Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata, Sep 04 2012, 9:46 am
collateral estoppel, or the law of the
case.
CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
DONALD C. SWANSON, JR. GREGORY F. ZOELLER
Deputy Public Defender Attorney General of Indiana
Fort Wayne, Indiana
ERIC P. BABBS
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
DAMON T. PAYNE, SR., )
)
Appellant-Defendant, )
)
vs. ) No. 02A04-1204-CR-190
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE ALLEN SUPERIOR COURT
The Honorable Wendy W. Davis, Judge
Cause No. 02D05-1111-FD-1483
September 4, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
DARDEN, Senior Judge
STATEMENT OF THE CASE
Damon T. Payne, Sr. appeals the sentence imposed by the trial court on three
counts of class D felony theft.1
We affirm.
ISSUE
Whether the imposed sentence is inappropriate.
FACTS2
On October 18, 2011, William Tindall and Ruth Contreras arrived at a department
store, parked their vehicle, and went into the store. Approximately one half hour later,
William returned and saw that the driver’s side front window of the vehicle had been
shattered and a black computer bag had been taken. The bag contained a CD/MP3
player, a GPS device, two chargers, and a wallet containing the driver’s license of Maria
Contreras. William and Ruth immediately reported the theft and spoke with Police
Officer James Chambers.
Officer Chambers was in the area because he had been alerted that a “suspicious
person” was lurking near the department store. (App. 3). David Nicholson, who reported
the “suspicious person,” gave a description of the person, later identified as Payne, and
1
Ind. Code § 35-43-4-2(a).
2
Payne pled guilty to the theft offenses; however, his guilty plea hearing was not recorded. At his
sentencing hearing, Payne acknowledged that the facts stated in the probable cause affidavit were
accurate. Accordingly, our statement of facts is premised on the aforementioned affidavit.
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followed him to a Fort Wayne address. Id. Officer Chambers went to that address and
located Payne.
At some point, Officer Chambers spoke with Jehova Solis, who had seen Payne
standing outside Nicholson’s vehicle holding Nicholson’s gym bag. Solis, upon seeing
Payne, chased him, and Payne dropped Nicholson’s gym bag. Premier Rental later
reported that $1,800 had been stolen from a bank deposit bag in Nicholson’s vehicle.
Officer Chambers arrested Payne, who possessed a black computer bag containing the
items identified by William and Ruth as being stolen from their vehicle.
The State charged Payne with three counts of class D felony theft and alleged that
he was a habitual offender. On March 1, 2012, Payne pled guilty to the theft charges, and
the State withdrew the habitual offender allegation. At the sentencing hearing, the trial
court found the following aggravators: (1) Payne’s criminal history; (2) the revocation of
former rehabilitative programs, including probation; and (3) his high risk to re-offend.
The trial court found the following mitigators during the sentencing hearing: Payne had
four dependent children, and he was a former Marine. In its written sentencing order, the
trial court found as a mitigating circumstance that Payne had pled guilty.
The trial court imposed sentences of two and one-half years incarceration, with the
sentences to run concurrently. The trial court suspended one and one-half years to
probation. Payne now appeals.
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DECISION
Payne contends that the sentence imposed by the trial court is inappropriate. He
claims that the trial court “did not properly weigh the[] mitigating factors in Defendant’s
favor at sentencing.” Payne’s Br. at 3. He further contends that the trial court did not
properly evaluate the nature of the offense or his character in imposing the sentence.
The revision of a sentence is authorized by the Indiana Constitution through
Indiana Appellate Rule 7(B), which provides that we “may revise a sentence authorized
by statute if, after due consideration of the trial court’s decision, the Court finds that the
sentence is inappropriate in light of the nature of the offense and the character of the
offender.” In determining the appropriateness of a sentence, a court of review may
consider any factors appearing in the record. Schumann v. State, 900 N.E.2d 495, 497
(Ind. Ct. App. 2009). The “nature of the offense” portion of the appropriateness review
begins with the advisory sentence. 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); Richardson v.
State, 906 N.E.2d 241, 247 (Ind. Ct. App. 2009). The “character of the offender” portion
of the sentence review refers to general sentencing considerations and the relevant
aggravating and mitigating circumstances. Major v. State, 873 N.E.2d 1120, 1130 (Ind.
Ct. App. 2007), trans. denied. A defendant bears the burden of persuading us that his
sentence is inappropriate in light of both the nature of the offense and his character.
Williams v. State, 891 N.E.2d 621, 633 (Ind. Ct. App. 2008). The weight assignable to
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aggravating and mitigating circumstances is not subject to review for abuse of discretion.
Anglemyer, 868 N.E.2d at 491.
Indiana Code section 35-50-2-7 provides that a person who commits a class D
felony “shall be imprisoned for a fixed term of between six (6) months and three (3)
years, with the advisory sentence being one and one-half (1 ½) years.” As noted above,
the “nature of the offense” analysis begins with the advisory sentence. Here, the trial
court gave Payne the benefit of concurrent sentencing, and it imposed a total sentence
that is less than the maximum for a single count of theft. Furthermore, the trial court
suspended a portion of the sentence, and we may consider suspension in our Rule 7(B)
analysis. See Davidson v. State, 926 N.E.2d 1023, 1025 (Ind. 2010). Although there is
nothing in Payne’s one-day crime spree that warrants the imposition of the maximum
three-year sentence for a single count, we cannot say that the manner in which the trial
court structured the sentence upon all three counts involving three victims is
inappropriate.
With reference to the nature of the offender, we note that Payne has repeated prior
offenses, with some of the same nature and gravity as the present ones. His prior
convictions include two counts of receiving stolen property (2010); forgery (2007);
unauthorized entry of motor vehicle (2007); criminal trespass (2006); and public
intoxication (2004). In addition, he had fraud and theft charges pending in another court
at the time of his sentencing hearing. More importantly, Payne previously has been
provided rehabilitative opportunities, including probation and re-entry court, and he
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violated the conditions of these opportunities. At the time of the commission of the
instant offenses, he was on parole. In addition, he was evaluated by the probation
department and found to be a high risk to re-offend.
While we will not reweigh the trial court’s assessment of the mitigating
circumstances, we will independently examine those circumstances as they relate to
Payne’s claim of an inappropriate sentence. In exchange for his guilty plea, Payne
received the substantial benefit of dismissal of the habitual offender charge. Therefore,
the mitigating value of his plea is diminished. See Wells v. State, 836 N.E.2d 475, 479
(Ind. Ct. App. 2005) (holding that a guilty plea “does not rise to the level of significant
mitigation where the defendant has received a substantial benefit from the plea”). As the
trial court noted at the sentencing hearing, Payne’s honorable discharge from the Marines
was of diminished significance because he was incarcerated on a drug charge during that
time. Finally, the most significant mitigator found by the court—the fact of Payne’s four
dependent children living with two mothers—is diminished in value because he reported
no income in 2011. Thus, he was not supporting the children at the time of sentencing.
In short, there is nothing about the nature of the offenses and the character of the
defender to indicate that the trial court imposed an inappropriate sentence.
Affirmed.
FRIEDLANDER, J., and BROWN, J., concur.
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