Jeffrey L. McNeil v. State of Indiana (NFP)

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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: ATTORNEYS FOR APPELLEE: DAVID W. STONE, IV Anderson, Indiana STEVE CARTER Attorney General of Indiana JODI KATHRYN STEIN Deputy Attorney General Indianapolis, Indiana IN THE COURT OF APPEALS OF INDIANA JEFFREY L. MCNEIL, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) ) No. 48A05-0706-CR-325 APPEAL FROM THE MADISON SUPERIOR COURT The Honorable Dennis D. Carroll, Judge Cause No. 48D01-0604-FB-92 November 28, 2007 MEMORANDUM DECISION - NOT FOR PUBLICATION BARNES, Judge Case Summary Jeffrey McNeil appeals his thirteen-year sentence for Class B felony burglary. We affirm. Issues McNeil raises two issues, which we restate as: I. whether the trial court abused its discretion in sentencing him; and II. whether his sentence is appropriate. Facts On April 5, 2006, the State charged McNeil with Class B felony burglary after he broke the window of house in an effort to steal a table he saw inside. On August 1, 2006, McNeil pled guilty but mentally ill. Pursuant to the agreement, McNeil s sentence was capped at fifteen years executed, and the State agreed not to file an habitual offender enhancement. The agreement also required McNeil to pay restitution. On August 29, 2006, a sentencing hearing was held. The trial court sentenced McNeil to thirteen years. The trial court sentencing order provided: The Court finds aggravation: 1) the Defendant has a prior legal history, including 4 prior felonies; 2) the Defendant recently violated the terms of probation; 3) the Defendant s repetitive behavior of delinquent activity; and 4) Prior attempts at probation and/or community corrections have not changed his behavior. The Court finds mitigation: 1) the Defendant plead [sic] guilty to the instance [sic] offense, saving the State the time and cost of trial; 2) the Defendant will make restitution to the victim; and 3) the Defendant has a mental illness. App. p. 22. McNeil now appeals his sentence. 2 Analysis Our supreme court recently provided an outline for the respective roles of trial and appellate courts under the 2005 amendments to Indiana s sentencing statutes. See Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007). First, a trial court must issue a sentencing statement that includes reasonably detailed reasons or circumstances for imposing a particular sentence. Id. Second, the reasons or omission of reasons given for choosing a sentence are reviewable on appeal for an abuse of discretion. Id. Third, the weight given to those reasons, i.e. to particular aggravators or mitigators, is not subject to appellate review. Id. Fourth, the merits of a particular sentence are reviewable on appeal for appropriateness under Indiana Appellate Rule 7(B). Id. I. Abuse of Discretion McNeil argues that the trial court abused its discretion by considering his criminal history as three separate aggravators. Indeed, one s criminal history cannot be restated or described as multiple aggravators. See Williams v. State, 838 N.E.2d 1019, 1021 (Ind. 2005) (holding that likelihood to reoffend and need for rehabilitation stemmed from defendant s prior convictions and could not be used as separate aggravators). Nevertheless, we do not believe that the trial court was using McNeil s repetitive delinquent activity and failure of probation and/or community corrections programs to change his behavior as separate aggravating circumstances from his criminal history. Instead, we believe the trial court intended these derivative factors to go to the weight of McNeil s criminal history as an aggravating factor. See Morgan v. State, 829 N.E.2d 12, 17 (Ind. 2005) ( We conclude that such statements, which our Court of Appeals has 3 called derivative of criminal history, are legitimate observations about the weight to be given to facts appropriately noted by a judge . . . . ). We may not reconsider the trial court s assignment of weight to a particular aggravator. See Anglemyer, 868 N.E.2d at 491. McNeil also argues that the trial court abused its discretion by not giving adequate weight to his mental illness as a mitigating circumstance. The trial court acknowledged McNeil s mental illness as a mitigator. Pursuant to Anglemyer, we will not reconsider the weight assigned to it by the trial court. See id. In sum, the trial court did not abuse its discretion in the identification of the aggravating and mitigating circumstances, and we will not reassess the trial court s weighing of such. II. Appropriateness McNeil also asserts his sentence is inappropriate. Having concluded the trial court acted within its discretion in sentencing him, we now assess whether his sentence is inappropriate under Indiana Appellate Rule 7(B) in light of his character and the nature of the offense. See Anglemyer, 868 N.E.2d at 491. Although Rule 7(B) does not require us to be extremely deferential to a trial court s sentencing decision, we still must give due consideration to that decision. Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007). We also understand and recognize the unique perspective a trial court brings to its sentencing decisions. Id. Additionally, a defendant bears the burden of persuading the appellate court that his or her sentence is inappropriate. Id. 4 McNeil provides little analysis as to why his sentence is inappropriate, and upon review we cannot agree with his assertion. Although the nature of the offense is not extraordinary, McNeil s character supports an enhanced sentence. McNeil has a substantial criminal history that includes convictions beginning in 1974 until the instant offense was committed in 2006. During that time McNeil accrued over twenty convictions in Ohio and Indiana, including four felony convictions in Indiana since 1998. Further, McNeil has recent convictions for criminal conversion, receiving stolen property, and two incidents of burglary. These convictions are closely related in time and nature to McNeil s current conviction. Although McNeil s mental illness was described as severe 1 and is entitled to mitigating weight, the gravity of McNeil s criminal history far outweighs his mental illness. Exhibit A p. 4. This, too, is true of McNeil s $75 restitution payment and his guilty plea, pursuant to which he received a capped sentence and the State s agreement not file an habitual offender enhancement. Unlike many, McNeil has had the benefit mental health treatment, substance abuse treatment, and participation in community correction programs, yet he has repeatedly failed to conform his behavior to that of a lawabiding citizen. Under these facts, we cannot conclude that McNeil s thirteen-year sentence is inappropriate. 1 McNeil s diagnosis included polysubstance dependence, schizoaffective disorder, bipolar I disorder, posttraumatic stress disorder, schizoid personality disorder, and antisocial personality disorder. 5 Conclusion The trial court did not abuse its discretion in considering the aggravating and mitigating circumstances. McNeil s thirteen-year sentence is not inappropriate. We affirm. Affirmed. KIRSCH, J., and ROBB, J., concur. 6

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