MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D),
09/06/2017, 10:03 am
this Memorandum Decision shall not be
CLERK
regarded as precedent or cited before any Indiana Supreme Court
Court of Appeals
court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Mark K. Leeman Curtis T. Hill, Jr.
Logansport, Indiana Attorney General of Indiana
Andrew A. Achey Laura Renee Anderson
Logansport, Indiana Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Thomas A. Roper, September 6, 2017
Appellant-Defendant, Court of Appeals Case No.
09A04-1704-CR-718
v. Appeal from the Cass Superior
Court
State of Indiana, The Honorable Richard A.
Appellee-Plaintiff. Maughmer, Judge
Trial Court Cause No.
09D02-1404-FC-9
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellant-Defendant, Thomas A. Roper (Roper), appeals his sentence
following his conviction for intimidation with the use of a deadly weapon, a
Class C felony, Ind. Code § 35-45-2-1(a)(2),(b)(2)(A) (2013).
[2] We affirm.
ISSUES
[3] Roper raises one issue, which we restate as the following two issues:
(1) Whether the trial court abused its discretion in sentencing Roper by failing
to consider certain mitigating evidence; and
(2) Whether Roper’s sentence is inappropriate in light of the nature of the
offense and his character.
FACTS AND PROCEDURAL HISTORY
[4] On the evening of April 3, 2014, the Cass County Sheriff’s Department was
dispatched to the Logansport, Indiana, home of Roper based on a report that
Roper had threatened his then-roommate with a firearm. According to Roper,
he and his roommate had been involved in a “huge argument,” and he “was
throwing her out” of the house. (Plea Tr. p. 9). Roper admittedly pointed the
gun at his roommate in order to scare her.
[5] On April 7, 2014, the State filed an Information, charging Roper with Count I,
intimidation with the use of a deadly weapon, a Class C felony, I.C. § 35-45-2-
1(a)(2),(b)(2)(A) (2013); Count II, pointing a firearm, a Class D felony, I.C. §
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35-47-4-3(b) (2013); Count III, possession of marijuana with a prior conviction,
a Class D felony, I.C. § 35-48-4-11(1) (2013); Count IV, maintaining a common
nuisance, a Class D felony, I.C. § 35-48-4-13(b)(1) (2013); and Count V,
possession of paraphernalia, a Class A misdemeanor, I.C. § 35-48-4-
8.3(a)(1),(b) (2013). On January 23, 2015, the State additionally charged Roper
with Count VI, criminal confinement, a Class B felony, I.C. § 35-42-3-
3(a)(1),(b)(2)(A) (2013).
[6] On February 21, 2017, Roper pled guilty to Count I, intimidation as a Class C
felony. The same day, the State moved to dismiss Counts II through VI. The
trial court accepted Roper’s open guilty plea and entered a judgment of
conviction for one Count of intimidation as a Class C felony. On March 21,
2017, the trial court held a sentencing hearing and ordered Roper to execute
eight years in the Indiana Department of Correction.
[7] Roper now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Abuse of Sentencing Discretion
[8] Roper claims that the trial court abused its discretion by failing to identify his
mental health issues as a mitigating factor in formulating his sentence.
Sentencing decisions are a matter of trial court discretion and are reviewed on
appeal only for an abuse of discretion. Anglemyer v. State, 868 N.E.2d 482, 490,
clarified on reh’g, 875 N.E.2d 218 (Ind. 2007). It is an abuse of discretion if the
trial court’s decision “is ‘clearly against the logic and effect of the facts and
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circumstances before the court, or the reasonable, probable, and actual
deductions to be drawn therefrom.’” Id. (quoting K.S. v. State, 849 N.E.2d 538,
544 (Ind. 2006)). In order to “guard[] against arbitrary and capricious
sentencing” and “provide[] an adequate basis for appellate review,” trial courts
are required, for all felony offenses, to enter sentencing statements that “include
a reasonably detailed recitation of the trial court’s reasons for imposing a
particular sentence.” Id. at 489-90. A trial court “may impose any sentence
within the statutory range without regard to the existence of aggravating or
mitigating factors.” Id. at 489. However, 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.’” Id. at 490 (quoting I.C. § 35-38-1-3(3)).
[9] On appeal, a trial court may be found to have abused its discretion by failing to
enter a sentencing statement at all; entering a sentencing statement that explains
its reasons for imposing a sentence where such reasons are not supported by the
record or are improper as a matter of law; or entering a sentencing statement
that omits reasons which are clearly supported by the record and advanced for
consideration. Id. at 490-91. A trial court may not be said to have abused its
discretion by failing to properly weigh aggravating and mitigating factors. Id. at
491. Additionally, a trial court is under no obligation “to accept a defendant’s
claim as to what constitutes a mitigating circumstance.” Weedman v. State, 21
N.E.3d 873, 893 (Ind. Ct. App. 2014), trans. denied. In fact, “[w]here the trial
court does not find the existence of a mitigating factor after it has been argued
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by counsel, the trial court is not obligated to explain why it has found that the
factor does not exist.” Phelps v. State, 969 N.E.2d 1009, 1019 (Ind. Ct. App.
2012), trans. denied. “A claim that the trial court failed to find a mitigating
circumstance requires the defendant to establish that the mitigating evidence is
both significant and clearly supported by the record.” Weedman, 21 N.E.3d at
893. Ultimately, if we find that the trial court has abused its sentencing
discretion, our court will remand for resentencing “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.” Anglemyer, 868
N.E.2d at 491.
[10] “A person who commits a Class C felony shall be imprisoned for a fixed term
of between two (2) years and eight (8) years, with the advisory sentence being
four (4) years.” I.C. § 35-50-2-6(a) (2013). In this case, the trial court imposed
the maximum eight-year sentence for Roper’s intimidation conviction. During
the sentencing hearing, the trial court identified Roper’s guilty plea “on the
verge of trial” as a factor in mitigation. (Sentencing Tr. p. 8). However, the
trial court found as aggravating circumstances that Roper has a history of
criminal and delinquent behavior and that he had recently violated a condition
of probation. The trial court found the aggravating factors to “substantially”
outweigh those tending to mitigate. (Sentencing Tr. p. 8). Roper now claims
that the trial court abused its discretion because it’s sentencing statement “did
not make any reference to Rope’s mental health despite the issue being raised
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[during the sentencing hearing] and identified in the pre-sentence [investigation]
[PSI] report.” (Appellant’s Br. p. 14).
[11] “Mental illness is not necessarily a significant mitigating factor; ‘rather, [it] is a
mitigating factor to be used in certain circumstances, such as when the evidence
demonstrates longstanding mental health issues or when the jury finds that a
defendant is mentally ill.’” Townsend v. State, 45 N.E.3d 821, 831 (Ind. Ct. App.
2015) (alteration in original), trans. denied. “[I]n order for a [defendant’s]
mental history to provide a basis for establishing a mitigating factor, there must
be a nexus between the defendant’s mental health and the crime in question.”
Weedman, 21 N.E.3d at 894 (second alteration in original).
[12] Although he did not specifically identify his mental health issues as a mitigating
factor for the trial court to consider, during the sentencing hearing, Roper did
argue that some of the “recent incidents that have taken place”—i.e., Roper
angrily lashed out at the probation officer who prepared the PSI report and
subsequently attempted to confront said probation officer prior to the
sentencing hearing—“could ultimately be accounted for based on his paranoid
schizophrenia.” (Sentencing Tr. p. 7). During the PSI interview, Roper self-
reported that he had previously received outpatient mental health treatment for
his diagnoses of bipolar disorder and paranoid schizophrenia. Roper also
claimed to suffer from posttraumatic stress disorder. No supporting evidence of
such diagnoses was presented to the court. Also, Roper’s self-reported mental
health issues are directly contradicted by his testimony during his guilty plea
hearing, wherein he affirmed that he suffers from no mental or emotional
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disability and has never been treated for any mental illness. Thus, Roper failed
to establish a “longstanding mental health issue[]” that is significant and clearly
supported by the record. Townsend, 45 N.E.3d at 831.
[13] Furthermore, Roper offered no evidence linking his purported mental health
issues to his commission of the intimidation offense. See Weedman, 21 N.E.3d
at 894. During his PSI interview, Roper stated that he had dreams of hurting
his former roommate and declared, “I hope the bitch that did this burns in hell.
I didn’t do this.” (Appellant’s Conf. App. Vol. II, p. 166). Other than
displaying “an obvious anger problem” and reflecting wrathfully about a crime
that he committed nearly three years prior to his PSI interview, Roper offered
no evidence that his mental health issues motivated his crime or that they
affected his ability to control his behavior at the time of the crime. (Appellant’s
Conf. App. Vol. II, p. 166); Phelps, 969 N.E.2d at 1019-20; Steinberg v. State, 941
N.E.2d 515, 534 (Ind. Ct. App. 2011), trans. denied. Accordingly, we find that it
was well within the discretion of the trial court to reject Roper’s mental health
issues as a mitigating circumstance.
II. Inappropriate Sentence
[14] Roper also claims that his eight-year sentence is inappropriate. In cases where a
trial court imposes a sentence that is authorized by statute, our court may revise
the sentence if, “after due consideration of the trial court’s decision, [we] find[]
that the sentence is inappropriate in light of the nature of the offense and the
character of the offender.” Ind. Appellate Rule 7(B). Appellate Rule 7(B)
provides for sentence review in an “attempt to leaven the outliers, and identify
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some guiding principles for trial courts and those charged with improvement of
the sentencing statutes, but not to achieve a perceived ‘correct’ result in each
case.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). Ultimately,
“whether we regard a sentence as appropriate at the end of the day turns on our
sense of the culpability of the defendant, the severity of the crime, the damage
done to others, and myriad other factors that come to light in a given case.” Id.
at 1224. Our court focuses on “the length of the aggregate sentence and how it
is to be served.” Id. Roper bears the burden of persuading this court that his
sentence is inappropriate. Corbally v. State, 5 N.E.3d 463, 471 (Ind. Ct. App.
2014).
[15] “[T]he advisory sentence is the starting point [that] our legislature has selected
as [an] appropriate sentence for the crime committed.” Richardson v. State, 906
N.E.2d 241, 247 (Ind. Ct. App. 2009) (citing Anglemyer, 868 N.E.2d at 494). As
already noted, the advisory sentence for intimidation as a Class C felony is four
years, with a minimum term of two years and a maximum term of eight years.
I.C. § 35-50-2-6(a) (2013). The trial court imposed the maximum sentence, but
based on his mental illness and the limited information available about the facts
in this case, Roper contends that his sentence should be reduced to five years,
with two-and-one-half years suspended to probation.
[16] With respect to the nature of the offense, we agree with Roper that the facts
presented in this case were limited. It is clear that, while arguing with his
roommate, Roper became enraged and used a firearm in an attempt to scare
her. Based on the police investigation, Roper was charged with several other
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offenses, including several drug-related offenses. However, these charges were
all dismissed in exchange for his guilty plea. Nevertheless, evidence concerning
Roper’s character clearly establishes that he did not receive an inappropriate
sentence. Roper has an extensive criminal history, dating back to age ten when
he was arrested for theft. As an adult, he amassed thirteen misdemeanor
convictions and six felony convictions. His criminal resume includes
convictions for battery (multiple), possession of stolen property, improper
exhibition of a firearm, carrying a concealed weapon, disorderly conduct,
larceny (multiple), burglary, driving under the influence and with a suspended
license, fraud/impersonation, resisting arrest, failure to register as a convicted
felon, possession of marijuana and paraphernalia, felon in possession of a
firearm, and escape. He has served time in jail and in prison in both Florida
and Indiana, as well as federal prison. Roper also has repeatedly violated
probation in these cases.
[17] We are unpersuaded by Roper’s attempt to excuse his criminal history as being
the result of his mental illness. Roper lacks credibility regarding his self-
reported mental health diagnoses, and there is no evidence in the record that
any such mental illness prevents him from leading a law-abiding life. Roper has
repeatedly demonstrated his uncontrolled anger. Aside from the unchecked
anger that resulted in the present conviction, Roper was belligerent with the
probation officer during the PSI interview, and he even attempted to
subsequently confront the probation officer about the effect her report would
have on his sentence. Roper has repeatedly shown himself to be deceitful, and
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he clearly lacks respect for the law. Therefore, we cannot say that Roper’s
eight-year sentence is inappropriate in light of the nature of the offense and his
character.
CONCLUSION
[18] Based on the foregoing, we conclude that the trial court did not abuse its
sentencing discretion in considering mitigating factors, and Roper’s sentence is
not inappropriate in light of the nature of the offense and his character.
[19] Affirmed.
[20] Robb, J. and Pyle, J. concur
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