Pursuant to Ind.Appellate Rule 65(D),
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, FILED
Jan 31 2012, 9:29 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:
JEFFREY SCHLESINGER GREGORY F. ZOELLER
Crown Point, Indiana Attorney General of Indiana
MONIKA PREKOPA TALBOT
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
JAMES EUBANKS, JR., )
)
Appellant-Defendant, )
)
vs. ) No. 45A03-1105-CR-212
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE LAKE SUPERIOR COURT
The Honorable Salvador Vasquez, Judge
Cause No. 45G01-1011-FB-108
January 31, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
BARNES, Judge
Case Summary
James Eubanks, Jr., appeals his sentence for Class B felony burglary. We affirm.
Issues
Eubanks raises two issues, which we restate as:
I. whether the trial court abused its discretion in
sentencing him; and
II. whether his sentence is inappropriate in light of the
nature of the offense and the character of the offender.
Facts
On October 30, 2010, a fire damaged the residence of Andrea Fraze and her family
in Hammond. The Fraze family had to move out for a few days, and the residence was
boarded up. On the early morning of November 1, 2010, Fraze’s neighbor heard
pounding coming from the boarded up house and called police. Officers found Eubanks
in the residence and saw that copper pipes had been cut and were stacked near the back
door. When he was arrested, Eubanks also had Fraze’s jewelry in his pocket. Eubanks
told the officers, “I knew that the house had had a fire. I was just going in there to get the
copper. I figured the insurance would cover it. I wasn’t trying to hurt nobody.” Tr. p.
42.
The State charged Eubanks with Class B felony burglary, and a jury found him
guilty as charged. At the sentencing hearing, the trial court found Eubanks’s criminal
history to be an aggravator and found no mitigators. The trial court sentenced Eubanks to
nine years in the Department of Correction with the last three years in community
corrections.
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Analysis
I. Abuse of Discretion
Eubanks argues that the trial court abused its discretion by failing to consider
certain proposed mitigators. Sentencing decisions are within the sound discretion of the
trial court. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875
N.E.2d 218. However, a trial court may be found to have abused its sentencing discretion
in a number of ways, including: (1) failing to enter a sentencing statement at all; (2)
entering a sentencing statement that explains reasons for imposing a sentence where the
record does not support the reasons; (3) entering a sentencing statement that omits
reasons that are clearly supported by the record and advanced for consideration; and (4)
entering a sentencing statement in which the reasons given are improper as a matter of
law. Id. at 490–91. The reasons or omission of reasons given for choosing a sentence are
reviewable on appeal for an abuse of discretion. Id. The weight given to those reasons,
i.e. to particular aggravators or mitigators, is not subject to appellate review. Id.
According to Eubanks, the trial court failed to consider his homelessness and
mental illnesses as mitigators. Our supreme court has identified four factors “that bear on
the weight, if any, that should be given to mental illness in sentencing.” Weeks v. State,
697 N.E.2d 28, 30 (Ind. 1998). Those factors are: (1) the extent of the defendant’s
inability to control his or her behavior due to the disorder or impairment; (2) overall
limitations on functioning; (3) the duration of the mental illness; and (4) the extent of any
nexus between the disorder or impairment and the commission of the crime. Id.
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Eubanks’s counsel argued at sentencing that Eubanks had schizophrenia, a bipolar
disorder, and suicidal tendencies. Eubanks admitted that his family wanted him to seek
treatment, but he refused. His counsel contended that Eubanks is more lucid when he is
taking his medication. Eubanks presented no evidence as to the severity of his mental
illnesses, his ability to control his behavior, limitations on his functioning, or the extent
of a nexus between his mental illness and the commission of the crime.
Moreover, while the trial court did not identify Eubanks’s homelessness and
mental illnesses as mitigators, it did mention both proposed mitigators in its sentencing
statement. The trial court noted that Eubanks had not sought help for his mental health
issues. Instead, Eubanks had been treating his mental illnesses with alcohol and drugs.
The trial court noted that Eubanks had been “jumping from house to house or state to
state . . . kind of roaming around and looking for [his] next meal.” Tr. p. 115. The trial
court noted that the “system” could only help Eubanks so much and that he needed to
seek treatment. Id. Thus, the trial court did, in fact, consider Eubanks’s proposed
mitigators, but it rejected them. Given the lack of evidence regarding Eubanks’s mental
illnesses and the trial court’s statements during sentencing, we cannot say that the trial
court abused its discretion by failing to identify Eubanks’s homelessness or mental
illnesses as mitigators.
II. Inappropriate Sentence
Eubanks argues that his sentence is inappropriate in light of the nature of the
offenses and the character of the offender. Indiana Appellate Rule 7(B) provides that we
may revise a sentence authorized by statute if, after due consideration of the trial court’s
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decision, we find that the sentence is inappropriate in light of the nature of the offense
and the character of the offender. When considering whether a sentence is inappropriate,
we need not be “extremely” deferential to a trial court’s sentencing decision. Rutherford
v. State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007). Still, we must give due consideration
to that decision. Id. We also understand and recognize the unique perspective a trial
court brings to its sentencing decisions. Id. Under this rule, the burden is on the
defendant to persuade the appellate court that his or her sentence is inappropriate.
Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).
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. 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).
The nature of the offense is that Eubanks broke into the Fraze family’s residence
shortly after a fire occurred there. Eubanks attempted to take jewelry and copper pipes.
Eubanks claims that the nature of the offense is less serious than a typical burglary
because no one was occupying the house when he entered it.
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A review of the character of the offender reveals that Eubanks has a substantial
criminal history of similar offenses. Twenty-six-year-old Eubanks has multiple
misdemeanor convictions, including convictions for criminal trespass, conversion,
criminal mischief, underage drinking, operating a vehicle while under the influence, and
resisting law enforcement. He also has two felony convictions for theft and one for
burglary. He was on probation at the time of this offense. Eubanks claims to have been
diagnosed with schizophrenia and bipolar disorder, but he refused to take his medication
and refused offers of help from his family.
The sentence for a Class B felony ranges from six to twenty years with an
advisory sentence of ten years. Ind. Code § 35-50-2-5. We note that, at the sentencing
hearing, Eubanks asked for a sentence of between six and ten years with community
transitions at the end of the sentence. Tr. p. 109. The State asked for a sentence of ten
years. The trial court ordered that Eubanks serve nine years in the Department of
Correction with the last three years in community corrections, which falls within the
range of sentence that Eubanks requested. Despite Eubanks’s claimed mental illnesses,
given his criminal history and his requested sentence, we conclude that the sentence
imposed by the trial court is not inappropriate in light of the nature of the offense and the
character of the offender.
Conclusion
The trial court did not abuse its discretion in sentencing Eubanks, and the sentence
is not inappropriate in light of the nature of the offense and the character of the offender.
We affirm.
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Affirmed.
KIRSCH, J., and BRADFORD, J., concur.
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