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:
P. JEFFREY SCHLESINGER
Appellate Public Defender
Crown Point, Indiana
GREGORY F. ZOELLER
Attorney General of Indiana
GARY R. ROM
Deputy Attorney General
Indianapolis, Indiana
FILED
Dec 22 2011, 9:12 am
IN THE
COURT OF APPEALS OF INDIANA
ROY N. VIVERETTE, JR.,
Appellant,
vs.
STATE OF INDIANA,
Appellee.
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No. 45A03-1105-CR-223
APPEAL FROM THE LAKE SUPERIOR COURT
The Honorable Thomas Stefaniak, Jr., Judge
Cause No. 45G04-1012-FB-125
December 22, 2011
MEMORANDUM DECISION – NOT FOR PUBLICATION
MATHIAS, Judge
CLERK
of the supreme court,
court of appeals and
tax court
Roy Viverette, Jr. (“Viverette”) pleaded guilty in Lake Superior Court to three
counts of Class B felony burglary and was ordered to serve an aggregate ten-year
sentence with eight years executed in the Department of Correction and two years to be
served in Lake County Community Corrections programming. Viverette appeals his
sentence and argues that the trial court abused its discretion when it considered the value
of a coin collection stolen during the commission of one of the three burglaries as an
aggravating circumstance.
We affirm.
Facts and Procedural History
On August 18, 2010, a petition was filed alleging that seventeen-year-old
Viverette was a delinquent child for acts that would constitute criminal offenses if
committed by an adult.
At the State’s request, the juvenile court ordered juvenile
jurisdiction over the cause waived to Lake Superior Court.
Thereafter, on December 13, 2010, seventeen-year old Viverette was charged with
committing three Class B felony burglaries. During each burglary, Viverette and his
accomplices broke into residences, stole items from the homes, and later sold them.
These items included electronics, firearms, and a coin collection. On March 23, 2011,
Viverette entered into a plea agreement with the State. The plea agreement provided that
the sentences on each burglary count would be capped at ten years, and would run
concurrent to each other.
A sentencing hearing was held on April 27, 2011. At the hearing, the State
submitted “a copy of an assessment” for the stolen coin collection indicating that its value
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was over $550,000. Tr. p. 20. The “antique coins” were collected by the victim and the
victim’s father over many years. Tr. p. 21. The State then argued that Viverette should
receive the maximum sentence allowed under the plea agreement, in part, because of the
monetary and sentimental value of the coin collection. Tr. p. 39. When the trial court
asked Viverette why he committed the burglaries, Viverette replied, “I saw people having
good things” like expensive Air Jordan tennis shoes. Tr. p. 47.
The trial court then considered as an aggravating circumstance that “prior attempts
in the juvenile justice system to act in the best interest of the child have been
unsuccessful.”
Tr. p. 62.
Specifically, Viverette’s prior juvenile history included
adjudications for battery, theft, and burglary. The court also considered Viverette’s two
adult misdemeanor convictions for intimidation and criminal trespass as aggravating.
And in imposing sentence on the third count of burglary, the trial court considered the
large monetary and sentimental value of the stolen coin collection as an aggravating
circumstance.
Tr. pp. 63-64.
The trial court also considered two mitigating
circumstances: Viverette’s guilty plea and that he was a juvenile when the offenses were
committed. The trial court then ordered Viverette to serve ten years on each count to be
served concurrent to each other. The court ordered eight years to be served in the
Department of Correction and the remaining two years to be served in Lake County
Community Corrections programming. Viverette now appeals.
Discussion and Decision
Viverette was ordered to serve concurrent terms of ten years for his Class B felony
burglary convictions. See Ind. Code § 35-50-2-5 (providing that the sentencing range for
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a Class B felony is six to twenty years, with ten years being the advisory term). Viverette
argues that the trial court abused its discretion when it considered the value of the coin
collection as an aggravating circumstance because Viverette had no knowledge of the
collection’s value.
Sentencing decisions rest within the sound discretion of the trial court. Anglemyer
v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007).
So long as the sentence is within the statutory range, it is subject to review only for an
abuse of discretion. Id. An abuse of discretion will be found where the 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. A trial court may
abuse its discretion by issuing an inadequate sentencing statement, finding aggravating or
mitigating factors that are not supported by the record, omitting factors that are clearly
supported by the record and advanced for consideration, or by finding factors that are
improper as a matter of law. Id. at 490–91.
Initially, we observe that the trial court considered the value of the coin collection
as an aggravating circumstance only when imposing sentence on the third count of
burglary. We may logically assume that if the trial court had not been constrained by the
ten-year cap in the plea agreement, it would have imposed a sentence greater than ten
years on the third burglary conviction. Moreover, because Viverette received concurrent
terms of ten years for each burglary conviction, if we were to conclude that the trial court
abused its discretion in considering the coin collection’s value, there would be no
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practical effect of reducing Viverette’s sentence for his burglary conviction based on the
coin collection.
Viverette also failed to object to evidence admitted of the coin collection’s value
and did not challenge the State’s argument that such fact was aggravating. Viverette’s
argument concerning his lack of knowledge of the coin collection’s value has been raised
for the first time on appeal.
Indiana Code section 35-38-1-7.1 provides that the trial court may consider that
the “harm, injury, loss, or damage suffered by the victim of an offense was . . .
significant[] and [] greater than the elements necessary to prove the commission of the
offense.” The statute does not require the defendant’s knowledge that the loss or damage
was significant or substantial. And we may reasonably conclude that it is within common
knowledge that a coin collection’s value may be significant both monetarily and
sentimentally.
For all of these reasons, we conclude that the trial court did not abuse its discretion
when it considered the monetary and sentimental value of the coin collection as an
aggravating circumstance when it imposed sentence for the third burglary conviction.
We therefore affirm Viverette’s aggregate ten-year sentence.1
1
In the conclusion section of his Appellant’s Brief, Viverette argues that his sentence was “not
appropriate based upon the nature of the offense and his character.” Appellant’s Br. at 8. Because
Viverette does not engage in any independent argument concerning the appropriateness of his sentence,
the issue is waived. See Allen v. State, 875 N.E.2d 783, 788 n.8 (Ind. Ct. App. 2007). Were we to
consider the issue on its merits, we would conclude that Viverette’s aggregate ten-year sentence for his
three Class B felony convictions is appropriate.
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Affirmed.
FRIEDLANDER, J., and RILEY, J., concur.
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