 Pursuant to Ind.Appellate Rule 65(D),

                                                                    FILED
 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,                       Feb 26 2013, 8:55 am
 collateral estoppel, or the law of the case.
                                                                        CLERK
                                                                      of the supreme court,
                                                                      court of appeals and
                                                                             tax court




ATTORNEY FOR APPELLANT:                              ATTORNEYS FOR APPELLEE:

KIMBERLY A. JACKSON                                  GREGORY F. ZOELLER
Indianapolis, Indiana                                Attorney General of Indiana

                                                     KELLY A. MIKLOS
                                                     Deputy Attorney General
                                                     Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

JERRY L. MOORE,                                      )
                                                     )
       Appellant-Defendant,                          )
                                                     )
               vs.                                   )       No. 90A05-1207-CR-370
                                                     )
STATE OF INDIANA,                                    )
                                                     )
       Appellee-Plaintiff.                           )


                        APPEAL FROM THE WELLS CIRCUIT COURT
                           The Honorable Kenton W. Kiracofe, Judge
                                Cause No. 90C01-1112-FB-28


                                         February 26, 2013

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

VAIDIK, Judge
                                        Case Summary

       Jerry L. Moore appeals his fifteen-year executed sentence for Class B felony

dealing in a schedule III controlled substance. He contends that the trial court failed to

consider certain mitigating factors and his sentence is inappropriate in light of the nature

of the offense and his character. Because Moore has failed to persuade us that the trial

court abused its discretion or that his sentence is inappropriate in light of the nature of the

offense and his character, we affirm.

                              Facts and Procedural History

       On September 20, 2011, Moore sold four Dihydrocodeinone tablets, a schedule III

controlled substance, to a confidential informant. The next day, Moore sold morphine, a

schedule II controlled substance, to the same confidential informant. The State charged

Moore with Count I: Class B felony dealing in a schedule III controlled substance, and

Count II: Class B felony dealing in a schedule II controlled substance. Moore accepted a

plea agreement and pled guilty to Count I, and the State dismissed Count II. Moore’s

maximum executed sentence was also capped at fifteen years.

       At the sentencing hearing, the trial court sentenced Moore to a fifteen-year

executed sentence, noting his extensive criminal history and his moderate risk to

reoffend. Fifty-nine-year-old Moore’s criminal history spans fifty years and includes

nineteen felonies and fourteen misdemeanors from three different states. PSI p. 4-11.

The trial court did not note any mitigating factors in reaching its decision.

       Moore now appeals his sentence.




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                                 Discussion and Decision

       Moore contends that the trial court did not properly consider certain mitigating

factors in his sentencing. He also contends that his sentence is inappropriate in light of

the nature of the offense and his character.

                                  I. Abuse of Discretion

       Moore challenges the trial court’s failure to consider his guilty plea, his poor

health, and the undue hardship his family would suffer from his incarceration as

mitigating factors. Sentencing decisions rest within the sound discretion of the trial

court. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875

N.E.2d 218 (Ind. 2007). So long as the sentence is within the statutory range, it is subject

to review only for an abuse of discretion. Id. An abuse of discretion will be found where

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

the court or the reasonable, probable, and actual deductions to be drawn therefrom. Id.

       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.

Id. at 490-91. Because the trial court no longer has any obligation to weigh aggravating

and mitigating factors against each other when imposing a sentence, a trial court cannot

now be said to have abused its discretion in failing to properly weigh such factors. Id. at

491.   If a trial court abuses its discretion, “remand for resentencing may be the


                                               3
appropriate remedy 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.” Id.

       Determining what is a proper mitigating circumstance is within the discretion of

the trial court. Rogers v. State, 878 N.E.2d 269 (Ind. Ct. App. 2007), trans. denied. The

trial court does not have to accept the defendant’s arguments as to what the mitigating

factors are, id., and “[a]n 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.” Carter v. State, 711 N.E.2d 835, 838

(Ind. 1999).

       Moore first argues that the trial court erred in not considering his guilty plea to be

a mitigating factor. While we have long realized that pleading guilty deserves some

mitigating weight, “a plea is not necessarily a significant mitigating factor.” Cotto v.

State, 829 N.E.2d 520, 525 (Ind. 2005) (emphasis added). Additionally, its significance

is lessened if there is substantial evidence of the defendant’s guilt or the defendant

receives a substantial benefit from the plea. See Wells v. State, 836 N.E.2d 475, 479 (Ind.

Ct. App. 2005) (“[A] guilty plea does not rise to the level of significant mitigation where

the defendant has received a substantial benefit from the plea or where the evidence

against him is such that the decision to plead guilty is merely a pragmatic one.”), trans.

denied. In this case, there was substantial evidence of Moore’s guilt, including audio

recordings and visual surveillance of the controlled buys by the confidential informant.

By pleading guilty, Moore was able to have a Class B felony charge dismissed and his


                                             4
maximum possible sentence for the remaining charge decreased by five years. The

benefit Moore gained was substantial, so the trial court did not err in failing to consider

his guilty plea as a mitigating factor.

       Moore next contends that the trial court erred in failing to consider his poor health

as a mitigator. Moore argues that he suffers from a torn aorta, lower abdominal pain,

blood in his urine, Hepatitis C, and mental illness, and he recently had a heart attack that

delayed the sentencing in this case. Appellant’s App. p. 206; Tr. p. 69. However, at the

sentencing hearing, Moore was asked, “have you ever been treated for any mental illness

or do you now suffer from any mental or emotional disability?” Tr. p. 46. Moore

answered “No, sir.” Id. Moore also was suffering from his medical conditions before his

arrest, Appellant’s App. p. 217, but that did not stop him from committing the two

offenses for which he was arrested, or the multiple offenses he committed in the past.

Moore’s counsel even admitted at trial that he was “not sure if [Moore’s health] mitigates

the offense . . . .” Tr. p. 71. Because Moore has failed to show that his health was a

significant mitigating factor that was clearly supported by the record, we hold that the

trial court did not err.

       Finally, Moore contends that the trial court should have considered the undue

hardship that his incarceration would cause on his family as a mitigating factor. We

disagree. “Absent special circumstances showing that the hardship to [the defendant] is

‘undue,’ a trial court does not abuse its discretion by not finding this to be a mitigating

factor.” Benefield v. State, 904 N.E.2d 239, 247 (Ind. Ct. App. 2009), trans. denied.

While Moore’s wife does have a number of health problems, she was receiving disability


                                             5
payments and had moved in with her daughter. Moore has therefore failed to show that

his support of his wife is necessary for her well-being, and any hardship on her from his

incarceration as a result would be “undue.” We therefore find that the trial court properly

did not consider this to be a mitigating factor.

       The trial court did not abuse its discretion in determining that there were no

mitigating factors when sentencing Moore.

                                II. Inappropriate Sentence

       Moore also contends that his fifteen-year executed sentence is inappropriate.

Although a trial court may have acted within its lawful discretion in imposing a sentence,

Article 7, Sections 4 and 6 of the Indiana Constitution authorize independent appellate

review and revision of sentences through Indiana Appellate Rule 7(B), which provides

that a court “may revise a sentence authorized by statute if, after due consideration of the

trial court’s decision, the Court finds that the sentence is inappropriate in light of the

nature of the offense and the character of the offender.” Reid v. State, 876 N.E.2d 1114,

1116 (Ind. 2007) (citing Anglemyer, 868 N.E.2d at 491). The defendant has the burden of

persuading us that his sentence is inappropriate. Id. (citing Childress v. State, 848 N.E.2d

1073, 1080 (Ind. 2006)).

       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


                                              6
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 a myriad of other factors that come to light in a

given case. Id. at 1224.

         The sentencing range for a Class B felony is six to twenty years, with ten years

being the advisory term. Ind. Code § 35-50-2-5. Here, the trial court sentenced Moore to

an executed sentence of fifteen years in the DOC. This sentence is within the statutory

range.

         Regarding the nature of the offense, there is nothing in the record that indicates

that this sentence is inappropriate. Moore sold controlled substances to a confidential

informant on two different occasions. There is not much detail in the record about the

circumstances of the sales; however, Moore’s self-serving statements after the fact that

the confidential informant “hounded” him and “played on his sympathies,” Appellant’s

Br. p. 12, are completely devoid of support in the record. This appears to just be an

attempt by Moore to lessen his culpability, and it does nothing to lessen the nature of the

offense.

         Regarding Moore’s character, he has an extensive criminal history that spans fifty

years and includes nineteen felonies and fourteen misdemeanors from three different

states. Moore began committing crimes when he was nine and joined a gang when he

was twelve. He also admits that he is still associated with that gang in an “advisor”

capacity due to his age and inactive status. Appellant’s App. p. 216. Moore also has

failed to take responsibility for this offense, claiming in a letter to the court that he was


                                             7
not guilty and was entrapped by the confidential informant. Id. at 215. Moore has not

convinced us that his character warrants a reduction in his sentence.

       After due consideration of the trial court’s decision, we cannot say that Moore’s

fifteen-year executed sentence is inappropriate in light of the nature of the offense and his

character.

       Affirmed.

BAILEY, J., and BROWN, J., concur.




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