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                         Dec 11 2013, 9:24 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.


ATTORNEY FOR APPELLANT:                            ATTORNEYS FOR APPELLEE:

KRISTINA J. JACOBUCCI                              GREGORY F. ZOELLER
Newby, Lewis, Kaminski & Jones, LLP                Attorney General of Indiana
La Porte, Indiana
                                                   CYNTHIA L. PLOUGHE
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

RANDY WINTERS,                                     )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )       No. 46A03-1302-CR-59
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                     APPEAL FROM THE LA PORTE SUPERIOR COURT
                          The Honorable Kathleen B. Lang, Judge
                              Cause No. 46D01-1109-FB-344



                                       December 11, 2013


                MEMORANDUM DECISION - NOT FOR PUBLICATION


BRADFORD, Judge
                                    CASE SUMMARY

       On June 24, 2011, Appellant-Defendant Randy Winters, while armed with a gun,

approached another man in a parking lot and took property from the man. Winters was

subsequently charged with one count of Class B felony robbery and one count of Class C

felony battery. On October 11, 2012, Winters pled guilty to one count of Class B felony

robbery. In exchange for Winters’s guilty plea, Appellee-Plaintiff, the State of Indiana,

agreed to dismiss the Class C felony battery charge. The parties agreed that sentencing

would be left to the discretion of the trial court. The trial court subsequently accepted

Winters’s guilty plea, and on January 22, 2013, sentenced Winters to a twenty-year term of

incarceration. On appeal, Winters contends that the trial court abused its discretion in

sentencing him and that his twenty-year sentence is inappropriate. We affirm.

                       FACTS AND PROCEDURAL HISTORY

       The factual basis entered during the October 11, 2012 guilty plea hearing provides that

on June 24, 2011, Winters, while armed with a deadly weapon, i.e., a gun, approached

Michael Oliver in a parking lot. While armed with the gun, Winters took property from

Oliver. Winters then fled the scene.

       On September 9, 2011, Winters was charged with one count of Class B felony robbery

and one count of Class C felony battery. On October 11, 2012, Winters pled guilty to one

count of Class B felony robbery. In exchange for Winters’s guilty plea, the State agreed to

dismiss the Class C felony battery charge. The parties agreed that sentencing would be left to

the discretion of the trial court. The trial court subsequently accepted Winters’ guilty plea,

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and on January 22, 2013, sentenced Winters to a twenty-year term of incarceration.

                                DISCUSSION AND DECISION

        On appeal, Winters contends that the trial court abused its discretion in sentencing him

and that his sentence is inappropriate in light of the nature of his offense and his character.

Initially, we note that although on first glance it appears that Winters has waived his right to

appellate review of his sentence as a term of his plea agreement, we will nonetheless address

the merits of Winters’s contentions on appeal.1

                                      A. Abuse of Discretion

        Winters claims that the trial court failed to accord proper weight to certain mitigating

circumstances, specifically his guilty plea and his remorse.

        The finding of mitigating factors is not mandatory and rests within the
        discretion of the trial court. The trial court is not obligated to accept the
        defendant’s arguments as to what constitutes a mitigating factor. Nor is the
        court required to give the same weight to proffered mitigating factors as the
        defendant does. Further, the trial court is not obligated to explain why it did
        not find a factor to be significantly mitigating. However the trial court may
        not ignore facts in the record that would mitigate an offense, and a failure to
        find mitigating circumstances that are clearly supported by the record may
        imply that the trial court failed to properly consider them.

Espinoza v. State, 859 N.E.2d 375, 387 (Ind. Ct. App. 2006) (citations and quotation marks

omitted).

        Here, Winters argued three mitigating circumstances at sentencing:                       (1) he

acknowledged his culpability and responsibility and saved the government the time and


        1
          Because we address Winters’s contentions on the merits, we find the State’s motion to dismiss
Winters’s appeal to be moot, and accordingly deny said motion in an order issued simultaneously with this
decision.
                                                   3
expense of having to go to trial by pleading guilty, (2) he saved the victim the experience of

having to appear before a jury, and (3) he exhibited remorse. On appeal, Winters claims that

the trial court failed to give proper mitigating weight to his guilty plea and his demonstration

of remorse.

       Concerning his guilty plea, Winters argues that his plea should have been given

greater weight because by pleading guilty, he accepted responsibility for his actions and

saved the State the expense and time of proceeding to trial. “[A]lthough we have long held

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

in return, a guilty plea may not be significantly mitigating when the defendant receives a

substantial benefit in return or when the defendant does not show acceptance of

responsibility.” McElroy v. State, 865 N.E.2d 584, 591 (Ind. 2007) (citations omitted). Here,

in exchange for Winters’s plea, the State agreed to dismiss the Class C felony battery charge.

Winters undoubtedly benefited from the dismissal of this charge. Additionally, Winters

waited over one year after being charged and until a mere eleven days before his trial was set

to commence to accept responsibility for his actions. Given the late nature of his guilty plea,

it is reasonable to assume that the State had already expended substantial resources on

Winters’s case preparing for trial.      Therefore, we will not disturb the trial court’s

determination that Winters’s guilty plea was not a significant mitigating factor.

       With respect to Winters’s alleged remorse, the trial court, which has the ability to

directly observe the defendant and listen to the tenor of her voice, is in the best position to

determine whether the remorse is genuine. Corralez v. State, 815 N.E.2d 1023, 1025 (Ind.

                                               4
Ct. App. 2004). At the sentencing hearing, the trial court noted Winters’s remorse.

However, because the trial court was in the best position to directly observe Winters to

determine whether his alleged remorse was genuine, we will not disturb the trial court’s

determination that this was not a significant mitigating factor. See id.

       From our review of the record, we are convinced that the trial court considered all

evidence of the alleged mitigating factors presented by Winters. The trial court made a clear

sentencing statement recognizing all mitigating factors argued by the parties. Again, a trial

court has discretion to find mitigating circumstances and, absent an abuse of discretion, this

court will not remand for resentencing. See Hardebeck v. State, 656 N.E.2d 486, 493 (Ind.

Ct. App. 1995), trans. denied. Winters has not shown an abuse of discretion in this regard.

                              B. Appropriateness of Sentence

       Winters also challenges his sentence by claiming that it is inappropriate in light of the

nature of his offense and his character. Indiana Appellate Rule 7(B) provides that “The

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.” In analyzing such claims, we “‘concentrate less

on comparing the facts of [the case at issue] to others, whether real or hypothetical, and more

on focusing on the nature, extent, and depravity of the offense for which the defendant is

being sentenced, and what it reveals about the defendant’s character.’” Paul v. State, 888

N.E.2d 818, 825 (Ind. Ct. App. 2008) (quoting Brown v. State, 760 N.E.2d 243, 247 (Ind. Ct.

App. 2002), trans. denied). The defendant bears the burden of persuading us that his

                                                5
sentence is inappropriate. Sanchez v. State, 891 N.E.2d 174, 176 (Ind. Ct. App. 2008).

       With respect to the nature of Winters’s offense, the record demonstrates that Winters,

while covering his face with a blue bandana and holding a gun in his hand, approached

Oliver in a parking lot, pointed his gun at Oliver, and demanded money from Oliver. When

Oliver claimed that he did not have any money, Winters struck Oliver in the face and head,

breaking his nose. Winters then fled the scene.

       With respect to Winters’s character, the record demonstrates that Winters has a

substantial criminal history. This criminal history includes a prior felony conviction for

robbery, two prior felony convictions for armed robbery, a felony conviction for robbery

resulting in bodily injury, a felony conviction for aggravated vehicle hijacking with a

weapon, and two prior felony convictions relating to the possession of narcotic drugs.

Winters’s criminal history also includes prior failed attempts at probation. In addition,

Winters was on parole at the time he committed the instant offense.

       Winters argues that his sentence is inappropriate because his actions do not reflect

those of the “worst offender” and also because he accepted culpability for his conduct.

Winters also argues that his lack of education should be taken into account with respect to his

character. However, in light of Winters’s actions, which included robbing another man while

armed with a gun, and his criminal history, which displays a continuing propensity to commit

armed robbery, we cannot say that his twenty-year sentence is inappropriate.

       The judgment of the trial court is affirmed.

MATHIAS, J., and PYLE, J., concur.

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