MEMORANDUM DECISION
                                                                                   FILED
Pursuant to Ind. Appellate Rule 65(D),                                        Mar 17 2016, 7:09 am

this Memorandum Decision shall not be                                              CLERK
                                                                               Indiana Supreme Court
regarded as precedent or cited before any                                         Court of Appeals
                                                                                    and Tax Court
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
Michael P. Quirk                                         Gregory F. Zoeller
Muncie, Indiana                                          Attorney General of Indiana
                                                         Richard C. Webster
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Rachel Pittsford,                                        March 17, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A04-1508-CR-1273
        v.                                               Appeal from the Delaware Circuit
                                                         Court
State of Indiana,                                        The Honorable Marianne L.
Appellee-Plaintiff.                                      Vorhees, Judge
                                                         Trial Court Cause No.
                                                         18C01-1502-F4-1




Brown, Judge.



Court of Appeals of Indiana | Memorandum Decision 18A04-1508-CR-1273 | March 17, 2016             Page 1 of 7
[1]   Rachel Pittsford appeals her sentence for burglary as a level 4 felony. Pittsford

      raises one issue which we revise and restate as whether the trial court abused its

      discretion in sentencing her. We affirm.


                                      Facts and Procedural History

[2]   On February 7, 2015, Pittsford broke into the dwelling of Avo Stults in Gaston,

      Indiana, with the intent of committing theft. She stole prescription pain pills

      from Stults.


[3]   On February 11, 2015, the State charged Pittsford with burglary as a level 4

      felony. On June 29, 2015, Pittsford and the State entered into a plea agreement

      pursuant to which she agreed to plead guilty as charged and the State agreed

      that, although sentencing would be left to the discretion of the court, the

      executed portion of her sentence would be capped at four years. That same

      day, Pittsford pled guilty pursuant to the agreement.


[4]   On July 27, 2015, the trial court held a sentencing hearing. At the hearing,

      Pittsford testified that she was currently pregnant and requested that she be

      released to drug court due to her substance abuse problems. She stated that she

      had been off drugs for three months due to her incarceration and that opiates

      were out of her system. She also admitted that, following her arrest, she was

      placed on pretrial electronic home detention but that twenty-five days later she

      cut off the transmitter and absconded, and that she has not sought help for her

      drug addiction on her own.




      Court of Appeals of Indiana | Memorandum Decision 18A04-1508-CR-1273 | March 17, 2016   Page 2 of 7
[5]   The court found that Pittsford’s criminal history had minimal aggravating

      weight and specifically stated that it was giving no weight to certain Florida

      convictions. It found that her absconding from her pretrial home detention was

      “useful and weighty” because it “shows alternative sentencing may not be

      appropriate . . . .” Transcript at 42-43. The court also found as a significant

      aggravating circumstance that Pittsford has had a drug problem since 1999 but

      has never voluntarily sought treatment outside of a jail or prison. It found in

      aggravation that Pittsford knew the victim, who was nearly ninety years old,

      which showed that she used a degree of care and planning in committing the

      offense. The court found in mitigation that Pittsford accepted responsibility

      and pled guilty but assigned minimal weight to her plea because she received a

      significant benefit. Also, regarding Pittsford’s pregnancy, the court stated that it

      typically does not consider pregnancy as a reason to avoid incarceration and

      that it thought the State “made a good point in this case that [Pittsford] does not

      have the necessary skills and resources to combat her drug addiction. She’s

      never faced them outside of an incarceration situation and she’s never

      voluntarily sought treatment,” and “the pregnancy probably presents even more

      reason to send her to the Department of Correction because all it’s going to take

      is one (1) use of an opiate could [sic] harm the baby.” Transcript at 45.


[6]   The court sentenced Pittsford to four years executed in the Indiana Department

      of Correction (“DOC”). It also referred her to Purposeful Incarceration and

      recommended that she complete the Therapeutic Community Program for

      opiates. The court stated in its order that once Pittsford successfully completed


      Court of Appeals of Indiana | Memorandum Decision 18A04-1508-CR-1273 | March 17, 2016   Page 3 of 7
      the program it would modify her sentence and that she could serve the balance

      of her sentence on supervised probation.


                                                  Discussion

[7]   The issue is whether the court abused its discretion in sentencing Pittsford. We

      review the sentence for an abuse of discretion. Anglemyer v. State, 868 N.E.2d

      482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007). 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. A trial court abuses its discretion if it:

      (1) fails “to enter a sentencing statement at all;” (2) enters “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;” (3) enters a sentencing statement that “omits reasons that are clearly

      supported by the record and advanced for consideration;” or (4) considers

      reasons that “are improper as a matter of law.” Id. at 490-491. If the trial court

      has abused its discretion, we will remand for resentencing “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.

      The relative weight or value assignable to reasons properly found, or those

      which should have been found, is not subject to review for abuse of discretion.

      Id.


[8]   Pittsford argues that, because the probation officer considered certain

      convictions from Florida that took place many years before in making its
      Court of Appeals of Indiana | Memorandum Decision 18A04-1508-CR-1273 | March 17, 2016   Page 4 of 7
      recommendation that she serve four years executed, the trial court “used those

      Florida convictions as an aggravator . . . .” Appellant’s Brief at 7. She argues

      that the court did not give any weight to the facts that she was pregnant and

      that she was needed at home to care for her other children. She maintains that,

      due to her pretrial incarceration, she was clean from any drugs and that her

      husband pledged to turn her in if she used again. She also argues that the

      court’s identification of her cutting her pretrial home detention bracelet was

      error because that allegation was dismissed. Finally, she suggests that the court

      abused its discretion by not identifying her attempts at treatment as a mitigator.


[9]   The State argues that, to the extent Pittsford suggests she received an

      aggravated sentence, the advisory sentence for a level four felony is six years. It

      asserts that the court specifically gave her criminal history minimal weight and

      stated that it would not consider the Florida convictions. Regarding her

      pregnancy, the State notes that the court considered it and observed that

      keeping her incarcerated “would insure that her unborn child would not be

      harmed or suffer damage from her drug use.” Appellee’s Brief at 12. The State

      notes that the court did not consider her attempts to stay clean as a mitigator,

      noting that she had not sought help on her own and that the only times she was

      able to stay sober was when she was incarcerated. Regarding her absconding

      from electronic home detention, the State again notes that Pittsford did not

      receive an aggravated sentence and that the court considered it as evidence that

      alternative sentencing would not be appropriate. The State finally observes that

      her sentence is within the terms of the plea agreement.


      Court of Appeals of Indiana | Memorandum Decision 18A04-1508-CR-1273 | March 17, 2016   Page 5 of 7
[10]   To the extent Pittsford argues that the court abused its discretion in failing to

       identify mitigators, we note that the determination of mitigating circumstances

       is within the discretion of the trial court. Rogers v. State, 878 N.E.2d 269, 272

       (Ind. Ct. App. 2007), trans. denied. The trial court is not obligated to accept the

       defendant’s argument as to what constitutes a mitigating factor, and a trial court

       is not required to give the same weight to proffered mitigating factors as does a

       defendant. Id. 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. Anglemyer, 868 N.E.2d

       at 493. If the trial court does not find the existence of a mitigating factor after it

       has been argued by counsel, it is not obligated to explain why it has found that

       the factor does not exist. Id.


[11]   First, regarding Pittsford’s arguments related to her criminal history, as noted

       by the State, the court did not give her criminal history significant weight and

       did not give any weight to her Florida convictions. Second, regarding the

       burden on Pittsford’s family, “absent special circumstances, trial courts are not

       required to find that imprisonment will result in an undue hardship.” Dowdell v.

       State, 720 N.E.2d 1146, 1154 (Ind. 1999); see also Benefield v. State, 904 N.E.2d

       239, 247-248 (Ind. Ct. App. 2009) (recognizing that incarceration “almost

       always” works a hardship on others and concluding that the defendant failed to

       show “special circumstances” because there were other people who could take

       care of the defendant’s mother while she was incarcerated), trans. denied. Also,

       to the extent Pittsford is pregnant and she suggested she should therefore avoid

       Court of Appeals of Indiana | Memorandum Decision 18A04-1508-CR-1273 | March 17, 2016   Page 6 of 7
       incarceration in the DOC, the court considered her pregnancy and stated that

       the fact she does not have the skills or resources to stay away from drugs could

       be a reason to send her to the DOC. Third, the court considered her history of

       drug use, in which Pittsford testified that she had not sought treatment on her

       own and her attempts at staying clean occurred only when she was

       incarcerated. Finally, regarding Pittsford’s arguments related to cutting her

       home detention bracelet, the court found that to be “useful and weighty”

       because it “shows alternative sentencing may not be appropriate,” Transcript at

       42-43, and we cannot say that this reasoning was in error.


[12]   Pittsford received an executed sentence of four years, which is below the

       advisory sentence for a level 4 felony and is in accordance with the terms of the

       plea agreement. Also, the court stated that once Pittsford successfully

       completed the program it would modify her sentence and that she could serve

       the balance of her sentence on supervised probation. We cannot say that any

       of the proposed mitigators by Pittsford are both significant and clearly

       supported by the record, and we conclude that the court did not abuse its

       discretion in sentencing her.


                                                   Conclusion

[13]   For the foregoing reasons, we affirm Pittsford’s sentence for burglary as a level

       4 felony.


[14]   Affirmed.


       Baker, J., and May, J., concur.

       Court of Appeals of Indiana | Memorandum Decision 18A04-1508-CR-1273 | March 17, 2016   Page 7 of 7
