Henry D. Bates v. State of Indiana (mem. dec.)

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                                   FILED
regarded as precedent or cited before any                                           Dec 30 2020, 9:42 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.

Marielena Duerring                                      Curtis T. Hill, Jr.
South Bend, Indiana                                     Attorney General of Indiana
                                                        Catherine Brizzi
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana

                                          IN THE

Henry D. Bates,                                         December 30, 2020
Appellant-Defendant,                                    Court of Appeals Case No.
        v.                                              Appeal from the Elkhart Superior
State of Indiana,                                       The Honorable Teresa L. Cataldo,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.

Tavitas, Judge.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-1110 | December 30, 2020          Page 1 of 17
                                                 Case Summary
[1]   Henry D. Bates appeals his sixteen-year sentence, pursuant to a guilty plea, for

      robbery with a deadly weapon, a Level 3 felony. We affirm.

[2]   Bates raises two issues on appeal, which we restate as follows:

               I.       Whether the trial court abused its sentencing discretion by
                        considering an improper aggravating factor and
                        overlooking a significant mitigating factor.

               II.      Whether Bates’ sentence is inappropriate in light of the
                        nature of his offense and his character.

[3]   Shortly after noon on July 11, 2016, Bates and his nephew, Eddie Bates

      (“Eddie”), robbed a Dollar General Store in Elkhart, Indiana. Theresa Palmer

      was working the cash register during the robbery. Bates walked behind the

      counter, told Palmer that the store was being robbed, and warned that Bates

      had a knife. Bates then placed “a fairly long, probably around six- to eight-inch

      knife” to the back of Palmer’s neck, demanded that Palmer open the cash

      register, and fled with the cash register’s contents. 1 Tr. Vol. II p. 182. Bates

      was under the influence of synthetic marijuana when he committed the offense.

        After a failed attempt to obtain the store’s surveillance footage, Eddie stole money from the store’s security
      room and fled.

      Court of Appeals of Indiana | Memorandum Decision 20A-CR-1110 | December 30, 2020                   Page 2 of 17
      The store’s video surveillance system captured the entire robbery and depicted

      Bates with the knife.

[4]   On August 24, 2016, the State charged Bates with robbery with a deadly

      weapon, a Level 3 felony. On May 25, 2017, Bates pleaded guilty as charged.

      In exchange for Bates’ guilty plea, the State agreed not to file an habitual

      offender information against Bates due to Bates’ record of cooperation with law

      enforcement as a confidential informant (“CI”). 2

[5]   The trial court conducted Bates’ sentencing hearing on November 14, 2017.

      Bates expressed remorse and attributed his misconduct to being “off [his]

      med[ication]s” for paranoid schizophrenia. Id. at 176. In seeking a minimum

      sentence, defense counsel argued that Bates’ mental health, including his

      paranoid schizophrenia diagnosis, was a mitigating factor and provided Bates’

      mental health treatment jail records to the trial court. Defense counsel further

      argued as follows:

               This crime that . . . Mr. Bates is being sentenced on here today is
               a result mostly . . . of his mental health status. He knows he did
               armed rob [sic] that [ ] store. [ ] He watched the video of

        At the sentencing hearing, the prosecutor remarked that “the State gave [Bates] a huge break, because he’s
      well eligible, more than double, to be a[n] habitual criminal offender”; and “but for the fact that [the State]
      didn’t file the habitual [offender enhancement, Bates would] be facing 20 more years.” Tr. Vol. II pp. 183,
      184. Regarding Eddie, however, the State proceeded with filing the habitual offender count, and Eddie
      received a thirty-six-year sentence.

      Court of Appeals of Indiana | Memorandum Decision 20A-CR-1110 | December 30, 2020                   Page 3 of 17
              him[self] doing it. I do not believe that this is . . . something that
              he would normally do if he were taking his medication . . . .

      Id. at 36.

[6]   Next, in seeking a near-maximum sentence, the prosecutor introduced still

      images of the robbery that depicted Bates holding the long knife to Palmer’s

      neck and reported the State’s favorable charging treatment of Bates as a CI.

      Additionally, the State argued:

              . . . I absolutely guarantee you Henry Bates was on drugs when
              he committed this offense. [ ] I am not disputing that Henry
              Bates sits here with some mental issues. . . .[B]ut what I am going
              to say is his continued abuse of very serious mind-altering drugs
              does him no favors. And for him to say[,] “I never would have
              done this if I wasn’t on my meds,” is completely belied by his
              criminal record. This is not the first crime that he’s committed,
              where he can come in and say[,] “I was off of my meds and I
              made a bad mistake,” because he has a record that consists of
              over a dozen convictions. . . .[F]rom the State’s perspective, he
              was going to commit this crime regardless.

      Id. at 40-41.

[7]   In open court, the trial court identified the following mitigating sentencing

      factors: (1) Bates’ guilty plea; (2) expression of remorse; (3) service as a CI; and

      (4) “[Bates’] comments and letters and comments of counsel.” Bates’ App. Vol.

      II p. 71. The trial court found the following aggravating factors: (1) Bates’

      extensive criminal history; (2) Bates’ commission of theft and violent crimes

      dating back to 1977; (3) Bates was under the influence of synthetic marijuana

      Court of Appeals of Indiana | Memorandum Decision 20A-CR-1110 | December 30, 2020   Page 4 of 17
      when he committed the offense; (4) Bates’ history of alcohol and drug abuse; (5)

      Bates’ use of a deadly weapon in the robbery, causing Palmer to fear for her life;

      and (6) the presence of children in the store during the robbery. The trial court

      stated: “[T]he aggravating circumstances do far, far outweigh the mitigating

      circumstances, and all the mitigating factors taken as a whole do not outweigh

      even one of the aggravators; so, . . . an aggravated sentence . . . is appropriate.”

      Tr. Vol. II p. 47.

[8]   The trial court sentenced Bates to sixteen years in the Department of Correction

      (“DOC”), with three years ordered suspended to probation. The trial court also

      recommended that Bates receive mental health treatment in the DOC and

      undergo a mental health assessment as a condition of probation. Notably, the

      trial court’s judgment of conviction, entered on November 17, 2017, omitted

      the “presence of children” aggravating factor. Bates now appeals. 3

[9]   Bates challenges the trial court’s exercise of its sentencing discretion. “[S]ubject

      to the review and revise power [under Indiana Appellate Rule 7(B)], 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 (Ind. 2007); Phipps v. State, 90

      N.E.3d 1190, 1197 (Ind. 2018). An abuse occurs only if the decision is clearly

          This Court granted Bates’ petition for permission to file a belated notice of appeal on May 13, 2020.

      Court of Appeals of Indiana | Memorandum Decision 20A-CR-1110 | December 30, 2020                    Page 5 of 17
       against the logic and effect of the facts and circumstances before the court, or

       the reasonable, probable, and actual deductions to be drawn therefrom. Schuler

       v. State, 132 N.E.3d 903, 904 (Ind. 2019). A trial court may abuse its discretion

       in a number of ways, including: (1) failing to enter a sentencing statement at all;

       (2) entering a sentencing statement that includes aggravating and mitigating

       factors that are unsupported by the record; (3) entering a sentencing statement

       that omits reasons that are clearly supported by the record; or (4) entering a

       sentencing statement that includes reasons that are improper as a matter of law.

       Ackerman v. State, 51 N.E.3d 171, 193 (Ind. 2016).

[10]   This Court presumes that a court that conducts a sentencing hearing renders its

       decision solely on the basis of relevant and probative evidence. Schuler, 132

       N.E.2d at 905. “When an abuse of discretion occurs, this Court will remand

       for resentencing only 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.’” Ackerman, 51 N.E.3d at 194 (quoting Anglemyer,

       868 N.E.2d at 491).

                                             Aggravating Factors

[11]   It is well settled that a single aggravating factor is adequate to justify an

       enhanced sentence. Buford v. State, 139 N.E.3d 1074, 1081 (Ind. Ct. App.

       2019). If a trial court abuses its discretion by improperly considering an

       aggravating factor, we remand for resentencing only “if we cannot say with

       confidence that the trial court would have imposed the same sentence had it

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-1110 | December 30, 2020   Page 6 of 17
       properly considered reasons that enjoy support in the record.” Anglemyer, 868

       N.E.2d at 491; Ackerman, 51 N.E.3d at 194.

                                     A. Nature and Circumstances of the Crime

[12]   Bates first argues that the trial court improperly considered an element of the

       crime as an aggravating circumstance —namely, that Bates put Palmer in fear.

       Indiana Code Section 35-42-5-1(a) provides:

                  Except as provided in subsection (b)[4], a person who knowingly
                  or intentionally takes property from another person or from the
                  presence of another person:

                           (1) by using or threatening the use of force on any person;

                           (2) by putting any person in fear;

                  commits robbery, a Level 5 felony. However, the offense is a
                  Level 3 felony if it is committed while armed with a deadly
                  weapon . . . .

       (Emphasis added).

[13]   A similar argument was raised in Gomillia v. State, 13 N.E.3d 846, 852-53 (Ind.

       2014). On appeal, Gomillia argued that the trial court improperly considered

       an element of his offense—placing the victim in fear—as an aggravating factor.

           Indiana Code Section 35-42-5-1(b) is not pertinent here.

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-1110 | December 30, 2020   Page 7 of 17
       In upholding the enhanced sentence, our Supreme Court held that “[w]here a

       trial court’s reason for imposing a sentence greater than the advisory sentence

       includes material elements of the offense, absent something unique about the

       circumstances that would justify deviating from the advisory sentence, that reason is

       ‘improper as a matter of law.’” Gomillia, 13 N.E.3d at 852-53 (quoting

       Anglemyer, 868 N.E.2d at 491) (emphasis added). The Court found,

       notwithstanding flaws 5 in Gomillia’s argument, that “the nature and

       circumstances of the crime included . . . the leadership role Gomillia played[ ],

       as well as the terror the victim suffered[,]” both of which were “appropriate

       reasons justifying a sentence greater than the advisory term.” Id. at 853.

[14]   Here, we find that the statutory element of placing a person in fear was already

       met when Bates told Palmer that he and Eddie were robbing the store and that

       Bates had a knife. Bates, however, did not stop at brandishing a knife and

       demanding the contents of the cash register; rather, Bates terrorized Palmer

       when he stepped behind her and placed his large knife to her neck. We find

       that Bates’ act of further menacing Palmer with the knife constitutes “something

           The Gomillia Court observed:

                  First “fear” . . . is not an element of criminal deviate conduct. It is an element of robbery
                  as a class C felony. But here Gomillia pleaded guilty to class B felony robbery; and in
                  any event the trial court imposed the advisory sentence for this offense. Second, we do
                  not read the trial court’s general reference to “[t]he threats to this lady,” as necessarily
                  equating to the “threat of force” element in the criminal deviate conduct conviction.

       Gomillia, 13 N.E.3d at 853 (internal citation omitted).

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-1110 | December 30, 2020                      Page 8 of 17
       unique about the circumstances” that justified the enhancement of Bates’ sentence.

       See id. The trial court’s remarks at sentencing that “[y]ou h[e]ld a knife to

       [Palmer’s] neck. She d[id]n’t know . . . if you[ we]re just going to slit her throat

       when you g[o]t the money” evidence the trial court’s finding that Bates’ actions

       during the robbery went beyond the statutory elements necessary for the

       robbery conviction. See Tr. Vol. II p. 47.

[15]   Based on the foregoing, the trial court did not improperly consider an element

       of the offense as an aggravating factor; accordingly, we conclude that the trial

       court did not abuse its sentencing discretion in this regard.

                                             B. Presence of Children

[16]   Bates also argues that the trial court found “an aggravator that was completely

       unsupported by the record[,]” namely, the presence of children during Bates’

       commission of the crime. Bates’ Br. p. 4. The State concedes that “there was

       no evidence in the record regarding the presence of children when the robbery

       occurred[,]” but maintains that the trial court “did not rely on this aggravator”

       in imposing Bates’ sentence. See State’s Br. p. 9.

[17]   We acknowledge that this aggravating factor was unsupported and was

       improperly before the trial court. 6 Further, we observe that, although the trial

       court included “the presence of children” aggravator in its oral sentencing

        We note that the prosecutor made the initial reference to the presence of children during Bates’ commission
       of the crime. See Tr. Vol. II p. 44. The factual basis for Bates’ guilty plea, however, made no mention of the
       presence of children.

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-1110 | December 30, 2020                 Page 9 of 17
       remarks on November 14, 2017, the trial court omitted that aggravator from its

       judgment of conviction on November 17, 2017, while leaving Bates’ maximum

       sentence unchanged. This action evinces both the trial court’s: (1) recognition of

       its error in identifying an improper aggravating factor; and (2) intention to

       impose a maximum sentence notwithstanding the errant aggravator. We agree

       with the State that the trial court did not rely on the “presence of children”

       aggravator in imposing sentence.

[18]   Ultimately, the trial court’s oral identification of the improper aggravating

       factor was harmless error because the trial court found five other valid

       aggravating factors. See Catt v. State, 749 N.E.2d 633, 639 (Ind. Ct. App. 2001)

       (finding that trial court’s improper consideration of two aggravating factors

       was harmless error where the trial court found other valid aggravating factors);

       see also Kelp v. State, 119 N.E.3d 1071, 1073-74 (Ind. Ct. App. 2019) (affirming

       sentence despite trial court’s consideration of an improper aggravating

       circumstance); and see Catt, 749 N.E.2d at 639 (holding that, even if a trial court

       finds an improper aggravating factor, a sentence enhancement may still be

       upheld if other valid aggravating factors exist). In light of multiple valid and

       unchallenged aggravating factors that each, alone, support an enhanced

       sentence, we conclude that the trial court did not commit reversible error by its

       oral identification of one improper aggravating factor. Moreover, we are

       confident that the trial court would have imposed a maximum sentence because

       the instant offense was Bates’ third armed robbery conviction.

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-1110 | December 30, 2020   Page 10 of 17
                                    II. Overlooked Mitigating Factor

[19]   Next, Bates argues that the trial court “failed to recognize the existence of

       Bates’ mental illness as a mitigating factor” and that “the record clearly

       support[s] that Bates suffers from mental illness.” Bates’ Br. p. 8. The trial

       court “is not obligated to accept the defendant’s contentions as to what

       constitutes a mitigating circumstance or to give the proffered mitigating

       circumstances the same weight the defendant does.” Weisheit v. State, 26

       N.E.3d 3, 9 (Ind. 2015). “An allegation that the trial court failed to identify or

       find a mitigating factor requires the defendant to establish that the mitigating

       evidence is both significant and clearly supported by the record.” Anglemyer,

       868 N.E.2d at 493. A trial court has discretion to determine whether the factors

       are mitigating and it is not required to explain why the court rejects the

       defendant’s proffered mitigating factors. Haddock v. State, 800 N.E.2d 242, 245

       (Ind. Ct. App. 2003).

[20]   “Mental illness is not necessarily a significant mitigating factor; ‘rather, [it] is a

       mitigating factor to be used in certain circumstances, such as when the evidence

       demonstrates longstanding mental health issues or when the [trier of fact] finds

       that a defendant is mentally ill.’” Townsend v. State, 45 N.E.3d 821, 831 (Ind.

       Ct. App. 2015), trans. denied. “[I]n order for a [defendant’s] mental history to

       provide a basis for establishing a mitigating factor, there must be a nexus

       between the defendant’s mental health and the crime in question.” Weedman v.

       State, 21 N.E.3d 873, 894 (Ind. Ct. App. 2014), trans. denied. Here, Bates

       alleged the existence of a nexus between the robbery and his mental illness

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-1110 | December 30, 2020   Page 11 of 17
       when Bates attributed his commission of the crime to his being “off” his

       prescription medication for paranoid schizophrenia at the time of the crime. See

       Bates’ App. Vol. II p. 44.

[21]   The record reveals that, in sentencing remarks to Bates, the trial court stated:

       “[A]s you stated, you don’t think this offense would have happened if you

       would have been on your med[ication]s. Your history should prove to you, sir,

       that you can never be off your meds”; and

               [t]he things that sway me to the sentence that I’ve pronounced [ ]
               are your past criminal history. Time and time again you have
               returned to what you know; . . . when you’re left to your own
               devices, you don’t necessarily follow through with your
               medications [or] with what you’re supposed to do.

       Tr. Vol. II pp. 47, 49.

[22]   The trial court, thus, considered but declined to afford Bates’ proffered mental

       health mitigator any weight because the trial court found a nexus between the

       crime and Bates’ being “high” during the robbery; Bates’ dedication to a

       criminal lifestyle; and Bates’ rejection of crucial medication that Bates knew he

       needed to take. Id. at 47; see Archer v. State, 689 N.E.2d 678, 685 (Ind. 1997)

       (enumerating factors bearing on the sentencing weight, if any, to be given to

       mental illness: (1) extent of defendant’s inability to control his behavior due to

       mental illness; (2) overall limitations on functioning; (3) duration of illness; and

       (4) extent of nexus, if any, between the crime and mental illness). We find no

       abuse of the trial court’s sentencing discretion in this regard.

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-1110 | December 30, 2020   Page 12 of 17
                                     III. Indiana Appellate Rule 7(B)

[23]   Lastly, Bates argues that his maximum, sixteen-year sentence is inappropriate

       pursuant to Indiana Appellate Rule 7(B) and that “an appropriate sentence in

       this case would be the advisory sentence of 9 years.” Bates’ Br. p. 11. The

       Indiana Constitution authorizes independent appellate review and revision of a

       trial court’s sentencing decision. See Ind. Const. art. 7, §§ 4, 6; Jackson v. State,

       145 N.E.3d 783, 784 (Ind. 2020). Our Supreme Court has implemented this

       authority through Indiana Appellate Rule 7(B), which allows this Court to

       revise a sentence when it is “inappropriate in light of the nature of the offense

       and the character of the offender.” Our review of a sentence under Appellate

       Rule 7(B) is not an act of second guessing the trial court’s sentence; rather,

       “[o]ur posture on appeal is [ ] deferential” to the trial court. Bowman v. State, 51

       N.E.3d 1174, 1181 (Ind. 2016) (citing Rice v. State, 6 N.E.3d 940, 946 (Ind.

       2014)). We exercise our authority under Appellate Rule 7(B) only in

       “exceptional cases, and its exercise ‘boils down to our collective sense of what

       is appropriate.’” Mullins v. State, 148 N.E.3d 986, 987 (Ind. 2020) (quoting

       Faith v. State, 131 N.E.3d 158, 160 (Ind. 2019)).

[24]   “‘The principal role of appellate review is to attempt to leaven the outliers.’”

       McCain v. State, 148 N.E.3d 977, 985 (Ind. 2020) (quoting Cardwell v. State, 895

       N.E.2d 1219, 1225 (Ind. 2008)). The point is “not to achieve a perceived

       correct sentence.” Id. “Whether a sentence should be deemed inappropriate

       ‘turns on our sense of 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

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-1110 | December 30, 2020   Page 13 of 17
       given case.’” Id. (quoting Cardwell, 895 N.E.2d at 1224). Deference to the trial

       court’s sentence “should prevail unless overcome by compelling evidence

       portraying in a positive light the nature of the offense (such as accompanied by

       restraint, regard, and lack of brutality) and the defendant’s character (such as

       substantial virtuous traits or persistent examples of good character).” Stephenson

       v. State, 29 N.E.3d 111, 122 (Ind. 2015).

[25]   When determining whether a sentence is inappropriate, the advisory sentence is

       the starting point the legislature has selected as an appropriate sentence for the

       crime committed. Fuller v. State, 9 N.E.3d 653, 657 (Ind. 2014). Here, Bates

       pleaded guilty to robbery with a deadly weapon, a Level 3 felony. The

       sentencing range for a Level 3 felony is between three and sixteen years, with

       an advisory sentence of nine years. Ind. Code § 35-50-2-5(b). Based on five

       valid aggravators that outweighed the mitigators, the trial court imposed a

       maximum sixteen-year sentence.

[26]   Our analysis of the “nature of the offense” requires us to look at the nature,

       extent, and depravity of the offense. Sorenson v. State, 133 N.E.3d 717, 729 (Ind.

       Ct. App. 2019), trans. denied. The nature of the offense is as follows: Bates

       pretended to be an ordinary customer, requested assistance from Palmer,

       announced his intention to rob the store, and warned Palmer that he had a

       knife. Bates, thereby, placed Palmer in fear. Bates then stepped behind Palmer,

       placed a long knife against her neck, and forced the terrorized cashier to empty

       the cash register. Bates fled with the money.

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-1110 | December 30, 2020   Page 14 of 17
[27]   Our analysis of the character of the offender involves a “broad consideration of

       a defendant’s qualities,” Adams v. State, 120 N.E.3d 1058, 1065 (Ind. Ct. App.

       2019), including the defendant’s age, criminal history, background, and

       remorse. James v. State, 868 N.E.2d 543, 548-59 (Ind. Ct. App. 2007).

       Moreover, “[t]he significance of a criminal history in assessing a defendant’s

       character and an appropriate sentence varies based on the gravity, nature,

       proximity, and number of prior offenses in relation to the current offense.”

       Sandleben v. State, 29 N.E.3d 126, 137 (Ind. Ct. App. 2015) (citing Bryant v.

       State, 841 N.E.2d 1154, 1156 (Ind. 2006)). “Even a minor criminal history is a

       poor reflection of a defendant’s character.” Prince v. State, 148 N.E.3d 1171,

       1174 (Ind. Ct. App. 2020) (citing Moss v. State, 13 N.E.3d 440, 448 (Ind. Ct.

       App. 2014), trans. denied).

[28]   Here, Bates, who was fifty-five years old at the time of sentencing, has an

       extensive criminal history dating back to 1976 that is replete with convictions

       for theft, robbery, and violent crimes. Between 1976 and 1979, Bates amassed

       seven juvenile delinquency adjudications for offenses that, if committed by an

       adult, would constitute theft (twice); burglary (twice); attempted burglary;

       battery; and assault and battery with intention to cause grave bodily harm. 7

[29]   In 1980, Bates was waived to adult court for committing robbery with a deadly

       weapon, a Class B felony, for which Bates was sentenced to fifteen years in the

         We have excluded from our consideration juvenile offenses that appear on Bates’ presentence investigation
       report with inadequate disposition and adjudication information.

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-1110 | December 30, 2020             Page 15 of 17
       DOC. Bates’ additional adult criminal history includes misdemeanor

       convictions for criminal mischief; resisting law enforcement (twice); fleeing

       from police (twice); criminal conversion; public intoxication (twice); disorderly

       conduct; and domestic battery. In addition to the aforementioned Class B

       felony robbery conviction, Bates has prior felony convictions for: (1) assisting a

       criminal, a Class C felony; (2) battery with a deadly weapon; (3) possession of

       cocaine; and (4) Bates’ second armed robbery conviction in 2001, for which he

       received a twenty-year sentence. 8

[30]   Thus, the instant offense is Bates’ third felony conviction for an act of robbery

       with a deadly weapon. This alarming predilection reflects Bates’ disdain for the

       rule of law, despite having served significant prison terms and notwithstanding

       numerous extensions of grace and leniency from various courts. Bates’ vast

       criminal history—coupled with his record of prison write-ups and violations of

       probation, parole, and community supervision—shed unfavorable light on

       Bates’ character. Additionally, Bates’ substance abuse history reflects poorly on

       his character. Bates has abused “LSD, cannabis, cocaine, methamphetamine,

       and alcohol” and was “high” on synthetic marijuana when he committed the

       instant offense. Bates’ App. Vol. II p. 46; Tr. Vol. II p. 189. Despite numerous

       opportunities to pursue addictions treatment outside prison, Bates has

        In the year immediately following his release from prison in 2013, Bates was arrested and convicted of two
       misdemeanor offenses. Also, we note that the presentence investigation report does not designate a Class or
       Level for most of Bates’ prior convictions.

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-1110 | December 30, 2020              Page 16 of 17
       continued to fuel his “polysubstance abuse and dependence” issues and

       “reported he has never received addictions treatment” outside jail. Id.

[31]   Based on the foregoing, Bates has failed to persuade us to revise his sentence;

       accordingly, we conclude that his maximum sentence is not inappropriate in

       light of the nature of his offense and his character.

[32]   The trial court did not abuse its sentencing discretion by imposing an enhanced

       sentence. Bates’ maximum sentence is not inappropriate in light of the nature

       of his offense and his character. We affirm.

[33]   Affirmed.

       Bailey, J., and Robb, J., concur.

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-1110 | December 30, 2020   Page 17 of 17

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