Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                            FILED
any court except for the purpose of                            Aug 08 2012, 9:06 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.                          CLERK
                                                                    of the supreme court,
                                                                    court of appeals and
                                                                           tax court




ATTORNEY FOR APPELLANT:                           ATTORNEYS FOR APPELLEE:

BRYAN E. BARRETT                                  GREGORY F. ZOELLER
Rush County Public Defender’s Office              Attorney General of Indiana
Rushville, Indiana
                                                  JOSEPH Y. HO
                                                  Deputy Attorney General
                                                  Indianapolis, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

JOHN HARRELL,                                     )
                                                  )
       Appellant-Defendant,                       )
                                                  )
              vs.                                 )      No. 70A01-1112-CR-590
                                                  )
STATE OF INDIANA,                                 )
                                                  )
       Appellee-Plaintiff.                        )


                       APPEAL FROM THE RUSH CIRCUIT COURT
                          The Honorable David E. Northam, Judge
                              Cause No. 70C01-1109-FD-625



                                        August 8, 2012


                MEMORANDUM DECISION - NOT FOR PUBLICATION


NAJAM, Judge
                              STATEMENT OF THE CASE

       John Harrell appeals his sentence following his conviction for possession of stolen

property, as a Class D felony, pursuant to a guilty plea. Harrell presents a single issue for

our review, namely, whether the trial court abused its discretion when it sentenced him.

       We affirm.

                       FACTS AND PROCEDURAL HISTORY

       On September 22, 2011, the State charged Harrell with possession of stolen

property, as a Class D felony; criminal mischief, as a Class D felony; and theft, as a Class

D felony. Thereafter, the State moved to add an additional count of attempted theft, as a

Class D felony, and an habitual offender enhancement.            But before the trial court

conducted a hearing on that motion, Harrell pleaded guilty to possession of stolen

property, as a Class D felony. The State dismissed the remaining charges in exchange for

his guilty plea. The plea agreement left sentencing open to the trial court’s discretion.

Following a hearing, the trial court sentenced Harrell to three years executed. This

appeal ensued.

                             DISCUSSION AND DECISION

       Sentencing decisions rest within the sound discretion of the trial court and are

reviewed on appeal only for an abuse of discretion. Anglemyer v. State, 868 N.E.2d 482,

490 (Ind. 2007), clarified on other grounds on reh’g, 875 N.E.2d 218 (Ind. 2007). 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.


                                              2
         One way in which a trial court may abuse its discretion is failing to enter a
         sentencing statement at all. Other examples include entering a sentencing
         statement that explains reasons for imposing a sentence—including a
         finding of aggravating and mitigating factors if any—but the record does
         not support the reasons, or the sentencing statement omits reasons that are
         clearly supported by the record and advanced for consideration, or the
         reasons given are improper as a matter of law . . . .

                [However, b]ecause the trial court no longer has any obligation to
         “weigh” aggravating and mitigating factors against each other when
         imposing a sentence, . . . a trial court cannot now be said to have abused its
         discretion in failing to “properly weigh” such factors.

Id. at 490-91.

         Harrell’s sole contention on appeal is that “the record is unclear . . . as to whether

or not the trial court gave the Defendant proper mitigating credit, not mitigating weight,

for his guilty plea.”      Brief of Appellant at 5.      First, Harrell does not adequately

distinguish between the “credit” given for a guilty plea versus the “mitigating weight”

given. The trial court clearly identified Harrell’s guilty plea as a mitigating circumstance.

To the extent Harrell argues that the trial court improperly weighed his guilty plea, again,

we may not review the weight assigned by the trial court to an aggravating or mitigating

circumstance. Anglemyer, 868 N.E.2d at 490–91.

         To the extent Harrell maintains that the trial court’s oral sentencing statement was

unclear on the issue of mitigating weight given to his guilty plea, we cannot agree.

Regardless, the trial court’s written sentencing statement is clear. And when a conflict

occurs between oral and written sentencing statements, the court on review has the

“option of crediting the statement that accurately pronounces sentence or remanding for

resentencing.” Dowell v. State, 873 N.E.2d 59, 60 (Ind. 2007) (quoting McElroy v.

State,    865 N.E.2d 584, 589 (Ind. 2007)).         We reject Harrell’s contention that he
                                               3
“received no benefit” at sentencing in light of his guilty plea.1 Brief of Appellant at 7.

The trial court unequivocally gave mitigating weight to Harrell’s guilty plea, “including

an acknowledgement of remorse.” Appellant’s App. at 48. But the trial court identified

Harrell’s “substantial” criminal history, including five felony convictions, as an

aggravating circumstance and found that the aggravator outweighed the mitigator in

imposing a three-year sentence. Id. The trial court did not abuse its discretion when it

sentenced Harrell.

        Affirmed.

KIRSCH, J., and MAY, J., concur.




        1
            We note that the trial court gave mitigating weight to Harrell’s guilty plea despite the
significant benefit he received from the State in exchange for the plea, namely, the dismissal of the other
charges. Further, Harrell faced an habitual offender enhancement, which the State did not pursue
following the guilty plea.
                                                    4
