                                                                         Jul 25 2013, 6:12 am

Pursuant to Ind. Appellate Rule 65(D), 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,
collateral estoppel, or the law of the case.


ATTORNEY FOR APPELLANT:                                ATTORNEYS FOR APPELLEE:

RYAN W. TANSELLE                                       GREGORY F. ZOELLER
Capper Tulley & Reimondo                               Attorney General of Indiana
Brownsburg, Indiana
                                                       MONIKA PREKOPA TALBOT
                                                       Deputy Attorney General
                                                       Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

DONALD R. SMITTY,                                )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )     No. 32A05-1212-CR-610
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                    APPEAL FROM THE HENDRICKS SUPERIOR COURT
                           The Honorable Karen M. Love, Judge
                              Cause No. 32D03-1103-FC-42



                                       July 25, 2013

               MEMORANDUM DECISION – NOT FOR PUBLICATION

BAKER, Judge
          The appellant-defendant Donald R. Smitty has amassed eleven prior convictions

for driving while intoxicated and six prior convictions for public intoxication. In this

case, he appeals the sentence that was imposed following yet another conviction for

Operating While Intoxicated Causing Endangerment,1 a class A misdemeanor, and the

determination that he was a Habitual Substance Offender.2 Smitty argues that the trial

court abused its discretion in sentencing him because several mitigating factors were

overlooked, including his significant health problems and his inability to pay the

mortgage on his residence if he was incarcerated. The State cross-appeals, arguing that

the trial court erred in ordering a separate three-year sentence on the habitual substance

offender count.

          Although we affirm the trial court’s judgment and sentence, we remand this cause

to the trial court for the limited purpose of correcting the record to show that the

operating while intoxicated charge is enhanced by the three-year sentence that was

imposed in light of the habitual substance offender finding.

                                          FACTS

          On March 9, 2011, Deputy Joshua D. Nohren of the Hendricks County Sheriff’s

Department stopped Smitty’s green Ford Explorer after receiving a dispatch “in response

to a possible intoxicated driver.” Appellant’s Br. p. 2. Prior to the stop, Officer Nohren

saw Smitty make several unsafe lane changes.


1
    Ind. Code § 9-30-5-2(b).
2
    Ind. Code § 35-50-2-10.
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       The State charged Smitty with Count I, operating a motor vehicle after a lifetime

forfeiture of his driving privileges, a class C felony, Count II, operating while intoxicated

causing endangerment, a class A misdemeanor, and Count III, unsafe lane movement, a

class C infraction.

       On April 18, 2011, the State added Count IV, the habitual substance offender

count, and on May 20, 2011, the State filed a motion to add Count V, operating a vehicle

with a blood alcohol content of at least .15, a class A misdemeanor. The trial court

granted the motion, and on November 5, 2012, Smitty and the State entered into a written

plea agreement, which provided that Smitty would plead guilty to Counts II and IV in

exchange for the dismissal of the remaining charges. The State also agreed that the

executed portion of the sentence would not exceed four years.

       The trial court accepted the plea agreement and during the sentencing hearing, the

State pointed out that Smitty had a lengthy criminal history with six prior felonies and

twenty-two prior misdemeanors.        The deputy prosecutor commented that this was

Smitty’s twelfth conviction for operating while intoxicated. It was also established that

Smitty had amassed six prior convictions for public intoxication. The State requested

that Smitty serve a four-year sentence.

       Smitty testified that he had cancer in his left lung, was undergoing radiation

treatment, and was taking nine different medications. Smitty also testified that he was on

disability and that he would lose his house to foreclosure if he went to prison. Smitty

further testified that he cannot drink with his medications, he had been sober since 2006,

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and the only reason that he drank on March 9, 2011, was because a close friend’s son had

died. Smitty requested that the trial court allow him to “sort out” the financial matters

concerning his house before going to prison and testified that he had only two years of

payments left to make on the residence. Tr. p. 30, 32. However, the State argued that

Smitty should not be released prior to serving his prison sentence because he posed a

significant danger to the public.

       The trial court recognized Smitty’s poor health as a mitigating circumstance. The

trial court observed that the four-year cap on the executed sentence took this mitigating

factor into account because three years was a minimal sentence on the habitual substance

offender count, and treatment for Smitty’s cancer would be available through the Indiana

Department of Correction (DOC).

       The trial court then noted Smitty’s lengthy criminal history, including his previous

probation violation. The trial court believed that Smitty was an alcoholic and agreed with

the State that if Smitty was released prior to serving his sentence, there was a significant

risk to the public that Smitty would again become intoxicated and drive.

       The trial court sentenced Smitty to 365 days of incarceration for operating while

intoxicated and to an additional three years for being a habitual substance offender. The

trial court ordered the habitual substance offender sentence to be served consecutively to

the sentence that was imposed on the operating charge.

       Smitty now appeals.



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                             DISCUSSION AND DECISION

       As noted above, Smitty claims that the trial court abused its discretion in

sentencing him to an aggregate term of four years in the DOC because it overlooked

significant mitigating circumstances. More particularly, Smitty contends that the trial

court should have identified his deteriorating health problems and his inability to work

and pay toward the mortgage on his residence as significant mitigating factors.

       We initially observe that sentencing decisions are reviewed only for an abuse of

discretion except for the power to review and revise as set forth in Indiana Appellate Rule

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

N.E.2d 218. As long as the sentence is within the statutory range for the particular

offense, we must determine only if there was an abuse of discretion. Id. An abuse of

discretion exists if the trial court’s 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 be found to have abused its discretion at sentencing if it

overlooks “substantial” mitigating factors that are “clearly supported by the record.”

Pennington v. State, 821 N.E.2d 899, 905 (Ind. Ct. App. 2005). However, when a

defendant offers evidence of mitigating factors, the trial court may determine whether the

factors are indeed mitigating, and it is not required to explain why it does not find the

proffered factors to be mitigating. Johnson v. State, 855 N.E.2d 1014, 1016 (Ind. Ct.

App. 2006). It is also within the trial court’s discretion to determine the weight of a

                                              5
particular mitigating circumstance. Pennington, 821 N.E.2d at 905. Thus, it cannot be

said that a trial court has abused its discretion in failing to “properly weigh” such factors.

Anglemyer, 868 N.E.2d at 491.

       In this case, Smitty did not specifically raise the possibility of his inability to make

payments on his residence as a mitigating factor at the sentencing hearing. As a result,

the argument is waived. Bryant v. State, 984 N.E.2d 240, 252 (Ind. Ct. App. 2013), trans.

denied. Rather, Smitty requested time to “sort out” some financial matters regarding his

residence prior to going to prison. Tr. p. 30, 32.

       Also, as mentioned above, the trial court denied Smitty additional time before

serving his sentence based on Smitty’s lengthy criminal record that involved alcohol

offenses, the belief that Smitty was an alcoholic and that he was a danger to the public.

The trial court also believed that Smitty would become intoxicated if he was released.

Tr. p. 34-35. Under these circumstances, we conclude that the trial court did not abuse its

discretion in denying Smitty additional release time.

       We also note the fact that Smitty’s perceived inability to make house payments is

not the type of unusual circumstances that would result in undue hardship if he was

incarcerated. In our view, owning a home and making payments on it is akin to having

dependents. More particularly, it is well settled that a trial court “is not required to find

that a defendant’s incarceration would result in undue hardship on his dependents,”

absent unique or special circumstances. Davis v. State, 835 N.E.2d 1102, 1116 (Ind. Ct.

App. 2005).    Under these circumstances, Smitty was likely aware of the very real

                                              6
possibility that the resolution of his case would involve a prison sentence prior to the

sentencing hearing, and he should have made arrangements for his house payments prior

to that time.

       Finally, we reject Smitty’s contention that the trial court overlooked his cancer as

a mitigating factor.    In fact, the trial court noted Smitty’s “health situation,” and

explained that the four-year cap on the executed sentence already took this mitigating

circumstance into consideration.      Tr. p. 815.   Specifically, the sentence that the trial

court imposed meant that Smitty would receive the minimum habitual substance offender

enhancement. The trial court was aware of Smitty’s medical problems and ordered him

to serve his sentence at the DOC, primarily because of the availability of the health

facilities there. Tr. p. 35. As a result, Smitty has failed to demonstrate that the trial court

overlooked his health problems as a mitigating factor. Again, we will not review the

relative weight or value assigned to the aggravating and mitigating circumstances that the

trial court recognizes. Anglemyer, 868 N.E.2d at 491. In sum, we note that Smitty does

not prevail on his claim that the trial court abused its discretion in sentencing him.

       Regarding the State’s cross-appeal, we agree that the trial court erred in ordering

the sentence imposed on the habitual substance offender count to run consecutively to the

operating while intoxicated causing endangerment conviction. Ind. Code § 35-50-2-10.

We have previously recognized that a habitual substance offender finding is not a

separate crime but an enhancement of the sentence for the underlying crime to which it is

attached. Bauer v. State, 875 N.E.2d 744, 747 (Ind. Ct. App. 2007).            Therefore, we

                                              7
remand this cause for the trial court to correct the record to show that the sentence

imposed on the habitual substance offender count was an enhancement to the sentence

that was imposed on the driving while intoxicated conviction.

      The judgment of the trial court is affirmed and remanded.

MAY, J., and MATHIAS, J., concur.




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