Pursuant to Ind. Appellate Rule 65(D),

                                                             FILED
this Memorandum Decision shall not
be regarded as precedent or cited
before any court except for the
                                                           Feb 12 2013, 8:49 am
purpose of establishing the defense of
res judicata, collateral estoppel, or the
law of the case.                                                  CLERK
                                                                of the supreme court,
                                                                court of appeals and
                                                                       tax court



ATTORNEY FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

TIA R. BREWER                                    GREGORY F. ZOELLER
Marion, Indiana                                  Attorney General of Indiana

                                                 MICHAEL GENE WORDEN
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

WESLEY ALLEN THOMPSON, JR.,                      )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )       No. 27A05-1205-CR-283
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                     APPEAL FROM THE GRANT SUPERIOR COURT
                          The Honorable Jeffrey D. Todd, Judge
                             Cause No. 27D01-1201-FD-15




                                     February 12, 2013



               MEMORANDUM DECISION - NOT FOR PUBLICATION



ROBB, Chief Judge
                                 Case Summary and Issues

       Wesley Thompson appeals his sentence for perjury, a Class D felony. On appeal,

Thompson raises two issues for our review: whether his sentence was an abuse of the

trial court’s discretion; and whether his sentence is inappropriate in light of the nature of

the offense and the character of the offender. Concluding that his sentence is neither

inappropriate nor an abuse of discretion, we affirm.

                               Facts and Procedural History

       In 2005, Thompson pleaded guilty to various charges, and at his plea hearing he

implicated co-defendant Larry Dean in the crimes.         In 2011, Thompson testified at

Dean’s post-conviction relief hearing, testifying at that time that he had lied under oath in

2005 and that Dean was not in fact involved in the crimes as Thompson had previously

claimed. At the time of the post-conviction relief hearing, Thompson had served the

executed portion of his sentence from 2005 and had entered the Grant County Re-Entry

Court program. Following his testimony at Dean’s hearing, Thompson was charged with

perjury as a Class D felony, and in April 2012, Thompson pleaded guilty to the charge.

In the Order of Sentence, the court found two aggravating factors—that Thompson was

on probation at the time he committed perjury; and that he had a prior juvenile and adult

criminal history, including convictions for robbery and burglary, which are also crimes of

dishonesty—and found as the sole mitigating factor that Thompson pleaded guilty

without the benefit of a plea agreement.         Thompson was sentenced to three years

imprisonment, with two years executed and one year suspended to probation. This

appeal followed.


                                             2
                                          Discussion and Decision

                                        I. Discretion in Sentencing

                                           A. Standard of Review

         The determination of a defendant’s sentence is within the trial court’s discretion,

and we review sentencing only for an abuse of that discretion. Newman v. State, 719

N.E.2d 832, 838 (Ind. Ct. App. 1999), trans. denied. It is the trial court’s responsibility to

determine the weight to be given to aggravating or mitigating circumstances, and the

proper weight to be afforded to mitigating factors may be no weight at all. Id. “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. The trial court is not obligated to accept the defendant’s

contentions as to what constitutes a mitigating circumstance.” Hackett v. State, 716

N.E.2d 1273, 1278 (Ind. 1999).

                                         B. Thompson’s Sentence

         Thompson argues that the trial court erred in enhancing his sentence beyond the

advisory sentence of one and one-half years,1 and that the error was based on a failure to

identify three additional mitigating factors: 1) that Thompson is likely to respond well to

probation; 2) that his offense did not cause or threaten harm to person or property; and 3)

that his crime of perjury is unlikely to recur.

         Thompson first argues that the record shows he is likely to respond well to

probation, because at sentencing evidence was presented showing that he had been in the


         1
           “A person who commits a Class D felony shall be imprisoned for a fixed term of between six (6) months
and three (3) years, with the advisory sentence being one and one-half (1 ½ ) years. . . .” Ind. Code § 35-50-2-7(a).

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Grant County Re-Entry Court program and there was no evidence that he had violated

probation prior to being charged with perjury. Additionally, Thompson testified that he

had completed the Thinking for a Change program, was working toward his GED, and

was looking for work. The State counters that the very fact that Thompson violated his

probation when he committed perjury indicates that he does not respond well to

probation. While we agree that it would have been reasonable for the court to take into

consideration Thompson’s progress while on probation, we do not agree that on the

whole his accomplishments were so significant that the trial court was obligated to

consider them as mitigating factors.

        Thompson next argues that the court should have found as a mitigating factor that

Thompson’s perjury did not cause or threaten harm to person or property because he was

trying to make right his lie regarding Dean in 2005. Firstly, we note that the State did

not, and did not need to, specify which of Thompson’s statements was false. Thompson

was charged with perjury under Indiana Code section 35-44.1-2-1,2 which states that:

        (a) A person who:
                (1) makes a false, material statement under oath or affirmation,
                knowing the statement to be false or not believing it to be true; or
                (2) has knowingly made two (2) or more material statements, in a
                proceeding before a court or grand jury, which are inconsistent to the
                degree that one (1) of them is necessarily false;
        commits perjury, a Class D felony.
        (b) In a prosecution under subsection (a)(2):
                (1) the indictment or information need not specify which statement
                is actually false; and
                (2) the falsity of a statement may be established sufficiently for
                conviction by proof that the defendant made irreconcilably
                contradictory statements which are material to the point in question.


        2
          At the time Thompson was charged, perjury was codified at Indiana Code section 35-44-2-1 with identical
language to the current statute. Thompson was charged under subsection (a)(2).
                                                       4
Therefore, it was enough to show that Thompson made irreconcilably contradictory

material statements before the court.     However, regardless of which statement was

actually false, we cannot say in either case that Thompson’s perjury did not cause or

threaten harm. If we believe Thompson that his 2005 statement was false and his 2011

statement was the truth aimed at righting a past wrong, then we certainly cannot agree

that his 2005 perjury caused no harm, as it would have placed unjustified blame on an

innocent person, who in fact went to prison for the offense. If on the other hand

Thompson was lying in 2011 at Dean’s post-conviction relief hearing, then, as the State

points out, the statement would have deceitfully bolstered the early release of a guilty

felon back into society— again, an outcome that we cannot say is without harm.

       Finally, Thompson argues that the court should have found as a mitigating factor

that his perjury was unlikely to recur. Thompson implies that the very nature of the

crime makes it unlikely to recur, but under that viewpoint the crime of perjury would

automatically supply itself with a mitigating factor, which hardly seems reasonable. As

to Thompson in particular, the court found as an aggravating factor that he had prior

convictions for other crimes of dishonesty. Thompson does not supply evidence that is

significant and supported by the record to convince us that it is implausible that he might

lie to a court again in the future if given an opportunity, much less that the court should

have considered the likelihood of recurrence as a mitigating factor.

       While it is possible that we may have taken additional mitigating factors into

consideration had we been in the shoes of the trial court, that is not the standard by which

we judge the court’s decision. Our review gives a level of deference to the trial court’s

sentencing decision, and Thompson has not convinced us that his proffered mitigating
                                             5
circumstances rise to the level of an abuse of that discretion. We thus conclude that the

trial court did not err in enhancing his sentence.

                              II. Appropriateness of Sentence

       We are empowered by Indiana Appellate Rule 7(B) to revise a sentence “if, after

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

inappropriate in light of the nature of the offense and the character of the offender.” The

burden is on the defendant to persuade us that his sentence has met this inappropriateness

standard of review. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).

       Thompson’s argument here largely rehashes his arguments related to mitigating

factors above. Additionally, Thompson urges us to consider his sentence for probation

violation in addition to his sentence for perjury, even though his probation violation

sentence is not before us, and cites to Cardwell v. State, 895 N.E.2d 1219 (Ind. 2008).

The State counters that revocation of probation is related to the sentence for the original

offenses that gave rise to that probation, and not as part of an aggregate sentence for the

new crime of perjury which here led to the violation of probation. We agree with the

State, and note that while Cardwell advocated looking at the aggregate sentence, the court

in Cardwell was discussing multiple counts in the same case rather than the more distinct

situation of revocation of probation and a separate sentence for a crime underlying that

revocation.

       As for the nature of the offense and the character of the offender, we refer back to

our analysis above. It appears that Thompson made progress in some areas while on

probation, but the record also shows that he had a prior criminal history involving other

crimes of dishonesty. And as noted above, we do not agree with Thompson’s estimation
                                              6
that his crime of perjury had no victim or threat of harm. Thompson has not carried his

burden of persuading us that, in light of the nature of the offense and his character, his

sentence was inappropriate.

                                        Conclusion

       Concluding that the trial court did not abuse its discretion in setting Thompson’s

sentence, and that his sentence is not inappropriate, we affirm.

       Affirmed.

MAY, J., and PYLE, J., concur.




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