Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                                      Jun 30 2014, 10:03 am
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:

DONALD E.C. LEICHT                                  GREGORY F. ZOELLER
Kokomo, Indiana                                     Attorney General of Indiana

                                                    JOSEPH Y. HO
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

WALTER L. LOGAN,                                    )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )      No. 34A04-1311-CR-581
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                     APPEAL FROM THE HOWARD CIRCUIT COURT
                           The Honorable Lynn Murray, Judge
                            Cause No. 34C01-1212-MR-236


                                          June 30, 2014

                MEMORANDUM DECISION - NOT FOR PUBLICATION

MAY, Judge
          Walter L. Logan appeals his twenty-eight-year aggregate sentence for Class C felony

reckless homicide1 and Class B felony possession of cocaine.2 He asserts the court abused its

discretion when analyzing mitigating and aggravating factors and his sentence is

inappropriate. We affirm.

                            FACTS AND PROCEDURAL HISTORY

          On December 1, 2012, R.W. contacted the Kokomo Police Department (KPD) to

report her son, A.S., was missing and she had not seen him since November 8, 2012. Before

R.W. contacted police, she had received multiple calls from Dan Wagner, who claimed to

know where A.S. was, but he wanted a reward for disclosing A.S.’s whereabouts. After

investigating, KPD determined A.S. might be at Logan’s residence. When KPD officers

arrived at Logan’s residence, Logan told them, “I’ve been waiting for you.” (App. at 31.)

Logan let the officers inside, led them to the basement, and reported A.S. was in a freezer.

KPD recovered A.S.’s remains, which had been in an unplugged freezer for almost a month.

          Logan knew A.S. for about two years. On the night A.S. died, they had been drinking,

using cocaine, and having sex. Logan duct-taped A.S.’s hands and feet, placed duct tape

over A.S.’s mouth and nose, and then fell asleep. When Logan awoke the next morning, he

removed the duct tape and put A.S. in his bed. After napping again, Logan checked on A.S.

and determined he was dead. Logan then put A.S.’s body in the freezer and put a brick on

top of the freezer to conceal the odor.



1
    Ind. Code § 35-42-1-5.
2
    Ind. Code § 35-48-4-6(b)(2)(B).
                                               2
          The State charged Logan with Class C felony reckless homicide, Class C felony

criminal confinement,3 Class B felony possession of cocaine, and two counts of murder.4

Logan pled guilty to Class C felony reckless homicide and Class B felony possession of

cocaine. After a sentencing hearing, the court identified remorse as the only possible

mitigating factor, but found Logan’s remorse was not genuine. The court identified the

following aggravating factors: the present offense involved cocaine when Logan had a prior

felony conviction of cocaine possession, the severity of the crime, and Logan hid the body

for almost a month. The trial court sentenced Logan to eight years for reckless homicide and

twenty years for possession of cocaine, and then it ordered Logan to serve the sentences

consecutively in the Department of Correction.

                               DISCUSSION AND DECISION

          1.      Determination of Mitigating and Aggravating Factors

          The trial court did not abuse its discretion when determining the aggravating and

mitigating factors. Sentencing decisions are within the sound discretion of the trial court and

are reviewed for 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). A court abuses its discretion only where its

decision is clearly against the logic and effect of the facts and circumstances before the court.

    Runyon v. State, 939 N.E.2d 613, 618 (Ind. 2010). A court may impose any sentence

authorized by statute “regardless of the presence or absence of aggravating circumstances or



3
    Ind. Code § 35-42-3-3.
4
    Ind. Code § 35-42-1-1.
                                               3
mitigating circumstances,” Ind. Code § 35-38-1-7.1(d), but if a sentence other than the

advisory is imposed, the record must state the factors considered in enhancing or reducing the

sentence. Sensback v. State, 720 N.E.2d 1160, 1163 (Ind. 1999).

       Logan argues the trial court failed to consider his guilty plea and his remorse as

mitigating factors. The trial court is not obligated to “weigh or credit facts proffered as

mitigating by the defendant in the way that the defendant suggests they should be weighed or

credited.” Heyen v. State, 936 N.E.2d 294, 304-05 (Ind. Ct. App. 2010). Nevertheless, the

trial court abuses its discretion if it fails to acknowledge significant mitigators that are clearly

supported by the record. Anglemeyer, 868 N.E.2d at 490-91.

       When a defendant received a substantial benefit from a plea agreement, a guilty plea

may not be a significant mitigator. Sensback, 720 N.E.2d at 1165. As originally charged,

Logan could have been sentenced to ninety-three years. See Ind. Code § 35-50-2-3

(maximum sentence for murder is sixty-five years); Ind. Code § 35-50-2-5 (maximum

sentence for Class B felony possession of cocaine is twenty years); Ind. Code § 35-50-2-6

(maximum sentence for Class C felony criminal confinement is eight years). His agreement

to plead guilty to reckless homicide and possession of cocaine reduced his maximum possible

sentence to twenty-eight years. Therefore, Logan substantially benefitted from the plea, and

the trial court was not obliged to consider the guilty plea a significant mitigator. See Wells v.

State, 836 N.E.2d 475, 479 (Ind. Ct. App. 2005) (holding the trial court is not required to

give significant mitigating weight to a defendant’s guilty plea if it is pragmatic), trans.

denied.

                                                 4
        As to Logan’s remorse, “[t]he trial court possesses the ability to directly observe a

defendant and can best determine whether a defendant’s remorse is genuine.” Phelps v.

State, 969 N.E.2d 1009, 1020 (Ind. Ct. App. 2012), trans. denied. The trial court determined

Logan’s remorse was not genuine and did not give it any mitigating weight. We give

“[s]ubstantial deference . . . to the trial court’s evaluation of a defendant’s remorse.” Id.

Without evidence of impermissible considerations by the trial court, we accept its

determination of credibility. Pickens v. State, 767 N.E.2d 530, 535 (Ind. 2002). Therefore,

Logan’s argument is an invitation for us to judge his credibility, which we cannot do. See id.

        Logan also asserts the court gave too much aggravating weight to his prior cocaine

conviction when it ordered him to serve twenty years for this cocaine conviction. A

defendant’s criminal history is a valid aggravating factor. Field v. State, 843 N.E.2d 1008,

1011 (Ind. Ct. App. 2006), trans. denied. “The relative weight or value assignable to reasons

properly found or those which should have been found is not subject to review for abuse.”

Anglemeyer, 868 N.E.2d at 491. Thus we cannot hold the trial court abused its discretion

here.

        Finally, Logan argues the court abused its discretion when sentencing him to

consecutive terms. To order consecutive sentences, “the trial court must find at least one

aggravating circumstance.” Hoeppner v. State, 918 N.E.2d 695, 699 (Ind. Ct. App. 2009). In

addition to Logan’s criminal history, the court found the nature of the offense to be an

aggravator. Logan does not challenge that aggravator. “One valid aggravator alone is

enough to enhance a sentence or to impose it consecutive to another sentence. Moreover, the

                                              5
same factor may be used both to enhance a presumptive sentence and to justify consecutive

sentences.” Gleason v. State, 965 N.E.2d 702, 712 (Ind. Ct. App. 2012).

       For all these reasons, we hold Logan has not demonstrated the trial court abused its

discretion in determining the mitigating and aggravating factors, in ordering a twenty year

sentence for possession of cocaine, or in ordering the sentences to be served consecutively.

       2.     Appropriateness of Sentence

       Logan has not demonstrated his twenty-eight year sentence is inappropriate in light of

his character and offense. We have the constitutional authority to revise a sentence if, after

considering the trial court’s decision, we conclude the sentence is inappropriate in light of the

nature of the offense and character of the offender. Ind. Appellate Rule 7(B). “We

recognize, however, the special expertise of the trial courts in making sentencing decisions;

thus, we exercise with great restraint our responsibility to review and revise sentences.”

Scott v. State, 840 N.E.2d 376, 381 (Ind. Ct. App. 2006), trans. denied. Our review “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.” Cardwell

v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). Logan has the burden on appeal of persuading

us his sentence is inappropriate. See Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006)

(holding the defendant has the burden of persuasion when reviewing for inappropriateness).

       Regarding the nature of the offense, one factor in determining the appropriateness of

the deviation from the standard sentence is “whether there is anything more or less egregious

about the offense committed by the defendant that makes it different from the typical

                                               6
offense.” Wells v. State, 2 N.E.3d 123, 131 (Ind. Ct. App. 2014), trans. denied. To convict

Logan of Class C felony reckless homicide, the State had to prove Logan recklessly killed

A.S. See Ind. Code § 35-42-1-5 (requiring the reckless killing of another human being). To

convict of possession of cocaine, the State had to prove Logan possessed cocaine. See Ind.

Code § 35-48-4-6 (a person who knowingly or intentionally possesses cocaine). After

drinking, using cocaine, and having sex, Logan bound A.S.’s hands and feet and also covered

his mouth and nose with duct tape. Logan then fell asleep, leaving A.S. to die. Logan’s acts

are more egregious than required for those two convictions because he deliberately put duct

tape over both of A.S.’s airways while he was under the influence of cocaine and because,

after determining A.S. was dead, he hid A.S.’s body in an unplugged freezer for almost a

month.

       When analyzing the character of the offender, criminal history is an important relevant

factor. Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct. App. 2007). Logan has multiple

arrests and charges including a Class B felony cocaine conviction ten years ago. He has been

both incarcerated and placed on probation, but those attempts to rehabilitate him have been

unsuccessful. Rather than seeking help when he found A.S. dead, he chose to hide the body

in an unplugged freezer for almost a month. During that time, Logan did not answer text

messages or phone calls from R.W., who was attempting to find her son.

       In light of Logan’s character and offense, we cannot hold his sentence is

inappropriate.



                                              7
                                     CONCLUSION

       The trial court did not abuse its discretion in determining the aggravating and

mitigating factors, and in view of Logan’s character and offense, the sentence imposed by the

trial court was not inappropriate. Accordingly, we affirm.

       Affirmed.

KIRSCH, J., and BAILEY, J., concur.




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