Court of Appeals of Indiana | Memorandum Decision 18A-CR-1854 | March 29, 2019 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

J. Clayton Miller

Jordan Law, LLC

Richmond, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Caroline G. Templeton

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Aaron Boggs,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

March 29, 2019

Court of Appeals Case No.

18A-CR-1854

Appeal from the Wayne Superior 

Court

The Honorable Gregory A. Horn, 

Judge

Trial Court Cause No.

89D02-0204-FA-6

Barteau, Senior Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1854 | March 29, 2019 Page 2 of 13

Statement of the Case

[1] Aaron Boggs appeals the seventy-year sentence the trial court imposed in 2003 

for his convictions of three counts of burglary, one as a Class A felony and two 

as Class B felonies; and one count of auto theft, a Class D felony. We affirm.

Issues

[2] Boggs raises two issues, which we restate as:

I. Whether the trial court improperly enhanced Boggs’ 

sentence based on factors not admitted or not found 

beyond a reasonable doubt, in violation of the holding in 

Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 

L. Ed. 2d 403 (2004).

II. Whether Boggs’ sentence is inappropriate in light of the 

nature of the offense and the character of the offender.

Facts and Procedural History

[3] In the very early morning hours of April 28, 2002, eighteen-year-old Boggs 

initiated a crime spree in Wayne County after consuming a fifth of alcohol,

several Xanax pills, and marijuana. Boggs first stole a vehicle from the home of 

Dr. Agrawal. Boggs crashed that vehicle soon after leaving the doctor’s home 

and sustained several facial lacerations. He fled on foot, but an eyewitness later 

identified him as the driver.

[4] Next, he broke into the home of Donald and Mary Cox. Mary awakened and, 

while walking through the house, saw that closet doors had been opened, lights 
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were on, and the burners on the stove were on. A bedroom door was closed. 

Mary woke Donald up and left the house with their three-year-old grandchild, 

who was spending the night with them.

[5] Seventy-year-old Donald opened the bedroom door and confronted Boggs, who 

Donald later described as having facial lacerations. Boggs produced a knife and 

stabbed Donald three times. One of the stab wounds was eight inches deep and 

caused a severe injury to Donald’s femoral nerve. He survived, but he was no 

longer able to drive or swim.

[6] Meanwhile, Boggs fled from the Coxes’ home, leaving a shoe there. He broke 

into the home of James Wolberg. No one was home. Boggs left his other shoe 

there, along with several items belonging to the Coxes. Boggs also broke into 

the home of John and Francis Markey, but no one was home.

[7] Later in the day on April 28, 2002, police officers found Boggs in Richmond, 

Indiana. He had in his possession shoes belonging to James Wolberg and 

jewelry belonging to Mary Cox.

[8] The State charged Boggs with attempted murder for his attack on Cox; Class A 

felony burglary in relation to the Cox residence; two counts of Class B felony 

burglary in relation to the Wolberg and Markey residences, respectively; and 

one count of auto theft, a Class D felony, in relation to Dr. Agrawal’s vehicle.

[9] The trial court set bond in the amount of $500,000. Boggs filed a motion for 

bond reduction, which the trial court denied after a hearing. Next, Boggs filed a 
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motion for psychiatric evaluation to determine his competence to stand trial. 

The trial court appointed mental health professionals to examine Boggs and 

scheduled an evidentiary hearing. At the hearing, Boggs withdrew his motion 

to determine competence and expressed an intent to plead guilty to some of the 

charges.

[10] Meanwhile, the State had filed a motion for emergency pre-trial transfer, asking 

the trial court to order Boggs to be sent to the Indiana Department of 

Correction (DOC) while the case was pending. The State claimed Boggs was 

violent and disruptive while in the Wayne County Jail. The court granted the 

State’s request, directing that Boggs be incarcerated in the DOC pending 

resolution of the case.

[11] On March 25, 2003, the trial court held a “mercy plea hearing.” Tr. Vol. 1, p. 

23. Boggs pleaded guilty, without a plea agreement, to three counts of burglary 

and one count of auto theft. Sentencing was left up to the trial court. At the 

same hearing, Boggs pleaded guilty to offenses in other pending cases, as 

follows:

89D02-0211-FD-114 Class D felony battery of a law 

enforcement officer and Class B 

misdemeanor mischief

89D02-0205-FD-53 Class D felony theft

89D02-0111-DF-90 Class D felony theft
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89D02-0109-DF-78 Class D felony residential entry

[12] On April 3, 2003, the trial court held a sentencing hearing and imposed an 

aggregate sentence of seventy years for the current case. The State moved to 

dismiss the charge of attempted murder, and the court granted the motion. The 

court also imposed sentences in FD-114, FD-53, DF-90, and DF-78. During 

the hearing, the State moved to dismiss a sixth case against Boggs, 89D02-0211-

FC-37, and the court granted the motion.

[13] The trial court appointed appellate counsel for Boggs for the current case but, 

on May 8, 2003, vacated the appointment on its own motion. In 2015, Boggs 

filed a pro se petition to file a belated notice of appeal pursuant to Indiana PostConviction Rule 2. The court denied that petition. On July 17, 2018, Boggs, 

represented by the Indiana State Public Defender, filed a second petition for 

permission to file a belated appeal pursuant to Post-Conviction Rule 2. The 

trial court granted the petition, and this appeal followed.

Discussion and Decision

I. Blakely Analysis

[14] Boggs argues that his seventy-year sentence violates the United States Supreme 

Court’s decision in Blakely, in which the Court stated: “‘Other than the fact of a 

prior conviction, any fact that increases the penalty for a crime beyond the 

prescribed statutory maximum must be submitted to a jury, and proved beyond 
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a reasonable doubt.’” 542 U.S. at 301, 124 S. Ct. at 2536 (quoting Apprendi v. 

New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63, 147 L. Ed. 2d 435 

(2000)). A defendant may admit to facts that increase the penalty for a crime. 

Id. at 310, 124 S. Ct. at 2541. In addition, a defendant may “consent to judicial 

factfinding.” Id. at 310, 124 S. Ct. at 2541.

[15] As an initial matter, we must determine whether Boggs is permitted to raise a 

Blakely claim. The holding in Blakely was a new rule of conduct for criminal 

prosecutions and applied to cases that were pending on direct review or not yet 

final when Blakely was handed down on June 24, 2004. Smylie v. State, 823 

N.E.2d 679, 687-88 (Ind. 2005).

[16] In Boggs’ case, the circumstances are complicated because the trial court 

imposed a sentence on April 9, 2003, and initially appointed appellate counsel

to represent Boggs. The trial court, on its own motion, subsequently vacated 

the appointment of counsel on May 8, 2003, and the deadline to file a Notice of 

Appeal elapsed. Boggs did not receive his direct appeal until 2018, when he 

received the trial court’s permission to file a belated notice of appeal.

[17] In Gutermuth v. State, 868 N.E.2d 427, 428 (Ind. 2007), Gutermuth pleaded 

guilty to three felonies in 1997 and did not pursue a direct appeal. He later 

claimed the trial court failed to advise him of his right to appeal his sentence. 

Gutermuth filed a petition for post-conviction relief in 2000, which was denied. 

The United States Supreme Court handed down its decision in Blakely while his 

post-conviction appeal was pending on appeal. After the post-conviction appeal 
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ended unfavorably for Gutermuth, he filed with the trial court a petition for 

permission to file a belated appeal, which the trial court granted. On appeal, he 

raised a sentencing claim under Blakely. The Indiana Court of Appeals affirmed 

his sentence, and the Indiana Supreme Court took transfer to determine 

“whether Blakely applies in belated appeals pursued under Post-Conviction Rule

2.” Id. at 430.

[18] The Indiana Supreme Court noted that belated appeals under Post-Conviction 

Rule 2 are “available only to those whose convictions and sentences have 

otherwise become final.” Id. at 433. Further, although a belated notice of 

appeal is treated as if filed within the prescribed period, the Court declined to 

conclude that a belated direct appeal initiates a new “direct review” of the case. 

Id. Instead, the Court determined a belated appeal “is treated as though it was 

filed within the time period for a timely appeal but is subject to the law that 

would have governed a timely appeal.” Id. Consequently, the Indiana 

Supreme Court held, “a defendant's case becomes ‘final’ for purposes of 

retroactivity when the time for filing a timely direct appeal has expired.” Id. at 

434. “Blakely is not retroactive for Post-Conviction Rule 2 belated appeals.” Id.

at 432.

[19] In this case, the trial court vacated its appointment of appellate counsel to 

represent Boggs, and the thirty-day deadline to file a Notice of Appeal expired. 

Following the holding in Gutermuth, Boggs may not raise a Blakely claim in this 

belated direct appeal under Post-Conviction Rule 2.
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II. Appropriateness of Sentence

[20] Boggs asks this Court to reduce his sentence by an unspecified amount, 

contending the sentence is justified by neither the circumstances of the case nor 

his character.

[21] Indiana Appellate Rule 7(B) provides that we may revise a sentence authorized 

by statute if, after due consideration of the trial court’s decision, we determine 

the sentence is inappropriate in light of the nature of the offense and the 

character of the offender.1 Thompson v. State, 5 N.E.3d 383, 391 (Ind. Ct. App.

2014). In conducting our review, we may consider all aspects of the penal 

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

sentences are ordered to run concurrently or consecutively. Davidson v. State,

926 N.E.2d 1023, 1025 (Ind. 2010).

[22] A defendant bears the burden of persuading this Court that his or her sentence 

meets the inappropriateness standard. Childress v. State, 848 N.E.2d 1073, 1080

(Ind. 2006). Our resolution of whether a sentence is appropriate turns on 

myriad factors which come to light in a given case, including our sense of the 

culpability of the defendant, the severity of the crime, and the damage done to 

others. Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008).

 

1 At the time Boggs committed his offenses, the standard of review set forth in Rule 7(B) was whether a 

sentence was “manifestly unreasonable,” not whether it was inappropriate. Because Rule 7(B) is directed to 

the reviewing court, we apply the inappropriateness standard. Polk v. State, 783 N.E.2d 1253, 1260 (Ind. Ct. 

App. 2003), trans. denied.
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[23] At the time Boggs committed the offenses at issue here, a person who 

committed a Class A felony could be sentenced to thirty years, with no more 

than twenty years added for aggravating circumstances or not more than ten 

years subtracted for mitigating circumstances. Ind. Code § 35-50-2-4 (1995). A 

person who committed a Class B felony could be sentenced to ten years, with 

not more than ten years added for aggravating circumstances or not more than 

four years subtracted for mitigating circumstances. Ind. Code § 35-50-2-5

(1977). Finally, a person who was found guilty of a Class D felony could be 

sentenced to one and one-half years, with not more than one and one-half years 

added for aggravating circumstances or not more than one year subtracted for 

mitigating circumstances. Ind. Code § 35-50-2-7 (1999).

[24] The trial court sentenced Boggs to the maximum sentence of fifty years for the 

Class A felony burglary conviction. Next, the trial court imposed sentences of 

ten years for each Class B felony burglary conviction, and one and a half years 

for the Class D felony auto theft conviction. The court ordered Boggs to serve 

the three burglary sentences consecutively to one another, with the auto theft 

sentence served concurrently, for an aggregate sentence of seventy years. The 

aggregate sentence was well short of the maximum possible sentence of ninetythree years.

[25] Turning to the nature of the offenses, Boggs focuses on the Class A burglary 

conviction, arguing “there is nothing particularly egregious about how Boggs 

committed the offense.” Appellant’s Br. p. 13. We disagree. In the middle of 

the night, after consuming controlled substances and alcohol (which, as a 
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person under the age of twenty-one, Boggs was also not supposed to consume), 

Boggs stole a car and promptly wrecked it, injuring himself. Undeterred by the 

outcome of this criminal act, Boggs broke into the Coxes’ home and ransacked 

it. When he was confronted by seventy-year-old Donald, Boggs chose not to 

surrender and instead repeatedly stabbed him. The stab wounds could have 

been fatal to Donald, but they instead resulted in permanent nerve injuries that 

would prevent him from driving or swimming again and hindered his ability to 

climb stairs. The new limits on Donald’s mobility, and the Coxes’ fear resulting 

from Boggs’ break-in, forced them to change residences.

[26] Boggs did not check Donald’s injuries, and he did not contact 911. Instead, 

Boggs chose to flee, taking with him some of the Coxes’ property. He next 

broke into two more homes, stealing items from at least one of them. Boggs

had ample opportunities to halt his nighttime crime spree but continued in his 

criminal conduct.

[27] Turning to the character of the offender, Boggs was eighteen years old when he 

committed the offenses at issue in this case. He had a relatively lengthy 

juvenile record beginning in 1995, accruing adjudications for being a runaway, 

for being truant, and for acts that would have amounted to two counts of theft 

or possession of stolen property as Class D felonies, if committed by an adult. 

He was twice placed in the custody of the Indiana Department of Correction. 

In addition, he was placed on parole and failed to comply with the terms of 

parole, resulting in being returned to the custody of the Indiana Department of 

Correction for a third time.
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[28] In addition, Boggs had several adult criminal cases pending when he committed 

the current offenses, and he was out of jail on bond. After he was arrested in 

the current case, he committed repeated acts of misconduct until the trial court 

sent Boggs to the DOC while his charges were pending. In addition, Boggs 

committed additional criminal acts while detained at the jail, specifically 

battering a law enforcement officer, a Class D felony, and criminal mischief, a 

Class B misdemeanor, as charged in Cause Number 89D02-0211-FD-114.

[29] Boggs argues that the following factors should result in a reduced sentence: his 

relatively young age at the time he committed the offenses, his expression of 

remorse to Mr. Cox, his lack of an adult criminal record when he committed 

these crimes, his lack of any prior violent offenses as a juvenile, his guilty plea, 

and undue hardship to his child.

2

 We disagree. Boggs’ lengthy juvenile record 

demonstrates he had ample opportunities to reform his conduct and lead a 

crime-free adult life. He instead committed numerous felonies after turning 

eighteen, in the current case and in others. Two of the offenses were violent: 

the Class A felony burglary charge in this case, and the Class D felony battery 

on a law enforcement officer in FD-114. His criminal behavior thus increased 

in both frequency and severity.

 

2 Boggs claims the trial court identified several circumstances as mitigating factors but “actually failed to give 

Boggs any mitigation whatsoever.” Appellant’s Br. p. 15. To the extent Boggs is claiming the trial court 

should have given more weight to mitigating circumstances, that claim is unavailable on appellate review. 

See Baumholser v. State, 62 N.E.3d 411, 416 (Ind. Ct. App. 2016) (“we cannot review the relative weight 

assigned” to aggravating and mitigating factors), trans. denied.
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[30] As for Boggs’ guilty plea and apology to Donald Cox, we note the evidence 

against Boggs was solid, and his guilty plea may reflect a pragmatic decision 

rather than true remorse. See Amalfitano v. State, 956 N.E.2d 208, 212 (Ind. Ct. 

App. 2011) (guilty plea and expression of remorse were likely pragmatic due to 

the substantial evidence against defendant), trans. denied. Next, the trial court 

determined the hardship to Boggs’ daughter, who was an infant at the time of 

Boggs’ sentencing in 2003, was a mitigating factor but assigned it little weight 

because Boggs had not been ordered by a court to pay child support. Boggs has 

pointed to no evidence to counter the trial court’s determination.

[31] Boggs also argues the trial court erred in considering the nature of Donald 

Cox’s injury as an aggravating circumstance, claiming that the injury already is 

an inherent part of the offense as a Class A felony and that the trial court 

effectively enhanced his sentence twice. This argument is more properly 

address to whether the trial court abused its sentencing discretion, not whether 

the sentence is inappropriate. In any event, we disagree with Boggs’ claim. 

When a trial court determines the individualized circumstances of the offense 

are an aggravating factor, there generally should be some indication that the 

manner in which the crime was committed was particularly egregious, beyond 

what the legislature contemplated when it prescribed the presumptive sentence 

for that offense. Jimmerson v. State, 751 N.E.2d 719, 724 (Ind. Ct. App. 2001).

[32] In Boggs’ case, the court determined “the nature and circumstances of the crime 

committed, including the violent nature of the crime committed upon the 

victim, Donald Cox,” was an aggravating factor. Tr. Vol. 1, p. 103. With 
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reference to the circumstances of the crime, the court also noted, “[w]hat 

you’ve done is ruined a family’s life.” Id. at 102. The court further stated, 

“[a]nd to see Mr. Cox and the damage that you’ve wreaked on his family 

appals [sic] me.” Id. at 102-03. After Boggs’ attack on Donald Cox, he was 

unable to drive or swim, and the Cox family was forced to move out of their 

home. The trial court sufficiently stated its reasons for identifying this 

aggravating factor, and we see no reason to reduce Boggs’ sentence. Boggs has 

failed to carry his burden of demonstrating that his seventy-year sentence is 

inappropriate.

Conclusion

[33] For the reasons stated above, we affirm the judgment of the trial court.

[34] Affirmed.

Vaidik, C.J., and Kirsch, J., concur.