Pursuant to Ind. Appellate Rule 65(D),                              Sep 12 2013, 5:57 am
this Memorandum Decision shall not be
regarded as precedent or cited before
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:

DONALD E.C. LEICHT                              GREGORY F. ZOELLER
Kokomo, Indiana                                 Attorney General of Indiana

                                                KYLE HUNTER
                                                Deputy Attorney General
                                                Indianapolis, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

CHRISTOPHER D. DAVIES,                          )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )        No. 34A02-1301-CR-18
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                    APPEAL FROM THE HOWARD SUPERIOR COURT
                        The Honorable George A. Hopkins, Judge
                            Cause No. 34D04-1112-FB-00216


                                    September 12, 2013

               MEMORANDUM DECISION - NOT FOR PUBLICATION

SULLIVAN, Senior Judge
       Christopher Davies appeals the sentence he received for his conviction of theft, a

Class D felony. Ind. Code § 35-43-4-2 (2009). We affirm.

       In December 2011, Davies was charged with armed robbery and being a habitual

offender. Later, the State added a charge of theft. Davies pleaded guilty to the charge of

theft in December 2012 and was sentenced to three years executed. It is from this

sentence that Davies now appeals.

       Davies raises two issues, which we restate as: (1) whether the trial court abused

its discretion in sentencing him, and (2) whether his sentence is inappropriate.

       Davies first contends that the trial court abused its discretion by sentencing him to

three years in the Department of Correction. 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 reh’g, 875 N.E.2d 218

(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 court may abuse its

discretion is by entering a sentencing statement that omits mitigating factors that are

clearly supported by the record and advanced for consideration. Id. at 490-91.

       Davies asserts that the trial court did not properly consider his plea of guilty as a

mitigating factor. In addition, Davies claims that the court did not properly consider his

cocaine addiction, knee injuries, and ill child in determining his sentence.



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          The finding of mitigating circumstances is not mandatory but is instead within the

discretion of the trial court. Page v. State, 878 N.E.2d 404, 408 (Ind. Ct. App. 2007),

trans. denied. Further, the court is neither obligated to accept the defendant’s arguments

as to what constitutes a mitigating factor nor required to give the same weight to a

proffered mitigating factor as does the defendant. Id. An allegation that the trial court

failed to identify or find a mitigating factor requires the defendant on appeal to establish

that the mitigating evidence is both significant and clearly supported by the record. Id.

          A guilty plea is not automatically a significant mitigating factor. Brown v. State,

907 N.E.2d 591, 594 (Ind. Ct. App. 2009). For example, a guilty plea may not be a

significant mitigator when a defendant has already received a substantial benefit from the

plea agreement or when the evidence against the defendant is such that the decision to

plead guilty is merely a pragmatic one. Id.

          Here, the trial court did not abuse its discretion when it did not recognize Davies’

guilty plea as a significant mitigator. In exchange for Davies’ plea to a single Class D

felony, the State dismissed a pending Class B felony that would have exposed him to a

much greater term of imprisonment. Thus, Davies received a substantial benefit from his

plea bargain, and the trial court was not obliged to find his plea a significant mitigating

factor.

          Davies also argues that the trial court did not properly consider his cocaine

addiction when it sentenced him. A review of the sentencing transcript reveals that the

trial court considered Davies’ substance abuse but did not find it to be a significant

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mitigator. The court stated, “He’s been in situations where he voluntarily could have

sought treatment. I also note . . . he was placed in treatment programs through different

courts and didn’t complete them.” Tr. p. 14. Indeed, the presentence investigation report

indicates that Davies admitted to abusing alcohol and to regularly using marijuana and

cocaine up until the time he was jailed and that, on at least two prior occasions, he had

been ordered to complete an intensive outpatient program. In both instances, he was

“released unsatisfactorily.” Appellant’s App., Vol. II, p. 27. Thus, Davies could have

previously obtained help for his substance abuse issues and re-directed his life path;

however, he chose not to do so and instead continued his pattern of substance abuse and

criminal behavior. See Caraway v. State, 959 N.E.2d 847, 852 (Ind. Ct. App. 2011)

(where defendant is aware of chemical dependency and chooses not to seek help, failure

to do so can be considered aggravating factor), trans. denied. The trial court did not

abuse its discretion in not considering Davies’ substance abuse a mitigating factor.

       Next, Davies maintains that the trial court did not properly consider his knee

injuries in sentencing him.      Both the sentencing transcript and the presentence

investigation report briefly state that Davies has knee problems due to high school

athletics. Davies’ brief mentions his knee problems in a single phrase and contains no

argument or citation to legal authority to support his contention that this injury should

serve as a mitigating circumstance.      There is no information about the injury, no

explanation as to how it currently affects him, no showing that the injury would be

impacted by incarceration, and no evidence that his condition would be untreatable

                                             4
during incarceration. Thus, Davies has failed to meet his burden of showing that this

factor is significantly mitigating and clearly supported by the record. See Henderson v.

State, 848 N.E.2d 341, 344-45 (Ind. Ct. App. 2006) (finding no error in trial court’s

refusal to consider defendant’s poor health as mitigator because she failed to present

evidence that her multiple health conditions would be untreatable during incarceration).

       Finally, Davies alleges the trial court failed to properly consider his family

situation, specifically his ill child, as a mitigating circumstance. A trial court is not

required to find that a defendant’s incarceration would result in undue hardship to his

dependents. Benefield v. State, 904 N.E.2d 239, 247 (Ind. Ct. App. 2009), trans. denied.

“Many persons convicted of crimes have dependents and, absent special circumstances

showing that the hardship to them is ‘undue,’ a trial court does not abuse its discretion by

not finding this to be a mitigating factor.” Id.

       Here, the presentence investigation report states that the child has a brain tumor;

however, it is not clear whether the child is Davies’ biological child or one of his wife’s

four children. Either way, Davies failed to show that he supports the child in any manner

and in what way his incarceration will affect the child.          Indeed, the presentence

investigation report shows that Davies is unemployed and last worked two years ago in

construction; however, he stated he has earned some money helping to move furniture.

Because Davies has failed to show that an undue hardship will be placed upon this child

because of his incarceration, the trial court did not abuse its discretion by declining to

find it as a mitigating circumstance. See Anglin v. State, 787 N.E.2d 1012, 1018 (Ind. Ct.

                                              5
App. 2003) (finding no abuse of discretion where, although evidence established

defendant’s daughter was ill and he was concerned and wished to spend time with her,

nothing indicated her degree of reliance upon him), trans. denied.

       Davies also asserts that his three-year sentence is inappropriate. Particularly, he

argues that being required to serve his entire three-year sentence in the Department of

Correction amounts to an inappropriate sentence. He claims that he should receive three

years suspended to six months executed with the remainder to be served on supervised

probation requiring a drug and alcohol program.

       We may revise a sentence authorized by statute if, after due consideration of the

trial court’s decision, we determine that the sentence is inappropriate in light of the nature

of the offense and the character of the offender. Ind. Appellate Rule 7(B). However, “we

must and should exercise deference to a trial court’s sentencing decision, both because

Rule 7(B) requires us to give ‘due consideration’ to that decision and because we

understand and recognize the unique perspective a trial court brings to its sentencing

decisions.” Stewart v. State, 866 N.E.2d 858, 866 (Ind. Ct. App. 2007). A defendant

bears the burden of persuading the appellate court that his or her sentence has met the

inappropriateness standard of review. Anglemyer, 868 N.E.2d at 494.

       To assess whether the sentence is inappropriate, we look first to the statutory range

established for the class of the offense. Here the offense is a Class D felony, for which

the advisory sentence is one and one-half years, with a minimum sentence of six months



                                              6
and a maximum sentence of three years. Ind. Code § 35-50-2-7 (2005). Davies was

sentenced to three years executed in the DOC.

       Next, we look to the nature of the offense and the character of the offender. As to

the nature of the current offense, Davies lured a taxi to his location and held a knife to the

driver’s throat in order to rob him.

       With regard to the character of the offender, we note, as did the trial court, that

Davies has an extensive criminal record.           At just twenty-eight years of age he has

accumulated seven misdemeanor convictions and at least four felony convictions.

Additionally, Davies has violated his probation at least four times, and, as the court noted

at sentencing, he has been released twice from substance abuse programs for non-

compliance. The majority of his charges and convictions have been either drug-related or

robbery/theft/stolen property-related. In addition to his Indiana convictions, he has an

armed robbery conviction in Illinois for which he was sentenced to seven years; he was

paroled and violated his parole. Further, he has had numerous charges in Illinois for

which the disposition is unknown. Davies’ counsel at the sentencing hearing and both

parties in their briefs to this Court note that Davies was out of jail less than one week

when he was arrested on the instant offense.

       Davies has not carried his burden of persuading this Court that his sentence has

met the inappropriateness standard of review.          See Anglemyer, 868 N.E.2d at 494.

Accordingly, we do not find his sentence to be inappropriate in light of the nature of the

offense and his character.

                                               7
       For the reasons stated, we conclude the trial court did not abuse its discretion by

not finding Davies’ guilty plea, substance abuse, health issues, and ill child to be

mitigating circumstances.     Additionally, we conclude that Davies’ sentence is not

inappropriate given the nature of the offense and his character.

       Affirmed.

FRIEDLANDER, J., and BARNES, J., concur.




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