Brandon M. White, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

[1] Brandon M. White appeals his two-year sentence for Level 6 felony theft.¹ White argues the trial court abused its discretion when it failed to recognize his post-traumatic stress disorder (“PTSD”) as a mitigating factor, and he asks us to hold his two-year sentence is inappropriate for his offense and character. We affirm.

Facts and Procedural History

[2] On September 23, 2023, White stole over $750 in cosmetics from an Ulta Beauty store in Hamilton County. The State charged White with Level 6 felony theft and sought a habitual offender sentence enhancement.² White agreed to plead guilty pursuant to an agreement under which the State would dismiss the habitual offender enhancement, White would serve any sentence imposed consecutive to his sentences in two other cause numbers,³ and the trial court would have discretion regarding all other sentencing terms. The trial court accepted White's plea and ordered preparation of a presentence investigation report.

[3] The trial court held the sentencing hearing on April 24, 2025. White testified that he is fully disabled and receives disability payments as his primary source of income. He explained he lives with his girlfriend and five children, with a sixth child on the way, and he serves as the children's primary caregiver while his girlfriend works full time. White acknowledged he has a significant criminal history but attributed the current theft to his decision to associate with negative influences. He requested probation or home detention so he could continue caring for his children and operating his small vending machine business.

[4] The trial court identified aggravating circumstances in White's 38 arrests and 22 convictions over the course of his adult life and in his repeated violations of parole, probation, community corrections, and pretrial release. The trial court recognized one mitigating circumstance: the hardship White's incarceration would impose on his family. The trial court sentenced White to 730 days in the Indiana Department of Correction, which would run consecutive to his other sentences, and awarded him credit for four days previously served.

Discussion and Decision

1. Abuse of Discretion

[5] White first asserts the trial court abused its discretion when it failed to identify his PTSD as a mitigator. We apply an abuse of discretion standard when reviewing sentencing decisions. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh'g, 875 N.E.2d 218 (Ind. 2007). A trial court abuses its discretion when its 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” from those facts and circumstances. Id. (quoting K.S. v. State, 849 N.E.2d 538, 544 (Ind. 2006)). A trial court abuses its discretion at sentencing by entering no sentencing statement at all, entering a statement that includes reasons not supported by the record, entering a statement that “omits reasons that are clearly supported by the record and advanced for consideration,” or basing a sentence on considerations that are “improper as a matter of law.” Id. at 490-91.

[6] White specifically identifies his self-reported PTSD as the mitigator the trial court failed to find. However, at the sentencing hearing, neither White nor his counsel raised PTSD as a possible mitigating factor. When a defendant fails to raise an alleged mitigator at sentencing, the trial court cannot be said to have abused its discretion by failing to consider that factor. Id. at 492. Nor can a defendant raise mitigators for the first time on appeal. Creekmore v State, 853 N.E.2d 523, 530 (Ind. Ct. App. 2006), reh'g denied with opinion, 858 N.E.2d 230 (Ind. Ct. App. 2006) (addressing question of fees). White waived this possible mitigator by failing to present it to the trial court.

[7] Waiver notwithstanding, White has not demonstrated the trial court overlooked a significant mitigating circumstance clearly supported by the record. The only evidence that White had PTSD was his own self-report during the presentence investigation interview. Without actual confirmation from medical records, the trial court was not required to believe White's self-report. See Thompson v. State, 804 N.E.2d 1146, 1149 (Ind. 2004) (“As a general rule, factfinders are not required to believe a witness's testimony even when it is uncontradicted.”). Moreover, the extent to which a mental health condition is relevant at sentencing depends on the extent to which the condition impaired the defendant's ability to control his behavior, the overall limitation on functioning caused by the condition, the duration of the condition, and the connection between the condition and the criminal behavior. Lewis v. State, 116 N.E.3d 1144, 1155 (Ind Ct. App. 2018), trans. denied. White presented no evidence that his PTSD influenced him in any way during the commission of this offense. To the contrary, he testified that he returned to criminal activity because he started associating with the wrong people. Without any evidence demonstrating White's alleged PTSD impaired his ability to control his behavior or somehow related to the theft, the evidence before the trial court did not demonstrate a significant mitigating circumstance.

2. Inappropriateness

[8] White alternatively requests revision of his sentence under Appellate Rule 7(B). We may revise a sentence when we find, “after due consideration of the trial court's decision ․ that the sentence is inappropriate in light of the nature of the offense and the character of the offender.” Ind. App. R. 7(B). Because sentencing is a function of the trial court, its judgment “should receive ‘considerable deference.’ ” Oberhansley v. State, 208 N.E.3d 1261, 1267 (Ind. 2023) (quoting Cardwell v. State, 895 N.E.3d 1219, 1222 (Ind. 2008)). This deference can only be “ ‘overcome by compelling evidence portraying in a positive light the nature of the offense’ and ‘the defendant's character.’ ” Lane v. State, 232 N.E.3d 119, 122 (Ind. 2024) (quoting Oberhansley, 208 N.E.3d at 1267). Appellate review of a sentence is “to leaven outliers, ․ but not to achieve the perceived ‘correct’ result in each case.” Nicholson v. State, 221 N.E.3d 680, 684 (Ind. Ct. App. 2023) (quoting Cardwell, 895 N.E.2d at 1225), trans. denied. The burden of proving a sentence is inappropriate falls to the defendant. Littlefield v. State, 215 N.E.3d 1081, 1089 (Ind. Ct. App. 2023), trans. denied.

[9] Our review is “holistic” and takes into consideration “the whole picture before us.” Lane, 232 N.E.3d at 127. Appellants need not prove their sentence is inappropriate for both their character and offense, but “to the extent the evidence on one prong militates against relief, a claim based on the other prong must be all the stronger to justify relief.” Id. Our determination “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 given case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008).

[O]ur goal is to determine whether the appellant's sentence is inappropriate, not whether some other sentence would be more appropriate. We consider not only the aggravators and mitigators found by the trial court, but also any other factors appearing in the record.

George v. State, 141 N.E.3d 68, 73-74 (Ind. Ct. App. 2020) (internal citations omitted), trans. denied.

[10] The statutory range for a Level 6 felony is six months to two and one-half years. Ind. Code § 35-50-2-7. The trial court sentenced White to two years, which falls below the maximum penalty. With regard to the nature of the offense, White participated in a theft of more than $750 in cosmetics from a retail store. White does not address the specific details or circumstances surrounding his offense but instead argues that his sentence is excessive because other Level 6 felonies are more serious and involve violence. However, the fact that some other Level 6 felonies contain elements of violence does not establish that White's sentence is inappropriate. Nor does the absence of violence make a sentence inappropriate for a crime when violence is not an element of the offense. See Morris v State, 114 N.E.3d 531, 539 (Ind. Ct. App. 2018) (“absence of physical harm is not an automatic mitigating circumstance such that it would require a lesser sentence than would otherwise be imposed”) (quoting Neale v. State, 826 N.E.2d 635, 638 (Ind. 2005)), trans. denied. We cannot say White's two-year sentence is inappropriate for his offense.

[11] Nor can we say his sentence is inappropriate for his character. White's criminal history spans more than two decades and includes 38 arrests and 22 convictions. His offenses include repeating occurrences of theft, robbery, resisting law enforcement, criminal trespass, possession of controlled substances, driving while suspended or without a license, and battery. He has repeatedly violated the conditions of probation and community corrections placements, which demonstrates White has failed to take advantage of opportunities the courts have given him to avoid incarceration. Moreover, while released on bond for this case, the State charged White with crimes under two more cause numbers, and he was convicted in one of those cases. Such an extensive criminal record alone would justify imposition of the maximum sentence for his offense. See Hill v. State, 157 N.E.3d 1225, 1231 (Ind. Ct. App. 2020) (Hill had thirteen felony and over twenty misdemeanor convictions).

[12] White contends the trial court did not fully appreciate the impact his incarceration would have on his five children. However, the trial court expressly considered this factor and identified it as the one mitigating circumstance in the case. The trial court also observed that White's criminal history both predates and postdates the births of his children, meaning his children are already being impacted by White's criminality. Any hardship White's children experience as a result of his incarceration stems from White's own refusal to abandon criminal activity despite his parental responsibilities and repeated opportunities to reform his behavior following prior lenient criminal sanctions. White's unwillingness to stop breaking the law reflects negatively on his character, and White has not convinced us that his sentence is inappropriate therefor.

Conclusion

[13] White has not demonstrated the trial court abused its discretion by overlooking his alleged PTSD as a mitigating factor. Nor has he demonstrated his two-year sentence is inappropriate in light of his offense and character. We accordingly affirm.

[14] Affirmed.

FOOTNOTES

1.   Ind. Code §§ 35-43-4-2(a) & 35-43-4-2(a)(1)(A).

2.   Ind. Code § 35-50-2-8.

3.   Those cause numbers included “49D19-2405-F6-014591” and “41C01-2311-F6-00826.” (App. Vol. 2 at 14.)

May, Judge.

Altice, C.J., and Foley, J., concur.