MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                             FILED
regarded as precedent or cited before any                                  Aug 12 2019, 9:12 am
court except for the purpose of establishing
                                                                                CLERK
the defense of res judicata, collateral                                     Indiana Supreme Court
                                                                               Court of Appeals
estoppel, or the law of the case.                                                and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Christopher L. Clerc                                     Curtis T. Hill, Jr.
Columbus, Indiana                                        Attorney General of Indiana

                                                         Courtney Staton
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Michael K. Thompson,                                     August 12, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-1000
        v.                                               Appeal from the Bartholomew
                                                         Circuit Court
State of Indiana,                                        The Honorable Kelly S. Benjamin,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause Nos.
                                                         03C01-1810-F4-5660
                                                         03C01-1810-F6-6065



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1000 | August 12, 2019                     Page 1 of 6
                                       Statement of the Case
[1]   Michael Thompson appeals his sentence after he pleaded guilty to dealing in

      methamphetamine, as a Level 4 felony, pursuant to a plea agreement.

      Thompson raises a single issue for our review, namely, whether the trial court

      abused its discretion when it did not find Thompson’s guilty plea to be a

      significant mitigating factor. We affirm.


                                 Facts and Procedural History
[2]   On August 24, 2017, and September 12, 2017, Thompson delivered between

      one and five grams of methamphetamine to a confidential informant working

      with the Bartholomew County Joint Narcotics Enforcement Team. Thereafter,

      the State executed a search warrant for Thompson’s residence. When

      Thompson opened the door for the officers, the officers immediately “smelled

      the odor of burnt marijuana and observed a cloud of smoke.” Appellant’s App.

      Vol. 2 at 34. Inside, the officers seized various controlled substances and

      paraphernalia.


[3]   The State charged Thompson with two counts of dealing in methamphetamine,

      each as a Level 4 felony, and one count of maintaining a common nuisance, as

      a Level 6 felony. In February of 2019, Thompson agreed to plead guilty to one

      count of dealing in methamphetamine, as a Level 4 felony. In exchange, the

      State agreed to dismiss the remaining two counts and further agreed to a

      maximum sentence of six years for Thompson’s Level 4 felony conviction.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1000 | August 12, 2019   Page 2 of 6
[4]   The trial court held a sentencing hearing in April, and Thompson testified at

      that hearing. Following the parties’ presentation of evidence and argument, the

      court accepted the plea agreement and sentenced Thompson as follows:


              The Court notes at the outset the benefit to Mr. Thompson of the
              remaining cause and the remaining counts being dismissed.


              The Court has to look at certain factors; aggravating and
              mitigating circumstances but also within that, looking at the
              character of the defendant, the seriousness of the crime[,] and the
              harm to the community.


              Mr. Thompson what makes your case . . . frankly
              perplexing . . . [is] you come across as trying to figure out what is
              the best way to say something to make [you] look good. You
              make comments and you[’]r[e] involved in circumstances and
              with people and somehow you really have nothing to do with
              any of it. You’re trying to remove yourself from the scenario as
              best you can to make it look like you really didn’t do anything
              too bad and that’s really concerning because you sold drugs.
              You made money from it. You sold for money.


              You talk about in your letter . . . about how this was . . . a
              nightmare that won’t end. . . . People using drugs that is a
              nightmare for them . . . . [Y]ou also contributed to a nightmare
              for others and you quite frankly do not seem able to appreciate
              that in any respect. None.


              There’s an apology to your family and friends . . . but there’s no
              apology to people you sold to; to the community; no
              forthrightness, and what you actually did. And that’s actually,
              quite frankly, really hard to listen to because the seriousness of
              the crime is great. The damage it causes to people individually,
              to families and to communit[ies] is great. And you’re saying you

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1000 | August 12, 2019   Page 3 of 6
              sold drugs for almost 10 years, at least eight. But just to a couple
              of people. . . .


              . . . Instead of honesty, it appears you make excuses[. I]nstead of
              owning up, you skirt the issues. Quite frankly, very little
              appreciation for why you’re here.


              The Court recognizes he has no past criminal convictions . . . .


              The Court does find as aggravating his inability . . . to recognize
              the seriousness of this offense or the crime which he committed[
              and] a lack of remorse.


      Tr. Vol. 2 at 36-37. The court then ordered Thompson to serve six years in the

      Department of Correction, with three years executed and three years

      suspended. This appeal ensued.


                                     Discussion and Decision
[5]   Thompson asserts on appeal that the trial court abused its discretion when it did

      not recognize his guilty plea as a significant mitigating factor. 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.) (“Anglemyer I”), clarified on reh’g, 875 N.E.2d 218 (2007) (“Anglemyer II”).

      “An abuse of discretion occurs if 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. (quotations and

      citation omitted). A trial court may abuse its discretion by failing to enter a

      sentencing statement, entering findings of aggravating and mitigating factors
      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1000 | August 12, 2019   Page 4 of 6
      unsupported by the record, omitting factors clearly supported by the record and

      advanced for consideration, or giving reasons that are improper as a matter of

      law. Id. at 490-91.


[6]   “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.” Id. at 493. Although “a

      defendant who pleads guilty deserves ‘some’ mitigating weight be given to the

      plea in return,” the “significance of a guilty plea as a mitigating factor varies

      from case to case.” Anglemyer II, 875 N.E.2d at 220-21. A plea “may not be

      significantly mitigating when it does not demonstrate the defendant’s

      acceptance of responsibility,” id., or when the decision to plead guilty is merely

      a pragmatic one, e.g. Amalfitano v. State, 956 N.E.2d 208, 212 (Ind. Ct. App.

      2011), trans. denied.


[7]   Thompson has not met his burden on appeal to show that his guilty plea was

      significant mitigating evidence. The trial court expressly found that, his plea of

      guilty notwithstanding, Thompson had failed to demonstrate sincere acceptance

      of responsibility for his actions. Further, Thompson’s decision to plead guilty

      was surely pragmatic. The State’s case against Thompson, which was premised

      on two controlled drug buys and the personal observations of officers inside

      Thompson’s home, was very strong. Likewise, in exchange for his plea,

      Thompson received, as the trial court recognized, the substantial benefits of a

      dismissed Level 4 felony charge, a dismissed Level 6 felony charge, and a

      sentencing cap of six years, only half of which the trial court ordered to be

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1000 | August 12, 2019   Page 5 of 6
      executed. Accordingly, Thompson cannot show that the trial court abused its

      discretion when it did not find his guilty plea to be a significant mitigator. We

      affirm Thompson’s sentence.


[8]   Affirmed.


      Bailey, J., and May, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1000 | August 12, 2019   Page 6 of 6
