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
ATTORNEY FOR APPELLANT:
ATTORNEYS FOR APPELLEE:
A. FRANK GLEAVES, III
Marion County Public Defender
STEPHEN R. CARTER
Attorney General of Indiana
GEORGE P. SHERMAN
Deputy Attorney General
COURT OF APPEALS OF INDIANA
STATE OF INDIANA,
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Carol Orbison, Judge
Cause No. 49G17-0507-FD-118504
MAY 22, 2007
MEMORANDUM DECISION - NOT FOR PUBLICATION
BARTEAU, Senior Judge
STATEMENT OF THE CASE
Defendant-Appellant Randy Spangler (“Spangler”) appeals from his sentence
following his guilty plea to the offenses of criminal confinement, a Class D felony, Ind.
Code §35-42-3-3, and domestic battery, Class A misdemeanor. Ind. Code §35-43-2-1.5.
Spangler raises the following issue for our review: whether the trial court erred
while imposing sentence by failing to set forth a statement finding aggravating and
mitigating factors, and demonstrating that those factors have been assessed and weighed.
FACTS AND PROCEDURAL HISTORY
In June 2005, Spangler had an argument with K.A., with whom he had been living
for several years. Spangler then left their home for several days. When Spangler
returned, he saw that there was another male at their house. Spangler became angry and
began fighting with K.A. and the man. Spangler punched the woman in the face twice
resulting in bodily injury to the woman. When the woman attempted to leave the house,
Spangler shut the door and stood in the doorway preventing the woman from leaving and
calling the police. Spangler argued with the woman for approximately 30 to 45 minutes,
while preventing her from exiting the house.
On May 25, 2006, the State charged Spangler with criminal confinement,
residential entry, domestic battery, battery, and invasion of privacy. On June 15, 2006,
Spangler pled guilty to criminal confinement, a Class D felony, and domestic battery, a
Class A misdemeanor. The trial court held a sentencing hearing on June 29, 2006, at the
conclusion of which the trial court sentenced Spangler to three years for criminal
confinement, and one year for the domestic battery. 1 The State dismissed the remaining
counts against Spangler as well as charges pending in another action.
DISCUSSION AND DECISION
On April 25, 2005, the Indiana Legislature’s amendment of sentencing statute Ind.
Code §35-38-1-7.1(d) became effective. Ind. Code §35-38-1-7.1(b) provides that the trial
court may consider mitigating circumstances.
However, a court may impose any
sentence that is authorized by statute and permissible under the Constitution of the State
of Indiana, regardless of the presence or absence of aggravating circumstances or
mitigating circumstances. Ind. Code §35-38-1-7.1(d). The trial court may impose any
sentence within the sentencing range without regard to the presence or absence of such
circumstances. Fuller v. State, 852 N.E.2d 22, 26 (Ind. Ct. App. 2006). Because the new
sentencing statute provides for a range with an advisory sentence rather than a fixed or
presumptive sentence, a lawful sentence would be one that falls within the sentencing
range for the particular offense. Id. citing Samaniego-Hernandez v. State, 839 N.E.2d
798, 805 (Ind. Ct. App. 2005).
Ind. Code §35-50-2-7 provides for a sentencing range for a Class D felony of six
months to three years, with the advisory sentence being one and one half years. Ind.
Code §35-50-3-2 provides that a defendant may not be sentenced to imprisonment for
The trial court stated at the sentencing hearing that Spangler’s sentences would be served consecutively. However,
the abstract of judgment shows that the sentences are to run concurrently.
more than one year for a Class A misdemeanor. Spangler’s sentence for both crimes was
lawful because the sentence fell within the ranges established by statute.
Spangler contends that the sentence imposed by the trial court is inappropriate
given the nature of the offense and the character of the offender.
He claims that
according to the Court’s opinion in McMahon v. State, 856 N.E.2d 743 (Ind. Ct. App.
2006), that a review of the trial judge’s statement of aggravating and mitigating
circumstances, and the balancing process, is necessary for review under Ind. Appellate
Rule 7(B). Spangler asks this Court to revise his sentence because, he alleges, the trial
court’s sentencing statement fails to support the sentence imposed. He alleges that the
trial court failed to set forth aggravating and mitigating circumstances or an explanation
of the evaluative process that led to imposition of his sentence.
This court may revise a sentence after careful review of the trial court’s decision if
it concludes that the sentence is inappropriate based on the nature of the offense and the
character of the offender. App. R. 7(B). Sentencing decisions are left to the sound
discretion of the trial court. Fuller, 852 N.E.2d at 26. When reviewing a sentencing
statement this court is not limited to the written sentencing order but may examine the
record as a whole to determine that the trial court made a sufficient statement of its
reasons for selecting the sentence imposed. Shaw v. State, 771 N.E.2d 85, 88 (Ind. Ct.
In the present case, the trial judge imposed the sentence, and then explained the
rationale behind the sentence after advising Spangler of his right to appeal. The trial
judge did not create a checklist of aggravating and mitigating circumstances. However,
the trial judge noted for the record that Spangler’s criminal history included a conviction
for Class D felony criminal recklessness, and carrying a handgun without a license.
Spangler had been arrested for possession of marijuana, visiting a common nuisance,
theft, residential entry, battery, domestic battery, and interfering with reporting a crime.
The trial judge noted that the sentences selected were nonsuspendable due to Spangler’s
felony conviction within three years.
During the sentencing hearing Spangler asked for probation because Spangler had
not been arrested in the previous year. Further, Spangler argued that the trial court
should consider Spangler’s youth and that he had the support of his mother and sister.
The State argued for consecutive sentences and the maximum jail time for each sentence.
The State noted and Spangler admitted that he previously was on probation, but had to
serve his full back-up time for a violation. In the present case Spangler entered K.A.’s
locked residence at night while she was sleeping. He proceeded to punch her in the face
causing swelling. When K.A. tried to escape, Spangler dragged her back into the house,
and prevented her leaving.
We find that the sentence imposed is not inappropriate in this instance. One valid
aggravating circumstance is sufficient to support an enhanced sentence. Edwards v.
State, 842 N.E.2d 849, 855 (Ind. Ct. App. 2006). While Spangler did agree to plead
guilty, in exchange for the plea, the State dismissed three counts against Spangler in the
instant matter and the charges against Spangler alleged under another cause number. A
defendant’s youth in not per se a mitigating circumstance. See Fuller, 852 N.E.2d at 26.
An allegation that the trial court failed to identify or find a mitigating factor requires the
defendant to establish that the mitigating evidence is both significant and clearly
supported by the record. Gray v. State, 790 N.E.2d 174, 177 (Ind. Ct. App. 2003).
Additionally, trial courts are not required to include within the record a statement that it
considered all offered mitigating circumstances, only those that it considered significant.
Id. The record reveals that the trial judge did not abuse her discretion by not finding
those mitigating circumstances.
Spangler’s sentence is appropriate given the nature of the offense and the character
of the offender.
The trial judge imposed a lawful sentence and did not abuse her
DARDEN, J., and NAJAM, J., concur.