MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                         FILED
this Memorandum Decision shall not be                                     Sep 13 2016, 8:15 am
regarded as precedent or cited before any
                                                                               CLERK
court except for the purpose of establishing                               Indiana Supreme Court
                                                                              Court of Appeals
the defense of res judicata, collateral                                         and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Deborah Markisohn                                        Gregory F. Zoeller
Marion County Public Defender Agency                     Attorney General of Indiana
Indianapolis, Indiana
                                                         Lyubov Gore
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Basden Breakfield,                                       September 13, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A04-1602-CR-230
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Anne Flannelly,
Appellee-Plaintiff                                       Magistrate
                                                         Trial Court Cause No.
                                                         49G04-1506-F5-22334



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A04-1602-CR-230 | September 13, 2016           Page 1 of 4
[1]   Basden Breakfield appeals the sentence imposed by the trial court after he was

      convicted of Level 5 felony battery against a public safety official. Breakfield

      argues that the trial court erred by declining to find his mental health to be a

      mitigating factor. Finding no error, we affirm.


                                                     Facts
[2]   In June 2015, Breakfield was incarcerated at the Marion County Jail, awaiting

      sentencing in a case in which he had been convicted of eight felonies and two

      misdemeanors. After expressing suicidal thoughts, Breakfield was placed in the

      suicide unit.


[3]   On June 20, 2015, after Breakfield had showered and gotten dressed, Marion

      County Sheriff’s Deputy Andrew Perryman attempted to escort Breakfield back

      to his cell. Breakfield asked Deputy Perryman whether he could switch cells.

      The deputy replied that a move might be possible later, but not immediately.

      Breakfield then mumbled something about “adjusting” the deputy’s chin. Tr. p.

      10-11, 21. Deputy Perryman ordered Breakfield a second time to return to his

      cell, and Breakfield again refused to comply. Breakfield then swung a closed

      fist at Deputy Perryman’s face, striking him in the forehead, causing the deputy

      to experience pain and redness.


[4]   On July 2, 2015, the State charged Breakfield with Level 5 felony battery

      against a public safety official. After a bench trial held on January 4, 2016, the

      trial court found Breakfield guilty as charged. A joint sentencing hearing was



      Court of Appeals of Indiana | Memorandum Decision 49A04-1602-CR-230 | September 13, 2016   Page 2 of 4
      held on January 15, 2016.1 At that hearing, the trial court identified

      Breakfield’s criminal history and the fact that he was in custody at the time he

      committed the instant crime as aggravators. The trial court did not find any

      mitigating circumstances, found that the “aggravating factors outweigh[ed] the

      mitigating factors,” and sentenced Breakfield to four years imprisonment, to be

      served consecutive to the sentences in the other causes. Tr. p. 53-54. Breakfield

      now appeals.


                                    Discussion and Decision
[5]   Breakfield’s sole argument on appeal is that the trial court abused its discretion

      by declining to find his mental health to be a mitigating factor. The trial court

      is afforded broad leeway in determining aggravating and mitigating factors.

      Rogers v. State, 878 N.E.2d 269, 272 (Ind. Ct. App. 2007). Furthermore, the trial

      court is not obligated to accept the defendant’s argument as to what constitutes

      a mitigating factor. Cotto v. State, 829 N.E.2d 520, 525 (Ind. 2005). When a

      defendant alleges that the trial court failed to identify a mitigating

      circumstances, he is required to establish that the mitigator is both significant

      and clearly supported by the record. Anglemyer v. State, 868 N.E.2d 482, 493

      (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007).




      1
        The sentencing hearing pertained to this cause, the cause for which Breakfield was already being held in
      jail, and Cause Number 49G04-1507-F5-23224 (Cause 23224). Breakfield has also appealed his sentence in
      Cause 23224, and our substantially similar opinion in that cause is handed down under appellate cause
      number 49A02-1602-CR-268.

      Court of Appeals of Indiana | Memorandum Decision 49A04-1602-CR-230 | September 13, 2016         Page 3 of 4
[6]   In this case, Breakfield presented no evidence to show that he was mentally ill

      at the time he committed this offense. Specifically, he offered no

      documentation of diagnosis or treatment, testimony from his doctors, or

      records of any medication he had been prescribed. In the presentence

      investigation (PSI) report, Breakfield stated that he had no suicidal thoughts or

      thoughts of harming himself or others, did not experience hallucinations or

      delusions, and did not have a family history of mental illness. Breakfield did

      present evidence that at some point following this offense, he was prescribed

      mental health medication.2 But nothing in the record clearly establishes

      Breakfield’s contention that he was mentally ill at the time he committed this

      offense. Under these circumstances, we find that the trial court did not err by

      declining to find Breakfield’s mental health as a mitigating factor.


[7]   The judgment of the trial court is affirmed.


      Vaidik, C.J., and Najam, J., concur.




      2
        Defense counsel did not even know what Breakfield’s diagnosis was following the mental health evaluation,
      asking that the PSI reflect that “there was a mental health diagnosis at one point and he is receiving treatment
      for what I believe to be a mental health condition.” Tr. p. 47.

      Court of Appeals of Indiana | Memorandum Decision 49A04-1602-CR-230 | September 13, 2016            Page 4 of 4