MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
Nov 12 2015, 6:04 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
Mark Small Gregory F. Zoeller
Indianapolis, Indiana Attorney General of Indiana
Christina D. Pace
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Robert J. Fugate, Jr., November 12, 2015
Appellant-Defendant, Court of Appeals Case No.
84A01-1505-CR-411
v. Appeal from the Vigo Superior
Court
State of Indiana, The Honorable John T. Roach,
Appellee-Plaintiff Judge
Trial Court Cause No.
84D01-1404-FB-1008
Crone, Judge.
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Case Summary
[1] Robert J. Fugate, Jr., appeals the ten-year sentence imposed by the trial court
following his guilty plea to class B felony rape. He asserts that his sentence is
inappropriate in light of his character. Concluding that he has waived our
review of the appropriateness of his sentence, we affirm.
Facts and Procedural History
[2] On April 9, 2015, Fugate raped his neighbor T.G. The State charged Fugate
with class B felony rape, class D felony sexual battery, and with being a repeat
sexual offender. Fugate and the State subsequently entered into a plea
agreement pursuant to which Fugate pled guilty to class B felony rape, with a
sentencing cap of ten years (the advisory sentence for a class B felony 1), in
exchange for the dismissal of the remaining charges. During sentencing, the
trial court noted Fugate’s guilty plea as a mitigating factor, but determined that
his decision to plead guilty was entitled to no mitigating weight in light of the
substantial benefit Fugate received in exchange for his plea, namely the
dismissal of the additional charges. 2 The trial court found Fugate’s extensive
criminal history, which included multiple felonies, as an aggravating factor. At
1
Ind. Code § 35-50-2-5.
2
The trial court found that additional mitigating factors proffered by Fugate were unsupported by the
evidence.
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the conclusion of the hearing, the trial court imposed the maximum sentence
allowable under the plea agreement, which was ten years. This appeal ensued.
Discussion and Decision
[3] Pursuant to Indiana Appellate Rule 7(B), 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.” Whether we regard a sentence as inappropriate at the end of
the day turns on “our sense of the culpability of the defendant, the severity of
the crime, the damage done to others, and myriad other facts that come to light
in a given case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). The
defendant bears the burden to persuade this Court that his or her sentence is
inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). Sentencing
is principally a discretionary function of the trial court to which appellate courts
owe considerable deference. Cardwell, 895 N.E.2d at 1222. “Such deference
should prevail unless overcome by compelling evidence portraying in a positive
light the nature of the offense (such as accompanied by restraint, regard, and
lack of brutality) and the defendant’s character (such as substantial virtuous
traits or persistent examples of good character.” Stephenson v. State, 29 N.E.3d
111, 122 (Ind. 2015).
[4] The argument section of Fugate’s appellate brief is incredibly short and
comments only scantly on his character. However, revision of a sentence
pursuant to Appellate Rule 7(B) requires the appellant to demonstrate that his
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sentence is inappropriate in light of both the nature of his offense and his
character. Williams v. State, 891 N.E.2d 621, 633 (Ind. Ct. App. 2008). Because
Fugate presents no argument, scant or otherwise, regarding the appropriateness
of his sentence in light of the nature of his offense, we conclude that he has
waived our review. See id.
[5] Waiver notwithstanding, the advisory sentence is the starting point the
legislature has selected as an appropriate sentence for the crime committed.
Abbott v. State, 961 N.E.2d 1016, 1019 (Ind. 2012). The sentencing range for a
class B felony is between six and twenty years, with an advisory sentence of ten
years. Ind. Code § 35-50-2-5. Because Fugate received the advisory ten-year
sentence for his offense, we cannot conclude that his sentence is excessive.
[6] As for Fugate’s character, we need look no further than his extensive criminal
history, which includes a child molesting conviction along with numerous other
felonies. There is nothing about Fugute’s character that convinces us that his
ten-year sentence is inappropriate. Accordingly, we affirm the sentence
imposed by the trial court.
[7] Affirmed.
May, J., and Bradford, J., concur.
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Robert J. Fugate, Jr. v. State of Indiana (mem. dec.)
Combined Opinion