MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this May 26 2015, 9:09 am
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
Donald C. Swanson, Jr. Gregory F. Zoeller
Deputy Public Defender Attorney General of Indiana
Fort Wayne, Indiana
James B. Martin
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
David S. Murray, May 26, 2015
Appellant-Defendant, Court of Appeals Case No.
02A03-1412-CR-428
v. Appeal from the Allen Superior
Court
State of Indiana, The Honorable Frances C. Gull,
Appellee-Plaintiff. Judge
Cause No. 02D04-1405-FD-553
Brown, Judge.
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[1] David S. Murray appeals his sentence for theft as a class D felony. Murray
raises two issues which we revise and 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.
We affirm.
Facts and Procedural History
[2] On May 12, 2014, Murray knowingly or intentionally exerted unauthorized
control over the property of the First Wayne Street United Methodist Church,
that being a television, with the intent to deprive the church of any part of the
value or use of that property.
[3] On May 16, 2014, the State charged Murray with theft as a class D felony. On
August 25, 2014, the court held a hearing regarding Murray’s change of plea
from not guilty to guilty. The court asked Murray if he had ever been treated
for any mental illness or to his knowledge suffered from any mental or
emotional disability, and Murray said: “No sir.” Guilty Plea Transcript at 4.
The court indicated that it had a Drug Court Participation Agreement in front
of it, and Murray indicated that he had read and signed the agreement. The
agreement stated:
In addition to the standard conditions of Drug Court you agree to
complete the following special conditions: transitional living, intensive
out-patient treatment, after care, psychiatric and/or psychological
evaluation and comply with recommendations, individual counseling,
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changes program, money management international, obtain/maintain
documentable employment, AA/NA/CA program, obtain a sponsor,
random ETG testing and maintain good behavior. Optional
conditions may include pharmacotherapy and if you successfully
complete drug court this case will be dismissed.
Id. at 7. After further discussion, the court found Murray understood the nature
of the charge and had pled guilty. The court took the plea under advisement
and ordered Murray be placed in the Drug Court Diversion Program.
[4] On October 6, 2014, Murray was terminated from the Drug Court. On
November 25, 2014, the court held a sentencing hearing. Defense counsel
argued that Murray had extensive mental health history and had been
diagnosed as a paranoid schizophrenic. Defense counsel conceded that “what
ever [sic] sentence that the Court deems appropriate in this case should be an
executed sentence” and that he did “not believe that [Murray] would be a
candidate for probation in this particular case.” Sentencing Transcript at 6.
Defense counsel also stated: “I don’t think given his homeless status, he is a
veteran, he’s gone through various programs there. I think that it would be
better for all concerned if we had an executed sentence.” Id. The prosecutor
emphasized Murray’s criminal history and requested at least a two-year
executed sentence. When asked by the court if he had any response, defense
counsel stated: “No, Your Honor.” Id. at 9.
[5] Murray stated:
A lot of those cases I received because I was homeless and I didn’t
have anywhere to go so I would pick up a case on purpose to come
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here to jail. This jail saved my life a few times, in that snowy, cold
weather. You don’t have anywhere to go, I was banned from the
Mission and, and . . . from smoking marijuana in the bathroom and
there was nowhere for me to go. I couldn’t go to my mom’s house, I
couldn’t go anywhere else, I just didn’t have to do with anybody else,
so a lot of those cases I picked up were because I wanted to go to jail.
And I’m a veteran, I fought in the war for good things and good
people and kids and I decided that that was just . . . if I do have to go
to prison, which I probably will have to, I can always get by with
knowing I did the right thing at one time. And my attorney said most
of what I agree with and he’s a good attorney and thank you, that’s all
I have to say.
Id. at 10.
[6] The court found Murray’s plea of guilty, acceptance of responsibility, and
mental health history as documented in the presentence investigation report
(“PSI”) to be mitigators. The court found Murray’s extensive criminal record
with failed efforts at rehabilitation to be an aggravator. The court sentenced
Murray to two years in the Department of Correction (“DOC”).
Discussion
I.
[7] The first issue is whether the trial court abused its discretion in sentencing
Murray. 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.” Anglemyer
v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind.
2007). A trial court abuses its discretion if it: (1) fails “to enter a sentencing
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statement at all;” (2) enters “a sentencing statement that explains reasons for
imposing a sentence – including a finding of aggravating and mitigating factors
if any – but the record does not support the reasons;” (3) enters a sentencing
statement that “omits reasons that are clearly supported by the record and
advanced for consideration;” or (4) considers reasons that “are improper as a
matter of law.” Id. at 490-491. If the trial court has abused its discretion, we
will remand for resentencing “if we cannot say with confidence that the trial
court would have imposed the same sentence had it properly considered
reasons that enjoy support in the record.” Id. at 491. The relative weight or
value assignable to reasons properly found, or those which should have been
found, is not subject to review for abuse of discretion. Id.
[8] The determination of 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 argument as to
what constitutes a mitigating factor, and a trial court is not required to give the
same weight to proffered mitigating factors as does a defendant. 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. Anglemyer, 868 N.E.2d at 493.
If the trial court does not find the existence of a mitigating factor after it has
been argued by counsel, the trial court is not obligated to explain why it has
found that the factor does not exist. Id.
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[9] Murray argues that the trial court failed to recognize any of the mitigators
except for his guilty plea. He asserts that the unrecognized mitigators include
his high school graduation, two years completed at Ivy Tech Community
College, service in the Army, history of mental health, guilty plea, acceptance
of responsibility, and remorse. The State notes that the court identified two of
the circumstances as mitigators, and argues that the court generously
recognized mental illness as a mitigating circumstance when there was no
evidence in the record beyond Murray’s self-report to probation as stated in the
PSI.
[10] With respect to his education, the PSI indicates that Murray reported that he
graduated from Central High School in Fort Wayne in 1969, attended two
years at Ivy Tech Community College, and expressed an interest in learning
about computers in the future. However, Murray’s trial counsel did not argue
that his education constituted a mitigator. “If the defendant does not advance a
factor to be mitigating at sentencing, this Court will presume that the factor is
not significant and the defendant is precluded from advancing it as a mitigating
circumstance for the first time on appeal.” Henley v. State, 881 N.E.2d 639, 651
(Ind. 2008) (quoting Spears v. State, 735 N.E.2d 1161, 1167 (Ind. 2000), reh’g
denied). Consequently, this argument is waived. See Hollin v. State, 877 N.E.2d
462, 464-465 (Ind. 2007) (holding that the argument regarding a GED was
precluded from appellate review because the defendant did not argue that his
GED should be considered in mitigation).
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[11] With respect to his military service, the PSI reveals that Murray reported that
he served in the United States Army from 1971 to 1973 and received an
honorable discharge. We observe that service to our country is a commendable
act, but military service is not necessarily a mitigating circumstance. See
Harman v. State, 4 N.E.3d 209, 218 (Ind. Ct. App. 2014), trans. denied. Murray
does not point to any documentation related to his military service and points
only to the PSI indicating he reported his service. We cannot say that Murray
established that the mitigating evidence was both significant and clearly
supported by the record or that the court abused its discretion in failing to find
military service as a mitigator.
[12] As for his remorse, in his statement of facts, Murray points to the PSI which
states: “The defendant expressed remorse for his actions. He conveyed, ‘I was
off my medication when I caught my new case. I was goofy in the head. I wish
it wouldn’t have happened.’” Appellant’s Appendix at 25. We cannot say that
Murray expressed remorse at the sentencing hearing and he does not point to
the record to show that his defense counsel argued that his remorse constituted
a mitigator. We cannot say that the trial court abused its discretion in not
finding remorse to be a mitigator.
[13] To the extent Murray argues that the trial court failed to recognize his mental
health, guilty plea, and acceptance of responsibility, we observe that the trial
court stated: “The Court does find as mitigating circumstances your plea of
guilty and acceptance of responsibility and the mental health history that’s been
documented in the [PSI] and throughout the drug court program.” Sentencing
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Transcript at 11. As noted earlier, the relative weight or value assignable to
reasons properly found, or those which should have been found, is not subject
to review for abuse of discretion. Anglemyer, 868 N.E.2d at 491. We conclude
that the trial court did not abuse its discretion.
II.
[14] The next issue is whether Murray’s sentence is inappropriate in light of the
nature of the offense and the character of the offender. Ind. Appellate Rule
7(B) provides that we “may revise a sentence authorized by statute if, after due
consideration of the trial court’s decision, [we find] that the sentence is
inappropriate in light of the nature of the offense and the character of the
offender.” 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).
[15] Murray argues that his sentence is inappropriate because his crime did not
involve any violence and he admitted his wrongdoing and pled guilty. He
contends that such a crime does not indicate that he is one of the “worst
offenders” for whom aggravated sentences are appropriate. Appellant’s Brief at
6 (quoting Buchanan v. State, 767 N.E.2d 967, 973 (Ind. 2002)). He asserts that
his character further demonstrates that he is not one of the worst offenders. He
requests that this court revise his sentence to six months.
[16] Initially, to the extent Murray claims that he is not one of the “worst
offenders,” we observe that that phrase was used by the Indiana Supreme Court
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where it held that the maximum possible sentences are generally most
appropriate for the worst offenders. See Buchanan, 767 N.E.2d at 973. Murray
did not receive a maximum sentence in this case when the court sentenced him
to two years. See Ind. Code § 35-50-2-7 (Supp. 2013) (“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.”).1
[17] Our review of the nature of the offense reveals that Murray knowingly or
intentionally exerted unauthorized control over the property of the First Wayne
Street United Methodist Church, that being a television, with the intent to
deprive the church of any part of the value or use of that property.
[18] Our review of the character of the offender reveals that Murray pled guilty as
charged. At the guilty plea hearing, Murray denied ever being treated for any
mental illness or suffering from any mental or emotional disability. The PSI
indicates that Murray reported he was diagnosed with schizophrenia by the
Veteran’s Hospital in 1980 and was currently taking Prolixin for mental health.
He reported serving in the United States Army from 1971 until 1973 and
receiving an honorable discharge. Murray reported experimenting with
alcohol, marijuana, and heroin, and that he began using cocaine when he was
1
Subsequently amended by Pub. L. No. 158-2013, § 660 (eff. July 1, 2014); Pub. L. No. 168-2014, § 117 (eff.
July 1, 2014).
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thirty-eight years old, used it as much as he could, and quit prior to beginning
the drug court program.
[19] The PSI indicates that Murray has thirteen prior misdemeanor convictions and
twelve prior felony convictions and that he had a suspended sentence revoked
twice.2 The PSI indicates that he began the drug court program on August 25,
2014, was arrested on October 1, 2014, for criminal trespass, failed to appear for
his case management appointment on October 2, 2014, and was arrested for
theft on October 4, 2014. The PSI also indicates that his overall risk assessment
score puts him in the high risk to reoffend category. The probation officer
completing the PSI recommended that Murray serve two years executed in the
DOC.
[20] After due consideration of the trial court’s decision, we cannot say that the
sentence of two years imposed by the trial court is inappropriate in light of the
nature of the offense and the character of the offender.
2
Specifically, Murray was convicted of burglary as a felony in 1976; armed robbery as a felony in 1979;
criminal mischief as a misdemeanor in 1982; criminal trespass as a misdemeanor in 1982 and 1983; criminal
mischief in 1984; criminal conversion as a misdemeanor in 1986; attempted robbery as a class C felony in
1996; criminal conversion as a misdemeanor in 2000; theft as a class D felony in 2001; public intoxication,
criminal trespass, false informing, and criminal conversion in 2004; possession of paraphernalia as a
misdemeanor in 2005; possession of paraphernalia as a class D felony and theft as a class D felony in 2006;
two counts of possession of paraphernalia as class D felonies in 2007; possession of paraphernalia as a class
D felony in 2008; theft as a class D felony in 2009; criminal trespass and auto theft as class D felonies in
2010; and forgery as a class C felony in 2012.
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Conclusion
[21] For the foregoing reasons, we affirm Murray’s sentence.
[22] Affirmed.
Crone, J., and Pyle, J., concur.
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