MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jul 13 2018, 10:29 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Christopher L. Clerc Curtis T. Hill, Jr.
Columbus, Indiana Attorney General of Indiana
Katherine Cooper
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Brian R. Sosbe, July 13, 2018
Appellant-Defendant, Court of Appeals Case No.
18A-CR-16
v. Appeal from the Bartholomew
Circuit Court
State of Indiana, The Honorable Kelly S. Benjamin,
Appellee-Plaintiff. Judge
Trial Court Cause No.
03C01-1704-F5-2035
Friedlander, Senior Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-16| July 13, 2018 Page 1 of 5
[1] On January 19, 2017, Deputy Nick Martoccia of the Bartholomew County
Sheriff’s Department responded to a traffic accident. According to a witness,
Brian R. Sosbe crashed a vehicle into a tree and fled on foot carrying a bag.
Deputy Jarod Dougan found Sosbe hiding in a nearby field with a bag. Sosbe
admitted that he had “messed up” and that the bag was his. Appellant’s App.
Vol. II, p. 103. The deputy discovered a white powdery substance inside the
bag which Sosbe admitted was methamphetamine. That same day, Deputy
Jarod Aspenson obtained a search warrant for a blood sample from Sosbe. It
was later determined that methamphetamine and marijuana were present in
Sosbe’s blood.
[2] Captain Christopher Roberts continued the investigation and determined that
the vehicle had been reported stolen on January 16, 2017. Inside the truck,
Captain Roberts found an i-Pad belonging to the Indian Creek schools which
had been reported as stolen on January 18, 2017. Captain Roberts also
reviewed the records from the Indiana Bureau of Motor Vehicles and
determined that Sosbe’s license had been suspended for life. During his
investigation, Captain Roberts also learned that Sosbe had been previously
convicted of theft.
[3] On April 7, 2017, Sosbe was charged with (1) Level 5 felony operating a motor
vehicle after forfeiture of license for life, (2) Level 6 felony receiving stolen auto
parts, (3) Level 6 felony theft, (4) Level 6 felony possession of
methamphetamine, and (5) Class B misdemeanor leaving the scene of an
accident. On September 29, 2017, Sosbe was additionally charged with Class C
Court of Appeals of Indiana | Memorandum Decision 18A-CR-16| July 13, 2018 Page 2 of 5
misdemeanor operating a vehicle with a schedule I or II controlled substance or
its metabolite in the body. On November 2, 2017 Sosbe pled guilty to Level 5
felony operating a motor vehicle after forfeiture of license for life and Level 6
felony receiving stolen auto parts. In exchange for the guilty plea, the State
agreed to concurrent sentences and to dismiss the remaining four charges
against Sosbe.
[4] At the sentencing hearing, the trial court identified the following aggravating
factors: Sosbe’s criminal history, which included seven felony convictions and
seven misdemeanor convictions; Sosbe has violated the terms of his probation
in the past; when Sosbe has been offered treatment in the past he refused or the
treatment was not effective; Sosbe had been released from jail for three weeks
when he committed the instant offenses; Sosbe was under the influence of a
controlled substance when he crashed the vehicle; Sosbe hid from police after
he fled from the scene of the accident; and Sosbe had multiple disciplinary
write-ups while incarcerated in both the county jail and the Department of
Correction. The trial court did not find any mitigating factors. Sosbe was
sentenced to a six-year aggregate executed term, with credit for 249 actual days.
[5] Sosbe contends that the trial court abused its discretion in sentencing him by
failing to consider certain mitigating factors. Specifically, Sosbe contends that
the trial court should have given more weight to his guilty plea and mental
illness. We begin by noting that sentencing decisions rest within the sound
discretion of the trial court and are reviewed on appeal only for an abuse of
discretion. Anglemyer v. State, 868 N.E.2d 482 (Ind. 2007), modified on other
Court of Appeals of Indiana | Memorandum Decision 18A-CR-16| July 13, 2018 Page 3 of 5
grounds on reh’g, 875 N.E.2d 218 (Ind. 2007). “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.” Id. at 490.
One way in which a trial court may abuse its discretion is failing
to enter a sentencing statement at all. Other examples include
entering 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, or the sentencing statement omits reasons that are
clearly supported by the record and advanced for consideration,
or the reasons given are improper as a matter of law. Under
those circumstances, remand for resentencing may be the
appropriate remedy 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 490-91. Sosbe argues that the trial court should have considered certain
mitigating factors. “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.” Id. 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.
[6] In any event, there is also evidence that Sosbe received a significant benefit by
pleading guilty. In exchange for his guilty plea to Level 5 felony operating a
motor vehicle after forfeiture for life and Level 6 felony receiving stolen auto
Court of Appeals of Indiana | Memorandum Decision 18A-CR-16| July 13, 2018 Page 4 of 5
parts, the State agreed to dismiss the other four counts filed against him and
that the sentences could run concurrent with one another. As for his claims
that he was mentally ill, there was no evidence that he was mentally ill at the
time he committed the crime, or any evidence that he had long-term mental
health issues, much less any nexus to his crimes. See Archer v. State, 689 N.E.2d
678 (Ind. 1997). Because the trial court did not abuse its discretion in
sentencing Sosbe, we affirm the trial court’s sentence.
[7] Affirmed.
Riley, J., and Crone, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-16| July 13, 2018 Page 5 of 5