John E. Bulington v. State of Indiana (mem. dec.) ( 2016 )

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Mar 30 2016, 9:02 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.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Timothy P. Broden Gregory F. Zoeller
Lafayette, Indiana Attorney General of Indiana
Paula J. Beller
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
John E. Bulington, March 30, 2016
Appellant-Defendant, Court of Appeals Case No.
79A05-1507-CR-956
v. Appeal from the Tippecanoe
Superior Court
State of Indiana, The Honorable Sean M. Persin,
Appellee-Plaintiff Judge
Trial Court Cause No.
79D05-1502-F6-67
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 79A05-1507-CR-956 | March 30, 2016 Page 1 of 4
[1] John E. Bulington appeals the two-year sentence imposed by the trial court after
Bulington pleaded guilty to one count of Theft,1 a Level 6 Felony. Bulington
argues that the sentence is inappropriate in light of the nature of the offense and
his character. Finding that the sentence is not inappropriate, we affirm.
Facts
[2] On February 16, 2015, Bulington went to a Payless Supermarket in Lafayette.
He used the store’s U-Scan self-service checkout. After he scanned and bagged
his merchandise, but before paying, he told the store’s associate that he wanted
to pick up a few more items in the store before completing his purchase.
Bulington then left the U-Scan area and attempted to exit the building with the
items for which he had not paid. Bulington was arrested by the store’s loss-
prevention officer.
[3] On February 17, 2015, the State charged Bulington with one count of Level 6
Felony theft. On May 20, 2015, Bulington pleaded guilty to one count of theft.
On June 23, 2015, the trial court sentenced Bulington to two years in the
Department of Correction, with credit given for time served. Bulington now
appeals.
1
Ind. Code § 35-43-4-2.
Court of Appeals of Indiana | Memorandum Decision 79A05-1507-CR-956 | March 30, 2016 Page 2 of 4
Discussion and Decision
[4] Bulington has one argument on appeal: that the two-year sentence is
inappropriate. Indiana Appellate Rule 7(B) allows this Court to independently
review and revise a sentence authorized by statue if, after due consideration, we
find the trial court’s sentence inappropriate in light of the nature of the offense
and the character of the offender. Anderson v. State, 989 N.E.2d 823, 827 (Ind.
Ct. App. 2013). On appeal, Bulington bears the burden of persuading this court
that the sentence is inappropriate. See Childress v. State, 848 N.E.2d. 1080 (Ind.
2006).
[5] As previously noted, the trial court imposed a two-year sentence for the theft
conviction. Indiana code section 35-50-2-7(b) provides that a person who
commits a Level 6 felony shall be imprisoned for a fixed term of between six
months and two and one-half years, with the advisory sentence being one year.
Therefore, Bulington received more than the advisory but less than the
maximum sentence.
[6] Turning to the nature of Bulington’s offense, he intentionally lied to the store
associate to facilitate his theft. His conduct in the store demonstrates that he
had a premeditated plan, including how he would obtain store bags to complete
the theft and where and how he would exit the store to avoid detection. He did
not anticipate the store associate not falling for his ruse. Bulington does not
dispute the fact that he shoplifted the merchandise; he merely minimizes his
theft because it did not involve the theft of entertainment or luxury items.
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Bulington argues that his offense should be excused because he was stealing
food; yet, there is no evidence to suggest he was malnourished or could not
legally obtain food. The fact that Bulington had a Hoosier Works card issued by
the State of Indiana Family and Social Services Agency suggests that he
understood the process for obtaining financial assistance.
[7] Turning to Bulington’s character, his lengthy criminal history must be
acknowledged. He was convicted of the following over a period of fourteen
years: in 2000, felony fraud and identity deception; in 2003, financial
transaction card fraud; in 2009, two convictions for conversion; in 2010,
conversion; in 2013, two convictions for felony theft; in 2014, two convictions
for felony theft; and in 2015, three convictions for check deception. He was on
probation in two different counties for felony theft at the time he committed this
offense. As the trial court said to Bulington at sentencing, “The only gaps that
you have from committing the crime of theft and stealing from other people has
either you have been in jail or you have been in rehab [for a stroke]. Otherwise
you are committing the crime of theft or fraud nonstop”. Tr. P. 31. Bulington
has evinced an inability or unwillingness to comply with the laws of society.
We do not find his sentence inappropriate in light of the nature of the offense
and his character.
[8] The judgment of the trial court is affirmed.
Bradford, J., and Pyle, J., concur.
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