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 purpose of                         Jul 20 2012, 8:52 am
establishing the defense of res judicata,
collateral estoppel, or the law of the
                                                                   CLERK
case.                                                            of the supreme court,
                                                                 court of appeals and
                                                                        tax court




ATTORNEY FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

IAN O’KEEFE                                      GREGORY F. ZOELLER
Lafayette, Indiana                               Attorney General of Indiana

                                                 AARON J. SPOLARICH
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

JAMEY WAYNE THOMAS,                              )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )      No. 79A02-1110-CR-1066
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                    APPEAL FROM THE TIPPECANOE SUPERIOR COURT
                           The Honorable Randy J. Williams, Judge
                     Cause Nos. 79D01-1101-FC-1 and 79D01-0408-FC-69


                                       July 20, 2012

               MEMORANDUM DECISION - NOT FOR PUBLICATION

DARDEN, Judge
                                 STATEMENT OF THE CASE

         Jamey Thomas appeals the sentence imposed following his guilty plea to class C

felony operating a motor vehicle while privileges were forfeited for life.1

         We affirm.

                                             ISSUE

                       Whether the trial court erred in sentencing Thomas.

                                            FACTS

         According to the Probable Cause Affidavit filed in this case, on January 6, 2011,

Deputy Lendermon of the Tippecanoe County Sheriff’s Department was patrolling on

State Road 38 West when he noticed the operator of a vehicle fail to use his signal when

changing lanes. Deputy Lendermon ran the vehicle’s license plate and discovered that

the car was registered to a Jennifer Walton. Next, Deputy Lendermon activated his

emergency lights and stopped the vehicle. He had observed that Thomas was the driver

of the vehicle and there were two females in the vehicle, one in the front passenger seat

and the other in the rear seat. When Deputy Lendermon was approximately thirty feet

away from the vehicle, he witnessed Thomas cross over into the front passenger seat and

exit out of the passenger side door with the female. Deputy Lendermon asked Thomas

why both had exited the vehicle, and Thomas stated that he thought they were supposed

to do that.




1
    Ind. Code § 9-30-10-17.

                                                2
       Deputy Lendermon identified the front passenger as Walton, who stated she had

been the one driving, and the rear passenger as Nancy Wright. Deputy Lendermon gave

dispatch Thomas’s information and discovered that Thomas’s license had been suspended

for life because he was an habitual traffic violator. Deputy Lendermon again asked

Walton who had been driving the vehicle, and she stated that she had been the one

driving. He then placed her under arrest for false informing. Deputy Lendermon then

asked Thomas who had been driving, and he responded that Walton had been driving.

He then placed Thomas under arrest for operating a vehicle as an habitual traffic violator.

       On January 7, 2011, the State charged Thomas with Count I, class C felony

operating a motor vehicle while privileges are forfeited for life under cause number

79D01-1101-FC-1.         On January 13, 2011, the State petitioned to revoke Thomas’s

probation under cause number 79D01-0408-FC-69.2 In addition, the trial court held the

initial hearing on the Petition to Revoke Probation on January 19, 2011.

       Thomas pled guilty on September 7, 2011, without a plea agreement, to count I

and admitted to violating his probation. The trial court held a sentencing hearing on

October 5, 2011. During the sentencing hearing, Thomas testified that while he was

incarcerated, he met with Dr. Jeffrey Wendt for evaluation.                 Dr. Wendt “suggested

2
  On June 29, 2005, Thomas had pled guilty to two counts of class C felony operating a motor vehicle
while driving privileges were forfeited for life and one count of class A misdemeanor operating while
intoxicated. The trial court had sentenced Thomas to thirteen years, with seven years to be executed at
the Indiana Department of Correction, three years to be executed at Tippecanoe County Community
Corrections, and three years to be suspended to supervised probation. A condition of Thomas’s probation
was that he not commit another felony or misdemeanor. Thomas was released from the Department of
Correction to community corrections on August 18, 2008.

                                                  3
[Thomas] may be suffering from Post[-t]raumatic stress disorder.”                        (PSI App. 14).

Thomas further testified that this evaluation of Post-traumatic stress disorder was

associated with him witnessing, at the age of seven, the death of his brother after he was

struck by a vehicle.

        The trial court identified the following as aggravating factors: Thomas’s extensive,

nine-page criminal history, his arrearage in child support, his substance abuse, and that he

was on felony probation at the time he committed the instant offense. The trial court then

found Thomas’s guilty plea and that incarceration would cause an undue hardship on his

child to be mitigating factors but that the aggravating factors outweighed the mitigating

factors. The trial court sentenced Thomas to six years on Count I. Additionally, the trial

court imposed a previously suspended sentence of 546 days for the probation violation.

                                               DECISION

        Thomas contends that the trial court erred in sentencing him. Specifically, he

argues that the trial court failed to identify certain other mitigating factors and that his

sentence for his class C felony conviction was inappropriate.3




3
  Thomas also argues that his sentence for violating probation is inappropriate. However, he has waived
this argument on appeal because he failed to “develop a cogent argument or provide adequate citation to
authority and portions of the record.” Lyles v. State, 834 N.E.2d 1035, 1050 (Ind. Ct. App. 2005), trans.
denied. Waiver notwithstanding, we find that the trial court did not abuse its discretion in sentencing
Thomas to 546 days for violating his probation. If the trial court finds that a person has violated the terms
of his probation before the termination of the period and the petition to revoke is filed within the
probationary period, the court may “order execution of all or part of the sentence that was suspended at
the time of initial sentencing.” I.C. § 35-38-2-3. We find that the trial court was acting within its
discretion.

                                                     4
1. Mitigating Factors

        Thomas asserts that the trial court abused its discretion in failing to consider his

mental health issues, employment history, and remorse to be mitigating factors.4

        “[S]entencing decisions rest within the sound discretion of the trial court and are

reviewed on appeal only 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). A court abuses its

discretion when a 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.” K.S. v. State, 849 N.E.2d 538, 544 (Ind. 2006) (quoting In re L.J.M.,

473 N.E.2d 637, 640 (Ind. Ct. App. 1985)).

        The finding of a mitigating factor is within the trial court’s discretion. McCann v.

State, 749 N.E.2d 1116, 1121 (Ind. 2001). A trial court may abuse its discretion if it

enters a sentencing statement that omits mitigating factors “that are clearly supported by

the record and advanced for consideration.” Anglemyer, 868 N.E.2d at 490-91. A

defendant who alleges that the trial court failed to identify a mitigating factor must

establish that the mitigating factor is both “significant and clearly supported by the


4
   Additionally, Thomas asserts that the trial court abused its discretion in not finding the two letters
written on his behalf; that his actions did not cause bodily injury to anyone; and, that his actions could not
have potentially caused bodily injury to anyone to be mitigating. He, however, has waived any argument
regarding the trial court’s failure to find the two aforementioned factors to be mitigators. A defendant is
precluded from advancing a factor as mitigating for the first time on appeal. Creekmore v. State, 853
N.E.2d 523, 530 (Ind. Ct. App. 2006), clarified on reh'g, 858 N.E.2d 230 (Ind. Ct. App. 2006). Waiver
notwithstanding, even if the judge had considered those factors as mitigators, the aggravating factors,
especially Thomas’s extensive criminal history and violation of probation, would still support the
sentence of six years.


                                                      5
record.” McCann, 749 N.E.2d at 1121. Moreover, a trial court is not required to accept a

defendant’s assertion as to what constitutes a mitigating factor. Rascoe v. State, 736

N.E.2d 246, 248-49 (Ind. 2000).

       a. Mental Health

       Thomas argues that the trial court failed to give his mental health issues any

mitigating weight. During the sentencing hearing, Thomas testified that Dr. Wendt

informed him that he could potentially be suffering from Post-traumatic stress disorder.

Subsequently, the trial judge stated, “I understand Dr. Wendt's report, the

recommendations.” (Tr. 24). However, he chose not to find Thomas’s alleged disorder a

mitigating factor, but he did recommend that Thomas receive a mental health evaluation

and counseling in the Department of Correction.

       We agree with the trial court’s finding. Even considering Thomas’s testimony

regarding Dr. Wendt’s evaluation, there is no evidence that Dr. Wendt gave a definitive

diagnosis of Post-traumatic stress disorder. Thomas has also not persuaded us that his

mental health is a significant issue in this case as supported by the record. Hence, we

find no abuse of discretion in failing to find this to be a mitigating factor.

       b. Employment

       Thomas asserts that he has a good employment history, which the trial court

should have considered as mitigating. Although Thomas is a self-employed tree cutter

and he previously worked at Midwest Rentals, “many people are gainfully employed

such that this would not require the trial court to note it as a mitigating factor.” Newsome

                                               6
v. State, 797 N.E.2d 293, 301 (Ind. Ct. App. 2003). Thomas’s employment history is not

a significant mitigating factor. Thus, we find the trial court did not abuse its discretion in

failing to find this to be a mitigating factor.

       c. Remorse

       Thomas contends that the trial court should have considered his remorse for his

actions as a mitigator. Thomas testified that he was “sorry for making the poor decision

[he] made. And if he had it to do over, [he’d] do it differently.” (Tr. 11). A trial court’s

decision to believe that a person is remorseful is similar to a trial court’s decision to

believe that a person is credible. Stout v. State, 834 N.E.2d 707, 711 (Ind. Ct. App.

2005). Since we accept a trial court’s determination of a witness’ credibility, we also

accept a trial court’s determination of a defendant’s remorse. Therefore, we cannot say

that the trial court abused its discretion in not finding Thomas’s remorse to be a

mitigating factor.

2. Inappropriate Sentence

       Thomas argues that his six-year sentence is inappropriate. We have the authority

to revise a sentence if it is “inappropriate in light of the nature of the offense and the

character of the offender.” Ind. Appellate Rule 7(B). A court may impose any sentence

that is authorized by statute and allowed under the Indiana Constitution. I.C. § 35-38-1-

7.1(d). The defendant bears the burden of showing that his sentence is inappropriate.

Rich v. State, 890 N.E.2d 44, 53 (Ind. Ct. App. 2008).             “Whether a sentence is

inappropriate ultimately turns on the culpability of the defendant, the severity of the

                                                  7
crime, the damage done to others, and myriad other factors that come to light in a given

case.” Coleman v. State, 952 N.E.2d 377, 384 (Ind. Ct. App. 2011).

       In determining whether a sentence is inappropriate, the Legislature has

established the advisory sentence as an appropriate starting point based on the crime

committed. Rich, 890 N.E.2d at 53. The sentencing range for a class C felony is between

two and eight years, with the advisory sentence being four years. I.C. § 35-50-2-6. The

trial court sentenced Thomas to the six-year sentence he requested but not to Community

Corrections.

       In regard to Thomas’s present offense and character, the record reveals that

Thomas failed to use a signal when changing lanes and, consequently, a deputy sheriff

stopped him. In an act of deception, Thomas then climbed over into the passenger seat

and exited out of the passenger door. When the deputy sheriff asked who had been

driving the car, both the passenger and Thomas lied and said that the passenger had been

driving.

       In addition, we note that Thomas was on felony probation when the instant offense

was committed. He has a criminal history that spans over twenty-two years since he was

adjudicated a delinquent for battery in 1989. This extensive criminal history includes

numerous misdemeanor and felony convictions, including drug-related and violent crimes

and two convictions for operating while intoxicated. In 2005, he was convicted twice of

operating a motor vehicle after driving privileges forfeited for life, which is the same

offense in this case. Thomas has had twenty petitions to revoke probation filed against

                                           8
him and eleven, including the one in this case, were found to be true. Additionally,

Thomas has failed to appear in court thirty-five times and has had at least ten violations

or notices of rejection from Community Corrections. Along with his frequent contact

with the criminal justice system, Thomas’s admitted illegal drug use and alcohol abuse

demonstrates that he is not living a law-abiding life. Thomas’s criminal history shows

that he has no respect for the law and disregards it with impunity.

       In light of the nature of the offense and Thomas’s character, we cannot say that his

six-year sentence is inappropriate.

       Affirmed.

RILEY, J., and NAJAM, J., concur.




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