MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                          FILED
regarded as precedent or cited before any                               May 31 2019, 9:33 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
Caroline B. Briggs                                      Curtis T. Hill, Jr.
Lafayette, Indiana                                      Attorney General of Indiana
                                                        Matthew Michaloski
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Jeffery Newton Higman,                                  May 31, 2019
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A-CR-2687
        v.                                              Appeal from the Tippecanoe
                                                        Superior Court
State of Indiana,                                       The Honorable Steven P. Meyer,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        79D02-1803-F5-49



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2687 | May 31, 2019                     Page 1 of 7
                                       Statement of the Case
[1]   Jeffery Higman (“Higman”) appeals the six-year sentence imposed after he

      pleaded guilty to Level 5 felony operating a motor vehicle while driving

      privileges are forfeited for life1 and Class A misdemeanor operating a vehicle

      with an alcohol concentration equivalent to at least .15.2 He argues that the

      trial court abused its discretion in sentencing him. Concluding that the trial

      court did not abuse its discretion, we affirm Higman’s sentence.


[2]   We affirm.


                                                     Issue
                  Whether the trial court abused its discretion in sentencing
                  Higman.


                                                     Facts
[1]   In September 2018, fifty-three-year-old Higman pled guilty pursuant to a plea

      agreement to Level 5 felony operating a motor vehicle while his driving

      privileges were suspended for life and Class A misdemeanor operating a vehicle

      with an alcohol concentration equivalent to at least .15. At the guilty plea

      hearing, the trial court explained to Higman that it could choose to order his

      sentences to run “consecutive, that means the Court could order that you first




      1
          IND. CODE § 9-30-10-17.
      2
          I.C. § 9-30-5-1.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2687 | May 31, 2019   Page 2 of 7
      do a sentence for Count one, followed by the sentence for Count two,

      consecutive, which means one after another,” and Higman stated that he

      understood. (Tr. Vol. 2 at 12).


[2]   The following month, the trial court held a sentencing hearing. The

      presentence investigation report included seven pages detailing Higman’s

      extensive criminal history. Specifically, Higman has multiple misdemeanor

      convictions, including three for operating while intoxicated, two for resisting

      law enforcement, and one each for possession of a firearm, operating a vehicle

      with a Schedule 1or 2 controlled substance or its metabolite, battery and public

      intoxication. Higman also has multiple felony convictions, including three for

      operating while intoxicated with a prior conviction, three for being an habitual

      traffic violator, two for receiving stolen property, and one each for criminal

      recklessness while armed with a deadly weapon, obstruction of

      justice/destroying evidence, resisting law enforcement, and possession of

      methamphetamine. Higman has twice been adjudicated to be an habitual

      substance offender and once adjudicated to be an habitual offender. He has had

      ten probation violation petitions filed against him, and while he was out on

      bond in the current case, he committed another felony.


[3]   Also at the hearing, Higman asked the trial court to consider the following

      mitigating factors: (1) his guilty plea and acceptance of responsibility in this

      case; (2) his history of mental health issues and physical problems relating to an

      assault over ten years ago; and (3) his cooperation with law enforcement when

      arrested in this case. The State argued that “the big aggravator in this case

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2687 | May 31, 2019   Page 3 of 7
      [was] the criminal history.” (Tr. Vol. 2 at 32). The State further pointed out

      that the police had reported that Higman’s attitude was hostile during the arrest

      in this case and that although he said he had only drunk two beers, his blood

      alcohol level was .176, which is twice the legal limit.


[4]   After hearing Higman’s and the State’s arguments, the trial court found the

      following aggravating factors: (1) Higman’s criminal history, which did not

      “speak well . . . of [his] conduct or [his] attitude toward probation or [his]

      willingness to follow the rules[;]” and (2) the danger to the community when

      Higman was driving while under the influence of alcohol. (Tr. Vol. 2 at 39).

      The trial court also found Higman’s guilty plea and mental health to be

      mitigating factors. The trial court sentenced Higman to five (5) years for the

      Level 5 felony and one (1) year for the Class A misdemeanor. The trial court

      further ordered the sentences to run consecutively to each other for a total

      sentence of six (6) years, with four (4) years executed and two (2) years on

      probation.


                                                  Decision
[5]   Higman 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

      in 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 of Appeals of Indiana | Memorandum Decision 18A-CR-2687 | May 31, 2019   Page 4 of 7
      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.


[6]   Here, Higman first contends that the trial court abused its discretion when it

      ordered his two sentences to run consecutively to each other. At the outset, we

      note that Higman understood the possibility of consecutive sentences. We now

      turn to the substance of Higman’s argument that he “should not receive

      consecutive sentences for a single act.” (Higman’s Br. 13). Higman, however,

      committed two separate and distinct crimes involving conduct prohibited by

      two different statutes. First, Higman violated INDIANA CODE § 9-30-10-17

      when he operated a motor vehicle after his driving privileges had been forfeited

      for life. He also violated INDIANA CODE § 9-30-5-1 when he operated a vehicle

      with an alcohol concentration equivalent to at least .15. “The basis for the

      gross impact that consecutive sentences may have is the moral principle that

      each separate and distinct criminal act deserves a separately experienced

      punishment.” Hart v. State, 829 N.E.2d 541, 545 (Ind. Ct. App. 2005). The trial

      court did not abuse its discretion in ordering Higman’s two sentences to run

      consecutively to each other.


[7]   Higman further contends that the trial court abused its discretion because it

      failed to find undue hardship to “his fiancé, who was significantly ill, with both

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2687 | May 31, 2019   Page 5 of 7
      severe mental and physical disabilities” to be a mitigating factor. (Higman’s Br.

      14). However, Higman has waived appellate review of this factor because he

      failed to advance it for consideration in the trial court. See Simms v. State, 791

      N.E.2d 225, 233 (Ind. Ct. App. 2003) (explaining that “[i]f the defendant fails

      to advance a mitigating circumstance at sentencing, this court will presume that

      the circumstance is not significant and the defendant is precluded from

      advancing it as a mitigating circumstance for the first time on appeal.”)


[8]   Waiver notwithstanding, a trial court has discretion to determine a factor is

      mitigating, and it is not required to explain why it does not find the defendant’s

      proffered factor to be mitigating. Haddock v. State, 800 N.E.2d 242, 245 (Ind.

      Ct. App. 2003). A claim that the trial court failed to find a mitigating

      circumstance 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. Higman has done neither. The trial court did not abuse its discretion in

      sentencing Higman.3




      3
        Higman also appears to argue that his sentence is inappropriate. However, he has waived appellate review of this
      argument because his brief, conclusory reference to the word “inappropriate” in the conclusion of his appellate
      brief is supported neither by citation to 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, Higman’s six-year sentence is not inappropriate.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2687 | May 31, 2019                           Page 6 of 7
[9]   Affirmed.


      Riley, J., and Bailey, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2687 | May 31, 2019   Page 7 of 7
