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             Jul 29 2014, 10:14 am
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT:                              ATTORNEYS FOR APPELLEE:

GARY L. GRINER                                       GREGORY F. ZOELLER
Mishawaka, Indiana                                   Attorney General of Indiana

                                                     LARRY D. ALLEN
                                                     Deputy Attorney General
                                                     Indianapolis, Indiana



                               IN THE
                     COURT OF APPEALS OF INDIANA

RICHARD DODD,                                        )
                                                     )
       Appellant-Defendant,                          )
                                                     )
               vs.                                   )        No. 71A03-1312-CR-475
                                                     )
STATE OF INDIANA,                                    )
                                                     )
       Appellee-Plaintiff.                           )


                     APPEAL FROM THE ST. JOSEPH SUPERIOR COURT
                           The Honorable John M. Marnocha, Judge
                      Cause Nos. 71D02-9712-CF-550, 71D02-1106-PC-29



                                           July 29, 2014


                MEMORANDUM DECISION - NOT FOR PUBLICATION


CRONE, Judge
                                      Case Summary

       Richard Dodd appeals the trial court’s resentencing order, which imposed the same

sentence as his original sentence. Dodd claims that the trial court abused its discretion at

resentencing when it failed to find certain alleged mitigating factors. We affirm.

                              Facts and Procedural History

       In December 1997, Dodd burglarized a gas station while trying to steal a snowmobile.

Officer Brent Croymans responded to the burglar alarm. Dodd fired seventeen to eighteen

gunshots at Officer Croymans, one of which hit his protective vest. The State charged Dodd

with attempted murder, a class A felony, and burglary, a class C felony. A jury found him

guilty as charged.

       Dodd was twenty-five years old when he committed those offenses. In 1990, he

committed two class C felony burglaries. Dodd received an aggregate sentence of six years’

probation for the burglaries. In January 1991, Dodd committed another class C felony

burglary, and his probation was revoked. In June 1991, he was sentenced for the January

burglary to four years in the Department of Correction (“DOC”) with two years’ probation.

Dodd was released in April 1995, and his probation ended in April 1997. In June 1997,

Dodd was convicted of operating a vehicle while intoxicated, a class A misdemeanor, and

sentenced to one year of probation. Dodd was still on probation when he committed the

attempted murder and burglary offenses. Dodd also reported using LSD, cocaine, marijuana,

and alcohol to the presentence investigation report (“PSI”) investigator and that he was using

drugs on the night of the attempted murder.


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       At the original sentencing hearing the trial court found five aggravating factors: (1)

Dodd’s multiple probation revocations; (2) Dodd’s history of criminal activity, which

included three felony convictions for burglary; (3) Dodd used a deadly weapon during the

burglary and attempted murder of Officer Croymans; (4) Dodd was on probation when he

committed the present offenses; and (5) Dodd committed an act that was “intentionally and

alarmingly malicious” and “void of any respect for human life” when he repeatedly fired in

an attempt to kill Officer Croymans. Original Sentencing Tr. at 453. The trial court found

no mitigating factors. Dodd was sentenced to the maximum term of fifty years for attempted

murder and the maximum term of eight years for the burglary. The trial court ordered these

two sentences to be served consecutively for a total term of fifty-eight years.

       On direct appeal, Dodd’s original sentence was upheld. He then filed a motion to

correct erroneous sentence, which was denied. This Court granted him permission to file a

successive petition for postconviction relief. The postconviction court found that the

consecutive sentences imposed on Dodd exceeded the maximum sentence permitted for an

episode of criminal conduct and remanded for resentencing. See Ind. Code § 35-50-1-2

(defining and setting sentencing limits for episode of criminal conduct). The trial court

ordered a resentencing hearing. The trial court also ordered a supplemental PSI, which noted

that Dodd, while incarcerated, claimed to have completed several programs and courses in

order to earn his associate’s and bachelor’s degrees. The PSI also noted that based on

Dodd’s criminal history, education, employment, financial situation, and other factors, he




                                              3
was classified in the high-risk category to reoffend under the Indiana Risk Assessment

System.

          At resentencing, the trial court noted that the original trial judge had found the

aggravating factors to outweigh the mitigating factors, which we later upheld. The trial court

used this as a “starting point” during its resentencing. Resentencing Tr. at 15. The trial court

stated:

          And I don’t want to confuse in resentencing the things that you may have done
          in the DOC and your conduct there with what the appropriate sentence is here.
          Because I think sentencing and modification are two separate issues. But in
          my review of the criminal history, my review of the facts and circumstances of
          this offense based on the pre-sentence report, my review of the Court of
          Appeals decision in this case and my sort of incorporating what Judge Brook
          found, based upon him being the trial judge, it seems to me that I agree with
          not only Judge Brook and the Court of Appeals, that the sentence should be a
          fifty-five year sentence.

Id. at 18-19. The trial court imposed consecutive sentences of fifty years for the attempted

murder and five years for the burglary, for a total of fifty-five years, the maximum sentence

for this episode of criminal conduct. Dodd now appeals.

                                   Discussion and Decision

          Dodd alleges that the trial court failed to consider several mitigating factors.

Sentencing decisions are within the trial court’s discretion and will be reversed only for an

abuse of discretion. Hayden v. State, 830 N.E.2d 923, 928 (Ind. Ct. App. 2005), trans.

denied. An abuse of discretion occurs when the sentencing 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. McElroy v. State, 865 N.E.2d 584, 588 (Ind.


                                                4
2007). The finding of mitigating circumstances is within the discretion of the trial court.

Hackett v. State, 716 N.E.2d 1273, 1277-78 (Ind. 1999). The trial court is also responsible for

determining the appropriate weight to give aggravating and mitigating circumstances.

McCoy v. State, 856 N.E.2d 1259, 1262 (Ind. Ct. App. 2006). An allegation that the trial

court failed to find a mitigating circumstance requires the defendant to establish that the

mitigating evidence is both significant and clearly supported by the record. Hackett, 716

N.E.2d 1277-78. The trial court is not obligated to accept the defendant’s contentions as to

what constitutes a mitigating circumstance. Id.

       Dodd first contends that the trial court should have considered letters of support from

himself, his mother, his sister, and a friend as mitigating factors. But Dodd failed to mention

these letters at the resentencing hearing. The trial court does not abuse its discretion in

failing to consider a mitigating factor that was not raised at sentencing. Anglemyer v. State,

868 N.E.2d 482, 492 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218.

       Dodd also contends that the trial court did not take his positive conduct after the

original sentencing hearing into account during resentencing. Dodd claims that the trial court

was under the misunderstanding that it could not consider Dodd’s behaviors after his original

sentence hearing. We acknowledge that evidence of a defendant’s conduct after the original

sentencing date may be considered at resentencing. Ousley v. State, 807 N.E.2d 758, 760-

761 (Ind. Ct. App. 2004). However, we find no abuse of discretion here because Dodd

admitted that he “gotten in trouble” in prison. Resentencing Tr. at 12. He also offered no

verification for the classes that he has allegedly completed. As the State points out, Dodd has


                                              5
likely received credit against his sentence for his degrees and has failed to specify which of

these classes, if any, were optional or required by the DOC.

       Finally, Dodd claims that he has demonstrated remorse for his actions. We have said

that the trial court is in the best position to determine whether a defendant is truly remorseful.

Mead v. State, 875 N.E.2d 304, 309-10 (Ind. Ct. App. 2007). At the hearing, Dodd

mentioned Officer Croyman only once and focused mainly on himself and his family. Hence,

we give deference to the trial court on this matter and find no abuse of discretion.

       Based on the foregoing, we conclude that the trial court did not abuse its discretion in

resentencing Dodd. Therefore, we affirm.

       Affirmed.

BAKER, J., and RILEY, J., concur.




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