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            Nov 18 2014, 10:21 am

the defense of res judicata, collateral
estoppel, or the law of the case.



ATTORNEY FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

RANDY M. FISHER                                 GREGORY F. ZOELLER
Leonard Hammond Thoma & Terrill                 Attorney General of Indiana
Fort Wayne, Indiana
                                                MICHAEL GENE WORDEN
                                                Deputy Attorney General
                                                Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

BENJAMIN S. McMILLEN,                           )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )       No. 02A03-1402-CR-57
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                     APPEAL FROM THE ALLEN SUPERIOR COURT
                           The Honorable Frances C. Gull, Judge
                    Cause No. 02D06-1306-FB-105 & 02D06-1203-FB-47


                                    November 18, 2014

               MEMORANDUM DECISION – NOT FOR PUBLICATION

RILEY, Judge
                             STATEMENT OF THE CASE

      In this consolidated appeal, Appellant-Defendant, Benjamin S. McMillen

(McMillen), challenges his aggregate eighteen-year sentence following the reinstatement

of his suspended sentence under Cause #047 and his conviction under Cause #105.

      We affirm.

                                        ISSUES

      McMillen raises two issues on appeal, which we restate as follows:

       (1) Whether the trial court abused its discretion in sentencing McMillen; and

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

           offense and character of the offender.

                       FACTS AND PROCEDURAL HISTORY

      On December 5, 2011, and again on December 12, 2011, police officers on the Allen

County Drug Task Force, utilizing a confidential informant, arranged to purchase narcotics

from McMillen. On the first occasion, McMillen sold the confidential informant 0.4 grams

of oxycodone and fentanyl; on the second occasion, McMillen sold the confidential

informant twelve Lortab (hydrocodone) pills. On March 9, 2012, the State filed an

Information under Cause #047, charging McMillen with Count I, dealing in a Schedule II

controlled substance, a Class B felony, Ind. Code § 35-48-4-2(a)(1)(C); and Count II,

dealing in a Schedule II and/or III controlled substance, a Class B felony, I.C. 35-48-4-

2(a)(1)(C). On July 2, 2012, pursuant to a plea agreement, McMillen pled guilty to Count

I as a Class B felony, and the State dismissed Count II. On July 30, 2012, the trial court


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imposed a ten-year sentence, with two years executed in the Allen County Community

Corrections Home Detention Program and eight years suspended. The trial court ordered

that McMillen spend four years of his suspended sentence on probation.

       Thereafter, McMillen enrolled as a full-time student at Ivy Tech Community

College and secured full-time employment. He also sought treatment for his substance

abuse and passed all of his drug screens. On March 16, 2013, having successfully

completed his home detention program, McMillen began his probationary period.

       Within a few weeks of his release from home detention, McMillen relapsed in his

substance abuse and was using heroin on a daily basis. Three months into his probation,

on the morning of June 2, 2013, Fort Wayne police officers were dispatched on a residential

break-in after a witness observed McMillen entering her neighbor’s house through the

garage. After verifying with the homeowners that McMillen’s entry was unauthorized,

police officers entered and apprehended him. The officers inspected the premises and

discovered a stockpile of the homeowners’ possessions, which included collectible gold

coins, a ring, and gold chains, on the floor of a bedroom closet. During his police interview,

McMillen explained that he had accessed the house with the homeowners’ garage door

opener, which an acquaintance had stolen a few days earlier. McMillen also admitted that

he intended to steal the items found piled in the closet in order to purchase heroin.

       On June 6, 2013, the State filed an Information under Cause #105, charging

McMillen with Count I, burglary, a Class B felony, I.C. § 35-43-2-1(1); and Count II,

receiving stolen property, a Class D felony, I.C. § 35-43-4-2(b). On June 10, 2013, the

Allen County Probation Department filed a petition under Cause #047 to revoke

                                              3
McMillen’s probation. On December 31, 2013, McMillen admitted to the probation

violation and also pled guilty to both Counts charged in Cause #105 without the benefit of

a plea agreement.

       On January 29, 2014, the trial court conducted a joint hearing on the matters of

McMillen’s probation revocation and his sentencing. In Cause #047, the trial court revoked

McMillen’s probation and reinstated his entire suspended sentence, ordering that he serve

eight years in the Indiana Department of Correction (DOC). In Cause #105, the trial court

sentenced McMillen to twelve years, with ten years executed in the DOC and two years

suspended to probation, for Count I, a Class B felony burglary; and two years, served

concurrently, for Count II, a Class D felony receiving stolen property. The trial court

ordered that McMillen serve his sentence under Cause #105 consecutive to his sentence

under Cause #047, for an aggregate, executed sentence of eighteen years.

       On February 13, 2014, McMillen filed a separate Notice of Appeal in both Cause

#047 and Cause #105. On March 31, 2014, McMillen filed a motion to consolidate the

matters for appeal, which our court granted on April 11, 2014. Additional facts will be

provided as necessary.

                            DISCUSSION AND DECISION

                            I. Abuse of Sentencing Discretion

       McMillen claims that the trial court abused its sentencing discretion by failing to

identify a number of mitigating circumstances. Sentencing decisions are a matter reserved

to the sound discretion of the trial court. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind.

2007), clarified on reh’g. A trial court may impose any sentence authorized by statute, and

                                            4
so long as a sentence falls within the statutory range, it may only be reviewed for an abuse

of discretion. Id. Our court will find an abuse of discretion only where a decision is

contrary to “the logic and effect of the facts and circumstances before the court, or the

reasonable, probable, and actual deductions to be drawn therefrom.” Id.

       In making a sentencing determination, the trial court may consider whether there

are any aggravating or mitigating circumstances to merit a sentence enhancement or

reduction. I.C. § 35-38-1-7.1(a)-(b). If the trial court finds the existence of any aggravators

or mitigators, it “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.         However, a trial court has no obligation to weigh

aggravating and mitigating factors. Id. at 491.

       It is undisputed that the trial court’s imposition of twelve-year and two-year

sentences, running concurrently, falls within the statutorily permissible ranges for Class B

and Class D felonies, respectively. See I.C. §§ 35-50-2-5; -7. During the sentencing

hearing, the trial court accepted several of McMillen’s proffered mitigating circumstances,

including that McMillen had “accepted responsibility for [his] behavior” by pleading

guilty, as well as that he had extended “a genuine apology” to the victims and expressed

remorse for his actions. (Transcript p. 19). On appeal, McMillen contends that the trial

court abused its discretion by failing to also consider his educational background, his

employment history, his family support system, and his longstanding struggle with

substance abuse as circumstances warranting sentence mitigation.



                                              5
       In order to establish that the trial court abused its discretion by failing to identify a

proper mitigating circumstance, the defendant must demonstrate “that the mitigating

evidence is both significant and clearly supported by the record.” Rogers v. State, 958

N.E.2d 4, 9 (Ind. Ct. App. 2011). If a mitigating circumstance is clearly supported by the

record, it may imply that the trial court improperly overlooked it; however, the trial court

is under no obligation “to explain why it has chosen not to find mitigating circumstances.”

Id. (quoting Anglemyer, 868 N.E.2d at 493). It is well settled that a trial court is not

required to accept a defendant’s arguments as to what constitutes a mitigating

circumstance. Id.

       We agree with McMillen that the record demonstrates that he has completed one

year of college and wants to complete his degree; that he maintained employment in several

capacities up until his present incarceration; that he has loving and caring family members,

who have repeatedly implored the court for leniency and offered to supervise and support

his rehabilitation; that he has struggled with a heroin addiction for nearly a decade; and

that his criminal record stems from his prolific substance abuse problem. Nevertheless, we

cannot say that the trial court abused its discretion by failing to consider these factors. To

the contrary, the trial court explicitly considered and subsequently declined to find

McMillen’s education and employment histories as mitigating circumstances because such

attributes are “expected of adults in our society.” (Tr. p. 19). Additionally, the trial court

noted that the devotion and support of McMillen’s family, while “laudable[,]” was not

significant as a mitigating factor. (Tr. p. 19). Finally, the trial court also expressly

determined that McMillen’s drug use did not favor mitigation, stating,

                                               6
       Your substance abuse, I note that your criminal record apparently is related
       to your substance abuse. I refuse to find that as a mitigating circumstance.
       You’ve had multiple opportunities at treatment, and in fact were clean and
       sober for a pretty significant period of time before you went back to drugs.

(Tr. pp. 19-20). Thus, it is clear that the trial court did consider each of the factors

submitted by McMillen but ultimately made the specific choice not to construe them as

mitigating circumstances. See Rogers, 958 N.E.2d at 9.

       Moreover, it is well established that the identification of even a single valid

aggravator is sufficient to sustain an enhanced sentence. Coy v. State, 999 N.E.2d 937, 947

(Ind. Ct. App. 2013). Here, the trial court specifically identified two aggravating factors

in support of its sentencing determination: McMillen’s criminal history and the fact that

he committed the offenses in Cause #105 while on probation in Cause #047. See I.C. § 35-

38-1-7.1(a)(2),(6). Along with the three felony convictions stemming from Cause #047

and Cause #105, McMillen’s criminal record includes an informal adjustment for

possession of marijuana as a juvenile and a misdemeanor conviction for possession of

marijuana in 2010. For the misdemeanor conviction, McMillen received a one-year

suspended sentence, but when McMillen failed to comply with the terms thereof, the trial

court ordered his incarceration for sixty days in the Allen County Jail. Accordingly,

because the trial court properly identified at least one valid aggravating circumstance, we

find no abuse of discretion in its decision to accord more weight to the aggravating factors

than to the mitigating factors.

                                  II. Inappropriate Sentence




                                              7
       Even where a trial court has not abused its discretion in imposing a sentence

authorized by statute, our court may nevertheless revise any sentence if we determine that

it “is inappropriate in light of the nature of the offense and the character of the offender.”

Ind. Appellate Rule 7(B). In reviewing the appropriateness of a sentence, we focus on the

length of the aggregate sentence and how it is to be served. Cardwell v. State, 895 N.E.2d

1219, 1224 (Ind. 2008). In addition, whether we regard a sentence as inappropriate will

hinge “on our sense of the culpability of the defendant, the severity of the crime, the

damage done to others, and myriad other factors that come to light in a given case.” Id.

Thus, we may look to any factors in the record. Spitler v. State, 908 N.E.2d 694, 696 (Ind.

Ct. App. 2009), trans. denied. McMillen bears the burden of persuading our court that his

sentence is inappropriate. Rogers, 958 N.E.2d at 10.

       Regarding the nature of his offense, we find that McMillen was on probation for

dealing in a controlled substance, a Class B felony, at the time he committed burglary, also

a Class B felony, and receiving stolen property, a Class D felony. McMillen claims that

he intended to steal only as a means of buying heroin; yet the evidence of his steady

employment indicates that McMillen had a regular source of income but nevertheless chose

to commit serious felonies in order to finance his drug addiction. In addition, in light of

the fact that his acquaintance had stolen the homeowners’ garage door opener several days

beforehand, it is evident that McMillen targeted his victims, planned his burglary, and

monitored the homeowners’ whereabouts until presented with a window of opportunity to

access their house. In our view, this conduct exceeds that of an addict who is simply



                                              8
desperate to get his hands on some immediate drug money. See Weiss v. State, 848 N.E.2d

1070, 1072 (Ind. 2006).

       As to the character of the offender, we find it clear from the record that McMillen

is not a malicious criminal. His early experimentation with drugs has forged a life of self-

destruction for which he needs treatment. Although McMillen has a significant history of

drug-related offenses, he has never injured another person or damaged any property in the

course of his crimes, and he appears to be genuinely remorseful for the harm he has

inflicted upon the victims of his burglary, as well as for the devastation that his substance

abuse has caused his family. That said, we note that McMillen’s crimes have consistently

escalated in severity, with the present offenses involving victims.            Furthermore,

McMillen’s prior lenient sentences have not been sufficient to deter him from criminal

activity, and his lack of accountability has thwarted any progress achieved in his prior

rehabilitation opportunities. See Rich v. State, 890 N.E.2d 44, 54-55 (Ind. Ct. App. 2008),

trans. denied. Despite McMillen’s success in his home detention program, including his

eight-months of sobriety, he returned to his former drug habits within three months of his

release to probation. Unless he is held accountable, McMillen has no incentive to make

real changes in his life.

       Considering the evidence of McMillen’s family, education, and criminal history, it

is apparent that his substance abuse changed the trajectory of his life. However, a drug

addiction is not an excuse for criminal behavior, and McMillen must endure the

consequences of his own making. Hopefully, the structured environment and programs

afforded by the DOC will serve to aid McMillen in combatting his addiction so that he may

                                             9
be a productive citizen upon his release. Accordingly, taking into account the fact that,

effectively, McMillen must execute only the advisory term for each of his two Class B

felonies (less the two years already served on home detention), we decline to find that his

aggregate eighteen-year sentence is inappropriate.

                                     CONCLUSION

       Based on the foregoing, we conclude that the trial court did not abuse its discretion

in sentencing McMillen, and McMillen’s sentence is not inappropriate in light of the nature

of his offense and character.

       Affirmed.

MATHIAS, J. and CRONE, J. concur




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