Per Curiam Opinion
All Justices concur.
On February 21, 2014, Jacob O. Robinson fled from police on foot, attempted to enter a house without the owner’s permission, and broke the doorknob. The State charged Robinson … with Class D felony attempted residential entry, Class D felony possession of methamphetamine, Class D felony unlawful possession of a syringe, Class A misdemeanor possession of marijuana, Class A misdemeanor possession of paraphernalia, and Class A misdemeanor resisting law enforcement. The State also alleged Robinson is a habitual offender and a habitual substance offender.
In November 2014, while out on bond, Robinson fled from police while driving his car. The State charged Robinson … with Level 6 felony resisting law enforcement and alleged he is a habitual offender.
… Robinson pleaded guilty to Class D felony attempted residential entry. … He also admitted to being a habitual substance offender. … Robinson pleaded guilty to Level 6 felony resisting law enforcement. …
At the guilty plea hearing, the trial court scheduled a sentencing hearing for September 24, 2015, at 10:30 a.m., and instructed Robinson to make an appointment with the probation department for purposes of the presentence investigation report. … Robinson failed to attend two scheduled appointments.
Robinson also failed to appear at his sentencing hearing. … Counsel orally moved for a continuance of the sentencing hearing, informing the court he had received a text from Robinson that morning at 6:34 a.m. asking counsel to “get this case laid over” because Robinson had a real estate closing “coming up in the next few days” and “wish[ed] to get his ducks in line.” …
The trial court denied a continuance …
The court held the hearing in Robinson’s absence, and counsel presented argument in Robinson’s defense. The presentence investigation report filed with the court indicates Robinson has an extensive criminal history that includes multiple drug related convictions. The court sentenced Robinson to three years executed on the attempted residential entry conviction and two years executed on the resisting law enforcement conviction, with the sentences to be served consecutively. The court withheld sentencing on the habitual substance offender enhancement until Robinson appeared in court and issued a warrant for his arrest.
Robinson was arrested in January 2016. He appeared with counsel at the second sentencing hearing on March 3, 2016. The court imposed a three-year sentence on the habitual substance offender enhancement, with one and one-half years executed and one and one-half years suspended to probation.
Robinson appealed and raised two issues. First, whether the trial court abused its discretion in denying his motion to continue the sentencing hearing. Second, whether the maximum sentence on the attempted residential entry conviction was inappropriate under Appellate Rule 7(B). The Court of Appeals addressed neither issue and, instead, sua sponte reversed on other grounds. Robinson v. State, 84 N.E.3d 652 (Ind. Ct. App. 2017), vacated. [The Court of Appeals reversed and remanded, holding sua sponte the sentence is illegal because the law does not allow a habitual substance offender enhancement to attach to a non-substance offense.]
Rulings on non-statutory motions for continuance are within the trial court’s discretion and will be reversed only for an abuse of that discretion and resultant prejudice. Maxey v. State, 730 N.E.2d 158, 160 (Ind. 2000). …
We conclude the trial court did not abuse its discretion in denying Robinson’s request to continue the sentencing hearing. Robinson sought a last-minute continuance on grounds he had a real estate closing within the next few days and desired to “get his ducks in line.” He also failed to attend two appointments with the probation department.
The Indiana Constitution authorizes appellate review and revision of a trial court’s sentencing decision. Ind. Const. art. 7, §§ 4, 6; Serino v. State, 798 N.E.2d 852, 856 (Ind. 2003). … The principal role of such review is to attempt to leaven the outliers. Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). The burden is on the defendant to persuade the reviewing court that the sentence is inappropriate. Bowman v. State, 51 N.E.3d 1174, 1181 (Ind. 2016).
Under the statute then in effect, the sentence for a Class D felony was a fixed term between six months and three years, with an advisory term of one and one-half years. I.C § 35-50-2-7 (effective July 1, 2013 to June 30, 2014). The trial court sentenced Robinson to three years executed on the conviction for Class D felony attempted residential entry, finding Robinson’s criminal history outweighed any mitigating factors. (Tr. p. 35.)
Our judgment is that the sentence imposed by the trial court is not inappropriate under Appellate Rule 7(B) and does not warrant appellate revision.
Conclusion
We affirm the trial court.
All Justices concur.