Anglemyer v. State

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Joel M. Schumm Steve Carter
Indiana University School of Law Attorney General of Indiana
Indianapolis, Indiana
Justin F. Roebel
Deputy Attorney General
Indianapolis, Indiana

________________________________________________________________________

In the
Indiana Supreme Court
_________________________________

No. 43S05-0606-CR-230

ALEXANDER J. ANGLEMYER,
Appellant (Defendant below),

v.

STATE OF INDIANA,
Appellee (Plaintiff below).
_________________________________

Appeal from the Kosciusko Superior Court, No. 43D01-0505-FB-76
The Honorable Duane G. Huffer, Judge
_________________________________

On Petition To Transfer from the Indiana Court of Appeals, No. 43A05-0510-CR-590
_________________________________

June 26, 2007

Rucker, Justice.
 Summary

In this opinion we discuss the respective roles of Indiana trial and appellate courts under
the 2005 amendments to Indiana’s criminal sentencing statutes. We hold that where a trial court
imposes sentence for a felony offense it is required to issue a sentencing statement that includes a
reasonably detailed recitation of the trial court’s reasons for the sentence imposed. The standard
of review is abuse of discretion.

Facts and Procedural History

Around 10:00 p.m. on May 14, 2005, Alexander J. Anglemyer telephoned a local
restaurant and ordered a pizza. He advised the person taking the order that the delivery driver
should bring change for a one hundred dollar bill. Anglemyer provided the address to a vacant
house located at the end of a residential street. When the driver arrived Anglemyer walked up to
him with his hands behind his back. The driver thought that Anglemyer was reaching for his
wallet, but “the next thing [the driver] kn[e]w, [he] got hit in the head.” App. at 30. The driver
fell to the ground where Anglemyer continued to beat and kick him while shouting “[g]ive me
your money.” Id. The driver tossed Anglemyer a pouch containing cash and checks. As a result
of the attack the driver suffered severe pain, a broken right arm, and a laceration to his head
requiring seven staples. Id. at 7.

Anglemyer was arrested shortly thereafter and later charged with Count I, robbery as a
Class B felony, and Count II, battery as a Class C felony. Under the terms of a written plea
agreement, Anglemyer agreed to plead guilty as charged. Among other things the agreement
provided that the “sentence will not exceed sixteen (16) years executed. Each count’s sentence
shall run consecutive.” Id. at 8. The trial court accepted the agreement, and Anglemyer pleaded
guilty pursuant to its terms. At the sentencing hearing the trial court imposed a ten-year sentence
for the Class B felony conviction and a six-year sentence for the Class C felony conviction.
Ordering the sentences to run consecutively, the trial court imposed a total term of sixteen years.

Appealing his sentence Anglemyer raised a single issue, “Whether the maximum possible
sentence imposed under the Plea Agreement is inappropriate in light of Anglemyer’s character

2
and the nature of the offenses.” Br. of Appellant at 2. The Court of Appeals declined to address
this claim. 1 However, because in the argument section of his brief Anglemyer focused upon
alleged trial court error in identifying and weighing aggravating and mitigating factors, the Court
of Appeals addressed these claims. Concluding, among other things, that under the amended
statutory scheme any error related to the trial court’s findings of aggravating and mitigating
circumstances is harmless, the court affirmed the trial court’s judgment. Anglemyer v. State, 845
N.E.2d 1087, 1090-92 (Ind. Ct. App. 2006). We previously granted transfer, thereby vacating
the Court of Appeals’ opinion. See Anglemyer v. State, 855 N.E.2d 1012 (Ind. 2006) (Table);
Ind. Appellate Rule 58(A). We now affirm the judgment of the trial court, but for reasons
slightly different from those of our colleagues.

Background

In order to produce more uniform sentences the Indiana Legislature adopted a sentencing
scheme in 1977 that included a fixed term presumptive sentence for each class of felonies. See
Ind. Code §§ 35-50-2-3 to -7 (West Supp. 1977). These statutes also created upper and lower
limits for each class of felony offenses. Id. In deciding whether to depart from the presumptive
sentence, the trial judge was required to consider five enumerated factors and could consider
various other aggravating and mitigating factors. See I.C. § 35-4.1-4-7 (West Supp. 1977). The
upper and lower limits were revised over the years, but from the time this sentencing
arrangement was adopted, our courts understood it as requiring a given presumptive term for
each class of crimes from which a judge could deviate upon a finding of aggravating or
mitigating circumstances deemed adequate to justify adding or subtracting years. See, e.g.,
Henderson v. State, 769 N.E.2d 172, 179-80 (Ind. 2002); Gardner v. State, 270 Ind. 627, 388
N.E.2d 513, 516-19 (1979). 2 To facilitate this sentencing arrangement we determined that when

1
Relying on authority that stood for the proposition that once a defendant enters a plea agreement that
calls for a sentencing cap, the defendant inherently agrees that such a sentence is appropriate, the court
determined that Anglemyer “waived his appropriateness claim.” Anglemyer v. State, 845 N.E.2d 1087,
1092 (Ind. Ct. App. 2006). We recently disapproved of this proposition. Childress v. State, 848 N.E.2d
1073, 1080 (Ind. 2006).
2
For example, Indiana Code section 35-50-2-5 (2004) provided that a person convicted of a Class B
felony “shall be imprisoned for a fixed term of ten (10) years, with not more than ten (10) years added for
aggravating circumstances or not more than four (4) years subtracted for mitigating circumstances . . . .”

3
a trial judge deviated from the fixed term presumptive sentence, it was required to “(1) identify
all significant mitigating and aggravating circumstances; (2) state the specific reason why each
circumstance ha[d] been determined to be mitigating or aggravating; and (3) articulate the
court’s evaluation and balancing of circumstances.” Prickett v. State, 856 N.E.2d 1203, 1207
(Ind. 2006); see also Harris v. State, 659 N.E.2d 522, 527-28 (Ind. 1995); Hammons v. State, 493
N.E.2d 1250, 1254 (Ind. 1986); Robinson v. State, 477 N.E.2d 883, 886 (Ind. 1985).

In 2000 the United States Supreme Court decided Apprendi v. New Jersey, 530 U.S. 466
(2000). Apprendi involved a New Jersey “hate crime” statute that authorized a trial court to
increase the sentencing range for a crime when the court found, by a preponderance of the
evidence, that the defendant’s purpose in committing the crime was to intimidate an individual or
a group because of race, color, gender, handicap, religion, sexual orientation, or ethnicity. Id. at
468-69. Finding this statute unconstitutional under the Fourteenth Amendment’s Due Process
Clause, the Court announced the rule that “[o]ther than the fact of a prior conviction, any fact
that increases the penalty for a crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt.” Id. at 490.

Four years later in Blakely v. Washington, 542 U.S. 296 (2004), the Supreme Court
reiterated, “Other than the fact of a prior conviction, any fact that increases the penalty for a
crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond
a reasonable doubt.” Id. at 301 (quoting Apprendi, 530 U.S. at 490). However, the Court
clarified that “the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge
may impose solely on the basis of the facts reflected in the jury verdict or admitted by the
defendant.” Id. at 303 (emphasis omitted). The Court further explained, “In other words, the
relevant ‘statutory maximum’ is not the maximum sentence a judge may impose after finding
additional facts, but the maximum he may impose without any additional findings.” Id. at 303-
04. The Court thus declared that defendant Blakely’s sentence, enhanced based on various facts
found by the sentencing judge, violated Blakely’s Sixth Amendment right to a jury trial. Id. at

4
305. 3 Not surprisingly, this decision cast doubt over the constitutionality of sentencing schemes
throughout the country. 4 And Indiana was no exception.

Responding to Blakely this Court declared that Indiana’s fixed term sentencing scheme
was the functional equivalent of the sentencing scheme the Supreme Court disapproved in
Blakely. In Smylie v. State, 823 N.E.2d 679 (Ind. 2005), we noted that, “Both establish a
mandatory starting point for sentencing criminals based on the elements of proof necessary to
prove a particular offense and the sentencing class into which the offense falls. The trial court
judge then must engage in judicial fact-finding during sentencing if a sentence greater than the
presumptive fixed term is to be imposed. It is this type of judicial fact-finding that concerned the
Court in Blakely.” Id. at 683. We thus concluded that Indiana’s sentencing scheme ran afoul of
the Sixth Amendment because “it mandates both a fixed term and permits judicial discretion in
finding aggravating or mitigating circumstances to deviate from the fixed term.” Id. at 685.
Although reaching this conclusion, we identified two alternative ways in which Indiana’s
sentencing scheme could pass constitutional muster: “(1) our present arrangement of fixed
presumptive terms, modified to require jury findings on facts in aggravation, or (2) a system in
which there is no stated ‘fixed term’ (or at least none that has legally binding effect) in which
judges would impose sentences without a jury.” Id. 5 To remedy the constitutional infirmity, we

3
In Blakely the defendant kidnapped his wife at knifepoint, bound her and put her in his truck, and drove
from Washington to Montana. The defendant pleaded guilty to second-degree kidnapping involving
domestic violence and use of a firearm, a Class B felony. Under Washington state law punishment for a
Class B felony was capped at ten years. See Blakely, 542 U.S. at 299. According to Washington’s
Sentencing Reform Act, the standard sentencing range for Blakely’s crime was 49 to 53 months. Id. The
trial judge imposed an aggravated sentence of 90 months—37 months over the standard range—pursuant
to a Washington statute that allowed an increased sentence if a judge found “substantial and compelling
reasons justifying an exceptional sentence.” Id. (quoting Wash. Rev. Code § 9.94A.120(2) (2000)). The
Washington trial judge had relied on “deliberate cruelty,” an aggravating factor enumerated in the
statutes. Id. at 300.
4
As Justice O’Connor observed, “The consequences of today’s decision will be as far reaching as they
are disturbing. Washington’s sentencing system is by no means unique. Numerous other States have
enacted guidelines systems, as has the Federal Government. Today’s decision casts constitutional doubt
over them all and, in so doing, threatens an untold number of criminal judgments.” Blakely, 542 U.S. at
323 (O’Connor, J., dissenting) (citations omitted).
5
We observed that this latter alternative reflected the solution reached by the Supreme Court in United
States v. Booker, 543 U.S. 220 (2005) (Applying Blakely to the Federal Sentencing Guidelines, the Court
severed and excised a portion of the sentencing statute that made the sentence indicated by the Guidelines

5
endorsed the former alternative, namely: a jury must find the facts used to enhance a fixed
presumptive term. In our view, jury sentencing was more faithful to “the overarching theme of
Indiana’s 1977 sentencing reform,” that of “abandon[ing] indeterminate sentencing in favor of
fixed and predictable penalties.” Id. at 686.

Within weeks of Smylie, the Legislature amended Indiana’s sentencing statutes
essentially adopting the second alternative Smylie identified. The Legislature left intact lower
and upper limits for each class of felony offenses, but eliminated fixed presumptive terms in
favor of “advisory sentences” that are between the minimum and maximum terms. See I.C. §
35-50-2-3 to –7. 6 In addition the Legislature eliminated the requirement that trial courts must
consider certain mandatory circumstances when determining the exact sentence to be imposed.
Rather, the amended statute now includes a non-exhaustive list of aggravating and mitigating
circumstances trial courts “may consider,” I.C. § 35-38-1-7.1 (a)-(b), and provides in part:

A court may impose any sentence that is:

(1) authorized by statute; and
(2) permissible under the Constitution of the State of Indiana;
regardless of the presence or absence of aggravating
circumstances or mitigating circumstances.

I.C. § 35-38-1-7.1(d) (emphasis added). Notwithstanding this provision the Legislature retained
Indiana Code section 35-38-1-3 that provides:

Before sentencing a person for a felony, the court must conduct a
hearing to consider the facts and circumstances relevant to
sentencing. The person is entitled to subpoena and call witnesses
and to present information in his own behalf. The court shall make
a record of the hearing, including:

(1) a transcript of the hearing;

range mandatory unless the trial court found aggravating or mitigating circumstances not adequately
considered by the U.S. Sentencing Commission.).
6
For example Indiana Code section 35-50-2-5 provides that a person convicted of a Class B felony “shall
be imprisoned for a fixed term of between six (6) and twenty (20) years, with the advisory sentence being
ten (10) years.” We note that the “advisory” sentences under the newly enacted statutes are the same as
the “presumptive” sentences under the previous statutes.

6
 (2) a copy of the presentence report; and
(3) if the court finds aggravating circumstances or mitigating
circumstances, a statement of the court’s reasons for selecting the
sentence that it imposes.

In the aftermath of these legislative revisions the Court of Appeals has been divided on
whether and to what extent trial judges are now required to make sentencing statements
explaining their sentencing decisions and whether any such statements must include findings of
aggravating and mitigating factors. Closely related to these issues are the scope and role of
appellate review. 7 This lack of consensus is understandable. Writing for the panel in Gibson v.
State, 856 N.E.2d 142 (Ind. Ct. App. 2006), Judge Barnes noted the challenges courts now face
in a post-Blakely/Smylie world. He observed, “[T]he new statutes raise a new set of questions as
to the respective roles of trial and appellate courts in sentencing, the necessity of a trial court
continuing to issue sentencing statements, and appellate review of a trial court’s finding of
aggravators and mitigators under a scheme where the trial court does not have to find
aggravators or mitigators to impose any sentence within the statutory range for an offense,
including the maximum sentence. The continued validity or relevance of well-established case
law developed under the old ‘presumptive’ sentencing scheme is unclear.” Id. at 146. We
acknowledge Judge Barnes’ concerns. We also observe that subsequent to this case reaching us,
the Legislature has spoken further on the subject mandating that, “After a court has pronounced a
sentence for a felony conviction, the court shall issue a statement of the court’s reasons for
selecting the sentence that it imposes.” Pub. L. No. 178-2007 (to be codified at I.C. § 35-38-1-
1.3) (effective July 1, 2007).

7
Compare Golden v. State, 862 N.E.2d 1212, 1216 (Ind. Ct. App. 2007), trans. denied; McDonald v.
State, 861 N.E.2d 1255, 1259 (Ind. Ct. App. 2007), trans. pending; Windhorst v. State, 858 N.E.2d 676,
678 n.2 (Ind. Ct. App. 2006), trans. granted; Anglemyer, 845 N.E.2d at 1090-91 (all holding that
challenges to a trial court’s sentencing statement present no issue for appellate review); with Williams v.
State, 861 N.E.2d 714, 716 (Ind. Ct. App. 2007), trans. not sought; Windhorst, 858 N.E.2d at 681 (Vaidik,
J., concurring in result); McMahon v. State, 856 N.E.2d 743, 749 (Ind. Ct. App. 2006), trans. not sought;
Gibson, 856 N.E.2d at 146-47, trans. not sought (all finding that trial courts have a continuing obligation
to issue sentencing statements). See also Luhrsen v. State, 864 N.E.2d 452, 457 (Ind. Ct. App. 2007);
Henderson v. State, 848 N.E.2d 341, 347-48 n.4 (Ind. Ct. App. 2006) (Sullivan, J., concurring in result)
(both recognizing the split among panels of the Court of Appeals).

7
 Analysis

We begin our discussion by observing that Indiana’s new sentencing statutes apparently
were enacted to resolve the Sixth Amendment problem Blakely presented. By eliminating fixed
terms, the Legislature created a regime in which there is no longer a maximum sentence a judge
“may impose without any additional findings.” Blakely, 542 U.S. at 304 (emphasis omitted).
And this is so because for Blakely purposes the maximum sentence is now the upper statutory
limit. As a result, even with judicial findings of aggravating circumstances, it is now impossible
to “increase[ ] the penalty for a crime beyond the prescribed statutory maximum.” Blakely, 542
U.S. at 301 (quoting Apprendi, 530 U.S. at 490). 8

This is not to say however that a sentencing statement setting forth the trial court’s
reasons for the sentence imposed no longer plays a role in the trial court’s sentencing decision.
Even before the 2005 and 2007 statutes requiring sentencing statements, our case law made clear
that sentencing statements served two primary purposes: (1) they guarded against arbitrary and
capricious sentencing, and (2) they provided an adequate basis for appellate review. Dumbsky v.
State, 508 N.E.2d 1274, 1278 (Ind. 1987). We have also observed:

[A] statement of reasons for imposing a particular sentence serves
numerous other goals beyond the two primary goals. An attempt
by the sentencing judge to articulate his [or her] reasons for a
sentence in each case should in itself contribute significantly to the
rationality and consistency of sentences. A statement by the
sentencing judge explaining the reasons for commitment can help
both the defendant and the public understand why a particular
sentence was imposed. An acceptance of the sentence by the
defendant without bitterness is an important ingredient in
rehabilitation, and acceptance by the public will foster confidence
in the criminal justice system.

Abercrombie v. State, 417 N.E.2d 316, 319 (Ind. 1981). These goals are no less important today.

8
In a recent decision the United States Supreme Court referenced Indiana as one of two jurisdictions that
has modified its sentencing statutes in the wake of Apprendi and Blakely to permit judges “‘to exercise
broad discretion . . . within a statutory range,’ which, ‘everyone agrees,’ encounters no Sixth Amendment
shoal.” Cunningham v. California, 127 S. Ct. 856, 871 (2007) (quoting Booker, 453 U.S. at 233).

8
 Even though the statute unambiguously declares that a trial judge may impose any
sentence within the statutory range without regard to the existence of aggravating or mitigating
factors, it is important to note that the statute does not prohibit the judge from identifying facts in
aggravation or mitigation. Indeed the statute requires that if the trial court “finds” the existence
of “aggravating circumstances or mitigating circumstances” then the trial court is required to
give “a statement of the court’s reasons for selecting the sentence that it imposes.” I.C. § 35-38-
1-3. This language suggests a legislative acknowledgement that a sentencing statement
identifying aggravators and mitigators retains its status as an integral part of the trial court’s
sentencing procedure. And this view is consistent with Blakely, which we have noted, “does not
prohibit a trial court from finding aggravating circumstances. What [Blakely] does prohibit is a
trial court finding an aggravating circumstance and enhancing a sentence beyond the statutory
maximum.” Davidson v. State, 849 N.E.2d 591, 594-95 (Ind. 2006). Again, we note, under the
amended statutory regime it is impossible to enhance a sentence beyond the statutory maximum.

We hasten to reiterate that the 2005 amendments were designed to rectify the Sixth
Amendment problem that Blakely presented. We discern no legislative intent otherwise to alter
fundamentally the trial procedure for sentencing criminal defendants. Thus, construing what
we believe is a legislative intent to retain the traditional significance of sentencing statements we
conclude that under the new statutory regime Indiana trial courts are required to enter sentencing
statements whenever imposing sentence for a felony offense. In order to facilitate its underlying
goals, see Abercrombie, 417 N.E.2d at 319, the statement must include a reasonably detailed
recitation of the trial court’s reasons for imposing a particular sentence. If the recitation includes
a finding of aggravating or mitigating circumstances, then the statement must identify all
significant mitigating and aggravating circumstances and explain why each circumstance has
been determined to be mitigating or aggravating.

But what of appellate review? It is true that the discretion trial courts are now afforded in
imposing sentences is significantly broader than that existing under the prior statutes. But our
standard of review is only modestly altered by the new sentencing regime. That is to say, subject
to the review and revise power discussed below, sentencing decisions rest within the sound
discretion of the trial court and are reviewed on appeal only for an abuse of discretion.

9
Smallwood v. State, 773 N.E.2d 259, 263 (Ind. 2002). Nothing in the amended statutory regime
changes this standard. So long as the sentence is within the statutory range, it is subject to
review only for abuse of discretion. As we have previously observed, “In order to carry out our
function of reviewing the trial court’s exercise of discretion in sentencing, we must be told of
[its] reasons for imposing the sentence . . . . This necessarily requires a statement of facts, in
some detail, which are peculiar to the particular defendant and the crime, as opposed to general
impressions or conclusions. Of course such facts must have support in the record.” Page v.
State, 424 N.E.2d 1021, 1023 (Ind. 1981). 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) (quoting In re L.J.M., 473 N.E.2d 637, 640 (Ind. Ct. App. 1985)).

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.

Because the trial court no longer has any obligation to “weigh” aggravating and
mitigating factors against each other when imposing a sentence, unlike the pre-Blakely statutory
regime, a trial court can not now be said to have abused its discretion in failing to “properly
weigh” such factors. See, e.g., Jackson v. State, 728 N.E.2d 147, 155 (Ind. 2000) (finding that
the Court could not determine from the sentencing statement whether the trial court “properly
weighed” the aggravating and mitigating factors); Morgan v. State, 675 N.E.2d 1067, 1073-74
(Ind. 1996) (finding that the Court could not conclude that the aggravating and mitigating factors
were “properly weighed” where the sentencing statement did not, in part, explain its balancing
process). And this is so because once the trial court has entered a sentencing statement, which
may or may not include the existence of aggravating and mitigating factors, it may then “impose

10
any sentence that is . . . authorized by statute; and . . . permissible under the Constitution of the
State of Indiana.” I.C. § 35-38-1-7.1(d). This does not mean however that criminal defendants
have no recourse in challenging sentences they believe are excessive.

Although 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.” Childress, 848 N.E.2d at
1080 (emphasis omitted) (quoting Buchanan v. State, 767 N.E.2d 967, 972 (Ind. 2002)). This
appellate authority is implemented through Appellate Rule 7(B), which provides that 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.” It is on this basis alone that a criminal defendant may now
challenge his or her sentence where the trial court has entered a sentencing statement that
includes a reasonably detailed recitation of its reasons for imposing a particular sentence that is
supported by the record, and the reasons are not improper as a matter of law, but has imposed a
sentence with which the defendant takes issue.

To summarize, the imposition of sentence and the review of sentences on appeal should
proceed as follows:
1. The trial court must enter a statement including reasonably detailed reasons or
circumstances for imposing a particular sentence.
2. The reasons given, and the omission of reasons arguably supported by the record, are
reviewable on appeal for abuse of discretion.
3. The relative weight or value assignable to reasons properly found or those which
should have been found is not subject to review for abuse.
4. Appellate review of the merits of a sentence may be sought on the grounds outlined in
Appellate Rule 7(B).
With the foregoing framework in mind, we now turn to Anglemyer’s claims. 9

9
The amended sentencing scheme was enacted on April 25, 2005. Pub. L. No. 71-2005, § 3 (codified at
I.C. § 35-38-1-7.1(d) (West Supp. 2005); Pub. L. No. 71-2005, § 5 (codified at I.C. § 35-50-2-1.3 (West
Supp. 2005)). It thus applies to Anglemyer whose crimes were committed thereafter.

11
 In imposing sentence the trial court entered a sentencing statement identifying as
aggravating factors Anglemyer’s criminal history that included several juvenile adjudications as
well as a September 2004 conviction for criminal conversion as a Class A misdemeanor and a
December 2004 conviction for visiting a common nuisance, a Class B misdemeanor. As
additional aggravating factors the court cited the seriousness of this offense and also noted that
within months of the December 2004 conviction Anglemyer committed the instant offenses. The
court listed Anglemyer’s age – eighteen – as the sole mitigating factor, but gave “greater weight
to aggravating factors.” App. at 84.

Anglemyer does not contest his ten-year advisory sentence for the Class B robbery
conviction. Instead he focuses on the six-year sentence – two years above the advisory sentence
– the trial court imposed for the Class C battery conviction. And except for the trial court’s
finding of the “seriousness of this offense” Anglemyer does not challenge the propriety of the
remaining aggravating factors. Rather he contends, “Several valid mitigators were overlooked
by the Trial Court . . . .” Br. of Appellant at 10.

As one might anticipate, not having the benefit of our analysis today, the trial court’s
sentencing statement does not include a “reasonably detailed recitation” of the court’s reasons
for imposing a six-year term. However, the statement does identify both aggravating and
mitigating factors and explain why they are deemed as such. It is thus sufficient for this Court to
conduct meaningful appellate review.

Concerning the seriousness of the offense, this aggravator, which implicitly includes the
nature and circumstances of the crime as well as the manner in which the crime is committed,
has long been held a valid aggravating factor. See, e.g., Taylor v. State, 695 N.E.2d 117, 120
(Ind. 1998). We find no error here.

Anglemyer also contends the trial court “overlooked” the following mitigating factors:
(1) the crime was the result of circumstances unlikely to recur, (2) he pleaded guilty, (3) he
expressed remorse, and (4) he suffers “significant mental illness.” Br. of Appellant at 10.

12
 Our existing precedent is equal to the task of resolving this contention. As our courts
have determined in the past, the trial court does not abuse its discretion in failing to consider a
mitigating factor that was not raised at sentencing. Georgopulos v. State, 735 N.E.2d 1138, 1145
(Ind. 2000); see also Creekmore v. State, 853 N.E.2d 523, 530 (Ind. Ct. App. 2006) (“[I]f the
defendant fails to advance a mitigating circumstance 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.”). The record shows that at the sentencing hearing,
Anglemyer argued the existence of two mitigating factors: his age and mental illness. App. at
100-02. As mentioned earlier, the trial court identified Anglemyer’s age as a mitigating
circumstance but assigned it minimal weight. We thus address Anglemyer’s mental illness
claim. The remaining alleged mitigating circumstances are precluded from review.

Because the trial court’s recitation of its reasons for imposing sentence included a finding
of mitigating circumstances, the trial court was required to identify all significant mitigating
circumstances. See also Battles v. State, 688 N.E.2d 1230, 1236 (Ind. 1997) (A sentencing
statement must include those mitigators the trial court found to be significant.). 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. Carter v.
State, 711 N.E.2d 835, 838 (Ind. 1999); see also Wilkins v. State, 500 N.E.2d 747, 749 (Ind.
1986) (“If significant mitigating circumstances are clearly supported by the record, it would be
proper to remand with instructions to reconsider the sentence and enter a new sentencing
statement in compliance with the foregoing requirements.”). However, “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.” Fugate v. State, 608
N.E.2d 1370, 1374 (Ind. 1993).

Anglemyer is incorrect in his assertion that the trial court “overlooked” his mental illness
as a mitigating factor, or in the language of our decision today, that “the sentencing statement
omits [a] reason[],” specifically Anglemyer’s mental illness, that is “supported by the record.”
The record shows that at sentencing Anglemyer presented to the trial court a lengthy

13
psychological evaluation conducted on March 29, 2001 which, summarized, revealed that at age
fourteen Anglemyer suffered a personality disorder characterized by symptoms of “situational
stress,” “depression,” feelings of “guilt[]” and “inadequate amounts of energy.” App. at 77.
Anglemyer also presented excerpts of a psychiatric evaluation dated July 1, 2002 that noted,
“Alex has a long history of emotional and behavioral problems.” Id. at 82. He was diagnosed
with “Bipolar Mood Disorder,” “Intermittent Explosive Disorder,” and “Oppositional Defiant
Disorder.” Id. at 83.

Apparently around the time Anglemyer robbed and battered the pizza delivery driver, he
was enrolled in a program at a mental health facility that included monitoring of Anglemyer’s
activities and providing him with medication to control his behavior. But Anglemyer dropped
out of the program. Indeed the trial court questioned Anglemyer’s counsel on this very point:

[Trial Court] I guess my question was, was he involuntarily taken
off or did he make a choice to not receive aid?

[Defense counsel] There was a choice made in that he was offered
by the Bowen Center the opportunity to continue on the program;
however, the monitoring system is something that an 18 year old
was not ready for. . . . He would have been monitored on a daily
basis, counseling on a daily basis. As an 18 year old, he said no at
that time. . . .

[Trial court] Here’s the problem[] that I have with your argument .
. . Mr. Anglemyer, is to the extent that in our country at the present
time an adult is considered to be 18 years of age. At 18 years of
age you knew you had a problem. You were offered a helping
hand and you slapped that hand away. . . . You could have lived
your own life, but you didn’t have to affect [the victim’s] life and
you did. He was injured. He lost work because you chose to not
work, not get the help from the Bowen Center.

App. at 101-02, 104-05. It is apparent to us that rather than overlooking Anglemyer’s mental
illness, the trial court determined it was not significant and thus would not be a factor influencing
the trial court’s sentencing decision. This was the trial court’s call. We find no error. To the
extent Anglemyer complains that the trial court abused its discretion in failing to give his
proffered mitigating factor greater weight, this claim is not available for appellate review.

14
 We last address Anglemyer’s inappropriateness claim. Although citing Appellate Rule
7(B) Anglemyer tells us nothing about the nature of the offense and little about his character.
Instead he simply says, “An appropriate consideration of sentencing criteria should cause this
Court to reduce Anglemyer’s sentence for Count II (Battery) to the advisory period of four (4)
years. Further, this sentence should be suspended and Anglemyer placed on probation for this
period.” Br. of Appellant at 7.

We have declared, “a defendant must persuade the appellate court that his or her sentence
has met th[e] inappropriateness standard of review.” Childress, 848 N.E.2d at 1080. Anglemyer
has not carried this burden. In any event, regarding the nature of the offense, the advisory
sentence is the starting point the Legislature has selected as an appropriate sentence for the crime
committed. Id. at 1081. The advisory sentence for a Class C felony is four years. See I.C. § 35-
50-2-6(a). Here the trial court imposed a six-year term. Although the nature of the offense may
justify an advisory sentence under some circumstances, those circumstances are not present in
this case. The victim’s beating was unnecessarily brutal. Anglemyer beat and kicked the victim
while he was merely doing his job—delivering a pizza. As for the character of the offender, in
addition to Anglemyer’s history of criminal conduct, he was also on bond at the time he
committed this offense. Further the instant offense was carried out through subterfuge, deceit,
and careful planning. In the end we are not persuaded that nature of the offense or character of
the offender justifies revising Anglemyer’s sentence.

Conclusion

We affirm the judgment of the trial court.

Shepard, C.J., and Dickson, Sullivan and Boehm, JJ., concur.

15