MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                            FILED
regarded as precedent or cited before any                                   Dec 14 2017, 9:39 am

court except for the purpose of establishing                                     CLERK
                                                                             Indiana Supreme Court
the defense of res judicata, collateral                                         Court of Appeals
                                                                                  and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Donald E.C. Leicht                                      Curtis T. Hill, Jr.
Kokomo, Indiana                                         Attorney General of Indiana

                                                        Matthew B. Mackenzie
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Franklin Wilcox,                                        December 14, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        34A04-1706-CR-1447
        v.                                              Appeal from the Howard Superior
                                                        Court
State of Indiana,                                       The Honorable William C.
Appellee-Plaintiff.                                     Menges, Judge
                                                        Trial Court Cause No.
                                                        34D01-1704-F6-447



Barnes, Judge.




Court of Appeals of Indiana | Memorandum Decision 34A04-1706-CR-1447 | December 14, 2017             Page 1 of 7
                                             Case Summary
[1]   Franklin Wilcox appeals his aggregate 2.5 year sentence for Level 6 felony

      neglect of a dependent, Level 6 felony possession of a synthetic drug or

      lookalike substance, and Class C misdemeanor possession of paraphernalia.

      We affirm.


                                                     Issue
[2]   Wilcox raises two issues, which we restate as:


              I.      whether the trial court abused its discretion in sentencing
                      him; and


              II.     whether his sentence is inappropriate in light of the nature
                      of the offenses and the character of the offender.


                                                     Facts
[3]   During the relevant period, Wilcox was on probation and violated the terms of

      his probation by failing to report to the Howard County Probation Department.

      On April 5, 2017, the Howard County Sheriff’s Department executed an arrest

      warrant at his residence for a separate offense in the presence of Wilcox’s wife

      and their child. The officers found the house in filthy condition. Wilcox

      “stated that he had some paraphernalia in the bedroom upstairs” and “informed

      [the officers] where . . . the items were located.” App. Vol. II p. 14. The

      officers recovered a white powdery synthetic drug or lookalike substance and

      smoking devices or pipes from the bedroom.



      Court of Appeals of Indiana | Memorandum Decision 34A04-1706-CR-1447 | December 14, 2017   Page 2 of 7
[4]   As a result, on April 7, 2017, the State charged Wilcox with Level 6 felony

      neglect of a dependent, Level 6 felony possession of a synthetic drug or

      lookalike substance, and Class C misdemeanor possession of paraphernalia.

      On May 22, 2017, the trial court an initial hearing. Wilcox entered pro se

      guilty pleas. In imposing its sentence, the trial court found Wilcox’s criminal

      history to be a significant aggravating factor and found no mitigating

      circumstances. The trial court sentenced Wilcox to 2.5 years executed on each

      of the Level 6 felonies and sixty days executed on the Class C misdemeanor.

      Wilcox’s sentences were ordered to be served concurrently and consecutively to

      his sentences in two other cases. He now appeals.


                                                  Analysis
                                          I.       Abuse of Discretion

[5]   Wilcox argues that the trial court abused its discretion when it sentenced him.

      Sentencing decisions are within the sound discretion of the trial court.

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

      218 (Ind. 2007). However, a trial court may be found to have abused its

      sentencing discretion in a number of ways, including: (1) failing to enter a

      sentencing statement at all; (2) entering a sentencing statement that explains

      reasons for imposing a sentence where the record does not support the reasons;

      (3) entering a sentencing statement that omits reasons that are clearly supported

      by the record and advanced for consideration; and (4) entering a sentencing

      statement in which the reasons given are improper as a matter of law. Id. at

      490-91. The reasons or omission of reasons given for choosing a sentence are

      Court of Appeals of Indiana | Memorandum Decision 34A04-1706-CR-1447 | December 14, 2017   Page 3 of 7
      reviewable on appeal for an abuse of discretion. Id. at 491. The weight given to

      those reasons, i.e. to particular aggravating or mitigating circumstances, is not

      subject to appellate review. Id.


[6]   Wilcox argues that the trial court improperly failed to identify his guilty plea

      and the non-violent nature of his crimes as significant mitigating factors. A trial

      court is not obligated to accept a defendant’s claim as to what constitutes a

      mitigating circumstance. Rascoe v. State, 736 N.E.2d 246, 249 (Ind. 2000).


              [A] defendant who pleads guilty deserves “some” mitigating
              weight be given to the plea in return. But an allegation that the
              trial court failed to identify or find a mitigating factor requires the
              defendant to establish that the mitigating evidence is not only
              supported by the record but also that the mitigating evidence is
              significant. And the significance of a guilty plea as a mitigating
              factor varies from case to case. For example, a guilty plea may
              not be significantly mitigating when it does not demonstrate the
              defendant’s acceptance of responsibility . . . or when the
              defendant receives a substantial benefit in return for the plea.


      Anglemyer, 875 N.E.2d at 220-21 (internal citations omitted).


[7]   A guilty plea is not necessarily mitigating where the evidence against the

      defendant is so strong that his decision to plead guilty is merely pragmatic.

      Amalfitano v. State, 956 N.E.2d 208, 212 (Ind. Ct. App. 2011). The record

      reflects that, when he was arrested, Wilcox confessed to possessing illegal drugs

      and paraphernalia in his filthy home, and he knowingly exposed his child to

      that environment. We cannot say that his guilty plea was a significant



      Court of Appeals of Indiana | Memorandum Decision 34A04-1706-CR-1447 | December 14, 2017   Page 4 of 7
      mitigator. Any error in the trial court’s failure to identify it as a mitigating

      circumstance is harmless.


[8]   Regarding his claim that the trial court should have considered the non-violent

      nature of his crime as a mitigating factor, we find that Wilcox—who has

      extensive experience with the criminal justice system—has waived any error, by

      his failure to mention it to the trial court at the sentencing hearing. See Banks v.

      State, 841 N.E.2d 654, 659 (Ind. Ct. App. 2006). The trial court did not abuse

      its discretion in sentencing him.


                                        II.     Inappropriate Sentence

[9]   Wilcox argues that his aggregate 2.5 year sentence is inappropriate under

      Indiana Appellate Rule 7(B). Appellate Rule 7(B) provides that we may revise

      a sentence authorized by statute if, after due consideration of the trial court’s

      decision, we find that the sentence is inappropriate in light of the nature of the

      offenses and the character of the offender. When considering whether a

      sentence is inappropriate, we need not be “extremely” deferential to a trial

      court’s sentencing decision. Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct.

      App. 2007). Still, we must give due consideration to that decision. Id. We also

      understand and recognize the unique perspective a trial court brings to its

      sentencing decisions. Id. Under this rule, the burden is on the defendant to

      persuade the appellate court that his or her sentence is inappropriate. Childress

      v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).




      Court of Appeals of Indiana | Memorandum Decision 34A04-1706-CR-1447 | December 14, 2017   Page 5 of 7
[10]   The principal role of Rule 7(B) review “should be to attempt to leaven the

       outliers, and identify some guiding principles for trial courts and those charged

       with improvement of the sentencing statutes, but not to achieve a perceived

       ‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.

       2008). We “should focus on the forest—the aggregate sentence—rather than

       the trees—consecutive or concurrent, number of counts, or length of the

       sentence on any individual count.” Id. When reviewing the appropriateness of

       a sentence under Rule 7(B), we may consider all aspects of the penal

       consequences imposed by the trial court in sentencing the defendant, including

       whether a portion of the sentence was suspended. Davidson v. State, 926 N.E.2d

       1023, 1025 (Ind. 2010).


[11]   The nature of the offenses reveals that Wilcox, while living in squalor,

       possessed a white powdery synthetic drug or lookalike substance and smoking

       devices intended for illegal drug use and allowed his child to be in that

       environment. Regarding his character, his criminal history reflects negatively

       thereon as follows:


               [Wilcox] has been adjudicated a [juvenile] delinquent five times,
               and over the course of his adult history [he] has accumulated
               fourteen misdemeanor convictions and three felony convictions
               over the course of his 34-year life. [His] convictions include eight
               convictions for drug and/or alcohol crimes, as well as resisting
               law enforcement, theft, auto theft, carjacking, confinement,
               battery, and domestic battery. [He] has had seventeen petitions
               to revoke probation found true against him. [He] has received
               probation, numerous drug and alcohol treatment programs, jail
               sentences, and prison sentences.

       Court of Appeals of Indiana | Memorandum Decision 34A04-1706-CR-1447 | December 14, 2017   Page 6 of 7
       Appellee’s Br. p. 8 (internal citations omitted). We also agree with the State

       that Wilcox’s recidivism, “contempt for the rehabilitative processes [repeatedly]

       offered to him,” and “disdain for the justice system” are aptly illustrated “by the

       fact that he was on probation and wanted on an unrelated warrant at the time

       of his arrest.” Id. Again, we regard Wilcox’s guilty plea as a pragmatic

       decision, rather than one reflecting good character. Given his extensive

       criminal history and failure to correct his behavior despite multiple

       opportunities to do so, the sentence imposed by the trial court is not

       inappropriate.


                                                 Conclusion
[12]   The trial court did not abuse its discretion when it sentenced Wilcox, and his

       sentence is not inappropriate. We affirm.


       Affirmed.


       May, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 34A04-1706-CR-1447 | December 14, 2017   Page 7 of 7
