Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                    Mar 31 2014, 10:22 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT:                           ATTORNEYS FOR APPELLEE:

MICHELLE F. KRAUS                                 GREGORY F. ZOELLER
Fort Wayne, Indiana                               Attorney General of Indiana

                                                  JAMES B. MARTIN
                                                  Deputy Attorney General
                                                  Indianapolis, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

REGINA CHOICE,                                    )
                                                  )
       Appellant-Defendant,                       )
                                                  )
              vs.                                 )      No. 02A03-1306-CR-266
                                                  )
STATE OF INDIANA,                                 )
                                                  )
       Appellee-Plaintiff.                        )


                     APPEAL FROM THE ALLEN SUPERIOR COURT
                          The Honorable Frances C. Gull, Judge
                            Cause No. 02D05-1108-FD-1041



                                        March 31, 2014


                MEMORANDUM DECISION - NOT FOR PUBLICATION


NAJAM, Judge
                            STATEMENT OF THE CASE

      Regina Choice appeals her two-year sentence for theft, as a Class D felony.

Choice raises two issues for our review:

      1.     Whether the trial court abused its discretion when it ordered Choice
             to serve two years in the Department of Correction (“DOC”); and

      2.     Whether Choice’s sentence is inappropriate in light of the nature of
             the offense or her character.

      We affirm.

                      FACTS AND PROCEDURAL HISTORY

      On July 28, 2011, Choice stole $34.07 worth of merchandise from an Allen

County Wal-Mart. The State charged her with theft, as a Class D felony, which carries a

penalty of six months to three years incarceration. The court released Choice on bond

with a monitored conditional release, but she was rearrested for an additional act of theft

on August 31. Choice pleaded guilty to both charges, which were under different cause

numbers, and the court placed her into the Drug Court Diversion Program on October 31.

Choice failed that program a few months later and the court sentenced her to two years

executed in the DOC. This appeal ensued.

                            DISCUSSION AND DECISION

                    Issue One: Abuse of Discretion in Sentencing

      Choice first contends that the trial court abused its discretion when it sentenced

her to two years in the DOC. 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


                                            2
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.

       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 (emphasis added). In other words, “[t]he relative weight or value assignable

to reasons properly found or those which should have been found is not subject to review

for abuse.” Id. at 491.

       Here, Choice argues that the trial court abused its discretion when it sentenced her

because the weight the court gave to Choice’s criminal history “is not outweighed by the

significant mitigating circumstances found by the trial court.” Appellant’s Br. at 4. But,

as our Supreme Court held in Anglemyer, we cannot say that a trial court abuses its

discretion when it weighs aggravating and mitigating factors. 868 N.E.2d at 490-91.

Thus, the trial court did not abuse its discretion when it sentenced Choice.

                          Issue Two: Inappropriate Sentence

       Choice also contends that her sentence is inappropriate in light of the nature of the

offense and her character. Although a trial court may have acted within its lawful

discretion in determining a sentence, Article VII, Sections 4 and 6 of the Indiana
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Constitution “authorize[] independent appellate review and revision of a sentence

imposed by the trial court.” Roush v. State, 875 N.E.2d 801, 812 (Ind. Ct. App. 2007)

(alteration original). This appellate authority is implemented through Indiana Appellate

Rule 7(B). Id. Revision of a sentence under Appellate Rule 7(B) requires the appellant

to demonstrate that her sentence is inappropriate in light of the nature of her offense and

her character. See App. R. 7(B); Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App.

2007). We assess the trial court’s recognition or non-recognition of aggravators and

mitigators as an initial guide to determining whether the sentence imposed was

inappropriate. Gibson v. State, 856 N.E.2d 142, 147 (Ind. Ct. App. 2006). However, “a

defendant must persuade the appellate court that his or her sentence has met th[e]

inappropriateness standard of review.” Roush, 875 N.E.2d at 812 (alteration original).

       And our supreme court has stated that “sentencing is principally a discretionary

function in which the trial court’s judgment should receive considerable deference.”

Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008). Indiana’s flexible sentencing

scheme allows trial courts to tailor an appropriate sentence to the circumstances

presented. See id. at 1224. The principal role of appellate review is to attempt to “leaven

the outliers.” Id. at 1225. Whether we regard a sentence as inappropriate at the end of

the day turns on “our sense of the culpability of the defendant, the severity of the crime,

the damage done to others, and myriad other facts that come to light in a given case.” Id.

at 1224.

       Choice’s two-year sentence is not inappropriate in light of the nature of the

offense or her character. We acknowledge that the instant offense was a relatively minor


                                            4
act of theft and that Choice quickly pleaded guilty to the State’s charge. But Choice also

has a vast criminal history that consists of seventeen misdemeanor convictions and six

felony convictions, including convictions for prostitution, false informing, and escape, as

well as multiple convictions for theft and conversion. She has repeatedly failed to change

her criminal lifestyle, including committing theft while out on bond for the instant

offense of theft. And when the trial court here granted Choice the opportunity to avoid

incarceration by successfully completing a program with the Drug Court, Choice failed to

take advantage of that opportunity. Moreover, Choice received a two-year sentence for a

Class D felony, which carries a maximum possible term of three years. Thus, we cannot

say that Choice’s sentence is inappropriate and requires our intervention. We affirm her

sentence.

       Affirmed.

VAIDIK, C.J., and BROWN, J., concur.




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