Henry D. Bates v. State of Indiana (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Dec 30 2020, 9:42 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Marielena Duerring Curtis T. Hill, Jr.
South Bend, Indiana Attorney General of Indiana
Catherine Brizzi
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Henry D. Bates, December 30, 2020
Appellant-Defendant, Court of Appeals Case No.
20A-CR-1110
v. Appeal from the Elkhart Superior
Court
State of Indiana, The Honorable Teresa L. Cataldo,
Appellee-Plaintiff. Judge
Trial Court Cause No.
20D03-1608-F3-37
Tavitas, Judge.
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Case Summary
[1] Henry D. Bates appeals his sixteen-year sentence, pursuant to a guilty plea, for
robbery with a deadly weapon, a Level 3 felony. We affirm.
Issues
[2] Bates raises two issues on appeal, which we restate as follows:
I. Whether the trial court abused its sentencing discretion by
considering an improper aggravating factor and
overlooking a significant mitigating factor.
II. Whether Bates’ sentence is inappropriate in light of the
nature of his offense and his character.
Facts
[3] Shortly after noon on July 11, 2016, Bates and his nephew, Eddie Bates
(“Eddie”), robbed a Dollar General Store in Elkhart, Indiana. Theresa Palmer
was working the cash register during the robbery. Bates walked behind the
counter, told Palmer that the store was being robbed, and warned that Bates
had a knife. Bates then placed “a fairly long, probably around six- to eight-inch
knife” to the back of Palmer’s neck, demanded that Palmer open the cash
register, and fled with the cash register’s contents. 1 Tr. Vol. II p. 182. Bates
was under the influence of synthetic marijuana when he committed the offense.
1
After a failed attempt to obtain the store’s surveillance footage, Eddie stole money from the store’s security
room and fled.
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The store’s video surveillance system captured the entire robbery and depicted
Bates with the knife.
[4] On August 24, 2016, the State charged Bates with robbery with a deadly
weapon, a Level 3 felony. On May 25, 2017, Bates pleaded guilty as charged.
In exchange for Bates’ guilty plea, the State agreed not to file an habitual
offender information against Bates due to Bates’ record of cooperation with law
enforcement as a confidential informant (“CI”). 2
[5] The trial court conducted Bates’ sentencing hearing on November 14, 2017.
Bates expressed remorse and attributed his misconduct to being “off [his]
med[ication]s” for paranoid schizophrenia. Id. at 176. In seeking a minimum
sentence, defense counsel argued that Bates’ mental health, including his
paranoid schizophrenia diagnosis, was a mitigating factor and provided Bates’
mental health treatment jail records to the trial court. Defense counsel further
argued as follows:
This crime that . . . Mr. Bates is being sentenced on here today is
a result mostly . . . of his mental health status. He knows he did
armed rob [sic] that [ ] store. [ ] He watched the video of
2
At the sentencing hearing, the prosecutor remarked that “the State gave [Bates] a huge break, because he’s
well eligible, more than double, to be a[n] habitual criminal offender”; and “but for the fact that [the State]
didn’t file the habitual [offender enhancement, Bates would] be facing 20 more years.” Tr. Vol. II pp. 183,
184. Regarding Eddie, however, the State proceeded with filing the habitual offender count, and Eddie
received a thirty-six-year sentence.
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him[self] doing it. I do not believe that this is . . . something that
he would normally do if he were taking his medication . . . .
Id. at 36.
[6] Next, in seeking a near-maximum sentence, the prosecutor introduced still
images of the robbery that depicted Bates holding the long knife to Palmer’s
neck and reported the State’s favorable charging treatment of Bates as a CI.
Additionally, the State argued:
. . . I absolutely guarantee you Henry Bates was on drugs when
he committed this offense. [ ] I am not disputing that Henry
Bates sits here with some mental issues. . . .[B]ut what I am going
to say is his continued abuse of very serious mind-altering drugs
does him no favors. And for him to say[,] “I never would have
done this if I wasn’t on my meds,” is completely belied by his
criminal record. This is not the first crime that he’s committed,
where he can come in and say[,] “I was off of my meds and I
made a bad mistake,” because he has a record that consists of
over a dozen convictions. . . .[F]rom the State’s perspective, he
was going to commit this crime regardless.
Id. at 40-41.
[7] In open court, the trial court identified the following mitigating sentencing
factors: (1) Bates’ guilty plea; (2) expression of remorse; (3) service as a CI; and
(4) “[Bates’] comments and letters and comments of counsel.” Bates’ App. Vol.
II p. 71. The trial court found the following aggravating factors: (1) Bates’
extensive criminal history; (2) Bates’ commission of theft and violent crimes
dating back to 1977; (3) Bates was under the influence of synthetic marijuana
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when he committed the offense; (4) Bates’ history of alcohol and drug abuse; (5)
Bates’ use of a deadly weapon in the robbery, causing Palmer to fear for her life;
and (6) the presence of children in the store during the robbery. The trial court
stated: “[T]he aggravating circumstances do far, far outweigh the mitigating
circumstances, and all the mitigating factors taken as a whole do not outweigh
even one of the aggravators; so, . . . an aggravated sentence . . . is appropriate.”
Tr. Vol. II p. 47.
[8] The trial court sentenced Bates to sixteen years in the Department of Correction
(“DOC”), with three years ordered suspended to probation. The trial court also
recommended that Bates receive mental health treatment in the DOC and
undergo a mental health assessment as a condition of probation. Notably, the
trial court’s judgment of conviction, entered on November 17, 2017, omitted
the “presence of children” aggravating factor. Bates now appeals. 3
Analysis
[9] Bates challenges the trial court’s exercise of its sentencing discretion. “[S]ubject
to the review and revise power [under Indiana Appellate Rule 7(B)], 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, 490
(Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007); Phipps v. State, 90
N.E.3d 1190, 1197 (Ind. 2018). An abuse occurs only if the decision is clearly
3
This Court granted Bates’ petition for permission to file a belated notice of appeal on May 13, 2020.
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against the logic and effect of the facts and circumstances before the court, or
the reasonable, probable, and actual deductions to be drawn therefrom. Schuler
v. State, 132 N.E.3d 903, 904 (Ind. 2019). A trial court may abuse its discretion
in a number of ways, including: (1) failing to enter a sentencing statement at all;
(2) entering a sentencing statement that includes aggravating and mitigating
factors that are unsupported by the record; (3) entering a sentencing statement
that omits reasons that are clearly supported by the record; or (4) entering a
sentencing statement that includes reasons that are improper as a matter of law.
Ackerman v. State, 51 N.E.3d 171, 193 (Ind. 2016).
[10] This Court presumes that a court that conducts a sentencing hearing renders its
decision solely on the basis of relevant and probative evidence. Schuler, 132
N.E.2d at 905. “When an abuse of discretion occurs, this Court will remand
for resentencing only 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.’” Ackerman, 51 N.E.3d at 194 (quoting Anglemyer,
868 N.E.2d at 491).
Aggravating Factors
[11] It is well settled that a single aggravating factor is adequate to justify an
enhanced sentence. Buford v. State, 139 N.E.3d 1074, 1081 (Ind. Ct. App.
2019). If a trial court abuses its discretion by improperly considering an
aggravating factor, we remand for resentencing only “if we cannot say with
confidence that the trial court would have imposed the same sentence had it
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properly considered reasons that enjoy support in the record.” Anglemyer, 868
N.E.2d at 491; Ackerman, 51 N.E.3d at 194.
A. Nature and Circumstances of the Crime
[12] Bates first argues that the trial court improperly considered an element of the
crime as an aggravating circumstance —namely, that Bates put Palmer in fear.
Indiana Code Section 35-42-5-1(a) provides:
Except as provided in subsection (b)[4], a person who knowingly
or intentionally takes property from another person or from the
presence of another person:
(1) by using or threatening the use of force on any person;
or
(2) by putting any person in fear;
commits robbery, a Level 5 felony. However, the offense is a
Level 3 felony if it is committed while armed with a deadly
weapon . . . .
(Emphasis added).
[13] A similar argument was raised in Gomillia v. State, 13 N.E.3d 846, 852-53 (Ind.
2014). On appeal, Gomillia argued that the trial court improperly considered
an element of his offense—placing the victim in fear—as an aggravating factor.
4
Indiana Code Section 35-42-5-1(b) is not pertinent here.
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In upholding the enhanced sentence, our Supreme Court held that “[w]here a
trial court’s reason for imposing a sentence greater than the advisory sentence
includes material elements of the offense, absent something unique about the
circumstances that would justify deviating from the advisory sentence, that reason is
‘improper as a matter of law.’” Gomillia, 13 N.E.3d at 852-53 (quoting
Anglemyer, 868 N.E.2d at 491) (emphasis added). The Court found,
notwithstanding flaws 5 in Gomillia’s argument, that “the nature and
circumstances of the crime included . . . the leadership role Gomillia played[ ],
as well as the terror the victim suffered[,]” both of which were “appropriate
reasons justifying a sentence greater than the advisory term.” Id. at 853.
[14] Here, we find that the statutory element of placing a person in fear was already
met when Bates told Palmer that he and Eddie were robbing the store and that
Bates had a knife. Bates, however, did not stop at brandishing a knife and
demanding the contents of the cash register; rather, Bates terrorized Palmer
when he stepped behind her and placed his large knife to her neck. We find
that Bates’ act of further menacing Palmer with the knife constitutes “something
5
The Gomillia Court observed:
First “fear” . . . is not an element of criminal deviate conduct. It is an element of robbery
as a class C felony. But here Gomillia pleaded guilty to class B felony robbery; and in
any event the trial court imposed the advisory sentence for this offense. Second, we do
not read the trial court’s general reference to “[t]he threats to this lady,” as necessarily
equating to the “threat of force” element in the criminal deviate conduct conviction.
Gomillia, 13 N.E.3d at 853 (internal citation omitted).
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unique about the circumstances” that justified the enhancement of Bates’ sentence.
See id. The trial court’s remarks at sentencing that “[y]ou h[e]ld a knife to
[Palmer’s] neck. She d[id]n’t know . . . if you[ we]re just going to slit her throat
when you g[o]t the money” evidence the trial court’s finding that Bates’ actions
during the robbery went beyond the statutory elements necessary for the
robbery conviction. See Tr. Vol. II p. 47.
[15] Based on the foregoing, the trial court did not improperly consider an element
of the offense as an aggravating factor; accordingly, we conclude that the trial
court did not abuse its sentencing discretion in this regard.
B. Presence of Children
[16] Bates also argues that the trial court found “an aggravator that was completely
unsupported by the record[,]” namely, the presence of children during Bates’
commission of the crime. Bates’ Br. p. 4. The State concedes that “there was
no evidence in the record regarding the presence of children when the robbery
occurred[,]” but maintains that the trial court “did not rely on this aggravator”
in imposing Bates’ sentence. See State’s Br. p. 9.
[17] We acknowledge that this aggravating factor was unsupported and was
improperly before the trial court. 6 Further, we observe that, although the trial
court included “the presence of children” aggravator in its oral sentencing
6
We note that the prosecutor made the initial reference to the presence of children during Bates’ commission
of the crime. See Tr. Vol. II p. 44. The factual basis for Bates’ guilty plea, however, made no mention of the
presence of children.
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remarks on November 14, 2017, the trial court omitted that aggravator from its
judgment of conviction on November 17, 2017, while leaving Bates’ maximum
sentence unchanged. This action evinces both the trial court’s: (1) recognition of
its error in identifying an improper aggravating factor; and (2) intention to
impose a maximum sentence notwithstanding the errant aggravator. We agree
with the State that the trial court did not rely on the “presence of children”
aggravator in imposing sentence.
[18] Ultimately, the trial court’s oral identification of the improper aggravating
factor was harmless error because the trial court found five other valid
aggravating factors. See Catt v. State, 749 N.E.2d 633, 639 (Ind. Ct. App. 2001)
(finding that trial court’s improper consideration of two aggravating factors
was harmless error where the trial court found other valid aggravating factors);
see also Kelp v. State, 119 N.E.3d 1071, 1073-74 (Ind. Ct. App. 2019) (affirming
sentence despite trial court’s consideration of an improper aggravating
circumstance); and see Catt, 749 N.E.2d at 639 (holding that, even if a trial court
finds an improper aggravating factor, a sentence enhancement may still be
upheld if other valid aggravating factors exist). In light of multiple valid and
unchallenged aggravating factors that each, alone, support an enhanced
sentence, we conclude that the trial court did not commit reversible error by its
oral identification of one improper aggravating factor. Moreover, we are
confident that the trial court would have imposed a maximum sentence because
the instant offense was Bates’ third armed robbery conviction.
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II. Overlooked Mitigating Factor
[19] Next, Bates argues that the trial court “failed to recognize the existence of
Bates’ mental illness as a mitigating factor” and that “the record clearly
support[s] that Bates suffers from mental illness.” Bates’ Br. p. 8. The trial
court “is not obligated to accept the defendant’s contentions as to what
constitutes a mitigating circumstance or to give the proffered mitigating
circumstances the same weight the defendant does.” Weisheit v. State, 26
N.E.3d 3, 9 (Ind. 2015). “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.” Anglemyer,
868 N.E.2d at 493. A trial court has discretion to determine whether the factors
are mitigating and it is not required to explain why the court rejects the
defendant’s proffered mitigating factors. Haddock v. State, 800 N.E.2d 242, 245
(Ind. Ct. App. 2003).
[20] “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 [trier of fact] finds
that a defendant is mentally ill.’” Townsend v. State, 45 N.E.3d 821, 831 (Ind.
Ct. App. 2015), 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 v.
State, 21 N.E.3d 873, 894 (Ind. Ct. App. 2014), trans. denied. Here, Bates
alleged the existence of a nexus between the robbery and his mental illness
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when Bates attributed his commission of the crime to his being “off” his
prescription medication for paranoid schizophrenia at the time of the crime. See
Bates’ App. Vol. II p. 44.
[21] The record reveals that, in sentencing remarks to Bates, the trial court stated:
“[A]s you stated, you don’t think this offense would have happened if you
would have been on your med[ication]s. Your history should prove to you, sir,
that you can never be off your meds”; and
[t]he things that sway me to the sentence that I’ve pronounced [ ]
are your past criminal history. Time and time again you have
returned to what you know; . . . when you’re left to your own
devices, you don’t necessarily follow through with your
medications [or] with what you’re supposed to do.
Tr. Vol. II pp. 47, 49.
[22] The trial court, thus, considered but declined to afford Bates’ proffered mental
health mitigator any weight because the trial court found a nexus between the
crime and Bates’ being “high” during the robbery; Bates’ dedication to a
criminal lifestyle; and Bates’ rejection of crucial medication that Bates knew he
needed to take. Id. at 47; see Archer v. State, 689 N.E.2d 678, 685 (Ind. 1997)
(enumerating factors bearing on the sentencing weight, if any, to be given to
mental illness: (1) extent of defendant’s inability to control his behavior due to
mental illness; (2) overall limitations on functioning; (3) duration of illness; and
(4) extent of nexus, if any, between the crime and mental illness). We find no
abuse of the trial court’s sentencing discretion in this regard.
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III. Indiana Appellate Rule 7(B)
[23] Lastly, Bates argues that his maximum, sixteen-year sentence is inappropriate
pursuant to Indiana Appellate Rule 7(B) and that “an appropriate sentence in
this case would be the advisory sentence of 9 years.” Bates’ Br. p. 11. The
Indiana Constitution authorizes independent appellate review and revision of a
trial court’s sentencing decision. See Ind. Const. art. 7, §§ 4, 6; Jackson v. State,
145 N.E.3d 783, 784 (Ind. 2020). Our Supreme Court has implemented this
authority through Indiana Appellate Rule 7(B), which allows this Court to
revise a sentence when it is “inappropriate in light of the nature of the offense
and the character of the offender.” Our review of a sentence under Appellate
Rule 7(B) is not an act of second guessing the trial court’s sentence; rather,
“[o]ur posture on appeal is [ ] deferential” to the trial court. Bowman v. State, 51
N.E.3d 1174, 1181 (Ind. 2016) (citing Rice v. State, 6 N.E.3d 940, 946 (Ind.
2014)). We exercise our authority under Appellate Rule 7(B) only in
“exceptional cases, and its exercise ‘boils down to our collective sense of what
is appropriate.’” Mullins v. State, 148 N.E.3d 986, 987 (Ind. 2020) (quoting
Faith v. State, 131 N.E.3d 158, 160 (Ind. 2019)).
[24] “‘The principal role of appellate review is to attempt to leaven the outliers.’”
McCain v. State, 148 N.E.3d 977, 985 (Ind. 2020) (quoting Cardwell v. State, 895
N.E.2d 1219, 1225 (Ind. 2008)). The point is “not to achieve a perceived
correct sentence.” Id. “Whether a sentence should be deemed inappropriate
‘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
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given case.’” Id. (quoting Cardwell, 895 N.E.2d at 1224). Deference to the trial
court’s sentence “should prevail unless overcome by compelling evidence
portraying in a positive light the nature of the offense (such as accompanied by
restraint, regard, and lack of brutality) and the defendant’s character (such as
substantial virtuous traits or persistent examples of good character).” Stephenson
v. State, 29 N.E.3d 111, 122 (Ind. 2015).
[25] When determining whether a sentence is inappropriate, the advisory sentence is
the starting point the legislature has selected as an appropriate sentence for the
crime committed. Fuller v. State, 9 N.E.3d 653, 657 (Ind. 2014). Here, Bates
pleaded guilty to robbery with a deadly weapon, a Level 3 felony. The
sentencing range for a Level 3 felony is between three and sixteen years, with
an advisory sentence of nine years. Ind. Code § 35-50-2-5(b). Based on five
valid aggravators that outweighed the mitigators, the trial court imposed a
maximum sixteen-year sentence.
[26] Our analysis of the “nature of the offense” requires us to look at the nature,
extent, and depravity of the offense. Sorenson v. State, 133 N.E.3d 717, 729 (Ind.
Ct. App. 2019), trans. denied. The nature of the offense is as follows: Bates
pretended to be an ordinary customer, requested assistance from Palmer,
announced his intention to rob the store, and warned Palmer that he had a
knife. Bates, thereby, placed Palmer in fear. Bates then stepped behind Palmer,
placed a long knife against her neck, and forced the terrorized cashier to empty
the cash register. Bates fled with the money.
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[27] Our analysis of the character of the offender involves a “broad consideration of
a defendant’s qualities,” Adams v. State, 120 N.E.3d 1058, 1065 (Ind. Ct. App.
2019), including the defendant’s age, criminal history, background, and
remorse. James v. State, 868 N.E.2d 543, 548-59 (Ind. Ct. App. 2007).
Moreover, “[t]he significance of a criminal history in assessing a defendant’s
character and an appropriate sentence varies based on the gravity, nature,
proximity, and number of prior offenses in relation to the current offense.”
Sandleben v. State, 29 N.E.3d 126, 137 (Ind. Ct. App. 2015) (citing Bryant v.
State, 841 N.E.2d 1154, 1156 (Ind. 2006)). “Even a minor criminal history is a
poor reflection of a defendant’s character.” Prince v. State, 148 N.E.3d 1171,
1174 (Ind. Ct. App. 2020) (citing Moss v. State, 13 N.E.3d 440, 448 (Ind. Ct.
App. 2014), trans. denied).
[28] Here, Bates, who was fifty-five years old at the time of sentencing, has an
extensive criminal history dating back to 1976 that is replete with convictions
for theft, robbery, and violent crimes. Between 1976 and 1979, Bates amassed
seven juvenile delinquency adjudications for offenses that, if committed by an
adult, would constitute theft (twice); burglary (twice); attempted burglary;
battery; and assault and battery with intention to cause grave bodily harm. 7
[29] In 1980, Bates was waived to adult court for committing robbery with a deadly
weapon, a Class B felony, for which Bates was sentenced to fifteen years in the
7
We have excluded from our consideration juvenile offenses that appear on Bates’ presentence investigation
report with inadequate disposition and adjudication information.
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DOC. Bates’ additional adult criminal history includes misdemeanor
convictions for criminal mischief; resisting law enforcement (twice); fleeing
from police (twice); criminal conversion; public intoxication (twice); disorderly
conduct; and domestic battery. In addition to the aforementioned Class B
felony robbery conviction, Bates has prior felony convictions for: (1) assisting a
criminal, a Class C felony; (2) battery with a deadly weapon; (3) possession of
cocaine; and (4) Bates’ second armed robbery conviction in 2001, for which he
received a twenty-year sentence. 8
[30] Thus, the instant offense is Bates’ third felony conviction for an act of robbery
with a deadly weapon. This alarming predilection reflects Bates’ disdain for the
rule of law, despite having served significant prison terms and notwithstanding
numerous extensions of grace and leniency from various courts. Bates’ vast
criminal history—coupled with his record of prison write-ups and violations of
probation, parole, and community supervision—shed unfavorable light on
Bates’ character. Additionally, Bates’ substance abuse history reflects poorly on
his character. Bates has abused “LSD, cannabis, cocaine, methamphetamine,
and alcohol” and was “high” on synthetic marijuana when he committed the
instant offense. Bates’ App. Vol. II p. 46; Tr. Vol. II p. 189. Despite numerous
opportunities to pursue addictions treatment outside prison, Bates has
8
In the year immediately following his release from prison in 2013, Bates was arrested and convicted of two
misdemeanor offenses. Also, we note that the presentence investigation report does not designate a Class or
Level for most of Bates’ prior convictions.
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continued to fuel his “polysubstance abuse and dependence” issues and
“reported he has never received addictions treatment” outside jail. Id.[31] Based on the foregoing, Bates has failed to persuade us to revise his sentence;
accordingly, we conclude that his maximum sentence is not inappropriate in
light of the nature of his offense and his character.
Conclusion
[32] The trial court did not abuse its sentencing discretion by imposing an enhanced
sentence. Bates’ maximum sentence is not inappropriate in light of the nature
of his offense and his character. We affirm.
[33] Affirmed.
Bailey, J., and Robb, J., concur.
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