ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Leanna Weissmann Steve Carter
Lawrenceburg, Indiana Attorney General of Indiana
J.T. Whitehead
Deputy Attorney General
Indianapolis, Indiana
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In the
Indiana Supreme Court
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No. 69S01-0705-CR-188
STEVEN HOLLIN,
Appellant (Defendant below),
v.
STATE OF INDIANA,
Appellee (Plaintiff below).
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Appeal from the Ripley Circuit Court, No. 69C01-0511-FB-011
The Honorable Carl Taul, Judge
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On Petition To Transfer from the Indiana Court of Appeals, No. 69A01-0609-CR-401
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December 5, 2007
Rucker, Justice.
The defendant was convicted of conspiracy to commit burglary, a Class B felony, and
found to be a habitual offender. The trial court sentenced him to twenty years for the conspiracy
offense, enhanced by twenty years for the habitual offender adjudication. Under our
constitutional authority we revise the sentence to a total aggregate term of twenty years.
Facts and Procedural History
Eighteen-year-old Steven R. Hollin was released from jail on November 1, 2005. Less
than a week later, he and Nathan Vogel (“Vogel”) devised a plan to burglarize homes in a rural
portion of Ripley County, Indiana. They planned to knock upon doors to locate unoccupied
homes, from which they would steal money. On the morning of November 8, 2005, the two men
ventured out by foot along a road in Ripley County. The first residence they approached was
occupied. A woman answered the door, and to avoid suspicion Hollin and Vogel asked for
directions to Greensburg, Indiana. They then left and continued their search for an unoccupied
house. The next home they reached appeared to be empty. To be certain, Hollin and Vogel
knocked upon both the front and back doors before entering the garage and proceeding into the
kitchen. While Hollin remained in the kitchen, Vogel entered a bedroom. Vogel took a camera
bag containing approximately six hundred dollars. The two then left the home, walking back
toward town. At this point, the woman who had provided directions to Greensburg noticed them
and called police to report this suspicious activity.
Batesville Police Department Lieutenant Jeff Thielking responded to the call and
recognized Hollin. He became suspicious about the possibility of criminal activity because,
although it was approximately sixty-six degrees outside, Vogel wore a heavy winter coat and
appeared to be hiding something inside of it. Vogel asserted that their car had broken down
along the road, but Lieutenant Thielking had not seen any disabled vehicles in the vicinity.
Lieutenant Thielking also knew of several recent burglaries in the area. Noting the name of Al
Wuestefeld on the camera bag Vogel was carrying, Lieutenant Thielking arrested both men. A
telephone call to the Wuestefeld residence confirmed that it had been burgled. Hollin and Vogel
subsequently confessed.
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The State charged Hollin with burglary of a dwelling, a Class B felony, Ind. Code § 35-
43-2-1(1)(B)(i), theft as a Class D felony, I.C. § 35-43-4-2(a), and being a habitual offender, I.C.
§ 35-50-2-8. The State later amended the charging information to dismiss the burglary charge
and replaced the theft charge with conspiracy to commit burglary as a Class B felony. I.C. § 35-
43-2-1(1)(B)(i); I.C. § 35-41-5-2(a). A jury convicted Hollin of conspiracy to commit burglary
and adjudged him a habitual offender. After conducting a sentencing hearing, the trial court
found one aggravating factor – Hollin’s criminal history – and one mitigating factor – his young
age. The court then sentenced him to the maximum term of twenty years for the conspiracy
conviction, enhanced by twenty years for the habitual offender adjudication.
Hollin appealed, raising the following issues: (1) whether it was fundamental error for the
trial court to admit evidence of his criminal history and (2) whether the trial court properly
sentenced him. In an unpublished memorandum decision, the Court of Appeals rejected these
arguments and affirmed the judgment of the trial court. Hollin v. State, No. 69A01-0609-CR-
401 (Ind. Ct. App. Mar. 29, 2007). Having previously granted transfer, we now summarily
affirm the Court of Appeals’ disposition of the first issue listed above. Ind. Appellate Rule
58(A)(2). We address the remaining issue and also exercise our review and revise authority.
Discussion
Hollin asserts that the trial court improperly sentenced him to forty years in the
Department of Correction. Specifically he contends (1) the trial court should have taken into
account that he received his General Education Diploma (“GED”) while in jail, (2) the trial court
failed to properly weigh his youth as a mitigating factor, and (3) the trial court erred in relying on
his criminal history to support the maximum sentence for conspiracy because this factor
provided the basis for the habitual offender determination.
We recently determined that when a trial court imposes a sentence “[t]he trial court must
enter a statement including reasonably detailed reasons or circumstances for imposing [that]
particular sentence.” Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007). We continue to
review those reasons and the omission of any reasons arguably supported by the record for abuse
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of discretion. Id. 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.” K.S. v. State, 849 N.E.2d 538, 544 (Ind. 2006) (citation
omitted). However, under the 2005 amended sentencing statute, the weights afforded to different
factors are no longer reviewable on appeal for abuse of discretion. Anglemyer, 868 N.E.2d at
491.
Hollin’s argument regarding his GED is precluded from appellate review. Hollin
contends that the trial court should have recognized his GED – which he acquired while
incarcerated for this offense – as a mitigating circumstance. Although Hollin did testify during
his sentencing hearing that he received his GED, Tr. at 347, he did not argue to the sentencing
court that his GED should be considered in mitigation. “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.” Spears v. State, 735 N.E.2d 1161, 1167 (Ind. 2000) (citations omitted); see also
Sherwood v. State, 702 N.E.2d 694, 700 (Ind. 1998) (finding the trial court erred where evidence
of an overlooked mitigating circumstance was both clearly presented and argued to the trial
court). The argument is thus waived. As for the trial court’s alleged abuse of discretion in
failing to properly weigh Hollin’s youth as a mitigating factor, this issue is also precluded from
review. “The relative weight or value assignable to reasons properly found . . . is not subject to
review for abuse.” Anglemyer, 868 N.E.2d at 491.
Hollin’s claim of trial court error in relying on the same criminal history to enhance his
conspiracy conviction and to support the habitual offender adjudication must fail. This Court has
long held that it is permissible for the trial court to consider the same prior offenses for both
enhancement of the instant offense and to establish habitual offender status. See Buchanan v.
State, 699 N.E.2d 655, 657 (Ind. 1998); Jones v. State, 600 N.E.2d 544, 548 (Ind. 1992); Criss v.
State, 512 N.E.2d 858, 860 (Ind. 1987).
Hollin received the maximum possible penalty for a Class B felony conviction: twenty
years. I.C. § 35-50-2-5. Ten years is the advisory sentence for this offense. Id. The trial court
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imposed an additional twenty years based upon Hollin’s habitual offender adjudication. It was
within the trial court’s discretion to impose a ten- to thirty-year habitual offender enhancement.
I.C. § 35-50-2-8(h). There is no question that the trial court properly exercised its discretion in
this case. Nonetheless, “[a]lthough a trial court may have acted within its lawful discretion in
determining a sentence, Article VII, Sections 4 and 6 of the Indiana Constitution ‘authorize[]
independent appellate review and revision of a sentence imposed by the trial court.’”
Anglemyer, 868 N.E.2d at 491 (quoting Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006)).
Our appellate authority is implemented through Indiana Appellate Rule 7(B), which allows us to
“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.”
As for the nature of the offense, we observe that no one was home at the time of the
burglary and apparently neither Hollin nor Vogel was armed. “These facts together decreased
the likelihood of violence.” Frye v. State, 837 N.E.2d 1012, 1014 (Ind. 2005). In Frye, the
defendant’s fifteen-year sentence for burglary was enhanced by twenty-five years for his
adjudication as a habitual offender, for a total of forty years. We revised to an aggregate of
twenty-five years, noting the defendant was not armed, the victim was not at home, and the
pecuniary loss was marginal. Id. at 1014-15. As for Hollin’s character, we acknowledge that
even at the age of eighteen, Hollin has an extended criminal history. However most are juvenile
offenses. And with the exception of cruelty to an animal – committed as a juvenile – none of his
offenses involved crimes of violence. Rather they were primarily auto theft and related offenses.
App. at 106-07.
We do not condone Hollin’s past or current violations of the law. Still, we cannot
conclude that Hollin’s numerous transgressions necessarily “demonstrate a character of such
recalcitrance or depravity” that they justify a forty-year sentence. Frye, 837 N.E.2d at 1015. We
therefore revise Hollin’s sentence for burglary to the presumptive term of ten years for a Class B
felony. For the habitual offender enhancement, we impose an additional ten years for a total
aggregate term of twenty years.
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Conclusion
We remand this cause to the trial court with instructions to enter a sentence of ten years
for conspiracy to commit burglary as a Class B felony, enhanced by ten years for the habitual
offender adjudication.
Shepard, C.J., and Sullivan and Boehm, JJ., concur.
Dickson, J., concurs and dissents with separate opinion.
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Dickson, Justice, concurring and dissenting.
I dissent as to the revision of the sentence selected by the trial court. As to the remainder
of the Court's opinion, I concur.
Notwithstanding our duty under Indiana Appellate Rule 7(B) to give due consideration to
the trial court's sentencing decision, the Court today reduces by one half the sentence determined
by the trial court and which was unanimously affirmed by a panel of the Court of Appeals. In
matters of criminal sentencing, Rule 7(B) "places central focus on the role of the trial judge."
Serino v. State, 798 N.E.2d 852, 856 (Ind. 2003). Trial judges, not appellate judges, are in a far
superior position to make sound sentencing decisions that are appropriate to the offender and the
offense. Given an appellate tribunal's limited opportunity to fully perceive and appreciate the
totality of the circumstances personally perceived by the trial judge at trial and sentencing, the
“due consideration of the trial court's decision” required by Rule 7(B) should restrain appellate
revision of sentences to only extremely rare, exceptional cases. See Ind. Appellate Rule 7(B).
Furthermore, the frequent appellate revision of criminal sentences may induce and foster
reliance upon such review for ultimate sentencing evaluations and thus serve as a disincentive to
the cautious and measured fashioning of sentences by trial judges. Restrained decisions are best
made by a trial judge with the gravity that results from knowing that the judge's sentencing
decisions are essentially final.
Appellate sentence modifications should be extraordinary events that almost never occur.
The trial court's decision is not clearly inappropriate in light of the nature of the offense and the
character of the offender. Appellate intervention is unwarranted. I would affirm the trial court.