Douglas L. Blair 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: ADAM G. FORREST Boston Bever Klinge Cross & Chidester Richmond, Indiana GREGORY F. ZOELLER Attorney General of Indiana STEPHEN R. CREASON Deputy Attorney General Indianapolis, Indiana FILED Oct 27 2010, 9:39 am IN THE COURT OF APPEALS OF INDIANA DOUGLAS L. BLAIR, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) ) No. 81A01-1003-CR-201 APPEAL FROM THE UNION CIRCUIT COURT The Honorable Matthew R. Cox, Judge Cause No. 81C01-0812-FC-317 October 27, 2010 MEMORANDUM DECISION - NOT FOR PUBLICATION KIRSCH, Judge CLERK of the supreme court, court of appeals and tax court Douglas L. Blair pleaded guilty to operating a vehicle after lifetime suspension,1 a Class C felony, and speeding,2 a Class C infraction, and was sentenced to six years executed in the Department of Correction. He appeals, raising the following restated issues: I. Whether the trial court abused its discretion when it sentenced Blair; and II. Whether Blair s six-year executed sentence was inappropriate in light of the nature of the offense and the character of the offender. We affirm. FACTS AND PROCEDURAL HISTORY At around 6:00 p.m., on November 21, 2008, Blair was stopped by Indiana State Trooper Brian Hamilton ( Trooper Hamilton ) for driving seventy miles per hour in a fifty-five mile-per-hour zone. When asked for his license and registration, Blair informed Trooper Hamilton that he did not have a license as it was suspended and, instead, gave him an Indiana identification card. After running a driver history, Trooper Hamilton discovered that Blair was an habitual traffic violator and arrested him. The State charged Blair with operating a vehicle after lifetime suspension, a Class C felony, and speeding, a Class C infraction. On March 19, 2010, Blair pleaded guilty to both counts without a plea agreement and left sentencing to the discretion of the trial court. In sentencing Blair, the trial court found as a mitigating factor that Blair s imprisonment would result in undue hardship to Blair s brother, whom he cared for, and 1 See Ind. Code § 9-30-10-17. 2 See Ind. Code § 9-21-5-2. 2 found Blair s extensive criminal history to be an aggravating factor. Finding that the aggravating circumstance outweighed the mitigating circumstance, the trial court sentenced Blair to six years executed in the Department of Correction. Blair now appeals DISCUSSION AND DECISION I. Abuse of Discretion Trial courts are required to enter sentencing statements whenever imposing sentence for a felony offense. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh g, 875 N.E.2d 218 (Ind. 2007). The statement must include a reasonably detailed recitation of the trial court s reasons for imposing a particular sentence. Id. If the recitation includes a finding of aggravating or mitigating circumstances, then the statement must identify all significant mitigating and aggravating circumstances and explain why each circumstance has been determined to be mitigating or aggravating. Id. Sentencing decisions rest within the sound discretion of the trial court and are reviewed on appeal only for an abuse of discretion. Id. An abuse of discretion occurs if 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. Blair argues that the trial court abused its discretion in sentencing him because it failed to reference his guilty plea in its sentencing statement. The trial court is not obligated to explain why it does not find a proffered mitigating factor to be significant, and a guilty plea is not automatically a significant mitigating factor. Brown v. State, 907 N.E.2d 591, 594 (Ind. Ct. App. 2009) (citing Sensback v. State, 720 N.E.2d 1160, 1165 (Ind. 1999)). A guilty plea may not be significantly mitigating when it does not 3 demonstrate the defendant s acceptance of responsibility. Anglemyer v. State, 875 N.E.2d 218, 221 (Ind. 2007). As for the acceptance of responsibility, a guilty plea may not rise to the level of significant mitigation where the evidence against the defendant is such that the decision to plead guilty is merely a pragmatic one and not the acceptance of responsibility and remorse. Id.; Brown, 907 N.E.2d at 594 (citing Wells v. State, 836 N.E.2d 475, 479 (Ind. Ct. App. 2005), trans. denied (2006)). Here, Blair has failed to show that his decision to plead guilty was not merely a pragmatic one, considering the substantial evidence against him. The evidence showed that Blair was observed driving a vehicle over the posted speed limit when he was stopped by Trooper Hamilton. During the traffic stop, Trooper Hamilton learned that Blair s driver s license had been suspended for life. In light of the overwhelming evidence against him, the trial court could have reasonably concluded that Blair s decision to plead guilty was merely a pragmatic one. The trial court did not abuse its discretion when it sentenced Blair. II. Inappropriate Sentence This court has authority to revise a sentence if, after due consideration of the trial court s decision, the Court finds that the sentence is inappropriate in light of the nature of the offense and the character of the offender. Spitler v. State, 908 N.E.2d 694, 696 (Ind. Ct. App. 2009) (quoting Ind. Appellate Rule 7(B)), trans. denied. Although Indiana Appellate 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. Patterson v. State, 909 N.E.2d 1058, 1062-63 (Ind. Ct. App. 2009) (quoting Rutherford v. 4 State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007)). We understand and recognize the unique perspective a trial court brings to its sentencing decisions. Id. at 1063. The defendant bears the burden of persuading this court that his sentence is inappropriate. Id. Blair argues that his six-year executed sentence was inappropriate in light of the nature of the offense and his character. He specifically contends that the nature of the offense was neither violent nor noteworthy. He also claims that his character is not so negative as to warrant the sentence given because, although he has a criminal history, he asserts it was caused by drug and alcohol use, which no longer continues. Blair further argues that his character did not warrant a six-year sentence because he followed the rules while on pretrial home detention and because he assisted his disabled brother while on home detention. We disagree. We agree that the nature of Blair s offense was not extraordinary. However, as to the character of the offender, the evidence showed that Blair had an extensive criminal history dating back to 1976. This criminal history consisted of at least six felony convictions and three misdemeanor convictions for offenses such as theft, possession of marijuana, operating a vehicle while intoxicated, criminal conversion, receiving stolen property, and conspiracy to commit burglary. He also previously had suspended sentences revoked for violating his probation. Further, Blair was on probation at the time he committed the current offense. He has been given prior multiple opportunities to reform his behavior, but has continued to disregard the law. We therefore conclude that Blair s six-year sentence was not inappropriate in light of the nature of the offense and the character of the offender. 5 Affirmed. RILEY, J., and BAILEY, J., concur. 6

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