Adam K. Bales v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
Feb 29 2016, 9:12 am
regarded as precedent or cited before 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
Kimberly A. Jackson Gregory F. Zoeller
Indianapolis, Indiana Attorney General of Indiana
Karl M. Scharnberg
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Adam K. Bales, February 29, 2016
Appellant-Defendant, Court of Appeals Case No.
77A01-1501-CR-12
v. Appeal from the Sullivan Superior
Court
State of Indiana, The Honorable Robert E. Springer,
Appellee-Plaintiff Magistrate
Trial Court Cause No.
77D01-1307-FA-372
Bailey, Judge.
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Case Summary
[1] Adam K. Bales (“Bales”) brings a belated appeal1 to challenge the sentence
imposed upon him following his plea of guilty to Attempted Murder, a Class A
felony.2 We affirm the aggregate sentence, but remand to the trial court with
instructions to vacate the fine imposed as part of the habitual offender
enhancement and to enter a sentencing order that provides that Bales received a
forty-year sentence, enhanced by thirty years, as opposed to consecutive
sentences.
Issues
[2] Bales presents four issues for review:
I. Whether the trial court abused its sentencing discretion by
failing to enter a proper sentencing statement;
II. Whether the trial court abused its sentencing discretion by
failing to recognize remorse as a mitigating circumstance;
1
After Bales initiated an appeal and filed an appellant’s brief, the State filed an appellee’s brief and
contended that Bales’s appeal should be dismissed due to failure to file a timely notice of appeal. Bales filed a
petition for remand, for the purpose of filing a petition to file a belated notice of appeal. This Court
remanded the matter and permitted Bales ten days to file his petition for a belated appeal in the trial court.
The trial court granted the petition on September 15, 2015, and this Court permitted Bales to file an amended
brief and a belated notice of appeal.
2
Ind. Code §§ 35-42-1-1(1) & 35-41-5-1.
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III. Whether the habitual offender enhancement was
improperly designated a consecutive sentence and
accompanied by a fine; and
IV. Whether Bales’s sentence is inappropriate.
Facts and Procedural History
[3] On June 29, 2013, Bales struck his girlfriend, Joann Pierce (“Pierce”)
repeatedly, using his fists and a rifle. He grabbed a knife and cut Pierce as she
tried to disarm him. Bales then pursued Pierce as she attempted to flee,
shooting her multiple times. Pierce collapsed on the lawn, having been shot in
her neck, face, leg, and right arm.
[4] Bales called 9-1-1 and reported the shooting. He was arrested and charged with
Attempted Murder. After Bales pled guilty to the charge against him, and
admitted his status as a habitual offender, he received a seventy-year aggregate
sentence and two fines of $100.00 each. This appeal ensued.
Discussion and Decision
Abuse of Discretion – Sentencing Statement
[5] At the time of Bales’s offense, Indiana Code Section 35-50-2-4 provided that a
person convicted of a Class A felony faced a sentencing range of twenty to fifty
years, with the advisory sentence being thirty years. Bales received a sentence
of ten years more than the advisory sentence. The Attempted Murder sentence
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was enhanced by thirty years, due to Bales’s status as a habitual offender. I.C. §
35-50-2-8.
[6] “So long as the sentence is within the statutory range, it is subject to review
only for abuse of discretion.” Anglemyer v. State, 868 N.E.2d 482, 490 (Ind.
2007), clarified on other grounds, 875 N.E.2d 218 (Ind. 2007) (Anglemyer II). This
includes the finding of an aggravating circumstance and the omission to find a
proffered mitigating circumstance. Id. at 490-91. When imposing a sentence
for a felony, the trial court must enter “a sentencing statement that includes a
reasonably detailed recitation of its reasons for imposing a particular sentence.”
Id. at 491.
[7] The trial court’s reasons must be supported by the record and must not be
improper as a matter of law. Id. However, a trial court’s sentencing order may
no longer be challenged as reflecting an improper weighing of sentencing factors.
Id. A trial court abuses its discretion if its reasons for imposing a particular
sentence are 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. Hollin v. State, 877 N.E.2d 462, 464 (Ind. 2007).
[8] Here, the trial court made an oral sentencing statement and entered a written
sentencing statement. Bales contends that these statements irreconcilably
conflict. The oral sentencing statement provided:
[T]he court’s going to find that the aggravators listed in the Pre-
Sentence report are appropriate, in that the person does have a
criminal history, and clearly, with this type of crime and that he
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was actually on probation when he committed this crime. Also
[I am] going to consider the method in which the crime was
committed and the seriousness of the defendant’s [sic] injuries. I
believe it is significant that he, this whole episode took a good
deal of time; he had several opportunities to abandon what he,
what he was doing. It is a mitigator that he’s admitting his guilt.
And I believe, of course the seriousness of the offense and the
seriousness of her injuries are aggravators as well. … So there’ll
be seventy (70). Had you not called 9-1-1 and admitted your
guilt it would have been eighty (80) Mr. Bales.
(Tr. at 76-77.) The written Sentencing Order included the trial court’s
statement that the Pre-Sentence Investigation Report had been considered, and
the following aggravators and mitigators were specifically found: “The
Defendant has a history of criminal behavior; The Defendant has recently
violated the conditions of probation; The Court considers the method of the
crime; The Defendant called 911 to report the crime; and The Defendant is
admitting his guilt.” (App. at 83-84.) The written order also stated that an
aggregate sentence of seventy years had been imposed.
[9] We do not find the oral and written statements to be in irreconcilable conflict.
In each instance, the trial court clearly conveyed that the court had considered
the circumstances reflected in the Pre-Sentence Investigation Report. In each
instance, the trial court specifically articulated its consideration of the manner
in which the crime was committed, Bales’s criminal history, and his acceptance
of responsibility after commission of the instant crime. In each instance, the
aggregate sentence referenced was the same. The trial court need not have used
identical language. We find no abuse of discretion.
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Abuse of Discretion – Mitigating Circumstance
[10] Bales claims that the trial court abused its discretion by failing to consider his
remorse as a mitigating circumstance. An allegation that the trial court failed to
identify or find a mitigating factor requires the defendant to establish that the
mitigating evidence is not only supported by the record but also that the
mitigating evidence is significant. Anglemyer II, 875 N.E.2d at 220-21. The trial
court is not obligated to explain why it did not find a particular circumstance to
be significantly mitigating. Sherwood v. State, 749 N.E.2d 36, 38 (Ind. 2001).
[11] The trial court accorded mitigating weight to Bales’s taking responsibility for his
actions by calling 9-1-1 and pleading guilty. To the extent that Bales believes he
manifested his remorse apart from those actions, he did not present an
argument in this regard to the trial court. The trial court will not be found to
have abused its discretion by failing to find a mitigator not advanced for
consideration. Anglemyer II, 875 N.E.2d at 221.
Habitual Offender Enhancement
[12] Bales admitted his status as a habitual offender and the trial court accordingly
adjudicated him a habitual offender. The trial court then purportedly imposed
a “consecutive sentence” for “Count II,” and assessed a separate $100.00 fine.
(App. at 84.) As Bales argues, and the State concedes, this was in error, as
Bales was not subject to a separate sentence and fine.
[13] At the time of Bales’s offense, Indiana Code Section 35-50-2-8(a) provided that
the State could seek to have a person sentenced as a habitual offender by
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alleging that the person had accumulated two prior unrelated felony
convictions. Section (h) provided that the court should sentence a person found
to be a habitual offender to an “additional fixed term” not less than the advisory
sentence for the underlying offense and not more than three times the advisory
sentence for the underlying offense, capped at thirty years. Upon his
adjudication as a habitual offender, Bales was subject to an enhancement but
not a separate sentence or fine. We remand for correction of the sentencing
order in accordance with the relevant statute.
Appropriateness of Sentence
[14] Under Indiana Appellate Rule 7(B), this “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.” In performing our review, we assess “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.” Cardwell v.
State, 895 N.E.2d 1219, 1224 (Ind. 2008). The principal role of such review is
to attempt to leaven the outliers. Id. at 1225. A defendant ‘“must persuade the
appellate court that his or her sentence has met th[e] inappropriateness standard
of review.”’ Anglemyer, 868 N.E.2d at 494 (quoting Childress v. State, 848
N.E.2d 1073, 1080 (Ind. 2006)).
[15] As for the nature of the offense, Bales armed himself with a gun and knife and
waited for Pierce to return home. Bales first attacked Pierce with his fists, then
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cut her with the knife. He smashed her forehead with the end of a rifle and
threw lamps at her as she fled through the house. Bales picked up a shotgun
and began to fire at Pierce, stopping to re-load his weapon. One shot struck
Pierce in the hand, taking off two fingers and leaving “hunks of flesh” lying on
the kitchen floor. (Tr. at 22.) One shot shattered Pierce’s tibia. Also, her
carotid artery was nicked.
[16] The police officer who responded to Bales’s 9-1-1 call found Pierce collapsed
next to a vehicle; he did not expect Pierce to survive. She required
hospitalization for over one month and has undergone multiple surgeries. One
surgery involved the insertion of a steel rod in her leg.
[17] As to the character of the offender, Bales has a criminal history consisting of
three prior felonies and four misdemeanors. Two of the felony convictions
stemmed from attacks on prior girlfriends. He held a butcher knife to the throat
of one girlfriend; he beat another with a lamp. He had been released from work
release just six weeks, and was on probation, when he committed the present
offense.
[18] Having reviewed the matter, we conclude that the trial court did not impose an
inappropriate sentence under Appellate Rule 7(B), and the sentence does not
warrant appellate revision. Accordingly, we decline to disturb the sentence
imposed by the trial court.
Conclusion
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[19] Bales has not shown that the trial court abused its sentencing discretion. The
aggregate sentence imposed for Attempted Murder is not inappropriate.
However, we remand to the trial court with instructions to vacate the $100.00
fine imposed as part of the habitual offender enhancement and to enter a
sentencing order that shows Bales received a forty-year sentence, enhanced by
thirty years, due to his status as a habitual offender, as opposed to consecutive
sentences.
[20] Affirmed and Remanded.
Vaidik, C.J., and Crone, J., concur.
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