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:

TERRY E. IACOLI GREGORY F. ZOELLER

Martinsville, Indiana Attorney General of Indiana

AARON J. SPOLARICH

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

MARK A. ATHERTON, )

)

Appellant-Defendant, )

)

vs. ) No. 55A01-1211-CR-537

)

STATE OF INDIANA, )

)

Appellee-Plaintiff. )

APPEAL FROM THE MORGAN CIRCUIT COURT

The Honorable Matthew G. Hanson, Judge

Cause No. 55C01-1204-FB-590

August 15, 2013

MEMORANDUM DECISION - NOT FOR PUBLICATION

BARNES, Judge
2

 Case Summary

Mark Atherton appeals his forty-year sentence for Class B felony burglary and for 

being an habitual offender. We affirm.

Issues

Atherton raises two issues, which we restate as:

I. whether the trial court abused its discretion when it 

sentenced him; and 

II. whether his sentence is inappropriate.

Facts

On April 30, 2012, Atherton took a significant amount of Xanax and broke into 

the Martinsville home of Victor and Amber Spina, who were at home asleep with their 

two children. Atherton took things out of the refrigerator, some money, and an iPod. 

Amber was awakened by the opening of the refrigerator door, and Victor chased Atherton 

out of the house. 

Police eventually detained Atherton, who was charged with Class B felony 

burglary, Class D felony theft, and Class B misdemeanor criminal mischief. The State 

also alleged that Atherton was an habitual offender. Without the benefit of a plea 

bargain, Atherton pled guilty to the burglary charge and the habitual offender allegation, 

and the remaining charges were dismissed. 

At the October 31, 2012 sentencing hearing, the trial court considered Atherton’s 

criminal history and the fact that he violated “the sanctity of someone’s own home” as 

aggravators. Tr. pp. 26-27. The trial court considered the fact that it was not a violent 
3

crime and Atherton’s guilty plea as mitigators. The trial court found that the aggravators 

outweighed the mitigators and sentenced Atherton to fifteen years on the burglary charge

enhanced by twenty-five years for being an habitual offender, for a total sentence of forty 

years. Atherton now appeals.

Analysis

I. Abuse of Discretion

Atherton first argues the trial court abused its discretion when it sentenced him. 

We evaluate a sentence under the current “advisory” sentencing scheme pursuant to 

Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007), clarified on reh’g by Anglemyer v. 

State, 875 N.E.2d 218 (Ind. 2007). The trial court must issue a sentencing statement that 

includes “reasonably detailed reasons or circumstances for imposing a particular 

sentence.” Anglemyer, 868 N.E.2d at 491. The reasons or omission of reasons given for 

choosing a sentence are reviewable on appeal for an abuse of discretion. Id. “The 

relative weight or value assignable to reasons properly found or those which should have 

been found is not subject to review for abuse.” Id. 

At the sentencing hearing, there was evidence of the impact the crime had on the

Spinas’ children, who were home asleep when Atherton broke in and was chased out by 

Victor. In a letter, Victor explained that the family’s sense of “security and stability has 

been taken away[.]” Ex. A. He stated that they now sleep with the lights on and that the 

children now keep baseball bats beside their beds at night. In sentencing Atherton, the 

trial court noted, “these people are affected forever.” Tr. p. 25. The trial court later listed 

as an aggravator the intrusion on “the sanctity of someone’s own home.” Id. at 26-27. 
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Atherton argues that the trial court abused its discretion by considering the 

intrusion on the sanctity of someone’s home as an aggravator because it was an element 

of the Class B felony burglary charge that he broke into a dwelling. In Pedraza v. State,

887 N.E.2d 77, 80 (Ind. 2008), however, our supreme court observed that, after the 2005 

modifications to the sentencing scheme, “a sentence toward the high end of the range is 

no longer an ‘enhanced sentence’ in the sense that the former regime provided.” The 

court concluded that using a material element of crime as an aggravator “is no longer an 

inappropriate double enhancement.” Pedraza, 887 N.E.2d at 80. To the extent the trial 

court considered the breaking and entering of a dwelling as an aggravator, it is no longer 

an improper double enhancement under the new sentencing scheme. 

Moreover, it is clear that the trial court was focused on the fact that dwelling was 

occupied by sleeping children when Atherton broke in, as opposed to the breaking and 

entering of an unoccupied dwelling. This was a proper assessment of nature and 

circumstances of the crime. The trial court did not abuse its discretion by considering the 

intrusion into the home as an aggravator.

II. Inappropriateness

Atherton also argues that his forty-year sentence is inappropriate in light of the 

nature of the offense and his character. Indiana Appellate Rule 7(B) permits us to revise 

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

find that the sentence is inappropriate in light of the nature of the offenses and the 

character of the offender. Although Rule 7(B) does not require us to be “extremely” 

deferential to a trial court’s sentencing decision, we still must give due consideration to 
5

that decision. Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007). We also 

understand and recognize the unique perspective a trial court brings to its sentencing 

decisions. Id. “Additionally, a defendant bears the burden of persuading the appellate 

court that his or her sentence is inappropriate.” Id.

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. Whether a sentence is 

inappropriate ultimately turns on 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. Id. at 1224. 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).

In considering the nature of the offense, Atherton asserts that it was a non-violent 

offense committed while he was under the influence of Xanax and not part of a wellconceived burglary. Although that might be the case, it is notable that the Spinas were 

asleep in their home and were awoken by Atherton opening the refrigerator. Moreover, 

Atherton’s Xanax use does not mitigate the nature of the offense. Forty-three-year-old 

Atherton had been abusing Xanax since his early twenties. Although he had not taken it 
6

in two years, on the night of the offense, he found a bottle when he was cleaning the 

bathroom and took so many that he blacked out and does not remember committing the 

offense. 

As for the character of the offender, we recognize that Atherton pled guilty 

without the benefit of a plea agreement and apologized to the Spinas. Nevertheless, 

Atherton has an extensive criminal history which includes ten felony convictions and

seven misdemeanor convictions and has been found to have violated probation on at least 

four occasions. Many of the convictions are alcohol or substance abuse related and 

others are for trespass, sexual battery, burglary, auto theft, and theft. Atherton testified 

that, as an adult, the longest he has been out of prison is two years, and even his attorney 

described his criminal history as “awful.” Tr. p. 22. Based on Atherton’s lengthy history 

of drug abuse and his extensive criminal history, he has not established that the total 

sentence of forty years for the Class B felony conviction and the habitual offender 

enhancement was inappropriate.

Conclusion

Atherton has not established that the trial court abused its discretion when it 

sentenced him or that his sentence is inappropriate in light of the nature of the offense 

and the character of the offender. We affirm.

Affirmed.

CRONE, J., and PYLE, J., concur.