MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                       FILED
this Memorandum Decision shall not be                                   May 31 2018, 11:03 am
regarded as precedent or cited before any
                                                                             CLERK
court except for the purpose of establishing                             Indiana Supreme Court
                                                                            Court of Appeals
the defense of res judicata, collateral                                       and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Mark A. Thoma                                           Curtis T. Hill, Jr.
Deputy Public Defender                                  Attorney General of Indiana
Leonard, Hammond, Thoma & Terrill
                                                        Evan Matthew Comer
Fort Wayne, Indiana                                     Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

James R. Martz, Sr.,                                    May 31, 2018
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        02A03-1712-CR-2979
        v.                                              Appeal from the Allen Superior
                                                        Court
State of Indiana,                                       The Honorable Frances C. Gull,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        02D04-1705-F6-559



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 02A03-1712-CR-2979 | May 31, 2018              Page 1 of 8
                                        Statement of the Case
[1]   James R. Martz, Sr., (“Martz”) appeals the sentence imposed after he pled

      guilty to Level 6 felony possession of cocaine.1 He specifically argues that the

      trial court abused its discretion in sentencing him and that his sentence is

      inappropriate in light of the nature of this offense and his character. Because

      we conclude that the trial court did not abuse its discretion in sentencing Martz

      and that Martz’s sentence is not inappropriate in light of the nature of the

      offense and Martz’s character, we affirm Martz’s sentence.


[2]   We affirm.


                                                      Issues
              1.       Whether the trial court abused its discretion in sentencing
                       Martz.


              2.       Whether Martz’s sentence is inappropriate.


                                                      Facts
[3]   When Martz was stopped for speeding in May 2017, he admitted that he was

      driving with a suspended license. A search of Martz’s car revealed 97.2 grams

      of synthetic marijuana, a digital scale with plant residue, a cup with plant



      1
        IND. CODE 35-48-4-6. Martz also pled guilty to: (1) Class A misdemeanor possession of a synthetic drug;
      (2) Class A misdemeanor operating a motor vehicle with a suspended license; and (3) Class B misdemeanor
      possession of marijuana. However, he specifically states in his brief that this appeal concerns only his
      sentence for possession of cocaine. (Martz’s Br. 11).



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      residue, a box of clear plastic bags, rolling papers, and a red gummy edible

      substance that tested positive for marijuana. Martz also had .2 grams of

      cocaine in his wallet.


[4]   In June 2017, Martz pled guilty to Level 6 felony possession of cocaine and

      three misdemeanor offenses. The trial court took Martz’s plea under

      advisement pending his completion of the Drug Court Diversion Program.

      After Martz tested positive for synthetic drugs in August and October 2017, he

      was removed from the Drug Court program.


[5]   In November 2017, the trial court entered judgment of conviction on the four

      counts to which Martz had pled guilty and held a sentencing hearing. At the

      conclusion of the hearing, the trial court summarized the evidence and

      addressed Martz as follows:


              [You have] a criminal record with failed efforts at rehabilitation
              covering a period of time from 2002 to 2017. You’ve got nine
              misdemeanor convictions, two prior felony convictions. You’ve
              been given the benefit of short jail sentences, longer jail
              sentences, Brown and Associates, the Bowen Center, Park
              Center, unsupervised probation, home detention, probation, the
              Department of Correction, and then Drug Court. You’ve been
              unsatisfactorily discharged every time you’ve been on home
              detention, four times I show that you were unsatisfactorily
              discharged. You’ve had suspended sentences revoked seven
              times. You’ve had suspended sentences modified twice. Your
              probation’s been revoked twice and your home detention
              placement was revoked once.


      (Tr. 8-9).




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[6]   The trial court then found that Martz’s criminal history and his fifteen-year

      history of failed efforts at rehabilitation were aggravating factors and that his

      guilty plea and remorse were mitigating factors. The trial court sentenced

      Martz to two years for the Level 6 felony, and Martz now appeals this sentence.


                                                  Decision
      1. Abuse of Discretion


[7]   Martz first argues that the trial court abused its discretion in sentencing him.

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

      Anglemyer v. State, 868 N.E.2d 482, 490 (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 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. at 491. 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.


[8]   Here, Martz argues that the trial court abused its discretion in failing to

      consider two mitigating factors. A finding of a mitigating factor is not

      mandatory but is within the discretion of the trial court. Page v. State, 878

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       N.E.2d 404, 408 (Ind. Ct. App. 2007), trans. denied. In order to show that the

       trial court abused its discretion in failing to find a mitigating factor, the

       defendant must establish 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).


[9]    Martz first contends that the trial court abused its discretion in failing to find his

       history of substance abuse to be a mitigating factor. Although we have

       recognized that a history of substance abuse may be a mitigating factor, Field v.

       State, 843 N.E.2d 1008, 1012 (Ind. Ct. App. 2006), trans. denied, we have also

       held that where a defendant is aware that he has a substance abuse problem but

       has not taken appropriate steps to treat it, the trial court does not abuse its

       discretion by rejecting substance abuse as a mitigating factor. Bryant v. State,

       802 N.E.2d 486, 501 (Ind. Ct. App. 2004), trans. denied. Here, Martz has an

       extensive criminal history related to his drug use. He has known for some time

       that he has a substance abuse problem, and for fifteen years, his many attempts

       at rehabilitation have proven to be unsuccessful. Under these circumstances,

       the trial court did not abuse its discretion in failing to find Martz’s history of

       substance abuse to be a mitigating factor.


[10]   Martz further contends that the trial court abused its discretion when it failed to

       “mention that [] Martz had family support. Specifically, [] Martz explained

       that he had a brother who had successfully completed the Drug Court

       Program.” (Martz’s Br. 16). Martz has waived appellate review of this issue

       because his brief three-sentence argument is supported neither by citation to

       Court of Appeals of Indiana | Memorandum Decision 02A03-1712-CR-2979 | May 31, 2018   Page 5 of 8
       authority nor cogent argument. See Smith v. State, 822 N.E.2d 193, 202-03 (Ind.

       Ct. App. 2005) (“Generally, a party waives any issue raised on appeal where

       the party fails to develop a cogent argument or provide adequate citation to

       authority and portions of the record.”), trans. denied. Waiver notwithstanding,

       we agree with the State that the trial court was not required to find that

       “hypothetical family support that Martz might receive in the future” was a

       mitigating circumstance. (State’s Br. 11). We further agree that there “is no

       evidence in the record that Martz’s brother had played any role in Martz’s

       efforts to obtain treatment in the past, and Martz’s assertions that he may do so

       in the future are nothing more than speculation.” (State’s Br. 12). Because

       Martz has failed to meet his burden to establish that this factor was both

       significant and clearly supported by the record, the trial court did not abuse its

       discretion by failing to consider Martz’s alleged family support as a mitigating

       factor.


       2. Inappropriate Sentence


[11]   Martz further argues that his sentence is inappropriate. Indiana 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 offense and the character of the

       offender. The defendant bears the burden of persuading this Court that his

       sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).

       Whether we regard a sentence as inappropriate turns on the “culpability of the

       defendant, the severity of the crime, the damage done to others, and myriad

       Court of Appeals of Indiana | Memorandum Decision 02A03-1712-CR-2979 | May 31, 2018   Page 6 of 8
       other factors that come to light in a given case.” Cardwell v. State, 895 N.E.2d

       1219, 1224 (Ind. 2008).


[12]   The Indiana Supreme Court has further explained that “[s]entencing is

       principally a discretionary function in which the trial court’s judgment should

       receive considerable deference.” Id. “Such deference should prevail unless

       overcome by compelling evidence portraying in a positive light the nature of the

       offense (such as accompanied by restraint, regard, and lack of brutality) and the

       defendant’s character (such as substantial virtuous traits or persistent examples

       of good character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015).


[13]   When determining whether a sentence is inappropriate, 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, Martz was convicted of

       Level 6 felony possession of cocaine. The sentencing range for a Level 6 felony

       is between six months and two and one-half years, with an advisory sentence of

       one year. See I.C. § 35-50-2-7. The trial court sentenced Martz to two years,

       which is less than the maximum sentence and more than the advisory sentence.


[14]   With regard to the nature of the offense, Martz possessed cocaine in his wallet.

       With regard to the nature of Martz’s character, he has nine misdemeanor

       convictions and two felony convictions. In addition, he has a fifteen-year

       history of failed efforts at rehabilitation. He has been unsatisfactorily

       discharged from treatment centers and home detention. He has also had

       suspended sentences revoked seven times and probation revoked two times.


       Court of Appeals of Indiana | Memorandum Decision 02A03-1712-CR-2979 | May 31, 2018   Page 7 of 8
       His former contacts with the law have not caused him to reform himself. See

       Jenkins v. State, 909 N.E.2d 1080, 1086 (Ind. Ct. App. 2009), trans. denied.


[15]   Martz has failed to meet his burden to persuade this Court that his two-year

       sentence for his Level 6 Felony possession of cocaine conviction is

       inappropriate.


[16]   Affirmed.


       Vaidik, C.J., and Barnes, J., concur.




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