Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before Aug 15 2013, 5:30 am
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:
TERRY E. IACOLI GREGORY F. ZOELLER
Martinsville, Indiana Attorney General of Indiana
AARON J. SPOLARICH
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
MARK A. ATHERTON, )
)
Appellant-Defendant, )
)
vs. ) No. 55A01-1211-CR-537
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MORGAN CIRCUIT COURT
The Honorable Matthew G. Hanson, Judge
Cause No. 55C01-1204-FB-590
August 15, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
BARNES, Judge
Case Summary
Mark Atherton appeals his forty-year sentence for Class B felony burglary and for
being an habitual offender. We affirm.
Issues
Atherton raises two issues, which we restate as:
I. whether the trial court abused its discretion when it
sentenced him; and
II. whether his sentence is inappropriate.
Facts
On April 30, 2012, Atherton took a significant amount of Xanax and broke into
the Martinsville home of Victor and Amber Spina, who were at home asleep with their
two children. Atherton took things out of the refrigerator, some money, and an iPod.
Amber was awakened by the opening of the refrigerator door, and Victor chased Atherton
out of the house.
Police eventually detained Atherton, who was charged with Class B felony
burglary, Class D felony theft, and Class B misdemeanor criminal mischief. The State
also alleged that Atherton was an habitual offender. Without the benefit of a plea
bargain, Atherton pled guilty to the burglary charge and the habitual offender allegation,
and the remaining charges were dismissed.
At the October 31, 2012 sentencing hearing, the trial court considered Atherton’s
criminal history and the fact that he violated “the sanctity of someone’s own home” as
aggravators. Tr. pp. 26-27. The trial court considered the fact that it was not a violent
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crime and Atherton’s guilty plea as mitigators. The trial court found that the aggravators
outweighed the mitigators and sentenced Atherton to fifteen years on the burglary charge
enhanced by twenty-five years for being an habitual offender, for a total sentence of forty
years. Atherton now appeals.
Analysis
I. Abuse of Discretion
Atherton first argues the trial court abused its discretion when it sentenced him.
We evaluate a sentence under the current “advisory” sentencing scheme pursuant to
Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007), clarified on reh’g by Anglemyer v.
State, 875 N.E.2d 218 (Ind. 2007). The trial court must issue a sentencing statement that
includes “reasonably detailed reasons or circumstances for imposing a particular
sentence.” Anglemyer, 868 N.E.2d at 491. The reasons or omission of reasons given for
choosing a sentence are reviewable on appeal for an abuse of discretion. Id. “The
relative weight or value assignable to reasons properly found or those which should have
been found is not subject to review for abuse.” Id.
At the sentencing hearing, there was evidence of the impact the crime had on the
Spinas’ children, who were home asleep when Atherton broke in and was chased out by
Victor. In a letter, Victor explained that the family’s sense of “security and stability has
been taken away[.]” Ex. A. He stated that they now sleep with the lights on and that the
children now keep baseball bats beside their beds at night. In sentencing Atherton, the
trial court noted, “these people are affected forever.” Tr. p. 25. The trial court later listed
as an aggravator the intrusion on “the sanctity of someone’s own home.” Id. at 26-27.
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Atherton argues that the trial court abused its discretion by considering the
intrusion on the sanctity of someone’s home as an aggravator because it was an element
of the Class B felony burglary charge that he broke into a dwelling. In Pedraza v. State,
887 N.E.2d 77, 80 (Ind. 2008), however, our supreme court observed that, after the 2005
modifications to the sentencing scheme, “a sentence toward the high end of the range is
no longer an ‘enhanced sentence’ in the sense that the former regime provided.” The
court concluded that using a material element of crime as an aggravator “is no longer an
inappropriate double enhancement.” Pedraza, 887 N.E.2d at 80. To the extent the trial
court considered the breaking and entering of a dwelling as an aggravator, it is no longer
an improper double enhancement under the new sentencing scheme.
Moreover, it is clear that the trial court was focused on the fact that dwelling was
occupied by sleeping children when Atherton broke in, as opposed to the breaking and
entering of an unoccupied dwelling. This was a proper assessment of nature and
circumstances of the crime. The trial court did not abuse its discretion by considering the
intrusion into the home as an aggravator.
II. Inappropriateness
Atherton also argues that his forty-year sentence is inappropriate in light of the
nature of the offense and his character. Indiana Appellate Rule 7(B) permits us to revise
a sentence authorized by statute if, after due consideration of the trial court’s decision, we
find that the sentence is inappropriate in light of the nature of the offenses and the
character of the offender. 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
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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.
The principal role of Rule 7(B) review “should be to attempt to leaven the outliers,
and identify some guiding principles for trial courts and those charged with improvement
of the sentencing statutes, but not to achieve a perceived ‘correct’ result in each case.”
Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). We “should focus on the forest—
the aggregate sentence—rather than the trees—consecutive or concurrent, number of
counts, or length of the sentence on any individual count.” Id. Whether a sentence is
inappropriate ultimately turns on the culpability of the defendant, the severity of the
crime, the damage done to others, and myriad other factors that come to light in a given
case. Id. at 1224. When reviewing the appropriateness of a sentence under Rule 7(B),
we may consider all aspects of the penal consequences imposed by the trial court in
sentencing the defendant, including whether a portion of the sentence was suspended.
Davidson v. State, 926 N.E.2d 1023, 1025 (Ind. 2010).
In considering the nature of the offense, Atherton asserts that it was a non-violent
offense committed while he was under the influence of Xanax and not part of a well-
conceived burglary. Although that might be the case, it is notable that the Spinas were
asleep in their home and were awoken by Atherton opening the refrigerator. Moreover,
Atherton’s Xanax use does not mitigate the nature of the offense. Forty-three-year-old
Atherton had been abusing Xanax since his early twenties. Although he had not taken it
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in two years, on the night of the offense, he found a bottle when he was cleaning the
bathroom and took so many that he blacked out and does not remember committing the
offense.
As for the character of the offender, we recognize that Atherton pled guilty
without the benefit of a plea agreement and apologized to the Spinas. Nevertheless,
Atherton has an extensive criminal history which includes ten felony convictions and
seven misdemeanor convictions and has been found to have violated probation on at least
four occasions. Many of the convictions are alcohol or substance abuse related and
others are for trespass, sexual battery, burglary, auto theft, and theft. Atherton testified
that, as an adult, the longest he has been out of prison is two years, and even his attorney
described his criminal history as “awful.” Tr. p. 22. Based on Atherton’s lengthy history
of drug abuse and his extensive criminal history, he has not established that the total
sentence of forty years for the Class B felony conviction and the habitual offender
enhancement was inappropriate.
Conclusion
Atherton has not established that the trial court abused its discretion when it
sentenced him or that his sentence is inappropriate in light of the nature of the offense
and the character of the offender. We affirm.
Affirmed.
CRONE, J., and PYLE, J., concur.
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