsequently arrested and charged in Warrick County on another offense and, thus, sentencing in the instant case was delayed until May 17, 2010. During sentencing, the trial court accepted the parties' plea agreement and entered judgment of conviction of guilty but mentally ill. The trial court then sentenced Hopper to the advisory sentence of eighteen months for class D felony battery by

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body waste, the advisory sentence of four years for class C felony battery, the advisory sentence of eighteen months for class D felony battery, and the advisory sentence of one year for each class A misdemeanor count. The court ordered those sentences to be served concurrently.1 Discussion and Decision Hopper contends that the trial court abused its discretion when it sentenced him to the advisory sentence on each of the convictions. Sentencing decisions rest within the sound discretion of the trial court, and we review those decisions on appeal 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 trial court's 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. During sentencing, the trial court may consider certain aggravating and mitigating circumstances. Ind. Code

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