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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: KIMBERLY A. JACKSON Indianapolis, Indiana

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana CYNTHIA L. PLOUGHE Deputy Attorney General Indianapolis, Indiana

FILED
Jul 07 2011, 9:20 am

IN THE COURT OF APPEALS OF INDIANA
VERNON D. HALL, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

of the supreme court, court of appeals and tax court

CLERK

No. 57A04-1012-CR-797

APPEAL FROM THE NOBLE CIRCUIT COURT The Honorable G. David Laur, Judge Cause No. 57C01-0912-FB-58

July 7, 2011

MEMORANDUM DECISION - NOT FOR PUBLICATION

CRONE, Judge

Case Summary Vernon Hall drove Anthony Hoover to the home of Rebecca Taylor so that Hoover could steal a CD player from her car. After acquiring the CD player, Hoover took a Blu-ray player, approximately $200 in change, and prescription drugs from Taylor's home. Hall was charged with several crimes, including class B felony burglary, to which he pled guilty. The trial court sentenced Hall to ten years in prison with the final two years suspended to probation. Hall argues that his sentence is inappropriate based on the nature of the offense and his character. He has failed to meet his burden of showing that the sentence is inappropriate, and therefore we affirm. Facts and Procedural History On December 26, 2009, Hall drove Hoover to the home of Rebecca Taylor, Hoover's aunt. Hall knew that Hoover planned to steal Taylor's CD player from her vehicle. Hoover also went inside the home and stole around $200 in change, a Blu-ray player, and some prescription drugs. The State charged Hall with class B felony burglary, class B felony manufacturing methamphetamine, class C felony possession of methamphetamine, class D felony possession of a controlled substance, and class B misdemeanor visiting a common nuisance. In exchange for the dismissal of the remaining charges, Hall pled guilty to the burglary. Sentencing was left to the trial court's discretion. The trial court gave Hall a sentence of ten years with two years suspended to probation. Hoover pled guilty to two class B felonies and was given six-year concurrent sentences for his convictions.

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Discussion and Decision Hall challenges his sentence. In Anglemyer, our supreme court presented a four-part analysis for reviewing sentences on appeal. 868 N.E.2d 482 (Ind. 2007), clarified on reh'g 875 N.E.2d 482 ("Anglemyer II"). First, the sentencing court must provide a statement with "reasonably detailed reasons or circumstances" for the sentence. Id. at 491. Second, those reasons given, or others omitted and arguably supported by the record, are reviewable only for abuse of discretion. Id. Third, the weight given to those reasons found, or those that should have been found, is not reviewable for abuse. Id. Finally, review by appellate courts of the merits of a sentence may be sought on the grounds outlined in Indiana Appellate Rule 7(B). Id. The trial court's sentencing statement reads as follows: Mr. Hall... your record isn't the worst I see... but what I don't like about [it] is that things seem to be getting worse, not better. You go from [m]isdemeanors . . . and probation to . . . getting felonies. The Battery, a repeat offense,[1] along with a probation violation again [is] . . . not good . . . that's not the way you ought to be moving, you ought to be moving in the other direction. So I want to get you hopefully started in the other direction. I've decided that the advisory sentence is appropriate and so I'm going to impose a ten-year sentence. I'm going to give . . . [you] eight[y]-eight days credit. I'm going to . . . suspend two of those years to transition you out. I'm going to recommend you be placed at . . . a facility with a drug program, vocational training, GED, and a program called . . . Thinking for Change, because [your] thinking needs a change. Tr. at 68-69. Hall does not contend that the reasons the court gave in support of its sentence are

Both Hall and the State reference the second battery charge in their briefs. The presentence investigation report indicates that the charge was amended to disorderly conduct.

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incorrect, and he does not argue that those reasons are not supported by the record. Under Anglemyer, he cannot argue that the weight given to those particular reasons in support of his sentence are incorrect. Anglemyer, 868 N.E.2d at 491. To the extent that Hall appears to be advancing mitigation arguments he did not make at his sentencing hearing, "[g]enerally, if the defendant fails to advance a mitigating circumstance at sentencing, this court will presume that the factor is not significant, and the defendant is precluded from advancing it for the first time on appeal." 2 Creekmore v. State, 853 N.E.2d 523, 530 (Ind. Ct. App. 2006), clarified on denial of reh'g on other grounds 858 N.E.2d 230, trans denied. Therefore, Hall's last possible basis for redress is Appellate Rule 7(B). We may revise a sentence authorized by statute if, after due consideration of the trial court's sentencing decision, we find that the sentence imposed is inappropriate in light of the nature of the offense and the defendant's character. Ind. Appellate Rule 7(B). However, an appellate court does not merely substitute its judgment for that of the trial court. Book v. State, 880 N.E.2d 1240, 1252 (Ind. Ct. App. 2008), trans. denied. The question under Appellate Rule 7(B) "is not whether another sentence is more appropriate, [but] whether the sentence imposed is inappropriate." King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008). "Although [Appellate Rule 7(B)] does not require the reviewing court to be extremely deferential to a trial court's sentencing decision, the reviewing court still gives due consideration to that decision." Richardson v. State, 906 N.E.2d 241, 247 (Ind. Ct. App.

Hall did not raise undue hardship or his cooperation with police as mitigating circumstances at the sentencing hearing.

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2009). The defendant has the burden of persuading us that his sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). "The advisory sentence is the starting point our legislature has selected as an appropriate sentence for the crime committed." Richardson, 906 N.E.2d at 247. A person who commits a class B felony shall be imprisoned for a fixed term of between and six and twenty years, with the advisory sentence being ten years. Ind. Code

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