Richard Olufeni Ani-Obot v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any Jun 23 2017, 8:40 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
P. Jeffrey Schlesinger Curtis T. Hill, Jr.
Appellate Division Attorney General of Indiana
Office of the Public Defender
Michael Gene Worden
Crown Point, Indiana Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Richard Olufeni Ani-Obot, June 23, 2017
Appellant-Defendant, Court of Appeals Case No.
45A05-1701-CR-8
v. Appeal from the Lake Superior
Court
State of Indiana, The Honorable Clarence D.
Appellee-Plaintiff. Murray, Judge
Trial Court Cause Nos.
45G02-1501-F6-4
45G02-1603-F6-41
Bradford, Judge.
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Case Summary
[1] On February 22, 2016, Appellant-Defendant Richard Olufeni Ani-Obot
knowingly or intentionally spat in an officer’s face while the officer attempted
to take him into custody. On March 1, 2016, Appellee-Plaintiff the State of
Indiana charged Ani-Obot with battery by bodily waste, a Level 6 felony; public
intoxication, a Class B misdemeanor; disorderly conduct, a Class B
misdemeanor; resisting law enforcement, a Class A misdemeanor; and
intimidation, a Level 6 felony. At the time of the offense, Ani-Obot was
already participating in a pre-trial diversion program for multiple theft, fraud,
and counterfeiting charges.
[2] On October 28, 2016, the parties filed a stipulated plea agreement disposing of
all pending charges. Pursuant to the terms of the agreement, Ani-Obot agreed
to plead guilty to battery by bodily waste, a Level 6 felony, in exchange for the
dismissal of all other pending charges. The parties also agreed there would be a
maximum cap of two years of incarceration. The trial court held a sentencing
hearing on December 2, 2016. Following the submission of evidence, the trial
court found that the aggravating circumstances outweighed the mitigating
circumstances and sentenced Ani-Obot to two years of incarceration.
[3] On appeal, Ani-Obot raises the following restated issues: whether the trial court
abused its discretion in its findings regarding the mitigating and aggravating
circumstances and whether the sentence was inappropriate in light of the nature
of the offense and Ani-Obot’s character. Because the trial court did not abuse
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its discretion when it weighed the aggravating and mitigating circumstances and
Ani-Obot’s sentence is not inappropriate in light of the nature of the offense and
Ani-Obot’s character, we affirm.
Facts and Procedural History
[4] On January 2, 2015, the State charged Ani-Obot in Cause No. 45G02-1501-F6-
4 (“Cause No. F6-4”) with: Count 1, Level 6 Felony fraud; Count II, Level 6
Felony attempted fraud; Count III, Level 6 Felony attempted fraud; Count IV,
Level 6 Felony counterfeiting; Count V, Level 6 Felony forgery; Count VI,
Level 6 Felony theft; and Count VII, Class A Misdemeanor attempted theft.
Several days later, on January 8, 2016, the parties agreed to a stipulated pretrial
diversion program for Ani-Obot. The trial court approved the agreement on
January 13, 2016.
[5] On February 22, 2016, Officer Ridgway of the Merrillville Police Department
was dispatched to an address in Lake County, Indiana to help a female. When
Officer Ridgway arrived at the scene, he approached Ani-Obot. Ani-Obot,
however, ran away from the officer. During the ensuing chase, Ani-Obot threw
the female’s telephone into a pond. Soon after, Officer Ridgway was able to
catch Ani-Obot. However, Ani-Obot knowingly or intentionally spat in Officer
Ridgway’s face while Officer Ridgway tried to take Ani-Obot into custody.
[6] On March 1, 2016, the State charged Ani-Obot in Cause No. 45G02-1603-F6-
41 (“Cause No. F6-41”) with: Count 1, Level 6 Felony intimidation; Count II,
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Level 6 Felony battery by bodily waste; Count III, Class A Misdemeanor
criminal mischief; Count IV, Class A Misdemeanor intimidation; and Count V,
Class B Misdemeanor disorderly conduct.
[7] On October 28, 2016, the parties entered into a plea agreement covering both
Cause No. F6-4 and Cause No. F6-41. Ani-Obot pled guilty pursuant to the
plea agreement to Level 6 Felony battery by bodily waste in Cause No. F6-41.
On December 1, 2016, the trial court accepted the plea agreement. Prior to
sentencing, the trial court found that Ani-Obot’s lengthy history of arrests and
multiple drug related convictions to be aggravators. As for mitigators, the trial
court found that Ani-Obot was likely to respond affirmatively to short term
incarceration and that Ani-Obot admitted his guilt. The trial court
subsequently sentenced Ani-Obot to two years of incarceration and the State
dismissed the other charges in both causes.
Discussion and Decision
1. Abuse of Discretion
[8] Ani-Obot challenges his sentence on appeal, claiming that the trial court abused
its discretion in sentencing him to two years of incarceration as opposed to only
one year. We begin by noting that 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), modified on other
grounds on reh’g, 875 N.E.2d 218 (Ind. 2007). “An abuse of discretion occurs if
the decision is clearly against the logic and effect of the facts and circumstances
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before the court, or the reasonable, probable, and actual deductions to be drawn
therefrom.” Id.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.
Id. at 490-91. In claiming that the trial court abused its discretion in sentencing
him, Ani-Obot argues that the trial court improperly balanced the aggravating
and mitigating circumstances. This is a request for us to reweigh the
aggravators and mitigators which we will not do. See Anglemyer, 868 N.E.2d at
491. Moreover, based upon a review of the record, there was ample evidence to
support the trial court’s findings.
[9] Ani-Obot points to his employment history as a mitigator. However, other than
what Ani-Obot told the probation officer, there is no evidence supporting his
claims of employment nor is there information regarding his performance.
Nevertheless, the fact that Ani-Obot has been regularly employed is not
necessarily a significant mitigating factor. See Newsome v. State, 797 N.E.2d 293,
301 (Ind. Ct. App. 2003) (“Many people are gainfully employed such that this
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would not require the trial court to note it as a mitigating factor[.]”), trans.
denied. The trial court did not abuse its discretion when it failed to find that
Ani-Obot’s employment history was a significant mitigating circumstance.
[10] Ani-Obot also argues that the trial court should have considered the fact that he
has dependents and provides for them. However, according to the evidence,
Ani-Obot admitted that he is not court-ordered to pay child support for his
children. Ani-Obot has failed to produce any evidence that his incarceration
would result in an undue hardship on his dependents. Moreover, even if there
was evidence of undue hardship, a trial court is not required to consider it to be
a mitigating circumstance. Reese v. State, 939 N.E.2d 695, 703 (Ind. Ct. App.
2011). “Many persons convicted of serious crimes have one or more children
and, absent special circumstances, trial courts are not required to find that
imprisonment will result in an undue hardship.” Dowdell v. State, 720 N.E.2d
1146, 1154 (Ind. 1999). The trial court did not abuse its discretion when it
failed to find this as a mitigating circumstance.
[11] The trial court found two mitigating circumstances — that Ani-Obot would
likely respond affirmatively to short term incarceration and he admitted his
guilt by taking a plea deal. The collective weight of these mitigating factors
does not outweigh the nature of the offense or the character of the offender.
Moreover, the trial court imposed a sentence that was only one year above the
advisory sentence. Given the aggravators mentioned above, such sentence was
not an abuse of discretion.
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2. Appropriateness of Sentence
[12] Under Indiana Appellate Rule 7(B), “[t]he 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.” When reviewing such claims, we
“concentrate less on comparing the facts of the [case at issue] to others, whether
real or hypothetical, and more on focusing on the nature, extent, and depravity
of the offense for which the defendant is being sentence, and what it reveals
about the defendant’s character.” Paul v. State, 888 N.E.2d 818, 825 (Ind. Ct.
App. 2008) (internal quotes and citations omitted). Ani-Obot, as the defendant,
bears the burden of persuading us that his sentence is inappropriate. Sanchez v.
State, 891 N.E.2d 174, 176 (Ind. Ct. App. 2008).
[13] With respect to the nature of the offense, Ani-Obot admitted in his plea
agreement that he fled from a police officer and when arrested spit in the
officer’s face. While not a particularly egregious example of this crime, the
record shows that Ani-Obot committed this offense while he was participating
in a pre-trial diversion program for committing several fraudulent credit card
transactions. In light of this, the nature of the offense is more deplorable that it
would have been under different circumstances.
[14] As for his character, Ani-Obot has an extensive history of arrests and contacts
with the criminal justice system including, approximately thirty different
charges resulting in multiple convictions. While a record of arrest may not be
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properly considered as evidence of criminal history, “[s]uch information may be
relevant to the trial court’s assessment of the defendant’s character in terms of
the risk that he will commit another crime.” Cotto v. State, 829 N.E.2d 520, 526
(Ind. 2005). Consequently, it was appropriate for the trial court to consider
both Ani-Obot’s previous convictions and his history of arrests as circumstances
touching on his character. Based upon the above-mentioned evidence of Ani-
Obot’s character and nature of his offense, he has failed to establish that his
sentence was inappropriate.
Conclusion
[15] After reviewing the record, we conclude that the trial court did not abuse its
discretion when it weighed the mitigating and aggravating factors. We also
conclude that Ani-Obot failed to establish that his sentence is inappropriate in
light of his character and the nature of his offense. Consequently, we affirm the
trial court’s judgment.
Najam, J., and Riley, J., concur.
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