Eli D. Mast v. State of Indiana

 

FOR PUBLICATION
ATTORNEY FOR APPELLANT:            ATTORNEYS FOR APPELLEE:
 
ANTHONY S. CHURCHWARD             STEVE CARTER
Fort Wayne, Indiana                    Attorney General of Indiana

                             MONIKA PREKOPA TALBOT    
                            Deputy Attorney General
                            Indianapolis, Indiana

 
IN THE
COURT OF APPEALS OF INDIANA ELI D. MAST, ) ) Appellant-Defendant, ) ) vs. ) No. 02A03-0409-CR-395 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )

 
APPEAL FROM THE ALLEN SUPERIOR COURT
The Honorable Frances C. Gull, Judge
Cause No. 02D04-0403-FC-36

March 28, 2005

OPINION FOR PUBLICATION

MATHIAS, Judge

    Eli Mast ("Mast") pled guilty to Class C felony burglary and admitted to being an habitual offender in Allen Superior Court. Mast appeals, raising the following restated issue for review: Whether Mast's sentence was inappropriate. Concluding Mast's sentence was appropriate, we affirm.
Facts and Procedural History
    On March 15, 2004, Mast was arrested for forcing entry into a building and stealing various items therein. On March 19, 2004, Mast was charged by information with Class C felony burglary. On April 7, 2004, the State amended its charging information to include an habitual offender allegation.
    On June 22, 2004, the day of Mast's trial, Mast pled guilty to Class C felony burglary and admitted to being an habitual offender. A sentencing hearing was conducted on July 29, 2004. The trial court found as aggravating factors that (1) Mast has a criminal history of four felonies and four misdemeanors; (2) prior efforts at Mast's rehabilitation have failed; and (3) Mast was on parole when he committed his offense. The trial court found that the circumstances that Mast pled guilty, expressed remorse, and is a substance abuser were mitigating factors.
    The trial court concluded that Mast's aggravating factors outweighed his mitigating factors and sentenced him to six years for his Class C felony burglary conviction and added ten years for his habitual offender determination, resulting in an aggregate sentence of sixteen years. Mast now appeals.
Discussion and Decision
    Mast claims his sentence is inappropriate pursuant to Indiana Appellate Rule 7(B). Appellate courts have the constitutional authority to revise a sentence if, after consideration of the trial court's decision, the court concludes the sentence is inappropriate in light of the nature of the offense and character of the offender. Ind. Appellate Rule 7(B); see also Asher v. State, 790 N.E.2d 567, 570 (Ind. Ct. App. 2003).
    The State asserts a defendant may not challenge the appropriateness of his sentence if he pleads guilty because his plea is implicit consent to the appropriateness of his sentence. Br. of Appellee at 3 (citing Bennett v. State, 813 N.E.2d 335, 338 (Ind. Ct. App. 2004)).
    In fairness to the State, Bennett does state, "when a defendant is sentenced in accordance with a plea agreement, he has implicitly agreed that his sentence is appropriate." 813 N.E.2d at 338. Furthermore, the facts of Bennett indicate that Bennett's sentence, like Mast's sentence was entirely left to the trial court's discretion. Id. at 337.
    We disagree with the broad inference of the language quoted above. Bennett's cited authority, Gist v. State, 804 N.E.2d 1204, 1207 (Ind. Ct. App. 2004), and Mann v. State, 742 N.E.2d 1025, 1026 n.1 (Ind. Ct. App. 2001), trans. denied, do not support Bennett's conclusion. In Gist, the plea at issue explicitly capped Gist's sentence at ten years. 742 N.E.2d at 1206. In Mann, the plea at issue explicitly provided for a sentence ranging between thirty and fifty years. 742 N.E.2d at 1026 n.1.
    When a plea explicitly permits the trial court to sentence the defendant within a given range or caps a sentence, Gist and Mann's implicit waiver provision is entirely logical. However, when the defendant's plea is open, there is no relevant distinction between a review of a sentence resulting from such a guilty plea and a sentence resulting from a conviction. There is nothing in Mast's plea agreement that indicates he consented to an inappropriate sentence, and Mast did not otherwise waive his right to challenge his allegedly inappropriate sentencing by pleading guilty. See Appellant's App. p. 37.
Nonetheless, Mast's sentence was appropriate. Mast was convicted of a Class C felony, and the maximum sentence he could have received was eight years rather than his six-year sentence. See Ind. Code § 35-50-2-6 (2004). A single aggravating circumstance is sufficient to justify an enhanced sentence. Powell v. State, 769 N.E.2d 1128, 1135 (Ind. 2002). Mast's eight prior convictions speak to the nature of Mast's character, outweigh his mitigating factors, See footnote and justify his cumulative sixteen-year sentence.
Conclusion
Mast's sentence is appropriate.
Affirmed.
SULLIVAN, J., concurs.
BAILEY, J., concurs in result with opinion.
 
 

 
IN THE
COURT OF APPEALS OF INDIANA
 

ELI D. MAST, JR.,    )
            )
Appellant-Defendant,    )
            )
vs.    )    No. 02A03-0409-CR-395    
    )    
STATE OF INDIANA,    )
            )    
    Appellee-Plaintiff.    )

 
 
 
BAILEY, Judge, concurring in result
 
    I agree that Mast's aggregate sentence of sixteen years is appropriate. However, I disagree with the majority's criticism of the breadth of the language of Bennett v. State, 813 N.E.2d 335 (Ind. Ct. App. 2004). When a defendant accepts an indeterminate sentence, that is, with no set number of years, but is advised of the minimum sentence possible and the maximum sentence possible, the defendant implicitly agrees that his sentence within that range is appropriate. Therefore, I concur in result.
 
 

Footnote: Furthermore, Mast's mitigating factor of having pled guilty is not entitled to a great deal of weight. Mast did not agree to his plea until the day of trial, which strongly suggests his plea was a tactical decision rather than a genuine acceptance of responsibility.