MEMORANDUM DECISION
                                                                   Feb 16 2016, 8:23 am
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
Kimberly A. Jackson                                       Gregory F. Zoeller
Indianapolis, Indiana                                     Attorney General of Indiana
                                                          Richard C. Webster
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                             IN THE
    COURT OF APPEALS OF INDIANA

Robert C. Summers, III,                                  February 16, 2016

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         11A05-1509-CR-1617
        v.                                               Appeal from the Clay Circuit Court.
                                                         The Honorable Joseph D. Trout,
                                                         Judge.
State of Indiana,                                        Cause No. 11C01-1508-F5-523
Appellee-Plaintiff.




Barteau, Senior Judge




Court of Appeals of Indiana | Memorandum Decision 11A05-1509-CR-1617 | February 16, 2016   Page 1 of 11
                                              Statement of the Case
[1]   Robert C. Summers III appeals the sentences imposed for his convictions of
                                          1                                    2
      Level 5 felony burglary and Class A misdemeanor theft. We affirm.


                                                     Issues
[2]   Summers presents the following issues for our review:

                 I.       Whether the trial court abused its discretion in sentencing
                          Summers; and
                 II.      Whether the sentence is inappropriate in light of the nature
                          of the offense and the character of the offender.

                                   Facts and Procedural History
[3]   Early in the morning of August 2, 2015, Summers broke into Mary Girton’s

      garage intending to steal a four-wheeler ATV he had observed. Summers

      pushed the ATV out of the garage and into the driveway where Girton

      confronted him. She telephoned the Clay County Sheriff’s Department

      informing dispatch of the situation and giving a description of Summers, who

      had abandoned the ATV and was fleeing the premises. Deputy Eric

      Oberholtzer responded to the dispatch and observed a male matching

      Summers’s description a short distance away from Girton’s home. After




      1
          Ind. Code § 35-43-2-1 (2013).
      2
          Ind. Code § 35-43-4-2 (2014).


      Court of Appeals of Indiana | Memorandum Decision 11A05-1509-CR-1617 | February 16, 2016   Page 2 of 11
      Summers admitted he attempted to steal the ATV, Deputy Oberholtzer

      transported Summers to the Clay County jail.


[4]   The State charged Summers with burglary, possession of paraphernalia,

      unauthorized entry of a motor vehicle, and theft. At the initial hearing,

      Summers, who was acting pro se, was advised of the charges and his rights.

      Summers acknowledged that he understood his rights and expressed his desire

      to plead guilty. The State indicated that it would not pursue convictions for

      possession of paraphernalia and unauthorized entry of a motor vehicle.


[5]   The trial court advised Summers of the rights he would be waiving by pleading

      guilty and explained the crimes and possible penalties that could be imposed. A

      factual basis was established for Summers’s guilty pleas to burglary and theft,

      and the trial court entered judgments of conviction on those counts. The State

      formally dismissed the remaining counts. Summers was then remanded to the

      Clay County jail pending the preparation of a pre-sentence investigation report.


[6]   Summers appeared pro se at his sentencing hearing, during which the details of

      Summers’s pre-sentence report were discussed. Corrections were made to the

      report regarding the accurate age of Summers’s child, who was just five weeks

      old. Summers did not have regular contact with the child, had not established

      paternity of him, and had not been ordered to pay child support. The

      investigator found Summers to be a very high risk to reoffend. The emotional

      impact of the crimes on Girton were also considered, as was Summers’s lack of

      criminal history, and his explanation of his behavior leading up to the crimes.


      Court of Appeals of Indiana | Memorandum Decision 11A05-1509-CR-1617 | February 16, 2016   Page 3 of 11
[7]    The trial court sentenced Summers to the advisory sentence for Level 5 felony

       burglary, three years. Ind. Code § 35-50-2-6(b) (2014). He received a

       concurrent sentence of one year for his theft conviction. Ind. Code § 35-50-3-2

       (1977). Summers now appeals the trial court’s sentencing order.


                                    Discussion and Decision
[8]    Summers appeared pro se at his sentencing hearing. As such, he made no

       formal offer of mitigating circumstances. He later obtained counsel who

       presented arguments in his favor on his motion to correct error, which the trial

       court denied. The issues are presented on that procedural background.


[9]    While sentencing Summers, the trial court found the only mitigating factor was

       Summers’s lack of criminal history. The only aggravating circumstance was the

       emotional harm to the victim, which was above that necessary to prove the

       elements of the crimes. The trial court found the aggravator and mitigator to be

       in equipoise and sentenced Summers to the advisory sentence for his burglary

       conviction and a concurrent sentence of one year for his theft conviction. Each

       of his arguments attack the propriety of the sentence.


                                        I. Abuse of Discretion
[10]   Trial courts are required to enter sentencing statements when imposing a

       sentence for a felony conviction. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind.

       2007), clarified on reh’g, 875 N.E.2d 218. A trial court’s sentencing decisions are

       left to the sound discretion of the trial court. Id. “With the exception of our

       authority to review sentences under Indiana Appellate Rule 7(B), as long as a

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       defendant’s sentence is within the statutory range, it is reviewed only for an

       abuse of discretion.” Healey v. State, 969 N.E.2d 607, 616 (Ind. Ct. App. 2012),

       trans. denied. “Circumstances under which a trial court may be found to have

       abused its discretion include: (1) failing to enter a sentencing statement; (2)

       entering a sentencing statement that includes reasons not supported by the

       record; (3) entering a sentencing statement that omits reasons clearly supported

       by the record; or (4) entering a sentencing statement that includes reasons that

       are improper as a matter of law.” Id. But where a trial court has identified

       proper aggravating and/or mitigating circumstances, the relative weight

       assigned to those properly found circumstances or those which should have

       been found is not subject to review for an abuse of discretion. Id.


[11]   Summers argues that the trial court improperly found victim impact as an

       aggravating circumstance. Victim impact can be an improper aggravator where

       there is nothing in the record to indicate that the impact was different than the

       impact generally experienced by victims of the same crime. McElroy v. State,

       865 N.E.2d 584, 590 (Ind. 2007).


[12]   The trial court observed that Girton, who had lived in her home for forty-eight

       years without fear, possessing a sense of safety in her neighborhood, now

       looked around her to ensure she would not find someone in her yard or

       buildings. Although most victims of this crime might share Girton’s concern

       and fear about finding a stranger on her premises again, the trial court identified

       additional components of impact not generally experienced by victims of that

       crime. Girton had never feared the dark, but was apprehensive about venturing

       Court of Appeals of Indiana | Memorandum Decision 11A05-1509-CR-1617 | February 16, 2016   Page 5 of 11
       out at all after dark. She informed the court that Summers had taken her sense

       of safety. The trial court characterized the particular impact of the crimes on

       Girton as experiencing emotional turmoil above the elements necessary to

       establish the offenses. We find no abuse of discretion in finding this aggravator.


[13]   Next, Summers claims that the trial court abused its discretion by failing to find

       certain mitigating circumstances. “Although a sentencing court must consider

       all evidence of mitigating circumstances offered by the defendant, the finding of

       a mitigating factor rests within the trial court’s discretion.” Henderson v. State,

       769 N.E.2d 172, 179 (Ind. 2002). “A court does not err in failing to find

       mitigation when a mitigation claim is ‘highly disputable in nature, weight, or

       significance.’” Smith v. State, 670 N.E.2d 7, 8 (Ind. 1996) (quoting Wilkins v.

       State, 500 N.E.2d 747, 749 (Ind. 1986)). “While a failure to find mitigating

       circumstances clearly supported by the record may imply that the sentencing

       court improperly overlooked them, the court is obligated neither to credit

       mitigating circumstances in the same manner as would the defendant, nor to

       explain why he or she has chosen not to find mitigating circumstances.”

       Henderson, 769 N.E.2d at 179.


[14]   Summers contends that the trial court abused its discretion by failing to

       mention or find his guilty plea as a mitigating factor. We have long held that a

       defendant who pleads guilty deserves some mitigating weight to be given in

       return for the plea. McElroy, 865 N.E.2d at 591. However, a guilty plea does

       not automatically amount to a significant mitigating factor. See Sensback v.

       State, 720 N.E.2d 1160, 1165 n.4 (Ind. 1999) (plea saved court time, but family

       Court of Appeals of Indiana | Memorandum Decision 11A05-1509-CR-1617 | February 16, 2016   Page 6 of 11
       contributed detailed letters for pre-sentence investigation report and three

       testified at sentencing hearing, thus still traumatized to certain extent in spite of

       plea). We have observed that “a guilty plea does not rise to the level of

       significant mitigation where the defendant has received a substantial benefit

       from the plea or where the evidence against him is such that the decision to

       plead guilty is merely a pragmatic one.” Wells v. State, 836 N.E.2d 475, 479

       (Ind. Ct. App. 2005), trans. denied.


[15]   We acknowledge the benefit the State received from Summers’s guilty plea at

       his initial hearing. However, the evidence against him was overwhelming, so

       much so that his decision was more likely a pragmatic one. Summers was

       confronted by the homeowner after he had entered her garage early one

       morning and attempted to steal her ATV. Summers abandoned that enterprise

       when he observed Girton on the telephone with law enforcement. Girton gave

       the officers Summers’s description and the direction in which he was

       traveling—through her yard and into the woods behind her house.


[16]   Deputy Oberholtzer encountered Summers not far from Girton’s home in the

       direction Girton had seen him heading. Summers walked out from the side of a

       residential yard onto the road. The officer observed that Summers was

       sweating profusely, his shoes and shorts were wet, and he had pieces of grass

       stuck to his clothing as if he had walked through tall grass or weeds. Summers

       initially denied being involved in the crimes, but ultimately admitted that he

       tried to steal Girton’s ATV.



       Court of Appeals of Indiana | Memorandum Decision 11A05-1509-CR-1617 | February 16, 2016   Page 7 of 11
[17]   An inventory of Summers’s backpack revealed a large black knife with a blade

       approximately seven inches in length inside a black sheath. The backpack also

       contained a small silver pry bar with electrical tape around the handle. A glass

       smoking device wrapped inside a white cloth was located in a small inside

       pocket. Deputy Oberholtzer also found two sets of keys—one appearing to be

       keys to a vehicle, and the other containing approximately twenty keys

       containing Honda ATV or motorcycle keys.


[18]   The evidence against Summers was so compelling we find no abuse of

       discretion for failing to find his guilty plea to be of significant mitigation.


[19]   Summers also argues the trial court abused its discretion by failing to find

       Summers’s remorse as a mitigating factor. A trial court’s determination of

       remorse as a mitigating factor is similar to a determination of credibility.

       Pickens v. State, 767 N.E.2d 530, 535 (Ind. 2002). “Without evidence of some

       impermissible consideration by the trial court, we will accept its determination

       as to remorse.” Johnson v. State, 855 N.E.2d 1014, 1016-17 (Ind. Ct. App.

       2006), trans. denied.


[20]   At sentencing, Summers acknowledged his regret about poor decisions he had

       made in the past and expressed his desire to turn his life around for his newborn

       child. The first reference to remorse for the trauma he caused Girton came in a

       letter attached to the pre-sentence investigation report and then later in a letter

       to the court. The issue was first raised in Summers’s motion to correct error.




       Court of Appeals of Indiana | Memorandum Decision 11A05-1509-CR-1617 | February 16, 2016   Page 8 of 11
[21]   A trial court is not obligated to accept a defendant’s alleged remorse as a

       mitigating circumstance. Phelps v. State, 969 N.E.2d 1009, 1020 (Ind. Ct. App.

       2012). Having observed the defendant, the trial court has the ability to

       determine whether a defendant’s remorse is genuine. Id. Accordingly,

       substantial deference must be given to the trial court’s evaluation of a

       defendant’s remorse. Id. We find no abuse of discretion in the trial court’s

       treatment of Summers’s expression of remorse.


[22]   He also claims that the trial court abused its discretion by failing to consider

       that his incarceration would result in undue hardship on his newborn child. A

       trial court is not required to find that a defendant’s incarceration would result in

       undue hardship upon his dependents. Gray v. State, 790 N.E.2d 174, 178 (Ind.

       Ct. App. 2003).


[23]   The record reveals that at the time of sentencing Summers’s newborn child was

       slightly over eight weeks old. Summers had not yet established paternity and

       was not under a court order to support the child. The child lived with his

       mother in part because Summers was homeless. We find no abuse of discretion

       in the trial court’s decision not to accept this proffered mitigating factor.


                                    II. Inappropriate Sentence
[24]   Summers also claims that his sentence is inappropriate and seeks review under

       Indiana Appellate Rule 7(B). Under that review, relief is available if “after due

       consideration of the trial court’s decision, the Court finds that the sentence is



       Court of Appeals of Indiana | Memorandum Decision 11A05-1509-CR-1617 | February 16, 2016   Page 9 of 11
       inappropriate in light of the nature of the offense and the character of the

       offender.” Ind. Appellate Rule 7(B).


[25]   The question under Appellate Rule 7(B) review is “not whether another

       sentence is more appropriate; rather, the question is whether the sentence

       imposed is inappropriate.” King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App.

       2008). “We consider not only the aggravators and mitigators found by the trial

       court, but also any other factors appearing in the record.” Johnson v. State, 986

       N.E.2d 852, 856 (Ind. Ct. App. 2013). The appellant bears the burden of

       demonstrating to us that his sentence is inappropriate. Id.


[26]   “When considering the nature of the offense, the advisory sentence is the

       starting point to determine the appropriateness of a sentence.” Id. “One factor

       we consider when determining the appropriateness of a deviation from the

       advisory sentence is whether there is anything more or less egregious about the

       offense committed by the defendant that makes it different from the ‘typical’

       offense accounted for by the legislature when it set the advisory sentence.”

       Holloway v. State, 950 N.E.2d 803, 806-07 (Ind. Ct. App. 2011).


[27]   When reviewing the sentence with respect to the character of the offender, we

       engage in a broad consideration of a defendant’s qualities. Aslinger v. State, 2

       N.E.3d 84, 95 (Ind. Ct. App. 2014), clarified on other grounds on reh’g, 11 N.E.3d

       571.


[28]   Here, we find nothing less egregious about the nature of this offense that makes

       it different from the type of offense envisioned by the legislature as deserving an

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       advisory sentence. As for the character of the offender, we recognize that

       Summers pleaded guilty to the offenses at the earliest opportunity without the

       benefit of a plea or the assistance of counsel. However, lacking a criminal

       history reduced to conviction, Summers began experimenting with alcohol and

       drugs at the age of thirteen, and admitted that he was under the influence of

       methamphetamine and marijuana at the time of the offense, an offense he

       committed because his feet hurt from walking. Summers’s upbringing was not

       idyllic; both parents suffered from substance abuse issues. However, Summers

       chose to abuse substances himself, losing several jobs due to his drug abuse, and

       in part resulting in his homelessness and lack of job. Summers has not met his

       burden of persuading us that his advisory sentence is inappropriate in light of

       the nature of the offense and the character of the offender.


                                                Conclusion
[29]   In light of the foregoing, we affirm Summers’s sentence.


[30]   Affirmed.


       Robb, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 11A05-1509-CR-1617 | February 16, 2016   Page 11 of 11
