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Brian A. Buchtel, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2024)

Court of Appeals of Indiana.2024-07-19No. Court of Appeals Case No. 24A-CR-600

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Opinion

MEMORANDUM DECISION

Brown, Judge.

[1] Brian A. Buchtel appeals his sentence for failing to register as a sex offender as a level 5 felony. We affirm.

Facts and Procedural History

[2] In July 2005, the court sentenced Buchtel under cause number 57C01-0503-FB-17 to ten years with four years suspended for child molesting as a class B felony, an offense requiring a lifetime registration on the Sex Offender Registry.

[3] On July 10, 2023, Buchtel completed an Indiana Sex or Violent Offender Change form in which he changed his address from a residential address to “Homeless.” Exhibits Volume III at 38. The form stated in part: “If you ․ are homeless you must register IN-PERSON to the Sheriffs Office at least once every 7 days until you find a permanent residence. (See IC 11-8-8-12(c)).” Id. at 40. On July 17 and 24, 2023, Buchtel registered.

[4] On July 31 and August 7, 14, and 21, 2023, Buchtel failed to register. Noble County Sheriffs Sergeant Whitney Dangello, the Offender Registry Notifications Administrator who was overseeing Buchtels registration, filed a probable cause affidavit regarding Buchtels failure to register. On August 22, 2023, Buchtel called Sergeant Dangello and advised her that he had to make a change to the registry.

[5] On August 23, 2023, the State charged Buchtel with failing to register as a sex offender as a level 5 felony. On August 24, 2023, Buchtel reported in person and advised Sergeant Dangello that he was “having a hard time due to his lack of ․ housing and that he just wasnt able to make it in,” he did not have “a ride to come in to register,” and he “had just started living with a friend within the last few days.” Transcript Volume II at 32.

[6] In January 2024, the court held a bench trial. The State presented the testimony of Sergeant Dangello. After the State rested, Buchtel stated: “Uh, before uh, I registered for homeless I was living with my parents and I had an incident where I got escorted off my parents property is when I became homeless.” Id. at 36. He indicated that he lived in Noble County and never left Kendallville during the entire time of July and August 2023. He also indicated he was a type 1 diabetic. On cross-examination, he indicated that he would walk “all the way here from Kendallville,” but he had “neurotherapy [sic] in [his] feet sometimes it gets bad.” Id. at 45. He also detailed the assistance he had received with respect to transportation. The court found Buchtel guilty as charged.

[7] At the sentencing hearing, Buchtels counsel asserted that Buchtel did not want probation, and Buchtel stated that he had “nowhere to go for probation or anywhere.” Id. at 53. Defense counsel argued that Buchtel had been homeless for quite some time and asked for time served. Buchtel stated: “I dont I had a job lined up and a place to live before I got arrested and it just kind of took the wrong turn from being homeless.” Id. The court stated that it could not find any mitigating factors. With respect to aggravating factors, the court stated:

[A]ggravating factors are the criminal convictions that are in the pre-sentence investigation report and also that this is your fourth conviction for this same offense and in addition failure to possess ID as a sex offender on top of that and the fact that you failed to cooperate with probation department in preparing this report and that youve been placed on probation at least three (3) times and each time have violated and ended up doing the executed sentence ․

Id. at 55. The court sentenced Buchtel to five years.

Discussion

[8] Buchtel argues the trial court should have considered his homelessness as a mitigating circumstance. He asserts that, while not a defense to failing to register, his homelessness made fulfilling his obligation significantly more arduous.

[9] We review the sentence for an abuse of discretion. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on rehg, 875 N.E.2d 218. An abuse of discretion occurs if the decision is “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.” Id. 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 490-491. 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. The relative weight or value assignable to reasons properly found, or those which should have been found, is not subject to review for abuse of discretion. Id. Generally, a single aggravator is sufficient to support an enhanced sentence. See Trusley v. State, 829 N.E.2d 923, 927 (Ind. 2005).

[10] The determination of mitigating circumstances is within the discretion of the trial court. Rogers v. State, 878 N.E.2d 269, 272 (Ind. Ct. App. 2007), trans. denied. The court is not obligated to accept the defendants argument as to what constitutes a mitigating factor, and the court is not required to give the same weight to proffered mitigating factors as does a defendant. Id. 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. If the court does not find the existence of a mitigating factor after it has been argued by counsel, it is not obligated to explain why it has found that the factor does not exist. Id.

[11] The record reveals that Buchtel testified that he walked the “majority of the time” from Kendallville to the Noble County Sheriffs Department to register. Transcript Volume II at 36. Buchtel also received some assistance with transportation despite his homelessness. He indicated that he had one ride to the Sheriffs Department from the Noble Transportation Service, someone from the church picked him up and drove him back to Kendallville “a couple other times,” and a pastor “picked [him] up and helped him get ahold of the Inspirational Ministries.” Transcript Volume II at 36, 39. We cannot say that the trial court abused its discretion, and we can say with confidence that the court would have imposed the same sentence given the aggravators it found including Buchtels criminal history.

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[12] For the foregoing reasons, we affirm Buchtels sentence.

[13] Affirmed.

FOOTNOTES

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.   The presentence investigation report indicates that Buchtel has multiple convictions for: theft as a class D felony and possession of marijuana as a class A misdemeanor in 2003; child molesting as a class B felony and child molesting as a class C felony in 2005; three counts of driving while suspended as class A misdemeanors and possession of marijuana as a class A misdemeanor in 2012; two counts of failure to register as a sex offender in 2013; failure to register as a violent sex offender as a level 6 felony and failure to register as a sex or violent offender as a level 5 felony in 2016; failure to register as a sex or violent offender as a level 5 felony in 2018; and “failure of violent sex offender to possess ID the sex offender is a sexually violent” offender as a level 6 felony in 2020. Appellants Appendix Volume II at 52 (capitalization omitted). It also indicates that Buchtel violated the terms of his probation multiple times.

Memorandum Decision by Judge Brown

Judges May and Pyle concur.

May, J., and Pyle, J., concur.