MEMORANDUM DECISION
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 Apr 19 2017, 10:15 am
the defense of res judicata, collateral CLERK
Indiana Supreme Court
estoppel, or the law of the case. Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Jeffery A. Earl Curtis T. Hill, Jr.
Danville, Indiana Attorney General of Indiana
Katherine Cooper
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Bryan Tate, April 19, 2017
Appellant-Defendant, Court of Appeals Case No.
32A01-1611-CR-2589
v. Appeal from the Hendricks
Superior Court
State of Indiana, The Honorable Karen M. Love,
Appellee-Plaintiff Judge
Trial Court Cause No.
32D02-1602-F5-19
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 32A01-1611-CR-2589 | April 19, 2017 Page 1 of 3
[1] Bryan Tate appeals the sentence imposed by the trial court after Tate pleaded
guilty to Level 5 Felony Robbery.1 Tate contends that the trial court erred by
failing to consider two mitigating circumstances. Finding no error, we affirm.
[2] On January 25, 2016, Tate robbed a Subway restaurant in Hendricks County by
using or threatening the use of force and/or by putting the Subway employee in
fear. On October 25, 2016, Tate pleaded guilty as charged pursuant to a plea
agreement that capped his sentence at five years and required that he pay
restitution to Subway in the amount of $300. Tate had been sentenced in
another cause to a nine-year term for Level 5 felony robbery and it was left to
the trial court’s discretion whether his sentence in this cause would be
concurrent with or consecutive to the other sentence. Following a sentencing
hearing that same day, the trial court found Tate’s criminal history, which
includes seven adult convictions and three juvenile adjudications, as an
aggravating factor. Finding no mitigators, the trial court imposed a five-year
sentence to be served consecutively to the nine-year term. Tate now appeals.
[3] Tate’s sole argument is that the trial court erred by failing to find two mitigating
circumstances: the fact that he pleaded guilty and the fact that he agreed to pay
restitution to Subway. According to Tate, had these mitigators been
considered, the trial court would have ordered his sentence served concurrently,
rather than consecutively.
1
Ind. Code § 35-42-5-1.
Court of Appeals of Indiana | Memorandum Decision 32A01-1611-CR-2589 | April 19, 2017 Page 2 of 3
[4] Under the advisory sentencing scheme, we may reverse if a trial court finds
aggravators that are not supported by the record or are improper as a matter of
law or omits mitigators that are clearly supported by the record and advanced
for consideration. Anglemyer v. State, 868 N.E.2d 482, 490-91 (Ind. 2007),
clarified on reh’g, 875 N.E.2d 218 (Ind. 2007). Even if we find an error in this
regard, we will remand for resentencing only 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.
[5] Tate makes a reasonable argument that his guilty plea, pursuant to which he did
not reap a substantial benefit, and his agreement to pay restitution should have
been mitigating circumstances. The trial court, however, was clearly aware of
both facts, inasmuch as it presided over the guilty plea hearing and approved
the agreement itself, which contained the restitution provision. That the trial
court did not label them as mitigators does not mean that it was unaware of
their existence. Given that, given Tate’s lengthy criminal history, and given the
fact that Tate had been sentenced in another cause for precisely the same crime
to which he pleaded guilty in this one, we are confident that the trial court
would have imposed the same sentence even if it had considered both
mitigators proffered by Tate. Accordingly, we decline to remand for
resentencing.
[6] The judgment of the trial court is affirmed.
Barnes, J., and Crone, J., concur.
Court of Appeals of Indiana | Memorandum Decision 32A01-1611-CR-2589 | April 19, 2017 Page 3 of 3