Court of Appeals of Indiana | Memorandum Decision 20A-CR-1110 | December 30, 2020 Page 1 of 17

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

Marielena Duerring

South Bend, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Catherine Brizzi

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Henry D. Bates,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

December 30, 2020

Court of Appeals Case No.

20A-CR-1110

Appeal from the Elkhart Superior 

Court

The Honorable Teresa L. Cataldo, 

Judge

Trial Court Cause No.

20D03-1608-F3-37

Tavitas, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-1110 | December 30, 2020 Page 2 of 17

Case Summary

[1] Henry D. Bates appeals his sixteen-year sentence, pursuant to a guilty plea, for 

robbery with a deadly weapon, a Level 3 felony. We affirm.

Issues

[2] Bates raises two issues on appeal, which we restate as follows:

I. Whether the trial court abused its sentencing discretion by 

considering an improper aggravating factor and 

overlooking a significant mitigating factor.

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

nature of his offense and his character.

Facts

[3] Shortly after noon on July 11, 2016, Bates and his nephew, Eddie Bates

(“Eddie”), robbed a Dollar General Store in Elkhart, Indiana. Theresa Palmer 

was working the cash register during the robbery. Bates walked behind the 

counter, told Palmer that the store was being robbed, and warned that Bates 

had a knife. Bates then placed “a fairly long, probably around six- to eight-inch 

knife” to the back of Palmer’s neck, demanded that Palmer open the cash 

register, and fled with the cash register’s contents.

1

 Tr. Vol. II p. 182. Bates 

was under the influence of synthetic marijuana when he committed the offense. 

1 After a failed attempt to obtain the store’s surveillance footage, Eddie stole money from the store’s security 

room and fled.
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The store’s video surveillance system captured the entire robbery and depicted 

Bates with the knife. 

[4] On August 24, 2016, the State charged Bates with robbery with a deadly 

weapon, a Level 3 felony. On May 25, 2017, Bates pleaded guilty as charged. 

In exchange for Bates’ guilty plea, the State agreed not to file an habitual 

offender information against Bates due to Bates’ record of cooperation with law 

enforcement as a confidential informant (“CI”).

2

 

[5] The trial court conducted Bates’ sentencing hearing on November 14, 2017. 

Bates expressed remorse and attributed his misconduct to being “off [his] 

med[ication]s” for paranoid schizophrenia. Id. at 176. In seeking a minimum 

sentence, defense counsel argued that Bates’ mental health, including his 

paranoid schizophrenia diagnosis, was a mitigating factor and provided Bates’ 

mental health treatment jail records to the trial court. Defense counsel further 

argued as follows:

This crime that . . . Mr. Bates is being sentenced on here today is 

a result mostly . . . of his mental health status. He knows he did 

armed rob [sic] that [ ] store. [ ] He watched the video of 

2 At the sentencing hearing, the prosecutor remarked that “the State gave [Bates] a huge break, because he’s 

well eligible, more than double, to be a[n] habitual criminal offender”; and “but for the fact that [the State] 

didn’t file the habitual [offender enhancement, Bates would] be facing 20 more years.” Tr. Vol. II pp. 183, 

184. Regarding Eddie, however, the State proceeded with filing the habitual offender count, and Eddie

received a thirty-six-year sentence. 
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him[self] doing it. I do not believe that this is . . . something that 

he would normally do if he were taking his medication . . . .

Id. at 36.

[6] Next, in seeking a near-maximum sentence, the prosecutor introduced still 

images of the robbery that depicted Bates holding the long knife to Palmer’s 

neck and reported the State’s favorable charging treatment of Bates as a CI. 

Additionally, the State argued: 

. . . I absolutely guarantee you Henry Bates was on drugs when 

he committed this offense. [ ] I am not disputing that Henry 

Bates sits here with some mental issues. . . .[B]ut what I am going 

to say is his continued abuse of very serious mind-altering drugs 

does him no favors. And for him to say[,] “I never would have 

done this if I wasn’t on my meds,” is completely belied by his 

criminal record. This is not the first crime that he’s committed, 

where he can come in and say[,] “I was off of my meds and I 

made a bad mistake,” because he has a record that consists of 

over a dozen convictions. . . .[F]rom the State’s perspective, he 

was going to commit this crime regardless.

Id. at 40-41.

[7] In open court, the trial court identified the following mitigating sentencing 

factors: (1) Bates’ guilty plea; (2) expression of remorse; (3) service as a CI; and 

(4) “[Bates’] comments and letters and comments of counsel.” Bates’ App. Vol. 

II p. 71. The trial court found the following aggravating factors: (1) Bates’

extensive criminal history; (2) Bates’ commission of theft and violent crimes 

dating back to 1977; (3) Bates was under the influence of synthetic marijuana 
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when he committed the offense; (4) Bates’ history of alcohol and drug abuse; (5) 

Bates’ use of a deadly weapon in the robbery, causing Palmer to fear for her life; 

and (6) the presence of children in the store during the robbery. The trial court 

stated: “[T]he aggravating circumstances do far, far outweigh the mitigating 

circumstances, and all the mitigating factors taken as a whole do not outweigh 

even one of the aggravators; so, . . . an aggravated sentence . . . is appropriate.” 

Tr. Vol. II p. 47. 

[8] The trial court sentenced Bates to sixteen years in the Department of Correction 

(“DOC”), with three years ordered suspended to probation. The trial court also 

recommended that Bates receive mental health treatment in the DOC and 

undergo a mental health assessment as a condition of probation. Notably, the 

trial court’s judgment of conviction, entered on November 17, 2017, omitted 

the “presence of children” aggravating factor. Bates now appeals.3

Analysis

[9] Bates challenges the trial court’s exercise of its sentencing discretion. “[S]ubject

to the review and revise power [under Indiana Appellate Rule 7(B)], sentencing 

decisions rest within the sound discretion of the trial court and are reviewed on 

appeal only for an abuse of discretion.” Anglemyer v. State, 868 N.E.2d 482, 490 

(Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007); Phipps v. State, 90 

N.E.3d 1190, 1197 (Ind. 2018). An abuse occurs only if the decision is clearly 

3 This Court granted Bates’ petition for permission to file a belated notice of appeal on May 13, 2020. 
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against the logic and effect of the facts and circumstances before the court, or 

the reasonable, probable, and actual deductions to be drawn therefrom. Schuler 

v. State, 132 N.E.3d 903, 904 (Ind. 2019). A trial court may abuse its 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. 

Ackerman v. State, 51 N.E.3d 171, 193 (Ind. 2016). 

[10] This Court presumes that a court that conducts a sentencing hearing renders its 

decision solely on the basis of relevant and probative evidence. Schuler, 132 

N.E.2d at 905. “When an abuse of discretion occurs, this Court will remand 

for resentencing only if ‘we cannot say with confidence that the trial court 

would have imposed the same sentence had it properly considered reasons that 

enjoy support in the record.’” Ackerman, 51 N.E.3d at 194 (quoting Anglemyer, 

868 N.E.2d at 491).

Aggravating Factors

[11] It is well settled that a single aggravating factor is adequate to justify an 

enhanced sentence. Buford v. State, 139 N.E.3d 1074, 1081 (Ind. Ct. App.

2019). If a trial court abuses its discretion by improperly considering an 

aggravating factor, we remand for resentencing only “if we cannot say with 

confidence that the trial court would have imposed the same sentence had it 
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properly considered reasons that enjoy support in the record.” Anglemyer, 868 

N.E.2d at 491; Ackerman, 51 N.E.3d at 194.

A. Nature and Circumstances of the Crime

[12] Bates first argues that the trial court improperly considered an element of the 

crime as an aggravating circumstance —namely, that Bates put Palmer in fear. 

Indiana Code Section 35-42-5-1(a) provides:

Except as provided in subsection (b)[4

], a person who knowingly 

or intentionally takes property from another person or from the 

presence of another person:

(1) by using or threatening the use of force on any person; 

or

(2) by putting any person in fear;

commits robbery, a Level 5 felony. However, the offense is a 

Level 3 felony if it is committed while armed with a deadly 

weapon . . . .

(Emphasis added). 

[13] A similar argument was raised in Gomillia v. State, 13 N.E.3d 846, 852-53 (Ind. 

2014). On appeal, Gomillia argued that the trial court improperly considered

an element of his offense—placing the victim in fear—as an aggravating factor. 

4 Indiana Code Section 35-42-5-1(b) is not pertinent here.
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In upholding the enhanced sentence, our Supreme Court held that “[w]here a 

trial court’s reason for imposing a sentence greater than the advisory sentence 

includes material elements of the offense, absent something unique about the 

circumstances that would justify deviating from the advisory sentence, that reason is 

‘improper as a matter of law.’” Gomillia, 13 N.E.3d at 852-53 (quoting 

Anglemyer, 868 N.E.2d at 491) (emphasis added). The Court found, 

notwithstanding flaws5 in Gomillia’s argument, that “the nature and 

circumstances of the crime included . . . the leadership role Gomillia played[ ],

as well as the terror the victim suffered[,]” both of which were “appropriate 

reasons justifying a sentence greater than the advisory term.” Id. at 853.

[14] Here, we find that the statutory element of placing a person in fear was already 

met when Bates told Palmer that he and Eddie were robbing the store and that 

Bates had a knife. Bates, however, did not stop at brandishing a knife and 

demanding the contents of the cash register; rather, Bates terrorized Palmer

when he stepped behind her and placed his large knife to her neck. We find 

that Bates’ act of further menacing Palmer with the knife constitutes “something 

5

The Gomillia Court observed:

First “fear” . . . is not an element of criminal deviate conduct. It is an element of robbery 

as a class C felony. But here Gomillia pleaded guilty to class B felony robbery; and in 

any event the trial court imposed the advisory sentence for this offense. Second, we do 

not read the trial court’s general reference to “[t]he threats to this lady,” as necessarily 

equating to the “threat of force” element in the criminal deviate conduct conviction.

Gomillia, 13 N.E.3d at 853 (internal citation omitted).
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unique about the circumstances” that justified the enhancement of Bates’ sentence. 

See id. The trial court’s remarks at sentencing that “[y]ou h[e]ld a knife to 

[Palmer’s] neck. She d[id]n’t know . . . if you[ we]re just going to slit her throat 

when you g[o]t the money” evidence the trial court’s finding that Bates’ actions 

during the robbery went beyond the statutory elements necessary for the 

robbery conviction. See Tr. Vol. II p. 47. 

[15] Based on the foregoing, the trial court did not improperly consider an element 

of the offense as an aggravating factor; accordingly, we conclude that the trial 

court did not abuse its sentencing discretion in this regard.

B. Presence of Children

[16] Bates also argues that the trial court found “an aggravator that was completely 

unsupported by the record[,]” namely, the presence of children during Bates’ 

commission of the crime. Bates’ Br. p. 4. The State concedes that “there was 

no evidence in the record regarding the presence of children when the robbery 

occurred[,]” but maintains that the trial court “did not rely on this aggravator” 

in imposing Bates’ sentence. See State’s Br. p. 9. 

[17] We acknowledge that this aggravating factor was unsupported and was 

improperly before the trial court.

6

 Further, we observe that, although the trial 

court included “the presence of children” aggravator in its oral sentencing 

6 We note that the prosecutor made the initial reference to the presence of children during Bates’ commission 

of the crime. See Tr. Vol. II p. 44. The factual basis for Bates’ guilty plea, however, made no mention of the 

presence of children. 
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remarks on November 14, 2017, the trial court omitted that aggravator from its 

judgment of conviction on November 17, 2017, while leaving Bates’ maximum 

sentence unchanged. This action evinces both the trial court’s: (1) recognition of 

its error in identifying an improper aggravating factor; and (2) intention to 

impose a maximum sentence notwithstanding the errant aggravator. We agree 

with the State that the trial court did not rely on the “presence of children”

aggravator in imposing sentence.

[18] Ultimately, the trial court’s oral identification of the improper aggravating 

factor was harmless error because the trial court found five other valid

aggravating factors. See Catt v. State, 749 N.E.2d 633, 639 (Ind. Ct. App. 2001)

(finding that trial court’s improper consideration of two aggravating factors 

was harmless error where the trial court found other valid aggravating factors); 

see also Kelp v. State, 119 N.E.3d 1071, 1073-74 (Ind. Ct. App. 2019) (affirming 

sentence despite trial court’s consideration of an improper aggravating 

circumstance); and see Catt, 749 N.E.2d at 639 (holding that, even if a trial court 

finds an improper aggravating factor, a sentence enhancement may still be 

upheld if other valid aggravating factors exist). In light of multiple valid and 

unchallenged aggravating factors that each, alone, support an enhanced 

sentence, we conclude that the trial court did not commit reversible error by its 

oral identification of one improper aggravating factor. Moreover, we are 

confident that the trial court would have imposed a maximum sentence because 

the instant offense was Bates’ third armed robbery conviction. 
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II. Overlooked Mitigating Factor

[19] Next, Bates argues that the trial court “failed to recognize the existence of 

Bates’ mental illness as a mitigating factor” and that “the record clearly 

support[s] that Bates suffers from mental illness.” Bates’ Br. p. 8. The trial 

court “is not obligated to accept the defendant’s contentions as to what 

constitutes a mitigating circumstance or to give the proffered mitigating 

circumstances the same weight the defendant does.” Weisheit v. State, 26 

N.E.3d 3, 9 (Ind. 2015). “An allegation that the trial court failed to identify or 

find 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 trial court has discretion to determine whether the factors 

are mitigating and it is not required to explain why the court rejects the 

defendant’s proffered mitigating factors. Haddock v. State, 800 N.E.2d 242, 245 

(Ind. Ct. App. 2003). 

[20] “Mental illness is not necessarily a significant mitigating factor; ‘rather, [it] is a 

mitigating factor to be used in certain circumstances, such as when the evidence 

demonstrates longstanding mental health issues or when the [trier of fact] finds 

that a defendant is mentally ill.’” Townsend v. State, 45 N.E.3d 821, 831 (Ind.

Ct. App. 2015), trans. denied. “[I]n order for a [defendant’s] mental history to 

provide a basis for establishing a mitigating factor, there must be a nexus 

between the defendant’s mental health and the crime in question.” Weedman v.

State, 21 N.E.3d 873, 894 (Ind. Ct. App. 2014), trans. denied. Here, Bates 

alleged the existence of a nexus between the robbery and his mental illness
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when Bates attributed his commission of the crime to his being “off” his 

prescription medication for paranoid schizophrenia at the time of the crime. See

Bates’ App. Vol. II p. 44. 

[21] The record reveals that, in sentencing remarks to Bates, the trial court stated: 

“[A]s you stated, you don’t think this offense would have happened if you 

would have been on your med[ication]s. Your history should prove to you, sir, 

that you can never be off your meds”; and

[t]he things that sway me to the sentence that I’ve pronounced [ ] 

are your past criminal history. Time and time again you have 

returned to what you know; . . . when you’re left to your own 

devices, you don’t necessarily follow through with your 

medications [or] with what you’re supposed to do.

Tr. Vol. II pp. 47, 49.

[22] The trial court, thus, considered but declined to afford Bates’ proffered mental 

health mitigator any weight because the trial court found a nexus between the 

crime and Bates’ being “high” during the robbery; Bates’ dedication to a 

criminal lifestyle; and Bates’ rejection of crucial medication that Bates knew he 

needed to take. Id. at 47; see Archer v. State, 689 N.E.2d 678, 685 (Ind. 1997)

(enumerating factors bearing on the sentencing weight, if any, to be given to 

mental illness: (1) extent of defendant’s inability to control his behavior due to 

mental illness; (2) overall limitations on functioning; (3) duration of illness; and 

(4) extent of nexus, if any, between the crime and mental illness). We find no 

abuse of the trial court’s sentencing discretion in this regard.
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III. Indiana Appellate Rule 7(B)

[23] Lastly, Bates argues that his maximum, sixteen-year sentence is inappropriate 

pursuant to Indiana Appellate Rule 7(B) and that “an appropriate sentence in 

this case would be the advisory sentence of 9 years.” Bates’ Br. p. 11. The 

Indiana Constitution authorizes independent appellate review and revision of a 

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

145 N.E.3d 783, 784 (Ind. 2020). Our Supreme Court has implemented this 

authority through Indiana Appellate Rule 7(B), which allows this Court to 

revise a sentence when it is “inappropriate in light of the nature of the offense 

and the character of the offender.” Our review of a sentence under Appellate 

Rule 7(B) is not an act of second guessing the trial court’s sentence; rather, 

“[o]ur posture on appeal is [ ] deferential” to the trial court. Bowman v. State, 51 

N.E.3d 1174, 1181 (Ind. 2016) (citing Rice v. State, 6 N.E.3d 940, 946 (Ind. 

2014)). We exercise our authority under Appellate Rule 7(B) only in 

“exceptional cases, and its exercise ‘boils down to our collective sense of what 

is appropriate.’” Mullins v. State, 148 N.E.3d 986, 987 (Ind. 2020) (quoting 

Faith v. State, 131 N.E.3d 158, 160 (Ind. 2019)).

[24] “‘The principal role of appellate review is to attempt to leaven the outliers.’” 

McCain v. State, 148 N.E.3d 977, 985 (Ind. 2020) (quoting Cardwell v. State, 895 

N.E.2d 1219, 1225 (Ind. 2008)). The point is “not to achieve a perceived 

correct sentence.” Id. “Whether a sentence should be deemed inappropriate 

‘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 
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given case.’” Id. (quoting Cardwell, 895 N.E.2d at 1224). Deference to the trial 

court’s sentence “should prevail unless overcome by compelling evidence 

portraying in a positive light the nature of the offense (such as accompanied by 

restraint, regard, and lack of brutality) and the defendant’s character (such as 

substantial virtuous traits or persistent examples of good character).” Stephenson 

v. State, 29 N.E.3d 111, 122 (Ind. 2015).

[25] When determining whether a sentence is inappropriate, the advisory sentence is 

the starting point the legislature has selected as an appropriate sentence for the 

crime committed. Fuller v. State, 9 N.E.3d 653, 657 (Ind. 2014). Here, Bates

pleaded guilty to robbery with a deadly weapon, a Level 3 felony. The 

sentencing range for a Level 3 felony is between three and sixteen years, with 

an advisory sentence of nine years. Ind. Code § 35-50-2-5(b). Based on five 

valid aggravators that outweighed the mitigators, the trial court imposed a

maximum sixteen-year sentence. 

[26] Our analysis of the “nature of the offense” requires us to look at the nature, 

extent, and depravity of the offense. Sorenson v. State, 133 N.E.3d 717, 729 (Ind. 

Ct. App. 2019), trans. denied. The nature of the offense is as follows: Bates

pretended to be an ordinary customer, requested assistance from Palmer, 

announced his intention to rob the store, and warned Palmer that he had a 

knife. Bates, thereby, placed Palmer in fear. Bates then stepped behind Palmer, 

placed a long knife against her neck, and forced the terrorized cashier to empty

the cash register. Bates fled with the money.
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[27] Our analysis of the character of the offender involves a “broad consideration of 

a defendant’s qualities,” Adams v. State, 120 N.E.3d 1058, 1065 (Ind. Ct. App. 

2019), including the defendant’s age, criminal history, background, and 

remorse. James v. State, 868 N.E.2d 543, 548-59 (Ind. Ct. App. 2007). 

Moreover, “[t]he significance of a criminal history in assessing a defendant’s 

character and an appropriate sentence varies based on the gravity, nature, 

proximity, and number of prior offenses in relation to the current offense.” 

Sandleben v. State, 29 N.E.3d 126, 137 (Ind. Ct. App. 2015) (citing Bryant v. 

State, 841 N.E.2d 1154, 1156 (Ind. 2006)). “Even a minor criminal history is a 

poor reflection of a defendant’s character.” Prince v. State, 148 N.E.3d 1171, 

1174 (Ind. Ct. App. 2020) (citing Moss v. State, 13 N.E.3d 440, 448 (Ind. Ct. 

App. 2014), trans. denied). 

[28] Here, Bates, who was fifty-five years old at the time of sentencing, has an 

extensive criminal history dating back to 1976 that is replete with convictions 

for theft, robbery, and violent crimes. Between 1976 and 1979, Bates amassed 

seven juvenile delinquency adjudications for offenses that, if committed by an 

adult, would constitute theft (twice); burglary (twice); attempted burglary; 

battery; and assault and battery with intention to cause grave bodily harm.7

 

[29] In 1980, Bates was waived to adult court for committing robbery with a deadly 

weapon, a Class B felony, for which Bates was sentenced to fifteen years in the 

7 We have excluded from our consideration juvenile offenses that appear on Bates’ presentence investigation 

report with inadequate disposition and adjudication information. 
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DOC. Bates’ additional adult criminal history includes misdemeanor 

convictions for criminal mischief; resisting law enforcement (twice); fleeing 

from police (twice); criminal conversion; public intoxication (twice); disorderly 

conduct; and domestic battery. In addition to the aforementioned Class B 

felony robbery conviction, Bates has prior felony convictions for: (1) assisting a 

criminal, a Class C felony; (2) battery with a deadly weapon; (3) possession of 

cocaine; and (4) Bates’ second armed robbery conviction in 2001, for which he 

received a twenty-year sentence.

8

[30] Thus, the instant offense is Bates’ third felony conviction for an act of robbery 

with a deadly weapon. This alarming predilection reflects Bates’ disdain for the 

rule of law, despite having served significant prison terms and notwithstanding 

numerous extensions of grace and leniency from various courts. Bates’ vast 

criminal history—coupled with his record of prison write-ups and violations of 

probation, parole, and community supervision—shed unfavorable light on

Bates’ character. Additionally, Bates’ substance abuse history reflects poorly on 

his character. Bates has abused “LSD, cannabis, cocaine, methamphetamine, 

and alcohol” and was “high” on synthetic marijuana when he committed the 

instant offense. Bates’ App. Vol. II p. 46; Tr. Vol. II p. 189. Despite numerous 

opportunities to pursue addictions treatment outside prison, Bates has 

8 In the year immediately following his release from prison in 2013, Bates was arrested and convicted of two 

misdemeanor offenses. Also, we note that the presentence investigation report does not designate a Class or 

Level for most of Bates’ prior convictions.
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continued to fuel his “polysubstance abuse and dependence” issues and 

“reported he has never received addictions treatment” outside jail. Id. 

[31] Based on the foregoing, Bates has failed to persuade us to revise his sentence; 

accordingly, we conclude that his maximum sentence is not inappropriate in 

light of the nature of his offense and his character. 

Conclusion

[32] The trial court did not abuse its sentencing discretion by imposing an enhanced 

sentence. Bates’ maximum sentence is not inappropriate in light of the nature 

of his offense and his character. We affirm.

[33] Affirmed.

Bailey, J., and Robb, J., concur.