ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JODI KATHRYN STEIN
JASON M. MOUNT STEVE CARTER
Mount Law Office, P.C. Attorney General of Indiana
Deputy Attorney General
COURT OF APPEALS OF INDIANA
CHRISTOPHER GIST, )
vs. ) No. 72A01-0308-CR-286
STATE OF INDIANA, )
APPEAL FROM THE SCOTT CIRCUIT COURT
The Honorable James Kleopfer, Judge
Cause No. 72C01-0210-FB-21
March 19, 2004
OPINION - FOR PUBLICATION
Christopher Gist appeals his sentence for conspiracy to commit robbery as a Class
B felony. Specifically, he argues that the trial court failed to find
several mitigators and that his ten-year presumptive sentence is inappropriate. In light
of the States concession at sentencing that two mitigators are present, it is
unclear whether the trial court found no aggravators or mitigators or whether the
trial court found aggravators and mitigators but concluded that they balanced. We
therefore remand this case to the trial court for a more definite sentencing
statement. Furthermore, because Gist was sentenced in accordance with the plea agreement,
we conclude that his sentence is not inappropriate.
Facts and Procedural History
In September 2002, Gist worked at Caseys General Store in Scott County.
On September 26, Gist and Derrick Coats agreed to rob that store in
order to purchase cocaine. Gist obtained a shotgun and dropped off Coats
in the vicinity of the store. Coats then entered the store armed
with the gun and demanded money from store employees Vickie Lainhart and Veronica
Kelley, both of whom had worked with Gist. After the robbery, Gist
and Coats split the money.
Coats soon became a suspect in the robbery. Coats eventually turned himself
in to the police and gave a statement that he and Gist robbed
the store. Gist then turned himself in to the police as well.
In October 2002, the State charged Gist with conspiracy to commit robbery as
a Class B felony and robbery as a Class B felony. In
June 2003, Gist pled guilty to conspiracy to commit robbery as a Class
B felony. Under the plea agreement, the State agreed to limit its
sentencing recommendation to the trial court to the presumptive term of ten years.
Following a sentencing hearing, the trial court sentenced Gist to ten years.
The trial court did not identify any aggravators or mitigators but merely
stated that it sentenced Gist to ten years. This appeal ensued.
Discussion and Decision
Gist raises two issues on appeal. First, he contends that the trial
court failed to find numerous mitigating factors. Second, he contends that his
sentence is inappropriate. We address each issue in turn.
Gist contends that the trial court failed to find numerous mitigators when sentencing
him to the presumptive term of ten years. It is well established
that sentencing decisions lie within the discretion of the trial court. Jackson
v. State, 728 N.E.2d 147, 154 (Ind. 2000). Sentencing decisions are given
great deference on appeal and will only be reversed for an abuse of
discretion. Beck v. State, 790 N.E.2d 520, 522 (Ind. Ct. App. 2003).
If the trial court finds aggravating or mitigating circumstances, then the court must
make a statement of its reasons for selecting the sentence imposed. Ind.
Code § 35-38-1-3; Jackson, 728 N.E.2d at 154. However, the trial court
does not have to set forth its reasons for imposing the presumptive sentence.
Pope v. State, 740 N.E.2d 1247, 1253 (Ind. Ct. App. 2000); see
also Jones v. State, 698 N.E.2d 289, 290 (Ind. 1998) ([A] sentencing judge
must articulate her reasoning only when she deviates from the statutory presumptive sentence.);
Finch v. State, 510 N.E.2d 673, 676 (Ind. 1987) (The sentencing judge need
not articulate his reasons for not aggravating or mitigating the sentence when giving
a presumptive sentence.). Thus, if the trial court does not find any
aggravators or mitigators and imposes the presumptive sentence, then the trial court does
not need to set forth its reasons for imposing the presumptive sentence.
However, if the trial court finds aggravators and mitigators, concludes that they balance,
and imposes the presumptive sentence, then, pursuant to Indiana Code § 35-38-1-3, the
court must provide a statement of its reasons for imposing the presumptive sentence.
Here, the trial court did not set forth its reasons for imposing the
presumptive sentence. Generally, we would presume that the trial court did not
find any aggravators or mitigators. However, the State conceded at sentencing that
two mitigators were presentGists offer to pay restitution to the victims and his
Tr. p. 62. In light of this concession, it is
unclear whether the trial court did not find any aggravators or mitigators or
whether the trial court found aggravators and mitigators but concluded that they balanced.
If the former, then no statement was required. But if the
latter, then the trial court was required to make a statement for selecting
the sentence imposed. We therefore remand this case to the trial court
for a more definite sentencing statement in light of the States concession.
II. Inappropriate Sentence
Gist next argues that his ten-year presumptive sentence is inappropriate. Indiana Appellate
Rule 7(B) provides that we may revise a sentence authorized by statute if,
after due consideration of the trial court's decision, [we find] that the sentence
is inappropriate in light of the nature of the offense and the character
of the offender. [W]e exercise with great restraint our responsibility to review
and revise sentences, recognizing the special expertise of the trial bench in making
sentencing decisions. Foster v. State, 795 N.E.2d 1078, 1092 (Ind. Ct. App.
2003), rehg denied, trans. pending.
Here, Gist pled guilty to conspiracy to commit robbery as a Class B
felony. A plea agreement is contractual in nature and binds the defendant,
the State, and the trial court. Hull v. State, 799 N.E.2d 1178,
1182 (Ind. Ct. App. 2003). The trial court is given the discretion
to accept or reject a plea agreement, and, if the trial court accepts
the agreement, it is strictly bound by its terms. Id.; see also
Ind. Code § 35-35-3-3(e).
The plea agreement in this case provided:
The State of Indiana agrees to limit any recommendation to the Court for
the executed portion of any sentence to a term not to exceed the
presumptive sentence for a Class B Felony (10 years) and the State of
Indiana further acknowledges that this representation is an inducement to the Defendant for
the entry of this plea.
Tr. p. 48. By entering into this agreement with the State, Gist
necessarily agreed that a ten-year sentence was appropriate. If Gist thought that
a ten-year sentence was inappropriate, then presumably he would have not entered into
the plea agreement in the first place and would have taken his chances
at trial without the benefit of a plea agreement. Where, as here,
a defendant is sentenced in accordance with a plea agreementan agreement he voluntarily
entered into, we cannot say that the sentence is inappropriate. This holding
is consistent with Mann v. State, where we said that a sentence that
fell within the sentencing range provided for in the plea agreement was not
manifestly unreasonable even though the defendant was sentenced at the upper end of
that range. 742 N.E.2d 1025, 1026 n.1 (Ind. Ct. App. 2001), trans.
denied. Gists sentence is not inappropriate.
Affirmed in part and remanded in part.
SHARPNACK, J., and MATHIAS, J., concur.
Gist also argues on appeal that the trial court failed to
find the following mitigators: (1) Gist did not have a significant criminal
history; (2) Gist is likely to respond to probation or short-term imprisonment; (3)
Gist is unlikely to commit another crime; and (4) Gist turned himself in
to the police and pled guilty.