I N T H E

Indiana Supreme Court

Supreme Court Case No. 18S-CR-33

Jacob O. Robinson,

Appellant (Defendant),

–v–

State of Indiana,

Appellee (Plaintiff).

Argued: February 15, 2018 | Decided: February 23, 2018

Appeal from the Floyd Circuit Court, No. 22C01-1402-FD-377

The Honorable J. Terrence Cody

On Petition to Transfer from the Indiana Court of Appeals,

No. 22A01-1604-CR-856

Per Curiam Opinion

All Justices concur.
Indiana Supreme Court | Case No. 18S-CR-33 | February 23, 2018 Page 2 of 6

Per Curiam.

Facts and Procedural History

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 under Case No. 22C01-1402-FD377 (“Case 377”) 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 under Case No. 22C01-1411-

F6-1932 (“Case 1932”) with Level 6 felony resisting law enforcement and 

alleged he is a habitual offender.

In Case No. 377, Robinson pleaded guilty to Class D felony attempted 

residential entry. See Ind. Code §§ 35-43-2-1.5 (effective 1991 to June 30, 

2014), 35-41-5-1 (effective 1977 to June 30, 2014). He also admitted to being 

a habitual substance offender. In Case No. 1932, Robinson pleaded guilty 

to Level 6 felony resisting law enforcement. In exchange, the State 

dismissed all other charges in Case No. 377 and, in both cases, dropped 

the allegation that Robinson is a habitual offender. 

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. (Tr. pp. 20-21.) Robinson failed to attend 

two scheduled appointments. 

Robinson also failed to appear at his sentencing hearing. His attorney 

appeared late due to a trial in another county. 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 
Indiana Supreme Court | Case No. 18S-CR-33 | February 23, 2018 Page 3 of 6

“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.”

(Tr. p. 25.) Counsel had tried to call Robinson, but Robinson’s phone did 

not accept calls, only texts, and counsel was unable to send a text due to 

problems with his service provider.

The trial court denied a continuance, indicating 

Mr. Robinson was in Court on the day that this hearing was 

scheduled and he blew off two appointments with . . . the 

probation officer [ ] in preparation of the Report and that leads 

me to the conclusion that Mr. Robinson isn’t taking this matter 

seriously so that’s why I’m denying the continuance[.] 

(Tr. p. 27.)

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
Indiana Supreme Court | Case No. 18S-CR-33 | February 23, 2018 Page 4 of 6

reversed on other grounds. Robinson v. State, 84 N.E.3d 652 (Ind. Ct. App. 

2017), vacated. 

Having granted transfer, we address the issues Robinson raised on 

appeal.

1

 

Discussion and Decision

I. The Trial Court Did Not Abuse Its Discretion in Denying 

a Continuance.

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). An 

abuse occurs only where the trial court’s decision is clearly against the 

logic and effect of the facts and circumstances. Palmer v. State, 704 N.E.2d 

124, 127 (Ind. 1999). “There is a strong presumption that the trial court 

properly exercised its discretion.” Warner v. State, 773 N.E.2d 239, 247 (Ind. 

2002).

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. 

II. The Trial Court’s Sentence for Attempted Residential 

Entry Is Not Inappropriate.

The Indiana Constitution authorizes appellate review and revision of a 

trial court’s sentencing decision. Ind. Const. art. 7, §§ 4, 6; Serino v. State, 

 

1 The State raised a single issue on cross-appeal, whether Robinson timely filed his Notice of 

Appeal. We find it unnecessary to address this issue. 
Indiana Supreme Court | Case No. 18S-CR-33 | February 23, 2018 Page 5 of 6

798 N.E.2d 852, 856 (Ind. 2003). This authority is implemented through 

Indiana Appellate Rule 7(B), which permits an appellate court to revise a 

sentence if, after due consideration of the trial court’s decision, the 

sentence is found to be inappropriate in light of the nature of the offense 

and the character of the offender. Serino, 798 N.E.2d at 856. 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. 

ATTORNEY FOR APPELLANT

R. Patrick Magrath

Alcorn Sage Schwartz & Magrath, LLP

Madison, Indiana
Indiana Supreme Court | Case No. 18S-CR-33 | February 23, 2018 Page 6 of 6

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Tyler G. Banks

Deputy Attorney General

Indianapolis, Indiana