Pursuant to Ind.Appellate Rule 65(D), Jul 30 2013, 7:38 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:
P. JEFFREY SCHLESINGER GREGORY F. ZOELLER
Appellate Public Defender Attorney General of Indiana
Crown Point, Indiana
AARON J. SPOLARICH
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
KENDAL R. PITTS, )
)
Appellant-Defendant, )
)
vs. ) No. 45A03-1211-CR-492
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM LAKE SUPERIOR COURT
The Honorable Salvador Vasquez, Judge
Cause No. 45G01-0907-FA-38
July 30, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
MAY, Judge
Kendal R. Pitts appeals his thirty-year sentence for Class A felony rape.1 We affirm.
FACTS AND PROCEDURAL HISTORY
On September 9, 2012, the trial court, pursuant to a plea agreement, sentenced Pitts to
thirty years for Class A felony rape and ordered it served consecutive to a fourteen-year
sentence for a separate unrelated conviction of Class B felony attempted rape.2 This appeal
ensued.
DISCUSSION AND DECISION
1. Abuse of Discretion
When the trial court imposes a sentence within the statutory range, we review for an
abuse of discretion. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g,
875 N.E.2d 218 (Ind. 2007). We may reverse a decision that 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. (quoting In re L.J.M., 473 N.E.2d 637, 640 (Ind. Ct.
App. 1985)).
Our review of the trial court’s exercise of discretion in sentencing includes an
examination of its reasons for imposing the sentence. Id. “This necessarily requires a
statement of facts, in some detail, which are peculiar to the particular defendant and the
crime . . . [and] such facts must have support in the record.” Id. The trial court is not
required to find mitigating factors or give them the same weight that the defendant does.
1
Ind. Code § 35-42-4-1(b).
2
Ind. Code § 35-42-4-1(a) (rape); Ind. Code § 35-41-5-1 (attempt).
2
Flickner v. State, 908 N.E.2d 270, 273 (Ind. Ct. App. 2009). However, a court abuses its
discretion if it does not consider significant mitigators advanced by the defendant and clearly
supported by the record. Anglemyer, 868 N.E.2d at 490. Once aggravators and mitigators
have been identified, the trial court has no obligation to weigh those factors. Id. at 491.
In sentencing Pitts, the trial court found two mitigators: “The defendant has pled
guilty and admitted responsibility” and “The defendant is 19 years of age.” (App. at 16.)
During his sentencing hearing, Pitts argued his attempts at rehabilitation while serving his
earlier sentence for Class B felony attempted rape and his expression of remorse toward the
victim and his family members should also have been considered. However, the trial court
was not required to find Pitts’ alleged rehabilitation and remorse as mitigating factors. See
Phelps v. State, 969 N.E.2d 1009, 1020 (Ind. Ct. App. 2012) (“trial court under no obligation
to accept a defendant’s alleged remorse as a mitigating circumstance); see also Settles v.
State, 791 N.E.2d 812, 815 (Ind. Ct. App. 2003) (“It was within the trial court’s discretion to
find that [the defendant’s] rehabilitation process during his incarceration was not a
significant mitigating factor.”). Therefore Pitts has not demonstrated the trial court abused
its discretion in sentencing him.
2. Inappropriate Sentence
We may revise a sentence if it is inappropriate in light of the nature of the offense and
the character of the offender. Williams v. State, 891 N.E. 2d 621, 633 (Ind. Ct. App. 2008)
(citing Ind. Appellate Rule 7(B)). We consider not only the aggravators and mitigators found
by the trial court, but also any other factors appearing in the record. Roney v. State, 872
3
N.E.2d 192, 206 (Ind. Ct. App. 2007), trans. denied. The appellant bears the burden of
demonstrating his sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind.
2006).
When considering the nature of the offense, the advisory sentence is the starting point
to determine the appropriateness of a sentence. Anglemyer v. State, 868 N.E.2d 482, 494
(Ind. 2007), clarified on reh’g 878 N.E.2d 218 (Ind. 2007). The advisory sentence for a
Class A felony is thirty years, with a range of twenty to fifty years. Ind. Code § 35-50-2-4.
Pitts was sentenced to thirty years, which is the advisory sentence for Class A felony rape.
Pitts used force to subdue his victim, and choked her while raping her. Based on the violent
nature of the offense, we cannot say the advisory sentence was inappropriate.
When considering the character of the offender, one relevant fact is the defendant’s
criminal history. Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct. App. 2007). The
significance of a criminal history in assessing a defendant’s character varies based on the
gravity, nature, and number of prior offenses in relation to the current offense. Id. Pitts was
serving a sentence for attempted rape when he was convicted and sentenced for the instant
crime. In addition, Pitts has two juvenile adjudications – one for burglary and one for
robbery. Based on his criminal history, we cannot say the advisory sentence is inappropriate.
CONCLUSION
The trial court did not abuse its discretion in sentencing Pitts, nor is his sentence
inappropriate based on his character and the nature of the offense. Accordingly, we affirm.
4
Affirmed.
BAKER, J., and MATHIAS, J., concur.
5