Pursuant to Ind.Appellate Rule 65(D), Oct 08 2013, 5:26 am
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:
MARK S. LENYO GREGORY F. ZOELLER
South Bend, Indiana Attorney General of Indiana
KARL SCHARNBERG
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
DAVID LEE O’BANION, )
)
Appellant-Defendant, )
)
vs. ) No. 71A04-1303-CR-124
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE ST. JOSEPH SUPERIOR COURT
The Honorable Roland W. Chamblee, Jr., Judge
Cause No. 71D08-1106-FA-14
October 8, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
NAJAM, Judge
STATEMENT OF THE CASE
David Lee O’Banion appeals his sentence after he pleaded guilty but mentally ill
to burglary, as a Class A felony. O’Banion raises the following two issues for our
review:
1. Whether the trial court abused its discretion when it sentenced
O’Banion.
2. Whether O’Banion’s sentence is inappropriate in light of the nature
of the offense and his character.
We affirm.
FACTS AND PROCEDURAL HISTORY
On June 29, 2011, the State charged O’Banion with burglary, as a Class A felony.
On January 17, 2013, O’Banion, without an agreement from the State, pleaded guilty but
mentally ill to the charge. The trial court accepted O’Banion’s plea and sentenced him to
forty-five years, with ten years suspended to probation. This appeal ensued.
DISCUSSION AND DECISION
Issue One: Abuse of Discretion
O’Banion first argues on appeal that the trial court abused its discretion when it
sentenced him. “[S]entencing decisions rest within the sound discretion of the trial court
and are reviewed on appeal only for an abuse of discretion.” Anglemyer v. State, 868
N.E.2d 482, 490 (Ind. 2007), clarified on other grounds on reh’g, 875 N.E.2d 218 (Ind.
2007). “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. (quotation omitted).
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As our supreme court has explained:
One way in which a trial court may abuse its discretion is failing to enter a
sentencing statement at all. Other examples include entering a sentencing
statement that explains reasons for imposing a sentence—including a
finding of aggravating and mitigating factors if any—but the record does
not support the reasons, or the sentencing statement omits reasons that are
clearly supported by the record and advanced for consideration, or the
reasons given are improper as a matter of law. Under those circumstances,
remand for resentencing may be the appropriate remedy if we cannot say
with confidence that the trial court would have imposed the same sentence
had it properly considered reasons that enjoy support in the record.
Because the trial court no longer has any obligation to “weigh”
aggravating and mitigating factors against each other when imposing a
sentence . . . a trial court can not now be said to have abused its discretion
in failing to “properly weigh” such factors. . . .
Id. at 490-91 (citations omitted).
Here, the trial court’s written sentencing statement declares that the court found
“no mitigation.” Appellant’s App. at 13. O’Banion seizes on this statement on appeal
and asserts that the trial court erred in disregarding his mental illness and guilty pleas as
mitigators. O’Banion is incorrect.
The trial court’s written sentencing statement is not consistent with its oral
sentencing statement. At the sentencing hearing, the trial court explained:
Clearly the mental history speaks for itself. It has been documented.
***
[O’Banion’s lawyer] has talked about mitigating circumstances[,]
that being [O’Banion’s] mental health issues across the course of time.
And I will agree that poses a tremendous problem when we’re dealing with
people and what do we do with them after they commit crimes because
mental illness goes with a lot of this . . . .
The alcohol and the non-prescription drugs. The $100 worth of
crack and however much you were drinking that cuts against you, okay? It
is substance abuse. [A]nd I have been doing drug court for a long time and
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I know once you make a stupid mistake and you start using drugs, you keep
using drugs. But, you know, we have to deal in this particular situation and
with every crime with behavior . . .
. . . I would love to see that the sentence[,] when I take your plea of
guilty but mentally ill[,] means they will send you to a hospital and help
work with you and your issues[.] . . . Can I bet the [D]epartment of
[C]orrection[] will do that? No. But I still have to take that into
account. . . . [Y]ou are mentally ill. That was the plea we took.
***
Do I think there are some mitigating circumstances? Yeah. And I
considered them . . . . I’m going to suspend ten years of the sentence in
part because I think that he is right the longer you stay in the [D]epartment
of [C]orrection[] with what I think will be minimal, if any, mental health
stuff we are going to have some issues. We’re going to have issues no
matter what. But I would like to see at the end of this whole process you’re
on a probationary period.
Sentencing Transcript at 16, 19-20, 26-27. Thus, the trial court’s oral pronouncement
makes clear that the court considered O’Banion’s mental illness and his guilty plea as
mitigating circumstances, even though the court concluded that those mitigators were
clearly outweighed by O’Banion’s criminal history, history of substance abuse, and the
impact of O’Banion’s crime on his ninety-four-year-old victim.
When the trial court’s oral and written sentencing statements are in conflict, “[t]his
Court has the option of crediting the statement that accurately pronounces the sentence or
remanding for resentencing.” McElroy v. State, 865 N.E.2d 584, 589 (Ind. 2007). Here,
both statements reflect a forty-five year term with ten years suspended to probation. But
only the trial court’s oral statements reflect the court’s rationale to both impose a forty-
five year term and to suspend ten years of that term to probation. Accordingly, we credit
the oral statement as the statement that accurately pronounced O’Banion’s sentence. As
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such, O’Banion’s argument that the trial court failed to consider his mental illness and
guilty plea as mitigating circumstances is without merit.
Issue Two: Appellate Rule 7(B)
O’Banion also asserts that his sentence is inappropriate in light of the nature of the
offense and his character. Although a trial court may have acted within its lawful
discretion in determining a sentence, Article VII, Sections 4 and 6 of the Indiana
Constitution “authorize[] independent appellate review and revision of a sentence
imposed by the trial court.” Roush v. State, 875 N.E.2d 801, 812 (Ind. Ct. App. 2007)
(alteration original). This appellate authority is implemented through Indiana Appellate
Rule 7(B). Id. Revision of a sentence under Appellate Rule 7(B) requires the appellant
to demonstrate that his sentence is inappropriate in light of the nature of his offenses and
his character. See Ind. Appellate Rule 7(B); Rutherford v. State, 866 N.E.2d 867, 873
(Ind. Ct. App. 2007). We assess the trial court’s recognition or non-recognition of
aggravators and mitigators as an initial guide to determining whether the sentence
imposed was inappropriate. Gibson v. State, 856 N.E.2d 142, 147 (Ind. Ct. App. 2006).
However, “a defendant must persuade the appellate court that his or her sentence has met
th[e] inappropriateness standard of review.” Roush, 875 N.E.2d at 812 (alteration
original).
Moreover, “sentencing is principally a discretionary function in which the trial
court’s judgment should receive considerable deference.” Cardwell v. State, 895 N.E.2d
1219, 1222 (Ind. 2008). Indiana’s flexible sentencing scheme allows trial courts to tailor
an appropriate sentence to the circumstances presented. See id. at 1224. The principal
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role of appellate review is to attempt to “leaven the outliers.” Id. at 1225. Whether we
regard a sentence as inappropriate at the end of the day turns on “our sense of the
culpability of the defendant, the severity of the crime, the damage done to others, and
myriad other facts that come to light in a given case.” Id. at 1224.
We cannot say that O’Banion’s sentence is inappropriate. Although O’Banion
suffers from mental illness and pleaded guilty but mentally ill, he also has a long history
of crime, including crimes of violence. In particular, O’Banion’s criminal history began
when he was seven years old, and since then he has juvenile adjudications for drug
violations, public intoxication, shoplifting, and two incidents of theft. O’Banion’s adult
history includes Class B felony burglary, Class C felony burglary, and two battery
convictions. He has also previously violated the terms of his probation. Finally, the
instant offense was against a ninety-four-year-old woman who had hired him to help to
maintain her lawn, and in the course of his crime he caused her physical injury that
resulted in $1,000 of medical expenses. In light of the nature of the offense and
O’Banion’s character, we cannot say that a forty-five-year term, with ten years
suspended, is inappropriate.
Affirmed.
MATHIAS, J., and BROWN, J., concur.
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