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 the defense of res                        Mar 22 2013, 8:46 am
judicata, collateral estoppel, or the law
of the case.



ATTORNEY FOR APPELLANT:                           ATTORNEYS FOR APPELLEE:

EVAN B. BRODERICK                                 GREGORY F. ZOELLER
Anderson, Indiana                                 Attorney General of Indiana

                                                  MICHAEL GENE WORDEN
                                                  Deputy Attorney General
                                                  Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

LISA M. ROOKER,                                   )
                                                  )
        Appellant-Defendant,                      )
                                                  )
               vs.                                )      No. 48A02-1206-CR-492
                                                  )
STATE OF INDIANA,                                 )
                                                  )
        Appellee-Plaintiff.                       )


                     APPEAL FROM THE MADISON SUPERIOR COURT
                            The Honorable David Happe, Judge
                              Cause No. 48D04-1102-FD-145


                                        March 22, 2013

                 MEMORANDUM DECISION – NOT FOR PUBLICATION

BARNES, Judge
                                      Case Summary

      Lisa Rooker appeals the three-year sentence imposed by the trial court for Class D

felony operating a vehicle while intoxicated (“OWI”). We affirm.

                                          Issue

      The sole issue Rooker raises is whether the trial court abused its discretion in

sentencing her.

                                         Facts

      On February 1, 2011, Rooker was driving on State Road 9 in Madison County

when she drifted into the oncoming lane of traffic, striking another vehicle coming from

the other direction and causing severe whiplash to the other driver. The first responding

officer noticed the smell of alcohol in Rooker’s vehicle, but Rooker denied having

recently drunk alcohol. Another officer later noticed that Rooker smelled of alcohol, had

slurred speech and glassy eyes, and stumbled when walking. At the hospital where she

received treatment after the accident, Rooker provided hospital staff with a glass of tap

water when she was asked to provide a urine sample. After originally refusing to provide

a breath sample to law enforcement, Rooker later offered to provide a sample, but she

failed to provide an adequate breath sample three times. After the failures, Rooker said,

“good with no number they won’t be able to prove it in court.” Tr. p. 104. Rooker never

provided an adequate breath sample.

      The State charged Rooker with Class B misdemeanor public intoxication, Class A

misdemeanor OWI endangering a person, and Class D felony OWI based upon a prior

                                           2
OWI conviction within the previous five years. In a bifurcated trial, a jury first found

Rooker guilty of public intoxication and Class A misdemeanor OWI, and she then pled

guilty to the Class D felony OWI charge.          At sentencing the trial court found as

aggravators Rooker’s criminal history, the seriousness of the accident she caused, and her

attempt to hide her alcohol consumption by, for example, providing a glass of water to

hospital staff instead of a urine sample. As mitigators, the trial court noted Rooker’s

employment history and expression of remorse, although it did not find that expression

very convincing. The trial court merged the misdemeanor OWI with the felony OWI,

and sentenced her to three years or 1095 days on the OWI conviction, with 574 days

executed, 574 days suspended, and credit for one day served. It also sentenced her to 180

days on the public intoxication conviction to be served concurrently with the OWI

sentence. Rooker now appeals her sentence.

                                         Analysis

       Rooker contends the trial court abused its discretion in sentencing her by

overlooking mitigating circumstances.      An abuse of discretion in identifying or not

identifying aggravators and mitigators occurs if it 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.’” Anglemyer v. State, 868 N.E.2d 482, 490 (Ind.

2007) (quoting K.S. v. State, 849 N.E.2d 538, 544 (Ind. 2006)). Additionally, an abuse

of discretion occurs if the record does not support the reasons given for imposing

sentence, or the sentencing statement omits reasons that are clearly supported by the

                                             3
record and advanced for consideration, or the reasons given are improper as a matter of

law. Id. at 490-91.     “An allegation that the trial court failed to identify or find a

mitigating factor requires the defendant to establish that the mitigating evidence is both

significant and clearly supported by the record.” Id. at 493.

       Rooker first contends that the trial court should have found her troubled

childhood, as related in the presentence investigation report, to be a mitigating

circumstance. However, at sentencing Rooker did not ask the trial court to consider this a

mitigating circumstance. We generally will not find an abuse of discretion if a trial court

fails to consider an alleged mitigating factor that was not raised at sentencing.

Anglemyer, 868 N.E.2d at 492. Our supreme court has recognized an exception to this

rule for guilty pleas, which trial courts inherently should be aware can be mitigating.

Anglemyer v. State, 875 N.E.2d 218, 220 (Ind. 2007). A troubled childhood, by contrast,

has repeatedly been held to warrant “‘little, if any, mitigating weight . . . .’” See, e.g.,

Patterson v. State, 909 N.E.2d 1058, 1062-63 (Ind. Ct. App. 2009) (quoting Ritchie v.

State, 875 N.E.2d 706, 725 (Ind. 2007)). Given Rooker’s failure to argue her childhood

as a mitigating circumstance before the trial court, we apply the general presumption that

it did not constitute a significant mitigating circumstance. See Anglemyer, 875 N.E.2d at

220 (quoting Spears v. State, 735 N.E.2d 1161, 1167 (Ind. 2000)).

       Next, we address Rooker’s claim that the trial court should have assigned

mitigating weight to her guilty plea to the Class D felony enhancement to the OWI

charge. The significance of a guilty plea as a mitigating circumstance varies from case to

                                             4
case.   Id. at 221.   Specifically, a guilty plea may not be a significant mitigating

circumstance if it is clear the decision to plead guilty was merely a pragmatic one

because of the weight of the State’s evidence. Rogers v. State, 878 N.E.2d 269, 273 (Ind.

Ct. App. 2007), trans. denied. Here, there seems to have been virtually no doubt that

Rooker had the prior conviction necessary to support enhancement of her OWI

conviction to a Class D felony, meaning a guilty verdict on that issue would or should

have been a foregone conclusion. Additionally, Rooker’s guilty plea did not save the

State the time and expense of conducting a jury trial, as a jury trial was in fact conducted

on the public intoxication and misdemeanor OWI charges in the first part of the

bifurcated trial. Given these factors, we cannot say Rooker’s guilty plea was a significant

mitigating circumstance and the trial court did not abuse its discretion in failing to

mention it.

        Finally, Rooker argues that the trial court should have given mitigating weight to

evidence she presented at sentencing of her health concerns. Specifically, at Rooker’s

first sentencing hearing, she informed the trial court that she had recently discovered a

lump on her breast and requested a continuance of sentencing so she could visit a doctor

and undergo testing. The trial court granted this continuance. At the second hearing held

two months later, Rooker did not indicate the results of any testing regarding her breast,

but did say that she recently had a “bad” pap smear and needed to undergo further testing,

and possibly have a hysterectomy. Tr. p. 225. Rooker did not submit any documentary

evidence regarding the precise scope or nature of her health problems.

                                             5
       Although it is unfortunate that Rooker may be facing health challenges,

incarcerated prisoners are entitled to receive health care, as noted by the trial court. See

Ind. Code § 11-10-3-2(c). Rooker failed to present evidence that her health problems—

or potential health problems, given that their scope is presently unclear—“would be

untreatable during incarceration or would render incarceration a hardship.”              See

Henderson v. State, 848 N.E.2d 341, 345 (Ind. Ct. App. 2006). As such, we cannot say

the trial court abused its discretion in failing to recognize Rooker’s health as a mitigating

circumstance. See id.

                                        Conclusion

       The trial court did not abuse its discretion in failing to find the three alleged

mitigating circumstances that Rooker advances on appeal. We affirm her sentence.

       Affirmed.

BAKER, J., and RILEY, J., concur.




                                             6
