MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                  FILED
regarded as precedent or cited before any                          Feb 18 2020, 8:52 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
Michael P. DeArmitt                                      Curtis T. Hill, Jr.
Columbus, Indiana                                        Attorney General of Indiana
                                                         Lauren A. Jacobsen
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Craig T. Smith,                                          February 18, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-2230
        v.                                               Appeal from the Bartholomew
                                                         Circuit Court
State of Indiana,                                        The Honorable Kelly S. Benjamin,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         03C01-1809-F6-5444



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2230 | February 18, 2020          Page 1 of 8
                                           Statement of the Case
[1]   Craig T. Smith (“Smith”) appeals the two-and-one-half-year sentence imposed

      by the trial court following his guilty plea to Level 6 felony possession of

      methamphetamine.1 Smith argues that: (1) the trial court abused its discretion

      in its determination of mitigating circumstances; and (2) his sentence is

      inappropriate. Concluding that the trial court did not abuse its discretion and

      that Smith’s sentence is not inappropriate, we affirm his sentence.


[2]   We affirm.


                                                         Issues
                 1. Whether the trial court abused its discretion in its
                 determination of mitigating circumstances.

                 2. Whether Smith’s sentence is inappropriate.

                                                         Facts2
[3]   On September 27, 2018, Columbus police officers were dispatched to an

      abandoned property to investigate the report of a suspicious person. The

      officers found Smith and another man on the property. When an officer patted

      down Smith and felt something in his pocket, Smith told the officer that the




      1
          IND. CODE § 35-48-4-6.1.
      2
        The facts regarding Smith’s possession of methamphetamine offense as contained in his factual basis from
      his guilty plea is limited to the basic elements of the crime as necessary to establish a factual basis. Because
      Smith has challenged his sentence as inappropriate, thus requiring us to review the nature of the offense at
      issue, we will include facts, as found in the record before us and that were considered by the trial court,
      regarding the nature of Smith’s offense.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2230 | February 18, 2020                     Page 2 of 8
      object was “Hot Wheels.” (App. Vol. 2 at 16). Smith then pulled a sock out of

      his pocket. Ultimately, Smith admitted that the sock contained a pipe for

      smoking methamphetamine and drugs. The officer field tested the drugs, and

      they tested positive for methamphetamine.


[4]   The State charged Smith with Level 6 felony possession of methamphetamine

      and Class C misdemeanor possession of paraphernalia. Smith was initially

      released on bond. Smith wrote a letter to the State, informing it that he was

      going to seek drug treatment. He, however, did not seek treatment. In

      November 2018, Smith fail to appear in court, and the trial court issued a bench

      warrant.


[5]   On July 18, 2019, Smith entered a guilty plea to the Level 6 felony possession

      of methamphetamine charge in exchange for the State’s dismissal of the Class C

      misdemeanor possession of paraphernalia charge. During the guilty plea

      hearing, Smith acknowledge that he abused drugs. When the trial court asked

      Smith if he wanted to receive treatment, Smith replied, “I would like that. I

      probably need some.” (Tr. Vol. 2 at 13). Thereafter, the trial court referred

      Smith to be assessed for the REALM program, but Smith declined to

      participate in the program.


[6]   At the sentencing hearing, Smith, who was fifty years old, admitted that he had

      a drug addiction to methamphetamine. Smith stated that he had declined to

      participate in the REALM program because it was at the jail and that he

      “prefer[red] to just get out of jail and go back . . . to work[.]” (Tr. Vol. 2 at 24).


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2230 | February 18, 2020   Page 3 of 8
      When Smith’s counsel asked him if he had anything to tell the judge that would

      aid her with Smith’s sentencing decision, Smith responded, “No, not really.

      I’m just a drug addict and have been for years and I mean, that’s no excuse but

      that’s just the way it is[.]” (Tr. Vol. 2 at 26).


[7]   The trial court found the following aggravating circumstances: (1) Smith’s

      criminal history, which included thirty-four convictions spanning thirty-three

      years; (2) his previous violations of probation, which included nineteen times

      on probation, twenty-six petitions to revoke probation, and sixteen probation

      violations; (3) his rejection of prior offered treatment; and (4) his history of

      failing to appear in court, including his failure to appear in this case after the

      trial court had released him on bond so that he could receive treatment. The

      trial court recognized that Smith had pleaded guilty, noted that “the evidence

      [wa]s strong against him[,]” and determined that there was no significant

      mitigating circumstance. (Tr. Vol. 2 at 38). The trial court imposed a two-and-

      one-half (2½) year sentence. Smith now appeals.


                                                  Decision
[8]   Smith contends that: (1) the trial court abused its discretion in its determination

      of mitigating circumstances; and (2) his sentence is inappropriate. We will

      review each argument in turn.


      1. Abuse of Discretion


[9]   Smith argues that the trial court abused its discretion by failing to consider his

      guilty plea as a mitigating circumstance.
      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2230 | February 18, 2020   Page 4 of 8
[10]   Sentencing decisions rest 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). So long as the sentence is within the statutory range, it is

       subject to review only for an abuse of discretion. Id. An abuse of discretion

       will be found where 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 may abuse its discretion in

       a number of ways, including: (1) failing to enter a sentencing statement at all;

       (2) entering a sentencing statement that includes aggravating and mitigating

       factors that are unsupported by the record; (3) entering a sentencing statement

       that omits reasons that are clearly supported by the record; or (4) entering a

       sentencing statement that includes reasons that are improper as a matter of law.

       Id. at 490-91.


[11]   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). An

       allegation that the trial court abused its discretion by not identifying

       a defendant’s guilty plea as a mitigator “requires the defendant to establish that

       the mitigating evidence is not only supported by the record but also that

       the mitigating evidence is significant.” Anglemyer v. State, 875 N.E.2d 218, 220-

       21 (Ind. 2007). “[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. Id. at 221

       (citing Francis v. State, 817 N.E.2d 235, 238 n.3 (Ind. 2004) and Sensback v.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2230 | February 18, 2020   Page 5 of 8
       State, 720 N.E.2d 1160, 1165 (Ind. 1999)). Additionally, “[a] guilty plea is not

       necessarily a mitigating factor where the . . . evidence against the defendant is

       so strong that the decision to plead guilty is merely pragmatic.” Amalfitano v.

       State, 956 N.E.2d 208, 212 (Ind. Ct. App. 2011), trans. denied.


[12]   Here, Smith received a benefit from his guilty plea because the State agreed to

       dismiss his possession of paraphernalia charge. Additionally, the trial court

       specifically noted that the evidence against Smith was strong, making Smith’s

       decision to plead guilty merely a pragmatic decision. Accordingly, we conclude

       that the trial court did not abuse its discretion when it did not identify Smith’s

       guilty plea as a mitigating circumstance. See, e.g., Amalfitano, 956 N.E.2d at 212

       (holding that the trial court did not abuse its discretion by failing to find the

       defendant’s guilty plea as a mitigating factor).


       2. Inappropriate Sentence


[13]   Smith argues that his two-and-one-half-year sentence for his Level 6 felony

       possession of methamphetamine is inappropriate. He requests that we revise

       his sentence to two years.


[14]   We may revise a sentence if it is inappropriate in light of the nature of the

       offense and the character of the offender. Ind. Appellate Rule 7(B). The

       defendant has the burden of persuading us that his sentence is inappropriate.

       Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). The principal role of a

       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

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2230 | February 18, 2020   Page 6 of 8
       sentencing statutes, but not to achieve a perceived ‘correct’ result in each case.”

       Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). “Appellate Rule 7(B)

       analysis is not to determine whether another sentence is more appropriate but

       rather whether the sentence imposed is inappropriate.” Conley v. State, 972

       N.E.2d 864, 876 (Ind. 2012) (internal quotation marks and citation omitted),

       reh’g denied.


[15]   When determining whether a sentence is inappropriate, we acknowledge that

       the advisory sentence “is the starting point the Legislature has selected as an

       appropriate sentence for the crime committed.” Childress, 848 N.E.2d at 1081.

       Here, Smith entered a guilty plea and was convicted of Level 6 felony

       possession of methamphetamine. A person who commits a Level 6 felony

       offense “shall be imprisoned for a fixed term of between six (6) months and two

       and one-half (2½) years, with the advisory sentence being one (1) year.” I.C. §

       35-50-2-7(b). The trial court imposed the maximum sentence of two and one-

       half (2½) years.


[16]   Turning first to the nature of Smith’s possession of methamphetamine offense,

       we note that Smith was found on another person’s property with

       methamphetamine and a pipe to smoke the drug. Smith initially lied to a police

       officer and told him that he had Hot Wheels in his pocket.


[17]   Turning to Smith’s character, we note that Smith, who was fifty years old at the

       time of sentencing, has an extensive criminal history, which includes thirty-four

       convictions (twenty felonies and fourteen misdemeanors) spanning thirty-three


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2230 | February 18, 2020   Page 7 of 8
       years. The trial court discussed Smith’s convictions, which range from

       operating while intoxicated and possession of drug convictions to burglary,

       theft, and conversion convictions to false informing and forgery convictions.

       Smith also has a history of probation violations, which included nineteen

       placements on probation, twenty-six petitions to revoke probation, and sixteen

       probation violations. Additionally, Smith’s character was revealed when he

       failed to appear in court after he had been released on bond and had indicated

       to the State and the trial court that he was going to seek treatment. When

       sentencing Smith, the trial court noted that Smith’s character and extensive

       criminal history showed that Smith did not tell the truth, took things from

       people, and refused to follow court orders. We agree that his character

       indicates dishonesty and contempt for the law.


[18]   Smith has not persuaded us that his two-and-one-half-year sentence for his

       Level 6 felony possession of methamphetamine is inappropriate. Therefore, we

       affirm the sentence imposed by the trial court.


[19]   Affirmed.


       May, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2230 | February 18, 2020   Page 8 of 8
