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: ATTORNEYS FOR APPELLEE:

JEFFREY SCHLESINGER GREGORY F. ZOELLER

Crown Point, Indiana Attorney General of Indiana

MONIKA PREKOPA TALBOT

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

JAMES EUBANKS, JR., )

)

Appellant-Defendant, )

)

vs. ) No. 45A03-1105-CR-212

)

STATE OF INDIANA, )

)

Appellee-Plaintiff. )

APPEAL FROM THE LAKE SUPERIOR COURT

The Honorable Salvador Vasquez, Judge

Cause No. 45G01-1011-FB-108

January 31, 2012

MEMORANDUM DECISION - NOT FOR PUBLICATION

BARNES, Judge
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 Case Summary

James Eubanks, Jr., appeals his sentence for Class B felony burglary. We affirm.

Issues

Eubanks raises two issues, which we restate as:

I. whether the trial court abused its discretion in 

sentencing him; and

II. whether his sentence is inappropriate in light of the 

nature of the offense and the character of the offender.

Facts

On October 30, 2010, a fire damaged the residence of Andrea Fraze and her family 

in Hammond. The Fraze family had to move out for a few days, and the residence was 

boarded up. On the early morning of November 1, 2010, Fraze’s neighbor heard 

pounding coming from the boarded up house and called police. Officers found Eubanks 

in the residence and saw that copper pipes had been cut and were stacked near the back 

door. When he was arrested, Eubanks also had Fraze’s jewelry in his pocket. Eubanks 

told the officers, “I knew that the house had had a fire. I was just going in there to get the 

copper. I figured the insurance would cover it. I wasn’t trying to hurt nobody.” Tr. p. 

42.

The State charged Eubanks with Class B felony burglary, and a jury found him 

guilty as charged. At the sentencing hearing, the trial court found Eubanks’s criminal 

history to be an aggravator and found no mitigators. The trial court sentenced Eubanks to 

nine years in the Department of Correction with the last three years in community 

corrections. 
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Analysis

I. Abuse of Discretion

Eubanks argues that the trial court abused its discretion by failing to consider 

certain proposed mitigators. Sentencing decisions are 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. However, a trial court may be found to have abused its sentencing discretion 

in a number of ways, including: (1) failing to enter a sentencing statement at all; (2) 

entering a sentencing statement that explains reasons for imposing a sentence where the 

record does not support the reasons; (3) entering a sentencing statement that omits 

reasons that are clearly supported by the record and advanced for consideration; and (4) 

entering a sentencing statement in which the reasons given are improper as a matter of 

law. Id. at 490–91. The reasons or omission of reasons given for choosing a sentence are 

reviewable on appeal for an abuse of discretion. Id. The weight given to those reasons, 

i.e. to particular aggravators or mitigators, is not subject to appellate review. Id. 

According to Eubanks, the trial court failed to consider his homelessness and 

mental illnesses as mitigators. Our supreme court has identified four factors “that bear on 

the weight, if any, that should be given to mental illness in sentencing.” Weeks v. State, 

697 N.E.2d 28, 30 (Ind. 1998). Those factors are: (1) the extent of the defendant’s 

inability to control his or her behavior due to the disorder or impairment; (2) overall 

limitations on functioning; (3) the duration of the mental illness; and (4) the extent of any 

nexus between the disorder or impairment and the commission of the crime. Id. 
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Eubanks’s counsel argued at sentencing that Eubanks had schizophrenia, a bipolar 

disorder, and suicidal tendencies. Eubanks admitted that his family wanted him to seek 

treatment, but he refused. His counsel contended that Eubanks is more lucid when he is 

taking his medication. Eubanks presented no evidence as to the severity of his mental 

illnesses, his ability to control his behavior, limitations on his functioning, or the extent 

of a nexus between his mental illness and the commission of the crime.

Moreover, while the trial court did not identify Eubanks’s homelessness and 

mental illnesses as mitigators, it did mention both proposed mitigators in its sentencing 

statement. The trial court noted that Eubanks had not sought help for his mental health 

issues. Instead, Eubanks had been treating his mental illnesses with alcohol and drugs. 

The trial court noted that Eubanks had been “jumping from house to house or state to 

state . . . kind of roaming around and looking for [his] next meal.” Tr. p. 115. The trial 

court noted that the “system” could only help Eubanks so much and that he needed to 

seek treatment. Id. Thus, the trial court did, in fact, consider Eubanks’s proposed 

mitigators, but it rejected them. Given the lack of evidence regarding Eubanks’s mental 

illnesses and the trial court’s statements during sentencing, we cannot say that the trial 

court abused its discretion by failing to identify Eubanks’s homelessness or mental 

illnesses as mitigators.

II. Inappropriate Sentence

Eubanks argues that his sentence is inappropriate in light of the nature of the 

offenses and the character of the offender. Indiana Appellate Rule 7(B) provides that we 

may revise a sentence authorized by statute if, after due consideration of the trial court’s 
5

decision, we find that the sentence is inappropriate in light of the nature of the offense 

and the character of the offender. When considering whether a sentence is inappropriate,

we need not be “extremely” deferential to a trial court’s sentencing decision. Rutherford 

v. State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007). Still, we must give due consideration 

to that decision. Id. We also understand and recognize the unique perspective a trial 

court brings to its sentencing decisions. Id. Under this rule, the burden is on the 

defendant to persuade the appellate court that his or her sentence is inappropriate. 

Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).

The principal role of Rule 7(B) review “should be to attempt to leaven the outliers, 

and identify some guiding principles for trial courts and those charged with improvement 

of the sentencing statutes, but not to achieve a perceived ‘correct’ result in each case.” 

Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). We “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. When reviewing the 

appropriateness of a sentence under Rule 7(B), we may consider all aspects of the penal 

consequences imposed by the trial court in sentencing the defendant, including whether a 

portion of the sentence was suspended. Davidson v. State, 926 N.E.2d 1023, 1025 (Ind. 

2010).

The nature of the offense is that Eubanks broke into the Fraze family’s residence 

shortly after a fire occurred there. Eubanks attempted to take jewelry and copper pipes. 

Eubanks claims that the nature of the offense is less serious than a typical burglary 

because no one was occupying the house when he entered it.
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A review of the character of the offender reveals that Eubanks has a substantial 

criminal history of similar offenses. Twenty-six-year-old Eubanks has multiple 

misdemeanor convictions, including convictions for criminal trespass, conversion, 

criminal mischief, underage drinking, operating a vehicle while under the influence, and 

resisting law enforcement. He also has two felony convictions for theft and one for 

burglary. He was on probation at the time of this offense. Eubanks claims to have been 

diagnosed with schizophrenia and bipolar disorder, but he refused to take his medication 

and refused offers of help from his family. 

The sentence for a Class B felony ranges from six to twenty years with an 

advisory sentence of ten years. Ind. Code § 35-50-2-5. We note that, at the sentencing 

hearing, Eubanks asked for a sentence of between six and ten years with community 

transitions at the end of the sentence. Tr. p. 109. The State asked for a sentence of ten 

years. The trial court ordered that Eubanks serve nine years in the Department of 

Correction with the last three years in community corrections, which falls within the 

range of sentence that Eubanks requested. Despite Eubanks’s claimed mental illnesses, 

given his criminal history and his requested sentence, we conclude that the sentence 

imposed by the trial court is not inappropriate in light of the nature of the offense and the 

character of the offender. 

Conclusion

The trial court did not abuse its discretion in sentencing Eubanks, and the sentence 

is not inappropriate in light of the nature of the offense and the character of the offender. 

We affirm.
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Affirmed.

KIRSCH, J., and BRADFORD, J., concur.