MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                    FILED
this Memorandum Decision shall not be                                May 17 2016, 8:59 am

regarded as precedent or cited before any                                 CLERK
                                                                      Indiana Supreme Court
court except for the purpose of establishing                             Court of Appeals
                                                                           and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Steven E. Ripstra                                        Gregory F. Zoeller
Jasper, Indiana                                          Attorney General of Indiana
                                                         Lyubov Gore
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
     COURT OF APPEALS OF INDIANA
Jeffery Wininger,                                        May 17, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         51A01-1509-CR-1375
        v.                                               Appeal from the Martin Circuit
                                                         Court
State of Indiana,                                        The Honorable Lynne Ellis,
Appellee-Plaintiff.                                      Judge Trial Court Cause No.
                                                         51C01-1407-F5-93



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 51A01-1509-CR-1375 | May 17, 2016           Page 1 of 13
                                   STATEMENT OF THE CASE

[1]   Appellant-Defendant, Jeffery Wininger (Wininger), appeals his sentence

      following his conviction for operating a motor vehicle after forfeiture of license

      for life, a Level 5 felony, Ind. Code §§ 9-30-10-16; -17.


[2]   We affirm.


                                                    ISSUES

[3]   Wininger raises two issues on appeal, which we restate as follows:

      (1) Whether the trial court abused its discretion by failing to consider several

      mitigating circumstances in its sentencing determination; and

      (2) Whether Wininger’s sentence is inappropriate in light of the nature of the

      offense and character of the offender.


                           FACTS AND PROCEDURAL HISTORY

[4]   In 1990, 1994, and 1997, Wininger was charged with, and subsequently

      convicted of, operating while intoxicated. In 2005, Wininger pled guilty to

      being an habitual traffic violator (HTV). As a result, his driving privileges were

      suspended for life.

[5]   On January 21, 2012, the Orange County Sheriff’s Department was dispatched

      to investigate a one-vehicle accident “on top of Mt Arie Hill” in Orange

      County, Indiana. (Appellant’s App. p. 79). When the detective arrived, he

      observed a wrecked red pickup truck, but the driver had left the scene. A tow

      truck arrived to retrieve the truck, and the tow truck driver informed the


      Court of Appeals of Indiana | Memorandum Decision 51A01-1509-CR-1375 | May 17, 2016   Page 2 of 13
      detective that he had been summoned by the pickup truck’s owner—Wininger.

      When the detective contacted Wininger, Wininger initially stated that his

      girlfriend was driving the truck. However, Wininger eventually admitted that

      he had been driving the truck and lost control when he hit a patch of ice. He

      further explained that he left the scene and lied about the incident because he is

      an HTV and was operating without a driver’s license. On January 26, 2012, an

      Information was filed in Orange County, Indiana, charging Wininger with

      operating a motor vehicle after forfeiture of license for life, a Class C felony,

      I.C. §§ 9-30-10-16; -17 (2011). On June 22, 2012, Wininger failed to appear in

      court, and an arrest warrant was issued. More than two years later, Wininger’s

      warrant remained outstanding.


[6]   On July 6, 2014, shortly after 5:00 p.m., a motorcycle was traveling west on

      U.S. 150 in Shoals, Martin County, Indiana, when it rounded a curve and lost

      control. The motorcycle crossed the center line and collided with a blue pickup

      truck. Although both the driver and passenger on the motorcycle sustained

      injuries, the driver of the truck fled the scene. The officers discovered that the

      pickup truck was registered to Wininger. A police officer located Wininger at

      his residence, and Wininger admitted that he had been driving the truck when

      the accident occurred, and he had left the scene “because he was afraid of going

      to jail and he knew he was suspended for life.” (Tr. p. 14).

[7]   On July 8, 2014, the State filed an Information, charging Wininger with

      operating a vehicle after forfeiture of license for life, a Level 5 felony. On April

      16, 2015, Wininger entered into a plea agreement with the State, pursuant to

      Court of Appeals of Indiana | Memorandum Decision 51A01-1509-CR-1375 | May 17, 2016   Page 3 of 13
       which Wininger agreed to plead guilty in exchange for a four-year cap on the

       executed term of his sentence. Subject to the four-year cap, sentencing was

       otherwise left to the trial court’s discretion. The same day, the trial court held a

       change of plea hearing; the court took Wininger’s guilty plea under advisement

       and ordered the Martin County Probation Department to prepare and file a Pre-

       Sentence Investigation (PSI) Report. On May 27, 2015, the probation officer

       informed the court that Wininger failed to schedule an appointment for his PSI

       interview as he was instructed. By July 15, 2015, Wininger had still not

       arranged to meet with a probation officer, so the State filed a motion to revoke

       his bond. The same day, the trial court granted the motion, and Wininger was

       arrested.

[8]    On August 14, 2015, the trial court conducted a sentencing hearing. The trial

       court accepted Wininger’s guilty plea and entered a judgment of conviction for

       operating a motor vehicle after forfeiture of license for life, a Level 5 felony.

       The trial court imposed a four-year sentence, with one year to be executed in

       the Indiana Department of Correction (DOC) and three years executed in

       Martin County Community Corrections.


[9]    Wininger now appeals. Additional facts will be provided as necessary.


                                   DISCUSSION AND DECISION

                                       I. Abuse of Sentencing Discretion

[10]   Wininger claims that the trial court abused its discretion by failing to consider

       any mitigating circumstances in rendering a sentence. It is well settled that


       Court of Appeals of Indiana | Memorandum Decision 51A01-1509-CR-1375 | May 17, 2016   Page 4 of 13
       “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, clarified on reh’g, 875 N.E.2d 218 (Ind. 2007). It is an abuse of

       discretion if the trial court’s “decision is clearly against the logic and effect of the

       facts and circumstances before the trial court.” Singh v. State, 40 N.E.3d

       981, 987 (Ind. Ct. App. 2015), trans. denied. We note that in this case, Wininger

       was sentenced pursuant to a plea agreement, which provided for a four-year cap

       on the executed portion of his sentence. “Where a plea agreement leaves

       sentencing to the trial court’s discretion, a defendant is entitled to contest on

       direct appeal the merits of a trial court’s sentencing decision. This includes a

       plea agreement wherein a defendant agrees to a sentencing cap or range.”

       Bowling v. State, 960 N.E.2d 837, 841 (Ind. Ct. App. 2012) (citation omitted),

       trans. denied.


[11]   In Indiana,

               trial courts are required to enter sentencing statements whenever
               imposing [a] sentence for a felony offense. . . . [T]he statement
               must include a reasonably detailed recitation of the trial court’s
               reasons for imposing a particular sentence. If the recitation
               includes a finding of aggravating or mitigating circumstances,
               then the statement must identify all significant mitigating and
               aggravating circumstances and explain why each circumstance
               has been determined to be mitigating or aggravating.


       Anglemyer, 868 N.E.2d at 490 (citations omitted). Our supreme court has

       elaborated that a trial court may abuse its discretion by



       Court of Appeals of Indiana | Memorandum Decision 51A01-1509-CR-1375 | May 17, 2016   Page 5 of 13
               failing to enter a sentencing statement at all[,] . . . entering a
               sentencing statement that explains reasons for imposing a
               sentence—including a finding of aggravating and mitigating
               factors if any—but the record does not support the reasons, or the
               sentencing statement omits reasons that are clearly supported by
               the record and advanced for consideration, or the reasons given
               are improper as a matter of law.


       Id. at 490-91. In such a situation, we 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.”

       Id. at 491. “[O]nce the trial court has entered a sentencing statement, which

       may or may not include the existence of aggravating and mitigating factors, it

       may then ‘impose any sentence that is . . . authorized by statute; and . . .

       permissible under the Constitution of the State of Indiana.’” Id. (ellipsis in

       original) (quoting I.C. § 35-38-1-7.1(d)).

[12]   In the present case, the trial court made the following statement in imposing

       Wininger’s sentence:

               I know what needs to be done with . . . Wininger and he needs to
               go to the DOC. I also know that he is a working man. I’m
               concerned because while he admitted he would never drive again
               he [is] still making an excuse for why he drove. I thought I was
               having a heart attack and needed to go to the hospital was one
               comment that he made that concerned me. The other one was I
               don’t want to be a burden to my friends. I don’t know that he
               doesn’t get the fact he’s going to be a burden to whomever he
               deals with for the rest of his life whenever he needs to get
               somewhere. That’s a concern. That’s the whole reason his son
               testified that he, you know, he keeps driving because he wants to

       Court of Appeals of Indiana | Memorandum Decision 51A01-1509-CR-1375 | May 17, 2016   Page 6 of 13
               be independent. I’m going to, there was a four (4) year cap, I’m
               going to sentence him to the four (4) years at [DOC]. I’m going
               to have him serve one (1) year at the []DOC with the remaining
               three (3) years as a direct commitment to community corrections.
               I’m not going to do any probation. He has four (4) years. I’ll be
               quite honest, . . . Wininger, I’ll be real surprised if you make it in
               the first six (6) months. I, I don’t know that you’ve got the
               concept that you can’t ever drive again. . . . I don’t care what the
               situation is. I still don’t get I didn’t dial 911. I . . . don’t get that.
               But nobody has given me any information, uh, but you, you
               knew you shouldn’t drive but you wanted to get to the hospital.
               So I think you need to set [sic] in the [DOC] for awhile and
               ponder on the fact that this is for real and this is for the rest of
               your life.


       (Tr. pp. 80-81). Wininger does not challenge the adequacy of the trial court’s

       sentencing statement. Rather, he simply contends that the trial court should

       have identified his “guilty plea, the undue hardship he will suffer from

       incarceration because of his health, his remorse[,] and his alcohol rehabilitation

       spanning nearly the past [twenty] years” as factors warranting mitigation of his

       sentence. (Appellant’s Br. p. 10). We disagree.


[13]   The determination of mitigating circumstances is a matter left to the trial court’s

       discretion. Healey v. State, 969 N.E.2d 607, 616 (Ind. Ct. App. 2012), trans.

       denied. The trial court has no obligation “to accept the defendant’s argument as

       to what constitutes a mitigating factor,” nor is it “required to give the same

       weight to proffered mitigating factors as does a defendant.” Id. “A trial court

       does not err in failing to find a mitigating factor where that claim is highly

       disputable in nature, weight, or significance.” Id. Where a defendant asserts


       Court of Appeals of Indiana | Memorandum Decision 51A01-1509-CR-1375 | May 17, 2016   Page 7 of 13
       that a trial court has abused its discretion by failing to identify a mitigating

       factor, on appeal, the defendant bears the burden of establishing “that the

       mitigating evidence is significant and clearly supported by the record.” Id.


[14]   Wininger asserts that the trial court should have found his “very poor health” to

       be a mitigating circumstance. (Appellant’s Br. p. 9). Wininger’s son testified

       that Wininger has “had three (3) heart attacks since June of 2014.” (Tr. p. 69).

       Wininger’s son also noted that Wininger is not eligible for “a defibrillator”

       because his heart is only functioning at 35%, rather than the requisite 50%;

       thus, “he’s at high risk . . . for death.” (Tr. pp. 68-69). At the sentencing

       hearing, Wininger’s attorney argued simply that “[h]is health is that serious that

       he . . . deserves leniency for that reason alone.” (Tr. p. 79). On appeal,

       Wininger offers no argument as to why his poor health should be considered a

       factor in mitigation. During the sentencing hearing, Wininger’s son testified

       that he had been providing Wininger’s medication to the jail during Wininger’s

       incarceration, and there was no indication that Wininger would not receive

       necessary treatment if sentenced to the DOC. See Henderson v. State, 848 N.E.2d

       341, 345 (Ind. Ct. App. 2006) (concluding the trial court did not err in failing to

       identify the defendant’s poor health as a mitigating circumstance where no

       evidence was presented that the defendant’s “medical conditions would be

       untreatable during incarceration or would render incarceration a hardship”).


[15]   Wininger also cites his guilty plea and remorse as factors that the trial court

       should have considered in mitigation. In general, a guilty plea deserves some

       consideration as a mitigating circumstance. Caraway v. State, 959 N.E.2d 847,

       Court of Appeals of Indiana | Memorandum Decision 51A01-1509-CR-1375 | May 17, 2016   Page 8 of 13
       853 (Ind. Ct. App. 2011), trans. denied. However, a guilty plea loses its

       mitigating significance “if the circumstances indicate [that] the defendant is not

       taking responsibility for his actions, or if substantial admissible evidence exists

       against the defendant. Also, the plea may not be significant ‘when the

       defendant receives a substantial benefit in return for the plea.’” Id. (citation

       omitted) (quoting Anglemyer, 875 N.E.2d at 221). In this case, Wininger

       received the benefit of a capped sentence. A Level 5 felony carries a maximum

       sentence of six years, but the executed portion of Wininger’s term would not

       exceed four years under the plea deal. See I.C. § 35-50-2-6(b). Moreover, given

       the fact that Wininger admitted to the police officers that he had been driving

       his pickup truck at the time of the accident, the State’s case against him was

       strong; thus, Wininger’s decision to plead guilty was “merely a pragmatic one.”

       Lavoie v. State, 903 N.E.2d 135, 143 (Ind. Ct. App. 2009).

[16]   Additionally, with respect to Wininger’s expression of remorse, Wininger

       concedes that the trial court “seemed to doubt [his] sincerity.” (Appellant’s Br.

       p. 10). During the sentencing hearing, Wininger stated that he knew “what [he]

       did was wrong.” (Tr. p. 72). However, he offered numerous, inconsistent

       excuses in an attempt to justify his illegal conduct. First, when the police

       officers arrived at his house to question him about the accident, Wininger stated

       that he left the scene out of fear that he would be arrested based on his HTV

       status. Then, during his PSI interview, Wininger informed the probation officer

       that he drove because “he believed he was having a heart attack” and did not

       have a working phone to call for help. (Appellant’s Conf. App. p. 125). In his


       Court of Appeals of Indiana | Memorandum Decision 51A01-1509-CR-1375 | May 17, 2016   Page 9 of 13
       written version of events for the PSI, Wininger described that on the day of the

       accident, he was experiencing chest pain, did not have medication at his house,

       and could not get a hold of his son to drive him to the hospital. Yet, in the

       same report, Wininger claimed that, after the accident, he “asked one of the

       motorcycle group” to take him to his house “to get some medication to stop my

       heart from beating so fast.” (Appellant’s Conf. App. p. 129). Lastly, Wininger

       made a statement at the sentencing hearing: “I was thinking I was having a

       heart attack when I left my house. . . . And, uh, once [the accident] happened

       and I, I went to the house to get some medication and I went to get a bar to get

       my truck so they wouldn’t tow it away. . . . I promise I will never drive again in

       my life.” (Tr. p. 72). Accordingly, we find no abuse of discretion in the trial

       court’s rejection of Wininger’s guilty plea and remorse as mitigating

       circumstances.


[17]   Finally, we find that Wininger’s argument regarding his alcohol rehabilitation is

       precluded from appellate review. Although Wininger’s son stated at the

       sentencing hearing that Wininger “hasn’t drink [sic] a drop since 1999[,]”

       Wininger did not proffer his “[twenty] years” of alcohol rehabilitation as a

       mitigating circumstance for the trial court to consider. (Tr. p. 70). “If the

       defendant does not advance a factor to be mitigating at sentencing, this [c]ourt

       will presume that the factor is not significant and the defendant is precluded

       from advancing it as a mitigating circumstance for the first time on appeal.”

       Hollin v. State, 877 N.E.2d 462, 465 (Ind. 2007) (quoting Spears v. State, 735

       N.E.2d 1161, 1167 (Ind. 2000)).


       Court of Appeals of Indiana | Memorandum Decision 51A01-1509-CR-1375 | May 17, 2016   Page 10 of 13
                                        II. Appropriateness of Sentence

[18]   Wininger also claims that his sentence is inappropriate. A Level 5 felony is

       punishable by a “term of between one (1) and six (6) years, with the advisory

       sentence being three (3) years.” I.C. § 35-50-2-6(b). Here, Wininger received a

       four-year sentence, which is well within the statutory range and is the

       maximum term agreed upon under his plea agreement. Even where the trial

       court acts within its lawful discretion in fashioning a sentence, our court may

       revise the sentence “if, after due consideration of the trial court’s decision, [we]

       find[] that the sentence is inappropriate in light of the nature of the offense and

       the character of the offender.” Ind. Appellate Rule 7(B).


[19]   It is well established that “[t]he principal role of appellate 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 are mindful that “we must and should

       exercise deference to a trial court’s sentencing decision, both because

       [Appellate] Rule 7(B) requires us to give ‘due consideration’ to that decision

       and because we understand and recognize the unique perspective a trial court

       brings to its sentencing decisions.” Hunt v. State, 43 N.E.3d 588, 590 (Ind. Ct.

       App. 2015), trans. denied. On review, we focus on “the length of the aggregate

       sentence and how it is to be served.” Cardwell, 895 N.E.2d at 1224. Ultimately,

       “whether we regard a sentence as appropriate at the end of the day turns on our

       sense of the culpability of the defendant, the severity of the crime, the damage


       Court of Appeals of Indiana | Memorandum Decision 51A01-1509-CR-1375 | May 17, 2016   Page 11 of 13
       done to others, and myriad other factors that come to light in a given case.” Id.

       Our court does “not look to see whether the defendant’s sentence is appropriate

       or if another sentence might be more appropriate; rather, the test is whether the

       sentence is ‘inappropriate.’” Barker v. State, 994 N.E.2d 306, 315 (Ind. Ct. App.

       2013), trans. denied. Wininger, who bears the burden of proving that his

       sentence is inappropriate, simply argues that “[t]he numerous mitigators

       [discussed above] support” a reduced sentence. Gleason v. State, 965 N.E.2d

       702, 712 (Ind. Ct. App. 2012); (Appellant’s Br. p. 12).


[20]   We first consider the nature of the offense. Wininger, whose driver’s license

       has been suspended since 2005, was involved in an accident while he was

       driving his pickup truck. Due to his HTV status, Wininger left the scene before

       police arrived. It is undisputed that it was the motorcycle driver who caused

       the accident, but when Wininger fled the scene, he left two injured people

       behind—one of whom had suffered a compound fracture—because he did not

       want to get arrested.


[21]   As to his character, the record establishes that Wininger served in the United

       States Navy and received an honorable discharge in 1973. In addition,

       Wininger has a steady employment history, and Wininger’s son lauded

       Wininger’s work ethic during the sentencing hearing. Nevertheless, Wininger’s

       criminal history demonstrates his unwillingness to conform to the laws of our

       society. Wininger’s criminal history, while certainly not the worst this court

       has seen, consists of multiple alcohol and driving related offenses. Specifically,

       his record contains four convictions for operating while intoxicated and one

       Court of Appeals of Indiana | Memorandum Decision 51A01-1509-CR-1375 | May 17, 2016   Page 12 of 13
       HTV conviction. Furthermore, at the time he committed the instant offense,

       Wininger had a two-year-old outstanding warrant in Orange County after he

       failed to appear on a charge of operating a motor vehicle after forfeiture of

       license for life in an incident nearly identical to the present case. For his prior

       offenses, Wininger received suspended sentences, probation, community

       service, and home detention. It is evident that the trial court’s past leniency

       was insufficient to deter Wininger from committing additional crimes. Thus, a

       DOC sentence is now necessary to ensure that Wininger respects the fact that,

       regardless of the circumstances, he is prohibited from operating a vehicle. We

       therefore find that Wininger’s sentence is not inappropriate and affirm the trial

       court’s four-year term.


                                               CONCLUSION

[22]   Based on the foregoing, we conclude that the trial court acted within its

       discretion in declining to find any mitigating circumstances, and we further

       conclude that Wininger’s sentence is not inappropriate.


[23]   Affirmed.

[24]   Kirsch, J. and Pyle, J. concur




       Court of Appeals of Indiana | Memorandum Decision 51A01-1509-CR-1375 | May 17, 2016   Page 13 of 13
