MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                   FILED
this Memorandum Decision shall not be                               Feb 28 2018, 11:55 am
regarded as precedent or cited before any
court except for the purpose of establishing                             CLERK
                                                                     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
                                                         George P. Sherman
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Dillon M. Goff,                                          February 28, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         03A01-1710-CR-2311
        v.                                               Appeal from the Bartholomew
                                                         Circuit Court
State of Indiana,                                        The Honorable Kelly S. Benjamin,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause Nos.
                                                         03C01-1705-F6-2614
                                                         03C01-1707-F6-4010



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 03A01-1710-CR-2311 | February 28, 2018     Page 1 of 7
                                          Case Summary
[1]   Dillon M. Goff appeals his sentence, arguing that the trial court abused its

      discretion by not recognizing two mitigators. Finding no abuse of discretion,

      we affirm.



                            Facts and Procedural History
[2]   On May 7, 2017, officers with the Columbus Police Department were

      dispatched to an address following a report that a car had struck a house.

      When the officers arrived, they observed that the car was partially inside the

      house and that both occupants of the car, including the driver Goff, were

      unconscious and barely breathing. The officers determined that they were

      suffering from an opioid overdose and administered Narcan; shortly thereafter

      both Goff and the passenger regained consciousness. The officers found two

      used syringes in the car: one on the driver’s side floorboard and the other on the

      front-passenger-side floorboard. According to the passenger, Goff had injected

      heroin while he was driving. Goff was taken to the hospital, where he admitted

      to police that he was driving the car and that he had injected heroin; however,

      he did not recall striking the house. The State charged Goff with Level 6 felony

      unlawful possession of a syringe and Class A misdemeanor operating a vehicle

      while intoxicated under Cause No. 03C01-1705-F6-2614. Goff was released on

      his own recognizance and ordered to abide by the conditions of his pretrial

      release order, one of which was to obtain drug treatment. See Appellant’s App.

      Vol. II p. 53.

      Court of Appeals of Indiana | Memorandum Decision 03A01-1710-CR-2311 | February 28, 2018   Page 2 of 7
[3]   On July 7, 2017, medical staff at Columbus Regional Hospital called the

      Columbus Police Department about suspicious items they had found in Goff’s

      possession: a syringe, a spoon, and a “tied off baggie.” Id. at 51. Medical staff

      told responding officers that when they found the items in Goff’s possession, he

      told them he was “checking himself out of the hospital.” Id. The officers spoke

      with Goff, who admitted that the items were his and that they were drug-

      related. The State charged Goff with Level 6 felony unlawful possession of a

      syringe and Class C misdemeanor possession of paraphernalia under Cause No.

      03C01-1707-F6-4010.


[4]   In August 2017, Goff and the State entered into a plea agreement. Id. at 38.

      According to the agreement, Goff would plead guilty to Level 6 felony unlawful

      possession of a syringe and Class A misdemeanor operating a vehicle while

      intoxicated in Cause No. F6-2614 and Level 6 felony unlawful possession of a

      syringe in Cause No. F6-4010. In exchange, the State would dismiss the Class

      C misdemeanor in F6-4010 as well as a third cause number in its entirety.1

      Finally, the agreement provided that the sentences in Cause No. F6-2614 would

      be served concurrent to each other but consecutive to the sentence in Cause No.

      F6-4010.


[5]   At sentencing, the trial court identified one mitigator, Goff’s “youthful” age of

      twenty-one, and four aggravators: (1) Goff has a history of delinquent activity



      1
       Goff was charged with Level 6 felony unlawful possession of a syringe and Class C misdemeanor
      possession of paraphernalia in Cause No. 03C01-1705-F6-2616 for an event that occurred in April 2017.

      Court of Appeals of Indiana | Memorandum Decision 03A01-1710-CR-2311 | February 28, 2018       Page 3 of 7
      (three for offenses that would be felonies if committed by an adult); (2) Goff has

      violated his probation every time (three times) that he has been placed on it; (3)

      Goff was on pretrial release when he committed the offense in F6-4010; and (4)

      Goff had been offered drug treatment previously, but it was not effective. Id. at

      18-19; Tr. Vol. II pp. 25-29. In Cause No. F6-2614, the trial court sentenced

      Goff to 730 days for unlawful possession of a syringe and 180 days for

      operating a vehicle while intoxicated, to be served concurrently. In Cause No.

      F6-4010, the court sentenced Goff to 730 days for unlawful possession of a

      syringe. The court ordered the sentences in the two cause numbers to be served

      consecutively, for an aggregate term of four years.


[6]   Goff now appeals.



                                 Discussion and Decision
[7]   Goff contends that the trial court should have identified his guilty plea and

      cooperation with police as mitigators. Sentencing decisions rest 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.




      Court of Appeals of Indiana | Memorandum Decision 03A01-1710-CR-2311 | February 28, 2018   Page 4 of 7
[8]    One way that a trial court may abuse its discretion is by not recognizing

       mitigators that are clearly supported by the record and advanced for

       consideration. Id. at 491. The defendant bears the burden of demonstrating

       that “the trial court failed to find or identify a mitigating factor by establishing

       that the mitigating evidence is both significant and clearly supported by the

       record.” McElfresh v. State, 51 N.E.3d 103, 112 (Ind. 2016) (quotation omitted).

       Remand for resentencing may be the appropriate remedy “if we cannot say with

       confidence that the trial court would have imposed the same sentence had it

       properly considered reasons that enjoy support in the record.” Anglemyer, 868

       N.E.2d at 491.


[9]    An allegation that the trial court abused its discretion by not identifying a guilty

       plea as a mitigator “requires the defendant to establish that the mitigating

       evidence is not only supported by the record but also that the mitigating

       evidence is significant.” Anglemyer, 875 N.E.2d at 220-21. “[A] guilty plea may

       not be significantly mitigating when it does not demonstrate the defendant’s

       acceptance of responsibility or when the defendant receives a substantial benefit

       in return for the plea.” Id. at 221 (citation omitted). In addition, a guilty plea

       may not be significantly mitigating where the evidence against the defendant is

       so strong that the decision to plead guilty is merely pragmatic. Barker v. State,

       994 N.E.2d 306, 312 (Ind. Ct. App. 2013), reh’g denied, trans. denied.


[10]   Here, Goff received a substantial benefit as a result of his plea in that the State

       dismissed a Class C misdemeanor under Cause No. F6-4010 and a third felony

       cause number in its entirety. In addition, the evidence against Goff was strong,

       Court of Appeals of Indiana | Memorandum Decision 03A01-1710-CR-2311 | February 28, 2018   Page 5 of 7
       making the decision to plead guilty most likely a pragmatic one. In Cause No.

       F6-2614, Goff’s crimes were discovered after he used drugs and drove his car

       into a house. Police found Goff unconscious behind the wheel with a used

       syringe at his feet, and the passenger told police that Goff had injected heroin

       while he was driving. In Cause No. F6-4010, hospital staff found a syringe and

       drug paraphernalia in Goff’s possession and called police. Accordingly, we

       cannot say that the trial court abused its discretion by not identifying Goff’s

       guilty plea as a mitigator.


[11]   Goff also argues that the trial court should have identified his cooperation with

       police as a mitigator separate from and in addition to his guilty plea; however,

       we find this argument waived because Goff did not advance it at sentencing. If

       the defendant fails to advance a mitigator at sentencing, we will presume that

       the factor is not significant, and the defendant is precluded from advancing it as

       a mitigator for the first time on appeal. Anglemyer, 868 N.E.2d at 492. Waiver

       notwithstanding, the trial court did not abuse its discretion by not identifying

       Goff’s cooperation with police as a mitigator for the same reasons that the court

       did not abuse its discretion by not identifying his guilty plea as a mitigator. See

       Battles v. State, 688 N.E.2d 1230, 1237 (Ind. 1997) (“[Because] defendant's

       eventual capture and arrest were nigh unavoidable, . . . we cannot say that the

       trial court abused its discretion in failing to find that his voluntary statement to

       the police was a mitigating factor entitled to any significant weight.”).


[12]   In any event, because of the aggravators identified by the trial court, including

       that Goff committed the offense in Cause No. F6-4010 while he was on pretrial

       Court of Appeals of Indiana | Memorandum Decision 03A01-1710-CR-2311 | February 28, 2018   Page 6 of 7
       release in Cause No. F6-2614 and supposed to be seeking drug treatment and

       that Goff has violated probation every time he has been placed on it, we can say

       with confidence that the trial court would have imposed the same sentence even

       had it identified Goff’s guilty plea and cooperation with police as mitigators.

       We therefore affirm the trial court.


[13]   Affirmed.


       May, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 03A01-1710-CR-2311 | February 28, 2018   Page 7 of 7
