Larry Gentry v. State of Indiana

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before Jan 23 2015, 9:58 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
MARK SMALL GREGORY F. ZOELLER
Indianapolis, Indiana Attorney General of Indiana
Indianapolis, Indiana
JESSE R. DRUM
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
LARRY GENTRY, )
)
Appellant-Defendant, )
)
vs. ) No. 24A04-1403-CR-144
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE FRANKLIN CIRCUIT COURT
The Honorable J. Steven Cox, Judge
Cause No. 24C01-1202-FB-179
January 23, 2015
MEMORANDUM DECISION - NOT FOR PUBLICATION
SULLIVAN, Senior Judge
Larry Gentry appeals the sentence he received following his plea of guilty to the
offense of operating a vehicle while intoxicated resulting in death, a Class B felony. Ind.
Code § 9-30-5-5(b)(1)(A) (2010). We affirm.
On September 27, 2011, Gentry crashed his car, killing his close friend and
passenger, Calvin Offill, Jr. At the scene of the accident, the investigating officer detected
the odor of alcohol on Gentry’s breath and person, and Gentry told the officer that he was
the driver of the vehicle. The supplement to the officer’s report for this incident states that
the Indiana State Department of Toxicology found Gentry’s blood alcohol content to be
.15 gram of alcohol per one hundred milliliters of blood the night of the accident. Gentry
pleaded guilty to the offense of operating a vehicle while intoxicated resulting in death and
was sentenced to twenty years with five years suspended to probation. It is from this
sentence that he now appeals.
Gentry raises one issue, which we restate as: whether the trial court abused its
discretion in sentencing him by failing to properly consider his plea of guilty and his
remorse as mitigating factors.
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 (2007). 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. Id.
When imposing a sentence for a felony, a trial court must enter a sentencing statement
including reasonably detailed reasons for imposing a particular sentence. Id. at 491. A
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trial court abuses its discretion when it fails to issue a sentencing statement, gives reasons
for imposing a sentence that are not supported by the record, omits reasons clearly
supported by the record and advanced for consideration, or considers reasons that are
improper as a matter of law. Id. at 490-91.
The finding of mitigating circumstances is not mandatory but is instead within the
discretion of the trial court. Page v. State, 878 N.E.2d 404, 408 (Ind. Ct. App. 2007), trans.
denied. Further, the court is neither obligated to accept the defendant’s arguments as to
what constitutes a mitigating factor nor required to give the same weight to a proffered
mitigating factor as does the defendant. Id. An allegation that the trial court failed to
identify or find a mitigating factor requires the defendant on appeal to establish that the
mitigating evidence is both significant and clearly supported by the record. Id.
A guilty plea is not automatically a significant mitigating factor. Brown v. State,
907 N.E.2d 591, 594 (Ind. Ct. App. 2009). For example, a guilty plea may not be a
significant mitigator when a defendant has already received a substantial benefit from the
plea agreement or when the evidence against the defendant is such that the decision to
plead guilty is merely a pragmatic one. Id.
In his brief to this Court, Gentry claims that he saved the State the trouble and
expense of a jury trial by pleading guilty. Although Gentry did plead guilty, he did so on
the morning of trial when the prospective jurors were already assembled in the courtroom.
Moreover, the State had significant evidence against Gentry, including his admission that
he was driving the vehicle at the time of the crash, the officer’s observations of Gentry at
the crash scene, and the toxicology report of his blood alcohol level. Thus, Gentry’s
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decision to plead guilty was a pragmatic one, and the trial court was not obliged to find his
plea a significant mitigating factor.
Next, Gentry states that the trial court “did not dispute [he] was remorseful” but
failed to mention the “weighing of mitigating circumstances or a delineation of how
Gentry’s remorse . . . figured into its determination.” Appellant’s Br. p. 11. With regard
to Gentry’s remorse, the court stated:
I do believe, and I think it’s properly argued that the defendant is remorseful.
I think the testimony is clear that the remorse comes more out of the fact that
he and the defendant . . . the victim were close and considered each other
family in a father, son sort of way. Uh, and when the cloud of intoxication,
uh, you know, dissipates, and you realize what has happened, you know, I . .
. I expect that there would be remorse, and he’s noted that today and it . . .
and it is certainly believed by the Court that, that’s his feeling.
Sentencing Tr. p. 56.
We first note that the relative weight the trial court assigns to aggravating and
mitigating factors is no longer subject to judicial review. Webb v. State, 941 N.E.2d 1082,
1088 (Ind. Ct. App. 2011) (citing Anglemyer, 868 N.E.2d at 491), trans. denied. To the
extent that Gentry’s argument is that the trial court failed to provide a reasonably detailed
explanation for imposing this particular sentence, we disagree. A review of the sentencing
transcript reveals that the trial court considered Gentry’s remorse, as noted above, and also
noted aggravating circumstances. With regard to Gentry’s criminal history, the court
stated:
This particular record is actually to the level of being obnoxious in terms of
the D.U.I.’s, the very same behavior over and over, over a span of years. The
times he’s been on probation. The times that the defendant has either been
in . . . ordered for rehabilitation or been supervised to try to [curb] this
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behavior to make sure this doesn’t happen again, and yet here we sit. And
not just another D.U.I., but escalated to [the] point where life was lost.
This fact pattern, this situation absolutely screams for the maximum of
twenty years with the Franklin . . . with the Indiana Department of
Correction[ ] because nothing in that record, nothing in that prior record,
nothing in the sentences that this defendant has received has kept him from
being here today. He’s not rehabilitated. He[] hasn’t taken advantage of any
of those opportunities to change his behavior. He just went right back and
lived the way he had been living, and now sadly Calvin isn’t with us.
Sentencing Tr. p. 54, 57. The court also indicated its dissatisfaction with what it considered
to be Gentry’s lack of candor with the information he provided for the presentence report
and stated, “[T]he Pre-Sentence Report and the prior sentences more than outweigh those
things which were argued as mitigators.”1 Id. at 55. Although the court believed this case
called for the maximum twenty-year sentence, it deferred to the recommendation of the
State and the victim’s family and suspended five years of Gentry’s sentence. We find no
abuse of discretion by the trial court.
For the reasons stated, we conclude that the trial court did not abuse its discretion
in sentencing Gentry to twenty years with five years suspended to probation.
Affirmed.
VAIDIK, C.J., and MATHIAS, J., concur.
1
Gentry argued that when he denied using drugs, he did not think that marijuana constituted a drug like
cocaine or heroin.
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