MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
Nov 25 2015, 8:12 am
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, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Luisa M. White Gregory F. Zoeller
Kokomo, Indiana Attorney General of Indiana
Tyler G. Banks
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Austin M. Ferguson, November 25, 2015
Appellant-Defendant, Court of Appeals Case No.
34A02-1506-CR-589
v. Appeal from the Howard Superior
Court
State of Indiana, The Honorable George A.
Appellee-Plaintiff Hopkins, Judge
Trial Court Cause Nos.
34D04-1404-FC-59
34D04-1405-FB-70
Bailey, Judge.
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Case Summary
[1] Austin M. Ferguson (“Ferguson”) pleaded guilty to Receiving Stolen Property,
as a Class D felony;1 Burglary, as a Class C felony;2 Aiding, Inducing or
Causing Burglary, as a Class B felony;3 and Aiding, Inducing or Causing
Burglary, as a Class C felony.4 Pursuant to the plea agreement, he was
sentenced to a specific term of years on each count. The agreement also left to
the trial court’s discretion the limited issue of where the executed portion of
Ferguson’s sentence on one of the convictions would be served. On appeal, he
presents the sole issue of whether the trial court’s sentencing order was
inappropriate. We affirm.
Facts and Procedural History
[2] On April 11, 2014, Ferguson and twin his brother, Andrew, drove to Doc’s
Detail Shop in Kokomo, where Andrew broke in through a window and let
Ferguson in through a door. Ferguson took a digital camera and some change.
Andrew also broke into a neighboring building that housed a separate business,
Doc’s Pool Shed, while Ferguson waited outside. On April 10, 2014, Ferguson
1
Ind. Code § 35-43-4-2(b). Throughout this opinion, we refer to the versions of the Indiana statutes in effect
at the time of Ferguson’s offenses.
2
I.C. § 35-43-2-1.
3
I.C. §§ 35-43-2-1(1) & 35-41-2-4.
4
I.C. §§ 35-43-2-1 & 35-41-2-4.
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and Andrew drove to Clayton Fisher’s apartment in Kokomo, where Ferguson
boosted Andrew up to the apartment’s balcony. Andrew broke the glass
balcony door, entered the apartment, and let Ferguson in through the front
door. The brothers took two guns and a plasma TV. On December 3, 2013, the
twins drove to the home of R. Wesley Miller (“Miller”), also in Kokomo.
Ferguson stayed outside while Andrew broke a window, entered the home, and
stole three guns and two safes containing jewelry, documents, and a total of
$10,500. On April 2, 2014, Ferguson and Andrew drove to Mac’s Market in
Kokomo, where Ferguson acted as a lookout while Andrew entered the
building through a drive-through window and stole several lottery tickets.
[3] For his role in burglarizing Doc’s Detail Shop and Doc’s Pool Shed, Ferguson
was charged in trial court cause number 34D04-1404-FC-59 (“FC-59”) with two
counts of Burglary, as Class C felonies; Receiving Stolen Property, as a Class D
felony (“Count 3”); and Conspiracy to Commit Burglary, as a Class C felony.
For his role in the Fisher, Miller, and Mac’s Market burglaries, Ferguson was
charged under trial court cause number 34D04-1405-FB-70 (“FB-70”) with
Burglary, as a Class B felony (“Count 1”); two counts of Conspiracy to Commit
Burglary, as Class B felonies; two counts of Receiving Stolen Property, as Class
D felonies; Aiding, Inducing or Causing Burglary, as a Class B felony (“Count
5”); Aiding, Inducing or Causing Burglary, as a Class C felony (“Count 7”);
and Conspiracy to Commit Burglary, as a Class C felony.
[4] Cause numbers FC-59, FB-70, and a third case (cause number 34D04-1412-F5-
161) were disposed of in a single plea agreement filed March 13, 2015. In FC-
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59, Ferguson agreed to plead guilty to Count 3 and to serve a term of eighteen
months in the Indiana Department of Correction (“DOC”). In FB-70,
Ferguson agreed to plead guilty to Count 1 (as a Class C felony), Count 5, and
Count 7. On Counts 1 and 7, he agreed to serve for each offense a sentence of
four years executed in the DOC. On Count 5, he agreed to serve a ten-year
sentence, with eight years executed and two years of supervised probation. The
agreement also provided that “[t]he parties may present evidence and argument
regarding how the executed portion of the sentence [on Count 5] shall be served
including but not limited to Community Corrections In-Home Detention.”
(App. 42.) The sentences in FB-70 were to run concurrently, but consecutively
to the sentence in FC-59. In exchange, the State agreed to dismiss all remaining
counts in the three cases. Restitution was to be determined by the trial court.
[5] On May 8, 2015, the trial court accepted the agreement and entered judgment
of conviction. The court also heard evidence and argument on where
Ferguson’s executed sentence on Count 5 should be served. Ferguson
requested that at least some portion of his sentence be served on home
detention so that he could obtain employment and pay restitution, which he
would not be able to do while incarcerated. At the conclusion of the hearing,
the court sentenced Ferguson according to the agreement’s terms and ordered
that all eight years executed in Count 5 be served in the DOC. The court also
ordered that Ferguson pay his pro rata share of $13,535.70 ($6,767.85) in
restitution to Miller.
[6] In this consolidated appeal, Ferguson appeals the trial court’s sentencing order.
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Discussion and Decision
[7] Article 7, Section 6 of the Indiana Constitution grants this Court authority to
independently review and revise a sentence imposed by the trial court. To
implement this grant of authority, Indiana Appellate Rule 7(B) provides: “The
Court 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.” Ind.
Appellate Rule 7(B). The analysis is not whether another sentence is more
appropriate, but whether the sentence imposed is inappropriate. Conley v. State,
972 N.E.2d 864, 876 (Ind. 2012). The defendant bears the burden of
persuading the appellate court that his or her sentence is inappropriate. Id.
[8] On appeal, Ferguson contends that factors such as the non-violent nature of his
offenses, his limited criminal history, his ongoing drug addiction problems, and
his young age are mitigating and thus should reduce his sentence. He argues
that “[i]f the [trial] court had correctly taken into consideration [his] character,
the fact that he pled guilty, the nature of the crime and the necessity to pay
restitution as soon as possible, the court would have imposed a more lenient
sentence and would have allowed [him] to serve on Home-Detention.”
(Appellant’s Br. 4.) He therefore “requests re-sentencing” (Appellant’s Br. 4)
and asks that this Court “reverse and remand the sentencing of the trial court
with instructions to reconsider [his] 16 year sentence and take into
consideration the mitigating factors presented in this appeal.” (Appellant’s Br.
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8.)5 He thus seems to argue that both his overall sentence and his placement in
the DOC were inappropriate.
[9] If the trial court accepts the parties’ agreement to a plea calling for a specific
term of years, the court has no discretion to impose anything other than the
precise sentence upon which they agreed. Childress v. State, 848 N.E.2d 1073,
1078-79 n.4 (citing Badger v. State, 637 N.E.2d 800, 802 (Ind.1994) (“[I]f the
court accepts the agreement, it becomes bound by the terms of the
agreement.”); Blackburn v. State, 493 N.E.2d 437, 439 (Ind.1986) (“Although not
a party to the agreement, once the court accepts a plea agreement, it is bound
by the terms of that agreement.”)). Only if the trial court exercises discretion in
imposing a sentence may a convicted person contest on appeal the merits of
that discretion on the grounds that the sentence is inappropriate. Hole v. State,
851 N.E.2d 302, 304 (Ind. 2006) (citing Childress, 848 N.E.2d at 1078-80).
[10] Here, the trial court sentenced Ferguson to the fixed terms stated in the plea
agreement. Because Ferguson received the precise length of sentence for which
he bargained, the length of his sentence is not available for Rule 7(B) review.
See id. To the extent he argues that this Court should reduce his sentence, we
have no authority to do so.
[11] However, the plea agreement did leave to the trial court’s discretion the limited
issue of where Ferguson would serve the executed portion of his sentence on
5
We note that Ferguson received an aggregate sentence of eleven-and-a-half years, not sixteen.
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Count 5 in FB-70. The place where a convicted person’s sentence is to be
served is an appropriate focus for application of our review and revise authority.
Biddinger v. State, 868 N.E.2d 407, 414 (Ind. 2007) (citing Hole, 851 N.E.2d at
304 n.4); King v. State, 894 N.E.2d 265, 267 (Ind. Ct. App. 2008). Nevertheless,
it is quite difficult for a defendant to prevail on a claim that the placement of his
sentence is inappropriate. King, 894 N.E.2d at 267 (citing Fonner v. State, 876
N.E.2d 340, 343 (Ind. Ct. App. 2007)). “A defendant challenging the
placement of a sentence must convince us that the given placement is itself
inappropriate.” Id. at 268. And as a practical matter, trial courts better know
the feasibility of alternative placements in particular counties or communities.
Id.
[12] Ferguson argues generally that factors such as his guilty plea, limited criminal
history, ongoing addiction problems, young age, and the non-violent nature of
his offenses militate toward a more lenient sentence. The only argument
Ferguson advances bearing directly on the appropriateness of the location of his
sentence is that if he were placed on home detention rather than serving time in
the DOC, “he could work toward paying the restitution.” (Appellant’s Br. 6.)
By simply arguing that placement on home detention would be more
appropriate, Ferguson has failed to show that his placement in the DOC is
inappropriate. While the court-ordered time in the DOC will likely delay his
victim’s receipt of restitution, Ferguson does not argue that the additional DOC
time will prevent him from making restitution entirely.
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[13] Furthermore, while Ferguson’s prior criminal history is minimal, he has
previously been sentenced to alternative placements without success. As a
juvenile, he was adjudicated a delinquent for conduct that constituted Resisting
Law Enforcement, as a Class A misdemeanor, if committed by an adult. He
was placed on supervised probation, but violated his probation and was placed
in secure detention. As an adult, he was charged with Possession of Marijuana,
as a Class A misdemeanor. His participation in a pretrial diversion program
was terminated, however, after the charges in this case were filed. In light of
these past unsuccessful alternative placements, the trial court’s order that
Ferguson serve his executed time in the DOC, rather than on home detention,
was not inappropriate.
[14] Affirmed.
Baker, J., and Mathias, J., concur.
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Austin M. Ferguson v. State of Indiana (mem. dec.)
Combined Opinion