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:
ATTORNEYS FOR APPELLEE:
MARCE GONZALEZ, JR.
Merrillville, Indiana
STEVE CARTER
Attorney General of Indiana
RICHARD C. WEBSTER
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
WILLIAM L. WHITE, JR.,
Appellant-Defendant,
vs.
STATE OF INDIANA,
Appellee-Plaintiff.
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No. 45A05-0609-CR-495
APPEAL FROM THE LAKE SUPERIOR COURT
The Honorable Salvador Vasquez, Judge
Cause No. 45G01-0412-FB-111, 45G01-0412-FB-112 & 45G01-0501-FB-2
May 21, 2007
MEMORANDUM DECISION – NOT FOR PUBLICATION
MATHIAS, Judge
William L. White, Jr. (“White”) pleaded guilty to fifteen Class B felony counts
and was sentenced to an aggregate term of 66 years by the Lake Superior Court. He
appealed his sentence; this court reversed and remanded for resentencing. White again
appeals his sentence. We affirm.
Facts and Procedural History
The facts pertinent to this appeal are found in our court’s resolution of White’s
first appeal of his sentence.
On December 21, 2004, while armed with a shotgun, White confined
Parthenia Ford, Timothy Newell, and Theresa Johnson, and took money
and cell phones from Ford and Johnson. On December 23, 2004, while
armed with a shotgun, White confined Kathy Proffitt, Trista Breneman, and
Alan Hart, and took money from Hart and Proffitt. On December 27 or 28,
2004, while armed with a shotgun, White took purses containing credit
cards and cell phones from Caroline Haric and Paula Freyman, took a
wallet containing money and credit cards from Kevin McKinley, took a
purse containing money, a debit card and a camera from Elizabeth
Freyman, and attempted to take a purse from Gina Stokes.
For the events of December 21, the State charged White with three counts
of confinement as Class B felonies and two counts of robbery as Class B
felonies. For his actions on December 23, the State charged White with
three counts of Class B felony confinement and two counts of Class B
felony robbery. For the final set of acts, the State charged White with four
counts of Class B felony robbery and one count of Class B felony
attempted robbery.
White pled guilty to all fifteen charges without a plea agreement. The court
initially sentenced White to eighty-six years imprisonment. One month
later, the court held a hearing and then modified White’s sentence in an
order that provided:
In order to avoid a manifest injustice, the Court now modifies the sentence
in the above cause as follows:
1. Count I: Robbery-seven and one-half (7 1/2) years consecutive with
Count II, but concurrently with Counts III, IV and V.
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2. Count II: Robbery-seven and one-half (7 1/2) years consecutive with
Count I, but concurrently with Counts III, IV and V.
3. Count III: Confinement-six (6) years concurrent with Counts I, II, IV
and V;
4. Count IV: Confinement-six (6) years concurrent with Counts I, II, III,
and V.
5. Count V: Confinement-six (6) years concurrently with Counts I, II, III
and IV.
The Court orders the defendant committed to the Department of Correction
for a term of fifteen (15) years. Said sentence is ordered served
consecutively with the sentences imposed in Cases: 45G01-0412-FB00111 and 45G01-0412-FB-00112. The Court orders the defendant
committed to the Department of Correction for a total term in all case[s] to
sixty-six (66) years.
The reasons for the modification of sentence, pursuant to I.C. 35-38-1-17(a)
are as follows:
1. On June 10, 2005, the defendant was sentenced to an aggregate term of
eighty-six (86) years.
2. This aggregate sentence involved fifteen (15), Class B felony
convictions, to which the defendant had pled guilty without the benefit of a
negotiated plea agreement.
3. The defendant was 19 years of age at the time of sentencing and his
criminal history was absent of any adult misdemeanor or felony
convictions, and the defendant did not have any juvenile adjudications.
4. The defendant was addicted, according to the presentence investigation
report, to illegal controlled substances and sufficient weight was not given
to the defendant in mitigation in light of this addiction.
5. A combination of consecutive and concurrent sentences are nevertheless
appropriate given the nature and circumstances of the crimes committed.
6. However, the interests of justice cannot support an eighty-six (86) year
aggregate sentence given the defendant's admission of responsibility to
each of the crimes committed.
Therefore, the defendant's sentence is now reduced as noted above, the
result of which is an aggregate sentence, for all fifteen (15) Class B felony
convictions, of sixty-six (66) years.
White v. State, 847 N.E.2d 1043, 1044-45 (Ind. Ct. App. 2006) (footnotes and citation
omitted).
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White appealed his sentence, arguing that it did not comport with the holding of
Marcum v. State, 725 N.E.2d 852 (Ind. 2000). We reversed White’s sentence and
remanded to the trial court for resentencing:
[b]ecause the trial court did not explain why the balancing of the
aggravators and mitigators justified the imposition of consecutive minimal
sentences, we are constrained to hold this trial court abused its discretion in
ordering some of the sentences served consecutively when its implicit
balancing of the aggravators and mitigators led it to impose sentences
shorter than the presumptive.
Id. at 1047. However, we specifically noted that the sentence imposed on remand could
be the same sentence, if the court properly supported its sentence with appropriate
findings. Id.
On August 4, 2006, the trial court conducted a new sentencing hearing and found
as aggravating circumstances 1) the number of victims that were harmed as a result of
defendant’s acts, 2) the multiple and separate offenses the defendant committed in a short
period of time, and 3) the manner in which defendant used a deadly weapon. Appellant’s
App. pp. 20, 42, 59.
The trial court also found White’s lack of juvenile history, guilty plea, acceptance
of responsibility, and age as mitigating factors. Id. pp. 5-6. The trial court went on to
note that White’s drug problem was a mitigating factor, but declined to assign it
significant weight. Id.
The court then balanced the aggravating and mitigating circumstances and
explained its reasoning:
it’s the totality of these circumstances. It’s the absolute harm that you
created in these individual acts, this crime spree that outweighs these
mitigating factors, they absolutely outweigh them. And that’s why I gave
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you a consecutive sentence. These aggravators—this aggravator, the
separate number of victims, the absolute harm that you caused them, the
terror that you created in your acts, that’s the aggravating factor that
outweighs your mitigating factors. These are the aggravating factors that
requires me to give you consecutive sentences on some of these
counts…[Sixty-six] years in a proper combination of…concurrent and
consecutive sentences, given all the factors at hand.
Tr. p. 6. White now appeals his sentence.
Discussion and Decision
White argues that upon resentencing, the trial court improperly discounted the
mitigating weight of his drug addiction.
He further contends “the length of the
cumulative sentence is not supported when appropriate weight is given to the mitigating
factors, including the ‘deleted’ factor of White’s drug addiction which was an original
mitigator.” Br. of Appellant at 6.
However, as set forth above, the trial court clearly stated that while it considered
White’s addiction a mitigating circumstance, it did not find it significantly mitigating.
The court explicitly stated that it was imposing consecutive sentences because the
aggravating factor of the harm to each victim outweighed the mitigating factors. We find
no error in the trial court’s sentencing statement.
Finally, White argues that his aggregate sentence is inappropriate. Appellate
courts “may revise a sentence authorized by statute if, after due consideration of the trial
court’s decision, the [c]ourt finds that the sentence is inappropriate in light of the nature
of the offense and the character of the offender.” Ind. Appellate Rule 7(B) (2007). The
“nature of the offense” portion of the standard speaks to the statutory presumptive
sentence for the class of crimes to which the offense belongs. See Williams v. State, 782
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N.E.2d 1039, 1051 (Ind. Ct. App. 2003), trans. denied. That is, the presumptive sentence
is intended to be the starting point for the court’s consideration of the appropriate
sentence for the particular crime committed. Id. The character of the offender portion of
the standard refers to the general sentencing considerations and the relevant aggravating
and mitigating circumstances. Id.
White pled guilty to eight counts of Class B felony robbery, one Class B felony
attempted robbery, and six counts Class B felony confinement: fifteen crimes all
occurring within a two-week span. While armed with a sawed-off shotgun, he demanded
or took wallets, purses, cash and cell phones from nine different people. Under these
facts and circumstances, we cannot conclude that White’s sentence is inappropriate.
Affirmed.
NAJAM, J., and MAY, J., concur.
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