Court of Appeals of Indiana | Memorandum Decision 48A02-1510-CR-1596 | June 14, 2016 Page 1 of 13

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

Dorothy Ferguson

Anderson, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Ian McLean

Deputy Attorney General 

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Dustin Arbuckle,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

June 14, 2016

Court of Appeals Case No.

48A02-1510-CR-1596

Appeal from the Madison Circuit 

Court

The Honorable David A. Happe, 

Judge

Trial Court Cause No.

48C04-1503-F3-305, 48C04-1507-

F6-1109, and 48C04-1508-F4-1263

Altice, Judge.

Case Summary
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[1] Dustin Arbuckle pled guilty to multiple offenses under three separate cause 

numbers and received an aggregate sentence of fifty years executed in the 

Department of Correction followed by three years suspended to probation. 

Arbuckle now appeals, arguing that the trial court abused its discretion in 

sentencing him and that the sentence imposed is inappropriate. 

[2] We affirm.

Facts & Procedural History

[3] In the early morning hours of February 26, 2015, Jeffrey Monday was asleep in 

his home in Elwood, Indiana when he awoke to find Arbuckle standing over 

him, yelling at him to get on the floor or he would be killed. When Monday 

looked up at Arbuckle, Arbuckle struck him in the face with what appeared to 

be a pistol. Both Monday and Arbuckle fell to the floor and struggled as 

Arbuckle attempted to take Monday’s wallet. Monday was able to get away 

from Arbuckle and grab an aluminum baseball bat. Arbuckle rushed at 

Monday and a struggle over the bat ensued. Monday managed to escape and 

run to a neighbor’s house for help. As he fled, Monday saw Arbuckle leave the 

house with the aluminum bat. When police arrived, they were able to follow 

footprints in the snow leading from Monday’s house to another residence. 

When police obtained a search warrant and knocked on the door, Arbuckle 

answered the door. Upon searching the house, police found a toy gun in 

Arbuckle’s bedroom, shoes matching the footprints between the two residences, 

Monday’s aluminum baseball bat, and a pair of Monday’s sunglasses. As a 
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result of these events, Arbuckle was arrested and charged under cause number 

38C04-1503-F3-305 (F3-305) with Level 3 felony burglary, Level 3 felony 

robbery, and Level 3 felony attempted robbery. Arbuckle was released on bail

on May 9, 2015.

[4] On July 17, 2015, a patrolling police officer observed a vehicle leave the 

roadway and drive left of center. The officer conducted a traffic stop and the 

driver, Arbuckle, provided an Indiana identification card and told the officer 

that he had been texting and did not have a valid driver’s license. A records 

check revealed that Arbuckle’s license had been suspended after he was 

determined to be a habitual traffic violator (HTV) in August 2012. 

Additionally, upon searching the vehicle, the officer located a marijuana 

cigarette. As a result, Arbuckle was charged under cause number 48C04-1507-

F6-1109 (F6-1109) with operating a vehicle after being determined to be a HTV, 

a Level 6 felony, and class B misdemeanor possession of marijuana. Arbuckle 

was released on bail on August 1, 2015.

[5] Just six days later, on August 7, 2015, Shawn Young woke up in his Elwood 

home to find Arbuckle going through a pair of his pants. When Young 

confronted him, Arbuckle fled through the front door of the home. About 

twelve hours later, James Jackson saw Arbuckle approach his Elwood home. 

Jackson was best friends with Arbuckle’s brother and had known Arbuckle for 

approximately thirty years. Jackson watched as Arbuckle walked onto his 

porch, removed his shoes and socks, placed his socks on his hands, and put his 

shoes back on. Arbuckle then called Jackson’s phone, and when Jackson did 
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not answer, knocked on the front door. When Jackson did not come to the 

door, Arbuckle tried to push the front door open. When that did not work, 

Arbuckle went to a bedroom window and tried to push it open. Arbuckle then 

removed a window air conditioning unit, and Jackson confronted him and 

asked what he was doing. Arbuckle asked Jackson for money and then left. 

About an hour later, Arbuckle arrived at Michael McGuire’s home in Elwood. 

A neighbor watched as Arbuckle peered over McGuire’s privacy fence before 

climbing it. Arbuckle opened McGuire’s garage door and entered the garage. 

At that time, the neighbor confronted Arbuckle. Arbuckle said that the 

homeowner was his friend and then fled down the street to a waiting vehicle. 

Police later found Arbuckle hiding in the bushes in the back yard of another 

residence. As a result of the events of August 7, 2015, Arbuckle was arrested 

and charged under cause number 48C04-1508-F4-1263 (F4-1263) with burglary 

and attempted burglary, both as Level 4 felonies; burglary as a Level 5 felony, 

three counts of theft as Level 6 felonies; three counts of attempted theft as class 

A misdemeanors; and criminal mischief, a class B misdemeanor.

[6] On August 27, 2015, Arbuckle pled guilty to the charges filed under F3-305, F6-

1109, and F4-1263 without the benefit of a plea agreement. With regard to the 

offenses charged under F3-305, the trial court found that the theft charges 

merged into the remaining convictions and imposed fourteen-year executed 

sentences on each of the three Level 3 felony charges. The sentences for 

robbery and attempted robbery were to be served concurrently, but consecutive 
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to the sentence for burglary. Thus, Arbuckle received an aggregate twentyeight-year sentence for the offenses charged under F3-305.

[7] In F4-1263, the trial court imposed consecutive sentences of nine years each on 

the Level 4 felony burglary and attempted burglary convictions and four years 

for the Level 5 burglary conviction. The trial court found that the attempted 

theft and theft convictions merged into the burglary convictions and assessed 

only a fine and costs on the misdemeanor criminal mischief count. Thus, 

Arbuckle received an aggregate twenty-two-year sentence for the offenses 

charged under F4-1263.

[8] With regard to the offenses charged under F6-1109, the trial court imposed a 

sentence of two and a half years for the HTV offense and six months for 

possession of marijuana, to be served consecutively. The entirety of the 

aggregate three-year sentence under F6-1109 was suspended to probation.

[9] As required by statute, the sentences imposed under each cause number were 

ordered to be served consecutive to one another. Thus, for all three cause 

numbers, Arbuckle received an aggregate sentence of fifty years executed and 

three years suspended to probation. Arbuckle now appeals.

Discussion & Decision

[10] Before addressing the merits of Arbuckle’s appeal, we note that his argument

conflates two separate sentencing standards: whether the trial court abused its 

discretion in identifying mitigating and aggravating factors and whether 
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Arbuckle’s sentence is inappropriate pursuant to Indiana Appellate Rule 7. “As 

our Supreme Court has made clear, inappropriate sentence and abuse of 

discretion claims are to be analyzed separately.” King v. State, 894 N.E.2d 265, 

267 (Ind. Ct. App. 2008). Accordingly, “an inappropriate sentence analysis 

does not involve an argument that the trial court abused its discretion in 

sentencing the defendant.” Id. 

[11] With respect to Arbuckle’s argument concerning the trial court’s consideration 

of aggravating and mitigating factors, we note that sentencing decisions rest 

within the sound discretion of the trial court. Anglemyer v. State, 868 N.E.2d 

482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218. So long as the sentence 

is within the statutory range, it is subject to review only for an abuse of 

discretion. Id. “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. at 490

(quoting K.S. v. State, 849 N.E.2d 538, 544 (Ind. 2006)). 

[12] A trial court may abuse its sentencing 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. Id. at 490-

91. If the trial court abuses its discretion in one of these or another way, 

remand for resentencing is the appropriate remedy “if we cannot say with 
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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.

[13] On appeal, Arbuckle notes that the trial court found aggravating and mitigating 

circumstances, but argues that the court failed to explain “why the aggravators 

outweigh the mitigators or the rationale for an aggravated sentence above the 

advisory sentence.” Appellant’s Brief at 11. The basis of this argument is 

unclear. To the extent that Arbuckle argues that the trial court did not properly 

weigh the aggravating and mitigating factors, we note that trial courts are no 

longer obligated to weigh such factors against each other when imposing a 

sentence. Anglemyer, 868 N.E.2d at 491. Thus, a trial court cannot be said to 

have abused its discretion in failing to properly weigh such factors. Id.

[14] To the extent that Arbuckle claims the trial court failed to enter a sufficiently 

detailed sentencing statement, we note that when imposing a sentence for a 

felony offense, a trial court must enter a sentencing statement that “include[s] a 

reasonably detailed recitation of the trial court’s reasons for imposing a 

particular sentence.” Id. at 490. In this case, the trial court carefully explained 

its reasoning when imposing Arbuckle’s sentence. As aggravating 

circumstances, the trial court noted Arbuckle’s extensive criminal history, 

which will be detailed further below, as well as the fact that Arbuckle 

committed multiple crimes against multiple victims. As mitigating 

circumstances, the trial court noted that Arbuckle accepted responsibility by 

pleading guilty and expressed remorse. The court went on to find that “the 

aggravation strongly outweighs the mitigation here, and it does call for an 
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aggravated sentence.” Transcript at 54. This is a sufficiently detailed sentencing 

statement.

[15] Arbuckle also argues that the trial court abused its discretion by overlooking 

significant mitigating circumstances. An allegation that the trial court failed to 

identify 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 sentencing court is not obligated to find a 

circumstance to be mitigating merely because it is advanced as such by the 

defendant, nor is it required to explain why it chose not to make a finding of 

mitigation. Felder v. State, 870 N.E.2d 554, 558 (Ind. Ct. App. 2007). A trial 

court does not abuse its discretion in failing to find a mitigating factor that is 

highly disputable in nature, weight, or significance. Rogers v. State, 878 N.E.2d 

269, 272 (Ind. Ct. App. 2007), trans. denied. 

[16] Arbuckle appears to argue that the trial court abused its discretion by failing to 

recognize his history of substance abuse as a mitigating factor. A trial court is 

not required to consider a defendant’s substance abuse as a mitigating 

circumstance. James v. State, 643 N.E.2d 321, 323 (Ind. 1994). In fact,

substance abuse may be considered an aggravating circumstance where the 

defendant is aware of his addiction and does not seek treatment. See Caraway v. 

State, 959 N.E.2d 847, 852 (Ind. Ct. App. 2011), trans. denied. Arbuckle 

admitted to abusing drugs and alcohol beginning at twelve years old. However, 

Arbuckle reported that the only treatment he ever received was substance abuse 

classes while incarcerated and a short inpatient stay following a heroin 
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overdose. In light of Arbuckle’s continued drug use and failure to seek out help 

to battle his addiction, the trial court did not abuse its discretion in declining to 

find his substance abuse problem to be a mitigating circumstance. 

[17] Arbuckle also seems to suggest that the trial court should have identified the 

presence of a number of his family members at the sentencing hearing, as 

compared to the absence of any of his victims, as a mitigating factor. Arbuckle 

has made no attempt to explain why these facts should be considered 

mitigating, and he has not directed our attention to any authority remotely 

supporting such a conclusion. The trial court did not abuse its discretion in 

declining to recognize these circumstances as a mitigating factor.

[18] Finally, Arbuckle claims that the trial court abused its discretion by failing to 

identify his employment history as a significant mitigating factor. We note, 

however, that the pre-sentence investigation report establishes that Arbuckle’s 

employment was sporadic and short-lived due to his many incarcerations. The 

trial court did not abuse its discretion in declining to find Arbuckle’s 

employment history to be a significant mitigating factor. For all of these 

reasons, we cannot conclude that the trial court abused its discretion in 

imposing Arbuckle’s sentence. 

[19] Turning now to Arbuckle’s challenge to the appropriateness of his sentence, we 

note that although a trial court may have acted within its lawful discretion in 

imposing a sentence, Article 7, Sections 4 and 6 of the Indiana Constitution 

authorize independent appellate review and revision of a sentence imposed by 
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the trial court. Alvies v. State, 905 N.E.2d 57, 64 (Ind. Ct. App. 2009) (citing 

Anglemyer, 868 N.E.2d at 491). This appellate authority is implemented 

through Indiana Appellate Rule 7(B), which provides that a court “may revise a 

sentence authorized by statute if, after due consideration of the trial court’s 

decision, the Court finds that the sentence is inappropriate in light of the nature 

of the offense and the character of the offender.” Anglemyer, 868 N.E.2d at 491. 

Nevertheless, “we must and should exercise deference to a trial court’s 

sentencing decision, both because Rule 7(B) requires us to give ‘due 

consideration’ to that decision and because we understand and recognize the 

unique perspective a trial court brings to its sentencing decisions.” Stewart v. 

State, 866 N.E.2d 858, 866 (Ind. Ct. App. 2007). The appellant bears the 

burden of persuading us that his sentence is inappropriate. Childress v. State, 848 

N.E.2d 1073, 1080 (Ind. 2006). 

[20] Whether we regard a sentence as appropriate “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). Additionally, our review “should 

focus on the forest—the aggregate sentence—rather than the trees—consecutive 

or concurrent, number of counts, or length of the sentence on any individual 

count.” Id. at 1225. 
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[21] Arbuckle was convicted of three Level 3 felonies,1two Level 4 felonies,2 a Level 

5 felony,3 a Level 6 felony,4 and two class B misdemeanors.5 At the sentencing 

hearing, Arbuckle and the State agreed that the maximum aggregate sentence 

the trial court could have imposed for all three cause numbers was sixty-five 

and a half years. Thus, Arbuckle’s sentence of fifty years executed followed by 

three years suspended to probation was well below the maximum he could have 

received.

[22] On appeal, Arbuckle devotes very little effort to discussing the nature of the 

offenses, merely stating that “the only stolen item was an aluminum baseball 

bat, and the only injury was a minor injury to one victims [sic] face.” 

Appellant’s Brief at 12. Arbuckle has grossly understated the seriousness of his 

offenses. Arbuckle broke into Monday’s home and threatened his life before 

striking him in the face. Arbuckle then wrestled with Monday in an attempt to 

take his wallet and then a baseball bat. Shortly after being released on bail for 

these offenses, Arbuckle was caught driving after being adjudicated an HTV 

 

1

Ind. Code § 35-50-2-5 provides that “[a] person who commits a Level 3 felony . . . shall be imprisoned for a 

fixed term of between three (3) and sixteen (16) years, with the advisory sentence being nine (9) years.”

2

I.C. § 35-50-2-5.5 provides that “[a] person who commits a Level 4 felony shall be imprisoned for a fixed 

term of between two (2) and twelve (12) years, with the advisory sentence being six (6) years.”

3

I.C. § 35-50-2-6 provides that “[a] person who commits a Level 5 felony . . . shall be imprisoned for a fixed 

term of between one (1) and six (6) years, with the advisory sentence being three (3) years.”

4

I.C. § 35-50-2-7 provides that “[a] person who commits a Level 6 felony . . . shall be imprisoned for a fixed 

term of between six (6) months and two and one-half (2 1⁄2 ) years, with the advisory sentence being one (1) 

year.”

5

I.C. § 35-50-3-3 provides that “[a] person who commits a Class B misdemeanor shall be imprisoned for a 

fixed term of not more than one hundred eighty (180) days[.]”
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and found to be in possession of marijuana. Just days after being released on 

bail yet again, Arbuckle went on a crime spree during which be burglarized or 

attempted to burglarize three residences. Although it appears that the only 

items Arbuckle actually managed to steal in the course of committing the 

offenses at issue were Monday’s aluminum baseball bat and a pair of 

sunglasses, it was not for lack of trying. The fact that Arbuckle’s multiple 

attempts to steal items were ultimately unsuccessful does nothing to mitigate 

the seriousness of these offenses. 

[23] Nor does Arbuckle’s character support a revision of his sentence. His criminal 

history standing alone would be sufficient to justify the sentence imposed. 

Arbuckle has eight prior felony convictions for offenses including theft, 

burglary, obstruction of justice, possession of a controlled substance, and 

operating a vehicle while intoxicated, and according to his own testimony, he 

has committed numerous burglaries, thefts, and OWI offenses for which he was 

never caught. He has also violated his probation numerous times, and he was 

out on bail for the offenses in F3-305 when he committed the offenses in F6-

1109, and he was released on bond in F6-1109 a mere six days before 

committing the offenses in F4-1263. Defense counsel noted that Arbuckle, who 

was thirty-four years old at the time of sentencing, had already spent eleven 

years of his adult life behind bars. Despite his numerous contacts with the 

criminal justice system and the leniency afforded him in the past, Arbuckle has 

continued to abuse drugs and engage in a pattern of criminal activity that has 
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escalated in seriousness over time. For all of these reasons, we cannot conclude

that Arbuckle’s sentence is inappropriate.

[24] We affirm. 

[25] Bailey, J. and Bradford, J., concur.