MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                          Jul 08 2015, 8:33 am
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
Steven E. Ripstra                                         Gregory F. Zoeller
Ripstra Law Office                                        Attorney General of Indiana
Jasper, Indiana
                                                          Christina D. Pace
                                                          Deputy Attorney General
                                                          Indianapolis Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Eric L. Carter,                                           July 8, 2015

Appellant-Defendant,                                      Court of Appeals Case No.
                                                          63A01-1412-CR-527
        v.                                                Appeal from the Pike Circuit Court

                                                          The Honorable Jeffrey L.
State of Indiana,                                         Biesterveld, Judge
Appellee-Plaintiff.
                                                          Cause No. 63C01-1403-FB-124




Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 63A01-1412-CR-527 | July 8, 2015          Page 1 of 11
[1]   Eric L. Carter appeals his sentence for possession of a firearm by a serious

      violent felon as a class B felony. Carter raises two issues which we revise and

      restate as:


          I.        Whether the trial court abused its discretion in sentencing him; and

          II.       Whether his sentence is inappropriate in light of the nature of the
                    offense and the character of the offender.


      We affirm.


                                      Facts and Procedural History

[2]   On June 30, 2011, Carter was convicted of Count I, burglary as a class C

      felony, and Count II, burglary as a class B felony, under cause number 63C01-

      0902-FB-76 (“Cause No. 76”).


[3]   On June 14, 2013, Carter knowingly possessed a firearm or firearms,

      specifically a “RG 22 caliber revolver” and an “Iver Johnson 32 caliber

      revolver.” Transcript at 16. On March 31, 2014, the State charged Carter with

      unlawful possession of a firearm by a serious violent felon as a class B felony

      under cause number 63C01-1403-FB-124 (“Cause No. 124”). On April 1, 2014,

      the State filed a motion to revoke probation under Cause No. 76. On August 4,

      2014, the State charged Carter with theft as a class D felony under cause

      number 63C01-1408-FD-355 (“Cause No. 355”).


[4]   On October 7, 2014, pursuant to the terms of a plea agreement, Carter pled

      guilty to unlawful possession of a firearm by a serious violent felon as a class B

      felony under Cause No. 124, he agreed to admit to the violation of the terms of
      Court of Appeals of Indiana | Memorandum Decision 63A01-1412-CR-527 | July 8, 2015   Page 2 of 11
      his probation in Cause No. 76, he agreed to a cap of twelve years on his total

      sentence, and the State agreed to dismiss the charges in Cause No. 355.


[5]   On November 12, 2014, the court held a sentencing hearing. Carter’s father

      testified that he received a lung transplant in July, that he would have to find

      someone in the family to help him or hire someone should Carter be

      incarcerated, and that he had hired someone to help him for the last few

      months but that paying someone was a financial strain. He testified that after

      Carter became a felon, they discussed guns and that Carter was not to own or

      possess one. He indicated that Carter told him that Carter had guns as

      collateral for a loan and “was just holding them for the night” and “some

      people were coming back to pick ‘em up the next day.” Id. at 53. He also

      testified that the guns were not loaded and on a shelf in a closet.


[6]   Carter testified that he told his father around 2001 after he was convicted that

      his father needed to take his guns or find somebody to buy them. He testified

      that if he had known “the concept of possessory interest is the equivalent of

      actual possession under this statute, we wouldn’t be having this hearing today.”

      Id. at 71. With respect to the guns the State alleged he possessed, Carter stated

      that he had no interest in the guns “other than that they were an assurance that

      [he] was going to get [his] money back.” Id. at 66. He testified that he could

      not reach the shelf where the guns were stored because he had a full arm cast on

      one arm, his fingers were sprained and swollen, and he had a broken neck with

      a rigid neck brace. He stated that the police knocked on the door to his father’s

      house and said they had talked to “the guys that the firearms came from” and

      Court of Appeals of Indiana | Memorandum Decision 63A01-1412-CR-527 | July 8, 2015   Page 3 of 11
      that they knew the firearms were in the house. Id. at 67. He testified that he

      initially pretended like he had no idea what the officers were talking about, but

      one of the officers said he knew that Carter was on probation, that Carter could

      either cooperate and let the police gain access to the firearms, or he would go

      with them. He provided a written statement to the police naming two

      individuals involved in his receipt of the guns. During cross-examination,

      Carter admitted that the written statement he made to the police when they

      came to his house was not a true and accurate statement because he was under

      the impression that if he did “what they wanted [him] to do, that this, that we

      weren’t going to, that this wasn’t going to be an issue.” Id. at 79.


[7]   At the hearing, the court found the most substantial aggravating factor to be

      Carter’s criminal history. The court also found the fact that Carter was on

      probation at the time of the offense as an aggravator. The court stated that it

      considered the fact that Ind. Code § 35-50-2-2 “makes this a non-suspendable

      offense” and that “is because this is a Class ‘B’ felony and the person has a prior

      unrelated felony conviction.” Id. at 93. The court also considered that prior

      lenient treatment, probation, and community corrections had not been

      successful. The court found Carter’s guilty plea and that Carter “has made

      restitution in the original case, for which probation revocation is being sought”

      as mitigators. Id. The sentencing order found that Carter “did plead guilty and

      saved the Court’s time and resources” as a mitigator. Appellant’s Appendix at

      157. The order stated that the court considered: (1) Carter’s prior criminal

      history; (2) Carter was on probation at the time when the new offense was


      Court of Appeals of Indiana | Memorandum Decision 63A01-1412-CR-527 | July 8, 2015   Page 4 of 11
      committed; (3) prior lenient treatment and the prior consideration of probation

      and placement in community corrections had not been successful; (4) Carter’s

      testimony that he knew he was not supposed to possess a firearm; and (5) Ind.

      Code § 35-50-2-2 makes this a non-suspendable offense “because this a [sic] call

      [sic] ‘D’ [sic] Felony and the Defendant has a prior non-related offense.” Id.

      The court sentenced Carter to ten years under Cause No. 124 and two years

      under Cause No. 76 to be served consecutively.


                                                   Discussion

                                                         I.


[8]   The first issue is whether the trial court abused its discretion in sentencing

      Carter. We review the sentence 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 (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. A trial court

      abuses its discretion if it: (1) fails “to enter a sentencing statement at all;” (2)

      enters “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;” (3) enters a sentencing statement that “omits

      reasons that are clearly supported by the record and advanced for

      consideration;” or (4) considers reasons that “are improper as a matter of law.”

      Id. at 490-491. If the trial court has abused its discretion, we will remand for

      resentencing “if we cannot say with confidence that the trial court would have
      Court of Appeals of Indiana | Memorandum Decision 63A01-1412-CR-527 | July 8, 2015   Page 5 of 11
       imposed the same sentence had it properly considered reasons that enjoy

       support in the record.” Id. at 491. The relative weight or value assignable to

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

       to review for abuse of discretion. Id.


[9]    Carter argues that the trial court should have considered his cooperation with

       the police and how the cooperation led to two burglary convictions 1 and the

       undue burden on his father. He contends that the sentencing order omits the

       second mitigator that the court mentioned during the sentencing hearing that he

       made restitution in the original case for which probation revocation was being

       sought. Lastly, he asserts that “any argument made that the court abused its

       discretion when sentencing the defendant on the new charge in [Cause No.

       124], should be applied to the probation violation proceedings.” Appellant’s

       Brief at 14-15.


[10]   The State argues that Carter’s cooperation with the police was merely a

       pragmatic decision and downplays his involvement. With respect to the burden

       of incarceration on Carter’s father, the State points out that Carter’s adult sister

       and his mother are still living but there was no discussion of these family

       members at his sentencing hearing.




       1
         Carter cites a letter he previously sent to the trial court dated November 3, 2014, to support his contention
       that his cooperation led to the arrests of two individuals.

       Court of Appeals of Indiana | Memorandum Decision 63A01-1412-CR-527 | July 8, 2015                  Page 6 of 11
[11]   The determination of mitigating circumstances is within the discretion of the

       trial court. Rogers v. State, 878 N.E.2d 269, 272 (Ind. Ct. App. 2007), trans.

       denied. The trial court is not obligated to accept the defendant’s argument as to

       what constitutes a mitigating factor, and a trial court is not required to give the

       same weight to proffered mitigating factors as does a defendant. Id. An

       allegation that the trial court failed to identify or find a mitigating factor

       requires the defendant to establish that the mitigating evidence is both

       significant and clearly supported by the record. Anglemyer, 868 N.E.2d at 493.

       If the trial court does not find the existence of a mitigating factor after it has

       been argued by counsel, it is not obligated to explain why it has found that the

       factor does not exist. Id.


[12]   With respect to his cooperation with the police, the record reveals that Carter

       testified that he initially pretended like he had no idea what the police were

       talking about. He conceded during cross-examination that the written

       statement he made to the police when they came to his house was not a true

       and accurate statement. We cannot say that Carter has demonstrated that the

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


[13]   As for the burden on Carter’s father, “absent special circumstances, trial courts

       are not required to find that imprisonment will result in an undue hardship.”

       Dowdell v. State, 720 N.E.2d 1146, 1154 (Ind. 1999); see also Benefield v. State, 904

       N.E.2d 239, 247-248 (Ind. Ct. App. 2009) (recognizing that incarceration

       “almost always” works a hardship on others and concluding that the defendant

       failed to show “special circumstances” because there were other people who

       Court of Appeals of Indiana | Memorandum Decision 63A01-1412-CR-527 | July 8, 2015   Page 7 of 11
       could take care of the defendant’s mother while she was incarcerated), trans.

       denied. Again, we cannot say that Carter has demonstrated that the mitigating

       evidence is both significant and clearly supported by the record.


[14]   To the extent that Carter asserts that the sentencing order did not include his

       restitution as a mitigator, we observe that the trial court found that Carter’s

       restitution in the original case for which probation revocation was being sought

       was a mitigator during the sentencing hearing. “The approach employed by

       Indiana appellate courts in reviewing sentences in non-capital cases is to

       examine both the written and oral sentencing statements to discern the findings

       of the trial court.” McElroy v. State, 865 N.E.2d 584, 589 (Ind. 2007). We

       examine the oral statement alongside the written sentencing statement to assess

       the conclusions of the trial court. Id. Under the circumstances, we cannot say

       that the court abused its discretion.2


                                                             II.


[15]   The next issue is whether Carter’s sentence is inappropriate in light of the

       nature of the offense and the character of the offender. Ind. Appellate Rule

       7(B) provides that we “may revise a sentence authorized by statute if, after due

       consideration of the trial court’s decision, [we find] that the sentence is




       2
         Carter also argues that the sentencing order differs from the statement given by the court at the conclusion
       of the sentencing hearing because the order states that Ind. Code § 35-50-2-2 makes this a non-suspendable
       offense “because this a [sic] call [sic] ‘D’ [sic] Felony and the Defendant has a prior non-related offense.”
       Appellant’s Appendix at 157. We cannot say that the scrivener’s error referring to the offense as a class D
       felony constitutes an abuse of discretion in sentencing Carter.

       Court of Appeals of Indiana | Memorandum Decision 63A01-1412-CR-527 | July 8, 2015                 Page 8 of 11
       inappropriate in light of the nature of the offense and the character of the

       offender.” Under this rule, the burden is on the defendant to persuade the

       appellate court that his or her sentence is inappropriate. Childress v. State, 848

       N.E.2d 1073, 1080 (Ind. 2006).


[16]   Carter argues that he agreed only to accept the three guns as collateral for a

       loan, the guns were kept on a shelf in his father’s house where he was living and

       he was unable to reach the shelf due to physical limitations, he consented to the

       police seizing the firearms and gave a written statement about how they came

       into his possession after the police promised not to arrest him or charge him

       with a firearm violation, his statement was ultimately used to convict two

       people of burglary, and he was unaware that merely having any property

       interest in a firearm qualified as a crime. With respect to his character, he

       argues that he is a college graduate, suffers from bipolar disorder, attention

       deficit disorder, and obsessive compulsive disorder, none of his previous

       offenses involved a firearm, he had less than two weeks remaining on his

       probation, he believed his medication was a factor in clouding his decision to

       accept a possessory interest in the guns, and he pled guilty.


[17]   Our review of the nature of the offense reveals that Carter knowingly possessed

       a firearm or firearms as a serious violent felon. Our review of the character of

       the offender reveals that Carter pled guilty to unlawful possession of a firearm

       by a serious violent felon as a class B felony under Cause No. 124 and agreed to

       admit the violation of the terms of his probation in Cause No. 76, and the State

       agreed to dismiss the charge in Cause No. 355 of theft as a class D felony. As

       Court of Appeals of Indiana | Memorandum Decision 63A01-1412-CR-527 | July 8, 2015   Page 9 of 11
       an adult, Carter was convicted of illegal possession of alcohol by a minor as a

       class C misdemeanor in 1994, possession of marijuana as a class A

       misdemeanor in 1999, and operating a motor vehicle while intoxicated as a

       class A misdemeanor in 1999. In 1999, he pled guilty to possession of a

       controlled substance as a class D felony.3 He was convicted of possession of

       marijuana as a class A misdemeanor, possession of marijuana as a class D

       felony, operating a motor vehicle while intoxicated as a class D felony in 2001;

       two counts of burglary as class C felonies, two counts of theft as class D

       felonies, and reckless driving as a class B misdemeanor in 2003; theft as a class

       D felony, criminal conversion as a class C misdemeanor, and possession of

       marijuana as a class A misdemeanor in 2006; burglary as a class C felony in

       2007; burglary as a class C felony, burglary as a class B felony, and possession

       of paraphernalia as a class A misdemeanor in 2011.


[18]   The presentence investigation report indicates that Carter had been diagnosed

       with attention deficit disorder, obsessive compulsive disorder, and bipolar

       disorder. Carter first started using alcohol at age nineteen, marijuana at age

       fifteen, and methamphetamine at age twenty. He also used or abused

       “Adderall (prescribed), cocaine powder, crack cocaine, hashish, ecstasy, heroin,

       LSD/acid, Librium/Valium (prescribed), marijuana, synthetic marijuana,

       Xanax, methamphetamine, opium, Ritalin (prescribed), Klonopin (prescribed)

       and peyote/mushrooms.” Appellant’s Appendix at 249. He has failed multiple



       3
           The presentence investigation report indicates that the disposition for this offense is unknown.


       Court of Appeals of Indiana | Memorandum Decision 63A01-1412-CR-527 | July 8, 2015                     Page 10 of 11
       drug screens while being under the supervision of the court by means of

       community corrections and/or probation. The report also indicates that

       Carter’s overall risk assessment score puts him in the high risk category to

       reoffend.


[19]   After due consideration of the trial court’s decision, we cannot say that the

       advisory sentence of ten years imposed by the trial court in Cause No. 124 and

       a consecutive two years in Cause No. 76 is inappropriate in light of the nature

       of the offense and the character of the offender.


                                                    Conclusion

[20]   For the foregoing reasons, we affirm Carter’s sentence.


[21]   Affirmed.


       Crone, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 63A01-1412-CR-527 | July 8, 2015   Page 11 of 11
