MEMORANDUM DECISION                                                    FILED
                                                                   Jul 27 2016, 6:56 am
Pursuant to Ind. Appellate Rule 65(D),                                 CLERK
this Memorandum Decision shall not be                              Indiana Supreme Court
                                                                      Court of Appeals
regarded as precedent or cited before any                               and Tax Court

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
John T. Wilson                                           Gregory F. Zoeller
Anderson, Indiana                                        Attorney General of Indiana
                                                         Richard C. Webster
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Joshua T. Prince,                                        July 27, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         33A01-1512-CR-2236
        v.                                               Appeal from the Henry Circuit
                                                         Court
State of Indiana,                                        The Honorable Mary G. Willis,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         33C01-1506-F6-145



Altice, Judge.


                                     Case Summary




Court of Appeals of Indiana | Memorandum Decision 33A01-1512-CR-2236 | July 27, 2016       Page 1 of 8
[1]   Joshua T. Prince was convicted of dealing in a schedule IV controlled

      substance, a Level 6 felony. Prince appeals, expressly presenting sentence

      inappropriateness as the sole issue. Within his argument, however, he also

      contends that the trial court abused its discretion in the consideration of

      aggravating and mitigating circumstances.


[2]   We affirm.


                                   Facts & Procedural History


[3]   On July 24, 2014, Prince sold ten tablets of Diazepam—a schedule IV

      controlled substance—to a confidential informant working with the Henry

      County Drug Task Force. The confidential informant was given an

      audio/video recording device and was able to capture video evidence of the

      transaction. On June 12, 2015, the State charged Prince with one count of

      Level 6 felony dealing in a schedule IV controlled substance. Prince entered

      into a plea agreement with the State on September 17, 2015, wherein he agreed

      to plead guilty as charged with sentencing left to the trial court’s discretion.


[4]   At Prince’s sentencing hearing on November 12, 2015, the trial court accepted

      the plea agreement and sentenced Prince to two years executed in the

      Department of Correction (DOC). The trial court identified three significant

      aggravating circumstances: (1) violation of conditions of probation, parole or

      pardon; (2) history of criminal or delinquent activity; and (3) high risk to

      reoffend. The trial court found Prince’s acceptance of responsibility for his

      crime to be a significant mitigating circumstance, but tempered by a video

      Court of Appeals of Indiana | Memorandum Decision 33A01-1512-CR-2236 | July 27, 2016   Page 2 of 8
      recording of the controlled drug transaction between Prince and the confidential

      informant. Additional facts will be provided as necessary.


                                      Discussion & Decision


[5]   Prince has presented the sole argument of sentence inappropriateness. Within

      this argument, Prince also contends that the trial court abused its discretion in

      its consideration of aggravating and mitigating circumstances. We have

      repeatedly stated that these are two separate arguments and should be

      addressed and analyzed separately. See King v. State, 894 N.E.2d 265, 267 (Ind.

      Ct. App. 2008). We will therefore address each issue separately.


                                      I. Abuse of Discretion


[6]   Sentencing decisions are within the sound discretion of the trial court and are

      reviewed on appeal 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 by


              (1) failing to enter a sentencing statement, (2) entering a
              sentencing statement that explains reasons for imposing the
              sentence but the record does not support the reasons, (3) the
              sentencing statement omits reasons that are clearly supported by
              the record and advanced for consideration, or (4) the reasons
              given in the sentencing statement are improper as a matter of
              law.


      Court of Appeals of Indiana | Memorandum Decision 33A01-1512-CR-2236 | July 27, 2016   Page 3 of 8
      Kimbrough v. State, 979 N.E.2d 625, 628 (Ind. 2012).


[7]   The trial court may impose any sentence within the statutory range, regardless

      of the presence of aggravating and mitigating circumstances. Anglemyer, 868

      N.E.2d at 490-91. Moreover, if the trial court finds aggravating or mitigating

      circumstances, the court is “no longer obligated to weigh the aggravating and

      mitigating circumstances against each other” when imposing a sentence. See

      Richardson v. State, 906 N.E.2d 241, 243 (Ind. Ct. App. 2009) (citing Anglemyer,

      868 N.E.2d at 490-91). Therefore, “a trial court can not now be said to have

      abused its discretion in failing to ‘properly weigh’ such factors.” Anglemeyer,

      868 N.E.2d at 491.


[8]   Prince’s sole argument with respect to the aggravating circumstances is that the

      trial court abused its discretion when it considered the Indiana Risk Assessment

      System (IRAS) score. 1 In Malenchick v. State, 928 N.E.2d 564, 575 (Ind. 2010),

      our Supreme Court held that evidence-based offender assessment instruments

      should not serve as aggravating or mitigating circumstances, but nevertheless

      encouraged trial courts to use these instruments in “crafting a penal program

      tailored to each individual defendant.” Id.




      1
       The Indiana Risk Assessment System Community Supervision Tool assesses an offender’s level of “risk and
      needs.” Appendix at 57. The resulting score takes into consideration “criminal history; education,
      employment and finances; family and social support; neighborhood problems; substance use; peer
      associations; and criminal attitudes and behaviors.” Id.

      Court of Appeals of Indiana | Memorandum Decision 33A01-1512-CR-2236 | July 27, 2016         Page 4 of 8
[9]    In this case, we observe that the trial court’s sentencing decision was clearly

       based on circumstances apart from Prince’s IRAS score. The trial court

       specifically found as aggravating circumstances that Prince had violated

       probation, had a history of criminal or delinquent activity, and had a high risk

       to reoffend. The trial court briefly mentioned Prince’s IRAS score, but did not

       rely upon it as an independent aggravating circumstance. 2 Accordingly we find

       no error. Id. at 568.


[10]   With regard to the mitigating circumstances, Prince argues that the trial court

       did not give significant weight to his guilty plea. As noted above, however, the

       weight accorded to a specific mitigating circumstance is not subject to review

       for abuse of discretion. See Anglemyer, 868 N.E.2d at 491. “Further, the court is

       neither obligated to accept the defendant’s arguments as to what constitutes a

       mitigating [circumstance] nor required to give the same weight to a proffered

       mitigating [circumstance] as does the defendant.” Sandleben v. State, 29 N.E.3d

       126, 135-6 (Ind. Ct. App. 2015). Prince’s argument is, therefore, improper.


[11]   Additionally, Prince argues that the trial court failed to recognize his fourteen

       years of law-abiding behavior as a mitigating circumstance. An allegation that

       the trial court failed to identify a mitigating factor requires the defendant to



       2
         Prince also asserts that the aggravating circumstance of his high risk to reoffend was in the written
       sentencing order but not in the oral sentencing statement. We have examined the oral statement alongside
       the written sentencing order and determine that the trial court clearly considered Prince’s high risk to
       reoffend as an aggravating circumstance. See Berry v. State, 23 N.E.3d 854, 857 (Ind. Ct. App. 2015) (“Rather
       than presuming the superior accuracy of the oral statement, we examine it alongside the written sentencing
       statement to assess the conclusions of the trial court”).



       Court of Appeals of Indiana | Memorandum Decision 33A01-1512-CR-2236 | July 27, 2016              Page 5 of 8
       establish that the mitigating evidence is both significant and clearly supported

       by the record. Anglemyer, 868 N.E.2d at 493. In September of 2001, Prince was

       convicted and sentenced to two years suspended to formal probation for

       possession of marijuana and operating a vehicle while intoxicated. Between

       September 2001 and June 2015, Prince had no subsequent convictions.

       However, during those fourteen years, Prince violated his probation and was

       ordered to serve his previously suspended sentence. Furthermore, he was

       arrested twice for drug-related activity similar to his current crime. See Pickens v.

       State, 767 N.E.2d 530, 534 (Ind. 2002) (holding that a record of arrests

       “reveal[s] to the court that subsequent antisocial behavior on the part of the

       defendant has not been deterred even after having been subject to the police

       authority of the State”). The trial court did not abuse its discretion in rejecting

       this proffered mitigating circumstance.


[12]   Prince also argues that the trial court failed to recognize the lack of serious

       harm caused to persons or property during the commission of the crime. As we

       have before held, a “conviction of a crime that does not contain violence as an

       element is not a circumstance requiring mitigating weight.” Sandleben, 29

       N.E.3d at 136.


[13]   The trial court did not abuse its discretion when determining aggravating and

       mitigating circumstances and the decision was clearly in line with the logic and

       effect of the facts and circumstances presented.


                                    II. Inappropriate Sentence


       Court of Appeals of Indiana | Memorandum Decision 33A01-1512-CR-2236 | July 27, 2016   Page 6 of 8
[14]   Prince contends that his two-year executed sentence at the DOC is

       inappropriate. Specifically, he claims he should have been allowed to serve his

       sentence on probation. Although the trial court imposed a sentence that is

       authorized by statute, we may revise Prince’s sentence 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.” Sandleben, 29 N.E.3d at 136. Prince has the burden of persuading

       our court that the sentence is inappropriate. See Conley v. State, 972 N.E.2d 864,

       876 (Ind. 2012).


[15]   The statutory sentencing range for a Level 6 felony is six months to two and

       one-half years, with the advisory sentence being one year. Ind. Code § 35-50-2-

       7(b). Where a sentence should be served is an “appropriate focus for

       application of our review and revise authority.” King v. State, 894 N.E.2d 265,

       267 (Ind. Ct. App. 208). However, as a practical matter, we recognize that trial

       courts “know the feasibility of alternative placements in particular counties or

       communities.” Id. at 268.


[16]   With respect to the nature of the offense, Prince sold ten Diazepam tablets to a

       confidential informant. This was a standard drug transaction; the offense is

       unremarkable. In reference to Prince’s character, a relevant consideration is

       Prince’s criminal history. The record reflects that Prince had a juvenile history,

       including an adjudication for theft that would have been a Class D felony if

       committed by an adult. Prince’s adult history includes an arrest for possession

       for marijuana in 1999 and a conviction for possession for marijuana and driving

       Court of Appeals of Indiana | Memorandum Decision 33A01-1512-CR-2236 | July 27, 2016   Page 7 of 8
       while intoxicated in 2001. Prince’s sentence for his 2001 conviction was

       suspended to probation, but in 2003—during the fourteen years he allegedly led

       a law-abiding life—he violated his probation and was ordered to serve his

       sentence. Prince was subsequently arrested twice for drug-related offenses

       similar to the current crime. Prince’s criminal history reflects poorly on his

       character.


[17]   Prince’s two-year executed sentence for dealing in a schedule IV controlled

       substance was well within the statutory range. Though the nature of the offense

       was unremarkable, Prince’s history of criminal activity, prior probation

       violation, and continuous involvement with drugs does not reflect positively on

       his character. Understanding that the trial court has a better understanding of

       feasibility, Prince failed to persuade us that his placement in the DOC is

       inappropriate. See generally King, 894 N.E.2d at 268. Having reviewed the

       record, Prince’s two-year executed sentence is not inappropriate in light of the

       nature of the offense and Prince’s character.


[18]   Judgment affirmed.


[19]   Bailey, J. and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 33A01-1512-CR-2236 | July 27, 2016   Page 8 of 8
