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 judicata, collateral
estoppel, or the law of the case.

ATTORNEY FOR APPELLANT:                              ATTORNEYS FOR APPELLEE:

MICHAEL E. BOONSTRA                                  GREGORY F. ZOELLER
Logansport, Indiana                                  Attorney General of Indiana

                                                     GARY R. ROM
                                                     Deputy Attorney General

                                                                                      FILED
                                                     Indianapolis, Indiana

                                                                                   Jul 24 2012, 9:11 am
                               IN THE
                     COURT OF APPEALS OF INDIANA                                           CLERK
                                                                                         of the supreme court,
                                                                                         court of appeals and
                                                                                                tax court




JOHN W. BREEDLOVE,                                   )
                                                     )
       Appellant-Defendant,                          )
                                                     )
               vs.                                   )      No. 09A02-1111-CR-1116
                                                     )
STATE OF INDIANA,                                    )
                                                     )
       Appellee-Plaintiff.                           )


                       APPEAL FROM THE CASS SUPERIOR COURT
                         The Honorable Richard A. Maughmer, Judge
                               Cause No. 09D02-1108-FB-29



                                           July 24, 2012


                MEMORANDUM DECISION - NOT FOR PUBLICATION


KIRSCH, Judge
       John W. Breedlove (“Breedlove”) appeals his sentence for one count of dealing in

methamphetamine1 as a Class B felony contending that the trial court abused its discretion in

failing to identify the existence of mitigating circumstances and that his eighteen-year

executed sentence is inappropriate.

       We affirm.

                               FACTS AND PROCEDURAL HISTORY

       On June 5, 2009, Elijah Helderman (“Helderman”) was acting as a confidential

informant for the Cass County Drug Task Force. Helderman contacted Officer Jim

Klepinger (“Officer Klepinger”) about the possibility of conducting a controlled buy of

methamphetamine from Breedlove. Officer Klepinger prepared the buy money and met with

Helderman at the parking lot of the Dutch Mill Tavern in Logansport, Indiana. Officer

Klepinger gave Helderman $60 of buy money and outfitted Helderman with a video and

audio recording device. After Officer Klepinger searched Helderman’s vehicle, Helderman

met Breedlove at a predetermined location. Officer Klepinger followed Helderman in

another vehicle.

       When Breedlove arrived, he entered Helderman’s car. Helderman gave Breedlove the

buy money, and Breedlove gave him what was later determined to be 0.26 grams of

methamphetamine. Breedlove instructed Helderman to call if he wanted any more “product.”

Tr. at 60. Helderman subsequently met with Officer Klepinger who searched Helderman

and his vehicle and took the methamphetamine into evidence.


       1
           See Ind. Code § 35-48-4-1.1.

                                             2
       The State charged Breedlove with one count of dealing in methamphetamine as a

Class B felony. At the conclusion of Breedlove’s jury trial, he was found guilty as charged.

The trial court sentenced Breedlove to a term of eighteen years executed in the Department of

Correction. Breedlove now appeals.

                              DISCUSSION AND DECISION

                                    I. Sentencing Errors

       Trial courts are required to enter sentencing statements whenever imposing a sentence

for a felony offense. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on

reh’g, 875 N.E.2d 218 (Ind. 2007). The statement must include a reasonably detailed

recitation of the trial court’s reasons for imposing a particular sentence. Id. If the recitation

includes a finding of aggravating or mitigating circumstances, then the statement must

identify all significant mitigating and aggravating circumstances and explain why each

circumstance has been determined to be mitigating or aggravating. Id. Sentencing decisions

rest within the sound discretion of the trial court and are reviewed on appeal only for an

abuse of that 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.

       One way in which a trial court may abuse its discretion is by failing to enter a

sentencing statement at all. Id. 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


                                               3
reasons that are clearly supported by the record and advanced for consideration, or the

reasons given are improper as a matter of law. Id. at 490-91. Because 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 491. Once the trial court has entered a

sentencing statement, which may or may not include the existence of aggravating and

mitigating factors, it may then “impose any sentence that is authorized by statute; and . . . is

permissible under the Constitution of the State of Indiana.” Ind. Code § 35-38-1-7.1(d).

                                   A. Abuse of Discretion

       Breedlove argues that the trial court abused its discretion by failing to find the

existence of mitigating circumstances. More specifically, Breedlove contends that the trial

court should have considered as mitigating circumstances the non-violent nature of the

offense and that the State induced or facilitated the offense. However, the State correctly

notes that Breedlove failed to argue during sentencing that the trial court should find these

factors to be mitigating circumstances. “If 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.” Simms v. State, 791 N.E.2d 225, 233 (Ind. Ct. App. 2003). Furthermore,

had Breedlove argued in favor of those mitigating circumstances, the trial court was not

required to accept his argument as to what constitutes a mitigating circumstance. Hape v.

State, 903 N.E.2d 977, 1000 (Ind. Ct. App. 2009). Breedlove has failed to establish that the


                                               4
trial court abused its discretion during sentencing by failing to find the existence of

mitigating circumstances.

                                  B. Inappropriate Sentence

          Breedlove also contends that his eighteen-year sentence for his Class B felony

conviction is inappropriate in light of the nature of the offense and the character of the

offender. The sentencing range for a Class B felony conviction is a fixed term of

imprisonment between six years and twenty years with the advisory sentence being ten years.

Ind. Code §35-50-2-5. Appellate courts may revise a sentence after careful review of the

trial court’s decision if they conclude that the sentence is inappropriate based on the nature of

the offense and the character of the offender. Ind. Appellate Rule 7(B). Even if the trial

court followed the appropriate procedure in arriving at its sentence, the appellate court still

maintains a constitutional power to revise a sentence it finds inappropriate. Hope v. State,

834 N.E.2d 713, 718 (Ind. Ct. App. 2005). The defendant has the burden of persuading the

appellate court that his sentence is inappropriate. King v. State, 894 N.E.2d 265, 267 (Ind.

Ct. App. 2008). The issue we are presented with in this context is not whether another

sentence is more appropriate, but whether the sentence that was imposed is inappropriate. Id.

at 268.

          The amount of methamphetamine Breedlove sold to Helderman was not substantial.

However, he told the confidential informant to call him if he wanted to purchase more.

Furthermore, Breedlove was on parole for a prior felony methamphetamine conviction at the

time he committed this offense. Indiana Code section 35-38-1-7.1 allows the trial court to


                                               5
consider if a person has recently violated the conditions of probation or parole as an

aggravating circumstance. Even a limited criminal history can be considered an aggravating

factor. Atwood v. State, 905 N.E.2d 479, 488 (Ind. Ct. App. 2009).

       Additionally, Breedlove is at risk for recidivism. This was his second felony related to

methamphetamine. Breedlove, who was twenty-seven years old at the time he committed the

offense, was a daily smoker of marijuana from the age of thirteen to seventeen. He learned

how to manufacture methamphetamine when he was thirteen years old and used it daily

except when he was incarcerated. Although treatment was available, Breedlove could not

take advantage of that treatment while incarcerated because of his numerous write-ups and

loss of good-time credit. He served much of his sentence in segregation, which prevented

him from attending drug rehabilitation programs.

       Breedlove has failed to meet his burden of persuading us that his sentence is

inappropriate in light of the nature of the offense and the character of the offender.

       Affirmed.

BAKER, J., and BROWN, J., concur.




                                              6
