Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
Jul 09 2013, 6:30 am
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:
JEREMY K. NIX GREGORY F. ZOELLER
Matheny, Hahn, Denman & Nix, L.L.P. Attorney General of Indiana
Huntington, Indiana
AARON J. SPOLARICH
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
LARRY A. ROWE, JR., )
)
Appellant-Defendant, )
)
vs. ) No. 35A02-1212-CR-1016
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE HUNTINGTON CIRCUIT COURT
The Honorable Michael D. Rush, Senior Judge
Cause No. 35C01-1006-FB-154
July 9, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
KIRSCH, Judge
Larry A. Rowe, Jr. (“Rowe”) appeals his twelve-year sentence imposed by the trial
court for his conviction for Class B felony burglary,1 raising the following two restated
issues:
I. Whether the trial court abused its discretion when it ordered that
Rowe’s sentence be served consecutively to his sentences in adjacent
counties; and
II. Whether his twelve-year sentence is inappropriate in light of the nature
of the offense and the character of the offender.
We affirm.
FACTS AND PROCEDURAL HISTORY
On April 2, 2010, in Huntington County, Indiana, Rowe broke into and entered the
home of Mark and Heather Moore (together “the Moores”) with the intent to commit theft.
Rowe forced open a service door on the home’s attached garage and, thereafter, entered the
home through an unlocked door. The Moores were not home at the time. Rowe took from
the master bedroom a number of pieces of jewelry and a Century brand personal safe that
contained personal documents and silver dollar coins that had been in the Moores’ family for
generations. Rowe removed and used a pillowcase from their bed to carry items he stole
from the house.
Three days later, on April 5, 2010, a daytime burglary occurred in Jay County. That
same day, Rowe was stopped in Jay County on a traffic stop, and officers discovered inside
his vehicle a television, several firearms, and pillow cases with jewelry boxes in them. Rowe
agreed to speak with officers, and he confessed to an April 2, 2010 Wells County burglary
1
See Ind. Code § 35-43-2-1.
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and also admitted to burglarizing the Moores’ home on April 2, 2010 in Huntington County.
As part of his statement, he confessed to his method of entry into the Moores’ home and
provided other identifying details confirming it was the Moores’ residence. He also told
officers about a location in Delaware County where he had stored some of the Moores’ items,
which a Jay County Sheriff’s Department officer later recovered.
On June 23, 2010, the State charged Rowe with one count of burglary for his actions
on April 2, 2010 at the Moores’ home. On October 8, 2012, Rowe pleaded guilty to the
charge, and in exchange, the State agreed to cap the executed portion of his sentence at
twelve years. At the subsequent sentencing hearing, Rowe argued for concurrent sentencing
to burglary convictions out of Jay, Blackford, and Wells counties, highlighting to the trial
court that he had given a voluntary statement to police, which reported his involvement in the
Moores’ burglary and led to the present charge. Rowe further noted that, in addition, he
provided an address in Delaware County where some of the Moores’ items could be found.
Rowe provided documentation that, while incarcerated, he had obtained his General
Education Diploma (“G.E.D.”), and he agreed to pay restitution to the Moores.
After receiving argument and reviewing the presentence report, the trial court
identified as an aggravating circumstance that Rowe had a criminal history with multiple
felonies, mostly consisting of driving while suspended and some possession of controlled
substances, and he also had accrued a number of misdemeanors. It also recognized as
aggravators that he had a history of substance abuse, and he violated terms of probation and
community corrections. The trial court identified as a mitigator that Rowe had earned his
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G.E.D. The trial court sentenced Rowe to twelve years, and ordered that the sentence be
served consecutive to three other burglary sentences out of Blackford, Jay, and Wells
counties. Rowe now appeals.
DISCUSSION AND DECISION
I. Abuse of Discretion
Rowe argues that the trial court abused its discretion when it ordered that he serve his
burglary sentence consecutive to several other burglary convictions out of neighboring
counties. In general, we review a trial court’s decision to impose consecutive sentences for
an abuse of discretion. Quiroz v. State, 885 N.E.2d 740, 741 (Ind. Ct. App. 2008), trans.
denied. 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. Gleason v. State, 965 N.E.2d 702, 711-12 (Ind. Ct. App.
2012). A consecutive sentence must be supported by at least one aggravating circumstance.
Quiroz, 885 N.E.2d at 741; see also Gleason, 965 N.E.2d at 711-12 (single aggravating
circumstance may support imposition of consecutive sentences).
Here, the trial court found as aggravating circumstances that Rowe had a criminal
record, had a history of substance abuse, and had violated his probation. Upon reviewing
Rowe’s presentence investigation report, the trial court counted eight prior felonies and
thirteen misdemeanors, most of which were convictions for driving while suspended. Rowe
argues that considering the fact that most of the misdemeanors were for driving while
suspended, his prior criminal history “was not related in gravity or nature to the present
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offense” and was “of limited significance.” Appellant’s Br. at 7, 8. The trial court disagreed,
as do we. It stated,
[W]hy would a judge care all that much about a bunch of driving while
suspendeds. Let me tell you why. It’s a symptom. It’s a symptom that you
don’t care, that the rules don’t apply to you. . . . You can do what you want[.]
. . . All those driving while suspendeds is symptomatic of a person who simply
doesn’t care about our laws. Beyond that you have several burglaries. That
also is a symptom of not caring. . . . Burglary, you don’t care about other
people, you don’t care about their safety and their property and their ability to
stay safe and secure in the home that they made for themselves. . . . So we
have two situations here Mr. Rowe where you don’t seem to care about the law
or about other people.
Tr. at 12-13. In this case, the trial court identified several aggravating factors, and Rowe
appears to challenge only the trial court’s consideration of his criminal history. Thus, other
unchallenged aggravators exist. As previously said, a single aggravator is sufficient to
support consecutive sentences. Frentz v. State, 875 N.E.2d 453, 472 (Ind. Ct. App. 2007),
trans. denied (affirming imposition of consecutive sentences, even though defendant argued
his misdemeanor convictions were not sufficiently weighty or similar to current offense or
were too stale to justify consecutive sentences).
Rowe also argues that, while the trial court identified as a mitigator that he earned his
G.E.D. while incarcerated, the trial court failed to recognize other “valid mitigating
circumstances.” Appellant’s Br. at 8. In particular, Rowe asserts that his agreement to make
restitution to the Moores is a mitigating circumstance that the trial court should have
recognized. Also, he claims that he demonstrated remorse when he voluntarily gave an
admission to police in another county implicating him in the Moores’ burglary. Id. at 7-8.
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Determining mitigating circumstances is within the discretion of the trial court.
Rogers v. State, 878 N.E.2d 269, 272 (Ind. Ct. App. 2007), trans. denied. The trial court is
not obligated to accept the defendant’s arguments as to what constitutes a mitigating factor,
and the court is not required to give the same weight to proffered mitigating factors as the
defendant does. Id. An allegation that the trial court failed to identify or find a mitigating
factor requires the defendant to establish that the mitigating evidence is both significant and
clearly supported by the record. Id. at 272-73.
At the sentencing hearing, the trial court heard and received evidence that Rowe
earned an apprenticeship certificate through the United States Department of Labor while
working at the Department of Correction brake shop, receiving an “excellent” job
performance review while there. Appellant’s App. at 43-46. The trial court recognized the
mitigating value, stating:
I also accept the fact that uh, you have done some, some good things while
you’ve been in the Department of Correction. . . . You’ve been put in the
Indiana Department of Correction and you’re doing what you’re supposed to
do. [Y]ou’re supposed to have remorse, you’re supposed to try and improve
yourself and you’re doing that, I commend you for that.
Tr. at 14. Thus, the record before us indicates that, contrary to Rowe’s assertion that the trial
court only considered one mitigating circumstance (that he earned his G.E.D.), the trial court
also recognized as mitigating factors that Rowe was working at the Department of Correction
and taking steps to improve himself while there. Id. at 14-15; see also Appellant’s App. at 47
(trial court’s sentencing statement referring to having evaluated aggravators and mitigators).
The trial court determined that that the aggravating circumstances outweighed the mitigating
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circumstances. Tr. at 15. To the extent that Rowe’s argument is that the trial court
improperly weighed the aggravating and mitigating factors, “Anglemeyer prohibits a veiled
attempt to have aggravators and mitigators reweighed.” Hall v. State, 944 N.E.2d 538, 541
(Ind. Ct. App. 2011), trans. denied (citing Anglemeyer v. State, 868 N.E.2d 482, 490 (Ind.
2007), clarified on other grounds, 875 N.E.2d 218 (Ind. 2007)). Moreover, a trial court is
not required to extend the same weight as the defendant would to mitigating circumstances.
Conley v. State, 972 N.E.2d 864, 873 (Ind. 2012) (reviewing court gives great deference to
trial court’s determination of proper weight to assign to aggravating and mitigating
circumstances). Rowe has failed to establish that the trial court abused its discretion when it
sentenced him.
II. Inappropriate Sentence
Rowe next claims that his sentence is inappropriate in light of the nature of the offense
and the character of the offender. We may revise a sentence authorized by statute if the
sentence is inappropriate in light of the nature of the offense and the character of the
offender. Ind. Appellate Rule 7(B); Gleason, 965 N.E.2d at 712; Frentz, 875 N.E.2d at 472.
“[T]he length of the aggregate sentence and how it is to be served are the issues that matter.
In the vast majority of cases, whether these are . . . concurrent or consecutive is of far less
significance than the aggregate term of years.” Cardwell v. State, 895 N.E.2d 1219, 1224
(Ind. 2008). We exercise deference to a trial court’s sentencing decision, both because Rule
7(B) requires us to give due consideration to that decision and because we understand and
recognize the unique perspective a trial court brings to its sentencing decisions. Gleason,
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965 N.E.2d at 712. The defendant bears the burden of proving that the sentence is
inappropriate. Id.
Rowe pleaded guilty to one count of Class B felony burglary, which has a sentencing
range of six to twenty years. Ind. Code § 35-50-2-5. Consistent with his plea agreement, his
sentence was capped at a maximum of twelve years, which is what the trial court imposed. It
further ordered that the sentence be served consecutive to other recent burglary convictions in
neighboring counties.
Here, Rowe appears to be challenging not his twelve-year aggregate sentence, but
rather that it was ordered to be served consecutively to the sentences in Jay, Wells, and
Blackford counties, asserting that neither the nature of the offense or his character support
the trial court’s imposition of consecutive sentences. Appellant’s Br. at 9-10. However, our
supreme court has said, “Our review of the sentence 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.” Gleason, 965 N.E.2d at 712 (citing Pierce v.
State, 949 N.E.2d 349, 352 (Ind. 2011)); see also Cardwell, 895 N.E.2d at 1224 (generally
whether sentences are concurrent or consecutive is of less significance than aggregate term of
years). Even assuming that the scope of Rowe’s Indiana Appellate Rule 7(B) claim extends
beyond the consecutive nature of his sentence, and after examining the nature of the offense
and character of the offender, we find no error.
As for the nature of the offense, Rowe gained access to the Moores’ home by
forcefully breaking through their locked door. He went into their bedroom and took a safe
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with personal documents and coins that had monetary and sentimental value, having been in
the family for generations. He also took Mrs. Moore’s jewelry, including items of particular
sentimental value. Rowe argues that, because no one was home when he entered the home,
there was not a likelihood of physical harm to the homeowners; however, there is nothing in
the record before us to indicate that he knew the house was unoccupied when he entered it.
As for Rowe’s character, he reminds us that he used his time at the Department of
Correction to better himself and that he voluntarily provided information leading to the
recovery of some of the Moores’ belongings. However, the record also demonstrates that
Rowe has repeatedly violated Indiana’s laws, beginning in 1993. Although individually, his
crimes are not particularly egregious, and his criminal history consists of many driving while
suspended misdemeanors, it nevertheless illustrates a blatant and continued disregard of our
laws. We further observe that the offenses appear to be escalating in severity, with the four
burglaries in a short span of time. In sum, we are not persuaded that either the nature of
Rowe’s offense or his character justify revision of his sentence. See Hall, 944 N.E.2d at 542
(where defendant had committed multiple burglaries in multiple counties, ordering burglary
sentence served consecutively to sentences in other counties not inappropriate).
Affirmed.
VAIDIK, J., and PYLE, J., concur.
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