Anthony Bush v. State of Indiana (NFP)
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FILED Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be 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. Dec 11 2009, 9:14 am CLERK of the supreme court, court of appeals and tax court ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE: CHARLES E. STEWART Appellate Public Defender Crown Point, Indiana GREGORY F. ZOELLER Attorney General of Indiana JAMES E. PORTER Deputy Attorney General Indianapolis, Indiana IN THE COURT OF APPEALS OF INDIANA ANTHONY BUSH, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) ) No. 45A03-0905-CR-211 APPEAL FROM THE LAKE SUPERIOR COURT The Honorable Thomas P. Stefaniak, Jr., Judge Cause No. 45G04-0811-FB-00097 December 11, 2009 MEMORANDUM DECISION NOT FOR PUBLICATION MATHIAS, Judge Anthony Bush ( Bush ) pleaded guilty in Lake Superior Court to Class B felony robbery. The trial court sentenced Bush to fourteen years in the Department of Correction. Bush appeals and argues that the trial court abused its discretion by declining to find his mental illness to be a substantial mitigator and that his sentence is inappropriate in light of the nature of the offense and the character of the offender. We affirm. Facts and Procedural History Between October 7 and 22, 2008, and with the help of his brother, Bush robbed four different victims. During each of the robberies, Bush used a handgun to threaten the victims as he took money and other items from them. On November 12, 2008, the State charged Bush with two counts of Class B felony robbery and two counts of Class B felony criminal confinement. On February 24, 2009, the State filed an additional count of Class B felony robbery. On the same day, Bush pleaded guilty to the newly filed count and the State agreed to dismiss the remaining counts. Sentencing was left to the trial court s discretion. On April 7, 2009, the trial court sentenced Bush to fourteen years in the Department of Correction. Bush now appeals. I. Weight of Mitigators and Aggravators Bush argues that the trial court abused its discretion by failing to properly weigh his mental health, as a substantial mitigator, and his criminal history, as an aggravator. As we have noted before, because the trial court no longer is obliged to weigh aggravators or mitigators, the trial court cannot be said to abuse its discretion for failing 2 to properly weigh those aggravators and mitigators. See Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007), clarified on reh g, 875 N.E.2d 218 (Ind. 2007). Bush s claims regarding the trial court s weighing of aggravators and mitigators are not available on appeal. II. Appropriate Sentence Bush also argues that his sentence is inappropriate under Indiana Appellate Rule 7(B), which provides: The 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 Anglemyer, our supreme court explained: It is on this basis alone that a criminal defendant may now challenge his or her sentence where the trial court has entered a sentencing statement that includes a reasonably detailed recitation of its reasons for imposing a particular sentence that is supported by the record, and the reasons are not improper as a matter of law, but has imposed a sentence with which the defendant takes issue. 868 N.E.2d at 494. [A] defendant must persuade the appellate court that his or her sentence has met the inappropriateness standard of review. Id. The nature of the crime consists of four different robberies at gunpoint with four different victims at four different times within a fifteen day period. In addition, Bush chose to use a handgun in the commission of these crimes. The nature of the crime supports the trial court s enhanced sentence. Bush s character also supports the trial court s sentence. Bush has been involved with our justice system since the age of twelve, when he was found to have committed criminal conversion. At the age of thirteen, Bush was found to have committed two 3 counts of disorderly conduct. At the age of fifteen, Bush was placed on probation for truancy. He subsequently failed probation and was turned over to the Indiana Department of Correction ( DOC ). Bush committed these four robberies just months after his eighteenth birthday and concomitant release from the DOC for offenses as a juvenile. Bush pleaded guilty to a charge that included four separate robberies at gunpoint. At his sentencing hearing, the trial court asked why he did it and Bush responded that I wasn t thinking. I just did it. Tr. p. 34. When the trial court questioned Bush about whether he felt sorry about robbing the four victims, Bush thought only about how the crimes and sentence would affect him. Tr. p. 36-38. Bush s criminal history, his failure to recognize the criminal nature of his actions and his failure to show any remorse for those actions all support the appropriateness of his sentence. Conclusion Bush s claims that the trial court abused its discretion by failing to properly weigh certain aggravators and mitigators found by the trial court are unavailable on appeal. In addition, Bush s sentence was appropriate in light of the nature of the offense and the character of the offender. Affirmed. BARNES, J., and BROWN, J., concur. 4
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