Tony P. Fitts v. State of Indiana

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before Oct 17 2014, 9:49 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:
RANDY M. FISHER GREGORY F. ZOELLER
Deputy Public Defender Attorney General of Indiana
Fort Wayne, Indiana
JESSE R. DRUM
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
TONY P. FITTS, )
)
Appellant-Defendant, )
)
vs. ) No. 02A03-1403-CR-77
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE ALLEN SUPERIOR COURT
The Honorable Frances C. Gull, Judge
Cause No. 02D04-1304-FC-106
October 17, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
NAJAM, Judge
STATEMENT OF THE CASE
Tony P. Fitts appeals his sentence following his conviction for carrying a handgun
without a license, as a Class C felony, pursuant to a guilty plea. Fitts presents two issues
for our review:
1. Whether the trial court abused its discretion when it sentenced him.
2. Whether his sentence is inappropriate in light of the nature of the
offense and his character.
We affirm.
FACTS AND PROCEDURAL HISTORY
On April 17, 2013, at approximately 8:00 p.m., Fitts argued with his girlfriend,
Samra Sims, at her home, where she resided with the couple’s two children. During the
argument, Sims observed that Fitts possessed a handgun. At some point, Fitts left, and
Sims locked him out of her home. However, at approximately 11:00 p.m., Fitts returned
uninvited and intoxicated, and he tried to enter Sims’ home. From her kitchen window,
Sims observed the gun in Fitts’ waistband, and she called the police. When the officers
arrived, they discovered Fitts in a detached garage and found two handguns in a trash bin
also located inside of the garage. Sims identified to the police the handgun that she had
observed in Fitts’ possession.
On April 22, the State charged Fitts, a convicted felon, with carrying a handgun
without a license, as a Class C felony, and, on January 29, 2014, Fitts pleaded guilty as
charged without the benefit of a plea agreement. The court held a sentencing hearing on
February 20, at which Fitts offered as mitigators that he had accepted responsibility by
pleading guilty; that he had enrolled in college courses during the pendency of the
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prosecution; and that he has two dependent, minor children. Fitts conceded that his
criminal history was an aggravator but argued that he had only one prior felony
conviction. The trial court sentenced him to six years executed in the Department of
Correction. In doing so, the court stated:
I do find mitigating circumstances in your case[,] Mr. Fitts. You did in fact
plead guilty. You accepted responsibility for your behavior. . . . I do find
as aggravating circumstances your prior criminal record and failed efforts at
rehabilitation. From 1998 to 2013[,] you’ve got ten (10) Misdemeanor
convictions, one (1) prior Felony conviction. You have been on probation.
You have been in Home Detention. You’ve been in jail. You’ve been in
the Department of Correction. You’ve been on the Re-entry Court
Program. You’ve been through the Community Transition Program, and[,]
apparently[,] you were also in the Drug Court Program. And you continue
your criminal behavior. I’m not sure[,] Mr. Fitts[,] what more it is that
we’re suppose [sic] to do. You’re thirty-four years old. You haven’t been
gainfully employed in some time. You’ve got substantial arrearage with
your child support. Your license is suspended, and you just continue.
Tr. at 11-12. This appeal ensued.
DISCUSSION AND DECISION
Issue One: Abuse of Discretion
Fitts asserts that the trial court abused its discretion when it sentenced him. Under
the advisory sentencing scheme, “the trial court must enter a statement including
reasonably detailed reasons or circumstances for imposing a particular sentence.”
Anglemyer v. State, 868 N.E.2d 482, 490 (Ind.2007), clarified in part on other grounds,
875 N.E.2d 218 (Ind. 2007). We review the sentence for an abuse of discretion. Id. An
abuse of discretion occurs if “the decision is clearly against the logic and effect of the
facts and circumstances.” Id.3
A trial court abuses its discretion if it (1) fails “to enter a sentencing statement at
all[,]” (2) enters “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,” (3) enters a sentencing statement that “omits reasons that are clearly
supported by the record and advanced for consideration,” or (4) considers reasons that
“are improper as a matter of law.” Id. at 490–91. If the trial court has abused its
discretion, we will remand for resentencing “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 491. However, the relative weight or value
assignable to reasons properly found, or to those which should have been found, is not
subject to review for abuse of discretion. Id.Moreover, a finding of mitigating circumstances also lies within the trial court’s
discretion. Widener v. State, 659 N.E.2d 529, 533 (Ind. 1995). The court need not state
in the record those mitigating circumstances that it considers insignificant. See Sensback
v. State, 720 N.E.2d 1160, 1163 (Ind. 1999). And the trial court is not obligated to
explain why it did not find a factor to be significantly mitigating. Chambliss v. State, 746
N.E.2d 73, 78 (Ind. 2001). Nor is the sentencing court required to place the same value
on a mitigating circumstance as does the defendant. Beason v. State, 690 N.E.2d 277,
283-84 (Ind. 1998).
Fitts first contends that the trial court abused its discretion when it did not identify
two mitigators that he argued at his sentencing hearing: (1) the hardship his sentence
would place on his two minor children and (2) his enrollment in college courses.
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However, the record makes clear that the trial court did consider—and rejected—Fitts’
first proffered mitigator. Specifically, the court found that Fitts had failed both to
maintain gainful employment and to pay child support. In other words, Fitts failed to
support his dependent children, and, therefore, his detention in DOC would not work a
hardship upon them. Further, Fitts presented little evidence to support his second
proffered mitigator. The trial court heard evidence only that Fitts had been enrolled in
college courses between September and December 2013. Fitts did not offer evidence that
he had successfully completed his classes or that he maintained enrollment at the time of
sentencing. Indeed, his presentence investigation report (“PSI”) lists “returning to
college as an educational goal” only. PSI App. at 7. Thus, the trial court could have
regarded this proffered mitigator as insignificant and, therefore, did not mention it in the
record.
Fitts also asserts that the trial court abused its discretion because it “failed to
consider alternatives when ordering the executed sentence served in the Department of
Correction.” Appellant’s Br. at 10. But the record again demonstrates that the trial court
both considered and rejected sentencing alternatives. Notably, the court stated:
You have been on probation. You have been in Home Detention. You’ve
been in jail. You’ve been in the Department of Correction. You’ve been
on the Re-entry Court Program. You’ve been through the Community
Transition Program, and[,] apparently[,] you were also in the Drug Court
Program. And you continue your criminal behavior. I’m not sure[,] Mr.
Fitts[,] what more it is that we’re suppose [sic] to do.
Tr. at 11-12. Alternative sentencing “is a matter of grace and a conditional liberty that is
a favor, not a right,” and the trial court could rationally conclude that Fitts had not earned
that favor. Holmes v. State, 923 N.E.2d 479, 482 (Ind. Ct. App. 2010) (quotations
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omitted). In fact, in addition to Fitts’ repeated failures with alternative sentencing cited
by the trial court, Fitts “has had two (2) suspended sentences revoked and two (2)
suspended sentences modified. He has had his home detention placement revoked once.”
PSI App. at 6. Thus, the trial court did not abuse its discretion, and we affirm on this
issue.
Issue Two: Appellate Rule 7(B)
Next, Fitts contends that his sentence is inappropriate in light of the nature of the
offense and his character. Article 7, Sections 4 and 6 of the Indiana Constitution
“authorize[] independent appellate review and revision of a sentence imposed by the trial
court.” Roush v. State, 875 N.E.2d 801, 812 (Ind. Ct. App. 2007) (alteration in original).
This appellate authority is implemented through Indiana Appellate Rule 7(B). Id.Revision of a sentence under Rule 7(B) requires the appellant to demonstrate that his
sentence is inappropriate in light of the nature of his offenses and his character. Ind.
Appellate Rule 7(B); Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007). We
assess the trial court’s recognition or non-recognition of aggravators and mitigators as an
initial guide to determining whether the sentence imposed was inappropriate. Gibson v.
State, 856 N.E.2d 142, 147 (Ind. Ct. App. 2006). However, “a defendant must persuade
the appellate court that his or her sentence has met th[e] inappropriateness standard of
review.” Roush, 875 N.E.2d at 812 (alteration original).
Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate
sentence to the circumstances presented, and the trial court’s judgment “should receive
considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222, 1224 (Ind. 2008).
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The principal role of appellate review is to attempt to “leaven the outliers.” Id. at 1225.
Whether we regard a sentence as inappropriate at the end of the day turns on “our sense
of the culpability of the defendant, the severity of the crime, the damage done to others,
and myriad other facts that come to light in a given case.” Id. at 1224.
With respect to the nature of the offense, Fitts asserts that we should revise his
sentence because he “merely possessed a handgun without a license—no one was
physically harmed or threatened in this case.” Appellant’s Br. at 13. But Fitts ignores
the context in which his crime occurred. He carried a weapon during an altercation with
his girlfriend, Sims, which occurred in her home where Fitts’ children also resided. This
altercation resulted in Sims locking Fitts out of the home. Fitts then returned to the home
uninvited, intoxicated,1 and still in possession of the handgun, and he attempted to enter
the home. While no one was injured, Sims must have felt threatened because she called
9-1-1. Thus, the nature of the offense does not support revision of Fitts’ sentence.
Despite his attempts to diminish his criminal history, Fitts’ character also does not
support his Appellate Rule 7(B) claim. Although it is true that Fitts had only one prior
felony conviction, he also had ten prior misdemeanor convictions. And, as the trial court
observed, while Fitts received several alternative sentences for his prior convictions, he
did not rehabilitate himself. Indeed, we again point out that Fitts previously had two
suspended sentences and one home detention placement revoked, and he had two
suspended sentences modified. Therefore, we cannot state that Fitts’ sentence is
inappropriate in light of either the nature of the offense or his character.
1
Fitts was too intoxicated for questioning after officers transported him to the police station.
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Conclusion
In sum, we hold that the trial court did not abuse its discretion when it did not
identify or accept two of Fitts’ proffered mitigators or when it refused to impose an
alternative sentence. Further, we reject Fitts’ Appellate Rule 7(B) challenge. His
sentence is not inappropriate in light of the nature of the offense or his character.
Affirmed.
BAILEY, J., and PYLE, J., concur.
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