Pursuant to Ind.Appellate Rule 65(D), Aug 06 2013, 5:39 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:
R. PATRICK MAGRATH GREGORY F. ZOELLER
Alcorn Goering & Sage, LLP Attorney General of Indiana
Madison, Indiana
RICHARD C. WEBSTER
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
CODY HOFFMAN, )
)
Appellant-Defendant, )
)
vs. ) No. 78A05-1212-CR-655
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE SWITZERLAND CIRCUIT COURT
The Honorable W. Gregory Coy, Judge
Cause No. 78C01-1102-FB-43
Cause No. 78C01-1009-FC-350
August 6, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
FRIEDLANDER, Judge
Cody Hoffman appeals the sentences imposed for his two convictions for Burglary1, a
class C felony. Hoffman presents one issue on appeal: did the trial court impose an
inappropriate sentence?
We affirm.
On June 5, 2010, in Switzerland County, Hoffman broke into Donald Smith’s pole
barn to steal gasoline. Also, on July 21, 2010, Hoffman broke into Robert Hoffman’s barn
and stole a quadrunner, which is a small, four-wheeled, all-terrain vehicle. Subsequently,
Hoffman was charged with class C felony burglary for each incident, and the State entered
into a plea agreement covering both incidents. Hoffman plead guilty as charged. During
sentencing, the trial court considered the pre-sentence investigation report, heard and
considered testimony of Hoffman’s character witnesses, and considered the arguments of
counsel for Hoffman and for the State. The trial court found several aggravating and
mitigating circumstances. The mitigating factors included Hoffman receiving a high school
diploma, taking responsibility for his actions, his plans for continuing education, his lack of
criminal history, paying restitution to Smith, and his family support system. The aggravating
factors included: 1) failing drug-screens during house arrest on an unrelated charge; 2) failing
drug tests preceding Hoffman’s sentencing hearing; 3) the two charged incidents were not
related and occurred on two different occasions; 4) his lack of continuous treatment for drug
problems; and 5) his gasoline theft resulted in total destruction of Smith’s barn and the
contents inside. Hoffman was sentenced to four years with two years executed and two years
1
Ind. Code Ann. § 35-43-2-1(West, Westlaw current with all 2013 legislation).
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suspended on each count, and the sentences were ordered to be served consecutively.
On December 13, 2012, Hoffman filed a petition for permission to file a belated notice
of appeal, which was granted by the trial court. This appeal ensued.
Hoffman contends that his sentence is inappropriate in light of his character and
nature of the offenses. We have the constitutional authority to revise a sentence if, after
careful consideration of the trial court’s decision, we conclude the sentence is inappropriate
in light of the nature of the offense and character of the offender. See Ind. Appellate Rule
7(B); Anglemyer v. State, 868 N.E.2d 482 (Ind. 2007). Even if a trial court follows the
appropriate procedure in arriving at its sentence, we maintain the constitutional power to
revise a sentence we find inappropriate. Hope v. State, 834 N.E.2d 713 (Ind. Ct. App. 2005).
Although we are not required under App. R. 7(B) to be “extremely” deferential to a trial
court’s sentencing decision, we recognize the unique perspective a trial court brings to such
determinations. Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007). The burden
of persuading us that the sentence is inappropriate is on the defendant. Rutherford v. State,
866 N.E.2d 867. A defendant who seeks revision of his or her sentence must prove that the
sentence is inappropriate in light of both the nature of the offenses and his character.
Williams v. State, 891 N.E.2d 621 (Ind. Ct. App. 2008).
To assess the appropriateness of the sentence, the reviewing court looks first to the
statutory ranges established for the classes of the offenses. Hoffman pled guilty to two counts
of class C felony burglary. Thus the advisory sentencing for both counts is four years, the
minimum is two, and the maximum is eight. See Ind. Code Ann. § 35-50-2-6 (West,
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Westlaw are current with all 2013 legislation). The trial court sentenced Hoffman within the
applicable range; Hoffman received consecutive, four-year sentences, with two years
suspended to probation, on each count.
Next, the reviewing court examines the nature of the offense committed and the
character of the offender. The nature of the offense is found in the details and circumstances
of the commission of the offense and the defendant’s participation. See Treadway v. State,
924 N.E.2d 621 (Ind. 2010). The character of the offender is found in what is learned of the
offender’s life and conduct. See Lindsey v. State, 916 N.E.2d 230 (Ind. Ct. App. 2009)
(reviewing the offender’s criminal history, probation violations, and history of conduct while
incarcerated), trans denied.
The nature of Hoffman’s offenses supports the sentence imposed by the court.
Hoffman committed two unrelated burglaries on separate days. On June 5, 2010, Hoffman
forcibly entered a barn with the intention of stealing gasoline. On July 21, 2010, he
committed a second burglary when he stole a quadrunner from another barn. During the
burglary on June 5, Hoffman caused a fire responsible for the complete destruction of the
barn he burglarized.
Hoffman’s overall character also supports the sentence imposed. Although Hoffman
lacked a juvenile record and made some steps towards self-improvement, his first two
offenses, burglaries, are serious crimes. Also, after being arrested and charged with the
aforementioned burglaries, Hoffman was arrested and prosecuted for minor consumption in
another county. This arrest resulted in Hoffman being placed on house arrest. While serving
4
that sentence, Hoffman failed numerous drug tests and repeatedly neglected to check in with
his probation officer.
Moreover, during the pendency of the charged burglaries and his house arrest,
Hoffman continued to use illegal drugs. Hoffman failed every drug test he was administered
and tested positive for marijuana on numerous occasions, and he also tested positive for
oxycodone near the date of his sentencing hearing. Although Hoffman readily admits his
addiction to drugs and acknowledges its contribution to his illegal behavior, he failed to
complete a drug-treatment program. Hoffman enrolled in therapy on one occasion, but left
voluntarily after seven days. For all of these reasons, Hoffman has not established that his
sentence is inappropriate in light of the nature of his offense or character.
Judgment affirmed.
BAKER, J., and VAIDIK, J., concur.
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