MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                      FILED
this Memorandum Decision shall not be                                  Mar 12 2019, 10:21 am
regarded as precedent or cited before any
                                                                            CLERK
court except for the purpose of establishing                            Indiana Supreme Court
                                                                           Court of Appeals
the defense of res judicata, collateral                                      and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Christopher L. Clerc                                     Curtis T. Hill, Jr.
Columbus, Indiana                                        Attorney General of Indiana
                                                         Benjamin J. Shoptaw
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Matthew A. Zook,                                         March 12, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-2162
        v.                                               Appeal from the Bartholomew
                                                         Circuit Court
State of Indiana,                                        The Honorable Kelly S. Benjamin,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         03C01-1705-F2-2751



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2162 | March 12, 2019                  Page 1 of 6
[1]   Matthew Zook appeals the sentence imposed by the trial court after he pleaded

      guilty to one count of Level 2 Felony Dealing in a Narcotic Drug, arguing that

      the trial court erred when it failed to consider his admissions to the police and

      his guilty plea to be mitigating factors. Finding no error, we affirm.


                                                     Facts
[2]   On April 19, 2017, Ronald Weatherald called Columbus Police Department

      Detective Toby Combest to inform him that Zook was dealing large amounts of

      narcotics in the Columbus area. Additionally, Justin Smith told Detective

      Combest that he had purchased heroin from Zook. With this information,

      Detective Combest obtained a valid search warrant, which allowed him to place

      a GPS unit on Zook’s truck.


[3]   On May 5 and May 9, 2017, Zook travelled to Cincinnati, presumably to sell

      drugs. Once Zook returned to Bartholomew County on May 9, officers stopped

      him for a suspected traffic violation. One officer then deployed a drug-sniffing

      K-9 officer to conduct a free-air search around Zook’s vehicle. The K-9 officer

      immediately alerted the officers to the presence of drugs inside the vehicle.

      After the officers read Zook his Miranda1 rights, Zook admitted that there was

      heroin in his backpack inside the vehicle. The officers found almost thirty grams

      of heroin, two baggies filled with a substance later determined to be




      1
          Miranda v. Arizona, 384 U.S. 436 (1966).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2162 | March 12, 2019   Page 2 of 6
      methamphetamine, and a handgun in the backpack. Zook admitted that the

      baggies and the handgun were his. The officers arrested him.


[4]   On May 16, 2017, the State charged Zook with one count of Level 2 felony

      dealing in a narcotic drug, one count of Level 3 felony possession of a narcotic

      drug, one count of Level 5 felony possession of methamphetamine, and one

      count of Class A misdemeanor carrying a handgun without a license. On June

      25, 2018, Zook entered into an open guilty plea agreement, pursuant to which

      he agreed to plead guilty to the dealing in a narcotic drug charge in exchange

      for dismissal of the other charges. The trial court considered Zook’s limited

      criminal history to be a mitigating factor. At the August 9, 2018, sentencing

      hearing, the trial court sentenced Zook to twenty years, with twelve years to be

      served in the Department of Correction (DOC), four years suspended to

      probation, and four years fully suspended. Zook now appeals.


                              Discussion and Decision
[5]   Zook’s sole argument is that the trial court erred when it failed to consider his

      admissions to the police and his guilty plea to be mitigating factors. The

      maximum sentence for a person convicted of Level 2 felony dealing in a

      narcotic drug is thirty years, and the minimum sentence is ten years. Ind. Code

      § 35-50-2-4.5. The advisory sentence is seventeen and one-half years. Id. Here,

      the trial court imposed a twenty-year sentence, with four years suspended to

      probation and four years fully suspended.



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2162 | March 12, 2019   Page 3 of 6
[6]   We will reverse a sentencing decision involving the use or non-use of certain

      mitigating factors only if the decision is clearly against the logic and effect of the

      facts and circumstances before the trial court and all reasonable inferences

      drawn therefrom. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified

      on reh’g, 875 N.E.2d 218. We note that sentencing decisions are left to the

      sound discretion of the trial court. Smallwood v. State, 773 N.E.2d 259, 263 (Ind.

      2002). Specifically, with regards to mitigating factors, the trial court is under no

      obligation to find and/or use mitigating factors in its sentencing analysis.

      Wingett v. State, 640 N.E.2d 372, 373 (Ind. 1994). In fact, the burden is on the

      defendant to establish that a proffered mitigating factor is both significant and

      “clearly supported by the record[,]” Anglemyer, 868 N.E.2d at 493, if he alleges

      that the trial court failed to identify a mitigating circumstance. The trial court is

      under no obligation to accept the defendant’s contentions as to what constitutes

      a mitigating factor, nor is it required to give the same weight to proffered

      mitigating factors as the defendant does. Gross v. State, 769 N.E.2d 1136, 1140

      (Ind. 2002).


[7]   First, regarding Zook’s admissions to the police, the record does not clearly

      support the contention that his admissions were significant in any way. Rather,

      Zook only admitted to possession of the narcotics after the drug-sniffing K-9

      officer alerted the officers to the presence of drugs. Then, only after the officers

      found the heroin along with methamphetamine and the unlicensed firearm did

      Zook admit to possession of those items as well. In other words, Zook only

      admitted to possession of the narcotics and the handgun after he knew that he


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2162 | March 12, 2019   Page 4 of 6
      had been caught. Under these circumstances, the trial court did not err by

      failing to consider his admissions to the police to be a mitigating factor.


[8]   Second, regarding Zook’s guilty plea, it should be noted that “[a] guilty plea is

      not automatically a significant mitigating factor.” Sensback v. State, 720 N.E.2d

      1160, 1165 (Ind. 1999) (footnote omitted). Moreover, if a defendant’s guilty

      plea is more likely the result of pragmatism than acceptance of responsibility

      and remorse, it is less likely to be considered significantly mitigating. Davies v.

      State, 758 N.E.2d 981, 987 (Ind. Ct. App. 2001). Here, Zook substantially

      benefitted from pleading guilty because three charges against him were

      dismissed. Additionally, the evidence pointing to his guilt was overwhelming

      because he admitted to possession of the narcotics and the handgun. The trial

      court even highlighted the benefit that Zook received by pleading guilty and his

      unwillingness to fully accept responsibility for his actions:


              The first part of moving forward is being honest and when you
              testified, some of what you said I found not credible. Trying to
              mitigate yourself. Put yourself in a good light. Well . . . if you’re
              just flat out honest about it. I don’t feel I got that from you. You
              really tried hard to say I’m really not a dealer. Mr. Zook, you are a
              dealer. It’s exactly what you were. And I’m sad for you, for your
              family but more than anything, I am sad for this community
              because of the devastation that you added from your conduct.


      Tr. Vol. II p. 76. Given this record, the trial court did not err by failing to

      consider his guilty plea to be a mitigating factor.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2162 | March 12, 2019   Page 5 of 6
[9]   The judgment of the trial court is affirmed.


      May, J., and Tavitas, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2162 | March 12, 2019   Page 6 of 6
