      MEMORANDUM DECISION
                                                                               Jun 09 2015, 9:07 am
      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 the defense of res judicata,
      collateral estoppel, or the law of the case.



      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Brandon E. Murphy                                         Gregory F. Zoeller
      Muncie, Indiana                                           Attorney General of Indiana
                                                                Richard C. Webster
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Courtney L. Sharp,                                       June 9, 2015

      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               05A02-1411-CR-786
              v.                                               Appeal from the Blackford Superior
                                                               Court
      State of Indiana,
                                                               The Honorable John N. Barry, Judge
      Appellee-Plaintiff.
                                                               Trial Court Cause No.
                                                               05D01-1402-FC-59




      Mathias, Judge.

[1]   Courtney L. Sharp pleaded guilty to Class C felony possession of cocaine in

      Blackford Superior Court and was sentenced to five years, with two years

      executed and three years suspended to probation. Sharp appeals and claims: (1)

      that the trial court abused its discretion in sentencing him; and (2) that the



      Court of Appeals of Indiana | Memorandum Decision No. 05A02-1411-CR-786 | June 9, 2015      Page 1 of 12
      sentence imposed by the trial court is inappropriate in light of the nature of the

      offense and the character of the offender.

[2]   We affirm.


                                    Facts and Procedural History

[3]   Shortly before midnight on February 24, 2014, Hartford City Police Officer

      Jason Young (“Officer Young”) made a traffic stop of a vehicle in which Sharp

      was a passenger. When Sharp opened the glove box to retrieve the vehicle’s

      registration, Officer Young saw piece of folded, pink paper containing a leafy

      material he recognized as marijuana. Sharp dropped the paper on the

      floorboard, and Officer Young ordered Sharp to exit the vehicle and go to a

      patrol car with another officer on the scene, Sergeant McKissack (“Sgt.

      McKissack”). At this point, Sharp began to yell and complain about the

      officers’ actions.


[4]   Officer Young then looked inside the vehicle, at which point Sharp began to

      physically resist Sgt. McKissack, apparently because Sgt. McKissack began to

      perform a pat-down search of Sharp. When Officer Young went to help Sgt.

      McKissack subdue Sharp, McKissack informed him that Sharp had a hard

      object in the back of his pants. Officer Young located the object and attempted

      to remove it from Sharp’s pants, but Sharp grabbed the object and held on to it.

      The officers wrestled Sharp to the ground as he continued to hold on to the

      object. Officer Young eventually pried the object from Sharp’s fingers. The

      object was a plastic bag containing two smaller plastic bags. Inside the smaller



      Court of Appeals of Indiana | Memorandum Decision No. 05A02-1411-CR-786 | June 9, 2015   Page 2 of 12
      bags was marijuana and what was later determined to be eleven grams of

      cocaine.

[5]   As a result of this incident, the State charged Sharp the following day in four

      counts: Count I, Class C felony possession of cocaine; Count II, Class A

      misdemeanor possession of marijuana; Count III, Class A misdemeanor

      resisting law enforcement; and Count IV, Class B misdemeanor disorderly

      conduct. On September 25, 2014, Sharp reached an agreement with the State

      whereby he would plead guilty to Count I, and the State would dismiss the

      remaining charges and charges pending in two other cases in Blackford Circuit

      Court. Pursuant to the plea agreement, sentencing was left to the discretion of

      the trial court with the exception of a four-year cap on executed time. At the

      guilty plea hearing, the trial court took the plea under advisement.


[6]   At a sentencing hearing held on October 28, 2014, the trial court accepted the

      plea and found the following aggravating circumstances: (1) Sharp had a prior

      misdemeanor conviction in which his probation had been revoked; (2) Sharp’s

      acts of resisting the efforts of law enforcement during his arrest in the present

      case demonstrated “disdain for the authority of law enforcement,” from which

      the trial court found that Sharp would not respond positively to a completely

      suspended sentence; (3) Sharp had continued to use controlled substances while

      the present case was pending; and (4) the court did not believe Sharp’s claims

      that the eleven grams of cocaine found in his possession was for personal use,

      further demonstrating that Sharp would not respond positively to a completely

      suspended sentence. The trial court found as mitigating Sharp’s relatively young



      Court of Appeals of Indiana | Memorandum Decision No. 05A02-1411-CR-786 | June 9, 2015   Page 3 of 12
      age of twenty-five years and that he has two dependent children. Concluding

      that the aggravating circumstances outweighed the mitigating circumstances,

      the trial court sentenced Sharp to five years, with two years executed and three

      years suspended to probation. Sharp now appeals.

                                 I. Abuse of Sentencing Discretion

[7]   Sharp claims that the trial court abused its discretion in sentencing him.

      Generally speaking, sentencing decisions are left to the sound discretion of the

      trial court, and we review the trial court’s decision only for an abuse of this

      discretion. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g,

      875 N.E.2d 218. An abuse of discretion occurs if the decision is clearly against

      the logic and effect of the facts and circumstances before the trial court. Id. The

      trial court may abuse its discretion in sentencing in a number of ways,

      including: (1) wholly 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.

      Kimbrough v. State, 979 N.E.2d 625, 628 (Ind. 2012) (citing Anglemyer, 868

      N.E.2d at 490-91).

[8]   Sharp argues that the trial court abused its discretion by finding two aggravating

      circumstances that were supported by the record: (1) that Sharp resisted law

      enforcement on the date of his arrest, and (2) that the trial court did not believe

      Sharp’s claim that the eleven grams of cocaine found on his person was for


      Court of Appeals of Indiana | Memorandum Decision No. 05A02-1411-CR-786 | June 9, 2015   Page 4 of 12
       personal use. Sharp also claims that the trial court failed to consider two

       mitigating factors he claims were present.


       A. Aggravating Circumstances

[9]    With regard to the first challenged aggravating circumstance, Sharp argues that

       by relying on his actions of resisting law enforcement, the trial court denied him

       the full bargained benefit of his plea agreement, which dismissed the count

       alleging that Sharp had committed Class A misdemeanor resisting law

       enforcement. We disagree.

[10]   Sharp refers us to nothing in his plea agreement that would preclude the trial

       court from considering the nature and circumstances of his crime as an

       aggravating circumstance. The fact that the nature and circumstances of his

       crime for which Sharp pleaded guilty included acts that were the basis of

       dismissed charges does not mean that the nature and circumstances of the crime

       cannot be considered as aggravating.

[11]   We addressed this issue in Corralez v. State, 815 N.E.2d 1023 (Ind. Ct. App.

       2004). In Corralez, the defendant drove his vehicle at extremely high speeds,

       disregarded stop signs, and collided with a vehicle at an intersection. The driver

       of the other vehicle died after suffering for fourteen days. The State charged

       Corralez with Class C felony reckless homicide. Corralez agreed to plead guilty

       to Class D felony criminal recklessness in exchange for dismissing the Class C

       felony charge. On appeal, Corralez claimed that the trial court had erred by

       considering as aggravating the fact that he had originally been charged with



       Court of Appeals of Indiana | Memorandum Decision No. 05A02-1411-CR-786 | June 9, 2015   Page 5 of 12
       reckless homicide. We held tha, although the trial court should not have

       considered the fact that Corralez had been charged with a Class C felony as an

       aggravating factor by itself, the trial court could properly consider “the facts

       surrounding Corralez’ crime.” Id. at 1026. We therefore held that “the trial

       court’s decision to issue an aggravated sentence was supported by the

       consideration that a person not only died as a result of Corralez’ recklessness

       but suffered for fourteen days before dying.” Id.


[12]   The same is true here. The trial court did not consider as aggravating that Sharp

       had been charged with resisting law enforcement. Instead, the trial court simply

       noted the nature and circumstances of the crime, which included Sharp’s

       actions of resisting law enforcement, as evidence of his disregard for the

       authority of the law.1 The trial court used this aggravating circumstance in

       deciding not to suspend the entirety of Sharp’s sentence. Through the plea-

       bargained dismissal of the resisting charge, Sharp avoided a separate sentence

       for his conduct, but pursuant to our holding in Corralez, it was not improper to

       consider his conduct as an aggravator.


[13]   Sharp also claims that the trial court abused its discretion by rejecting his claims

       that the eleven grams of cocaine found on his person was for personal use that

       he obtained through “chance encounters with strangers.” Appellant’s App. p.

       21. Sharp claims that because no evidence contradicted his testimony at the


       1
         The nature and circumstances of Sharp’s crimes were set forth in the probable cause affidavit supporting the
       charging information, which was included in the presentence investigation report. Sharp did not challenge
       the veracity or accuracy of the account of his crimes as detailed in the presentence investigation report.




       Court of Appeals of Indiana | Memorandum Decision No. 05A02-1411-CR-786 | June 9, 2015            Page 6 of 12
       sentencing hearing, the trial court abused its discretion by rejecting his claims

       and considering this as an aggravating factor. Again, we disagree.

[14]   As the trier of fact, the trial court was under no obligation to credit Sharp’s self-

       serving testimony that the relatively large quantity of cocaine2 found on his

       possession was merely for personal use. See Wood v. State, 999 N.E.2d 1054,

       1064 (Ind. Ct. App. 2013) (noting that the trier of fact is not required to believe

       a witness’s testimony even when it is uncontradicted).


[15]   Sharp also claims that the trial court erred in finding that he claimed to have

       bought the cocaine from strangers. Sharp notes that he testified that he obtained

       the cocaine through a person named “Jimmy,” yet he claimed not to know

       Jimmy’s last name. He claimed that he knew Jimmy through another friend,

       Denise, whom he met at a gas station. However, he claimed not to know

       Denise’s last name either. Again, the trial court was not obligated to believe any

       of Sharp’s testimony. Thus, the trial court’s reference to these individuals as

       strangers is not an abuse of discretion given Sharp’s claim not to even know

       these individuals’ last names.


       B. Mitigating Circumstances

[16]   Sharp contends that the trial court abused its discretion by failing to consider

       two mitigating circumstances that were clearly supported by the record: (1) that



       2
         The statute in effect at the time when Sharp committed his offense elevated the offense of possession of
       cocaine to a Class C felony if the amount involved weighed three grams or more. Thus, Sharp possessed
       almost four times the amount of cocaine required to elevate his crime of possession to a Class C felony.




       Court of Appeals of Indiana | Memorandum Decision No. 05A02-1411-CR-786 | June 9, 2015            Page 7 of 12
       his crime neither caused nor threatened serious harm to persons or property,

       and (2) his history of full-time employment.

[17]   The finding of mitigating factors is not mandatory and rests within the

       discretion of the trial court. Williams v. State, 997 N.E.2d 1154, 1163-64 (Ind.

       Ct. App. 2013). The trial court is not required to accept the defendant’s

       arguments as to what constitutes a mitigating factor. Id. Further, the trial court

       is not required to give the same weight to proffered mitigating factors as the

       defendant does, nor is it obligated to explain why it did not find a factor to be

       significantly mitigating. Id. The trial court does not abuse its discretion by

       declining to find alleged mitigating circumstances that are highly disputable in

       nature, weight, or significance. Jackson v. State, 973 N.E.2d 1123, 1130-31 (Ind.

       Ct. App. 2012). The relative weight or value assignable to reasons properly

       found or those which should have been found is not subject to review for abuse

       of discretion. Id. (citing Anglemyer, 868 N.E.2d at 491).


[18]   With regard to the first alleged mitigator, that Sharp’s crimes did not cause or

       threaten serious harm to persons or property, we note that Sharp did not

       advance this for consideration as a mitigator to the trial court. Accordingly, the

       trial court cannot be said to have abused its discretion by failing to consider this

       alleged mitigating factor. See Anglemyer, 868 N.E.2d at 492 (“the trial court does

       not abuse its discretion in failing to consider a mitigating factor that was not

       raised at sentencing.”).




       Court of Appeals of Indiana | Memorandum Decision No. 05A02-1411-CR-786 | June 9, 2015   Page 8 of 12
[19]   With regard to Sharp’s employment history, Sharp testified that he had been

       employed for approximately two months, during which he worked six weeks at

       one job and two weeks at another. Although we commend Sharp’s efforts to

       maintain employment, we are unable to agree with him that his employment

       history is a significant mitigator that the trial court improperly overlooked.


[20]   In summary, we conclude that the trial court did not abuse its discretion in its

       consideration of aggravating and mitigating circumstances. However, even if

       we were to conclude otherwise, we will not remand for resentencing if the

       sentence imposed is not inappropriate. Williams v. State, 997 N.E.2d 1154, 1165

       (Ind. Ct. App. 2013) (citing Windhorst v. State, 868 N.E.2d 504, 507 (Ind. 2007)).

       As explained below, Sharp’s sentence is not inappropriate.

                                          II. Appellate Rule 7(B)

[21]   Even if a trial court acted within its statutory discretion in imposing a sentence,

       Article 7, Sections 4 and 6 of the Indiana Constitution authorize independent

       appellate review and revision of a sentence imposed by the trial court. Trainor v.

       State, 950 N.E.2d 352, 355-56 (Ind. Ct. App. 2011), trans. denied (citing

       Anglemyer, 868 N.E.2d at 491). This authority is implemented through Indiana

       Appellate Rule 7(B), which provides that the court on appeal “may revise a

       sentence authorized by statute 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.”




       Court of Appeals of Indiana | Memorandum Decision No. 05A02-1411-CR-786 | June 9, 2015   Page 9 of 12
[22]   Still, we must and should exercise deference to a trial court’s sentencing

       decision because Rule 7(B) requires us to give ‘due consideration’ to that

       decision and because we understand and recognize the unique perspective a

       trial court brings to its sentencing decisions. Id. Although we have the power to

       review and revise sentences, the principal role of appellate review should be to

       attempt to level the outliers and identify some guiding principles for trial courts

       and those charged with improvement of the sentencing statutes, but not to

       achieve what we perceive to be a “correct” result in each case. Fernbach v. State,

       954 N.E.2d 1080, 1089 (Ind. Ct. App. 2011), trans. denied (citing Cardwell v.

       State, 895 N.E.2d 1219, 1225 (Ind. 2008)). The appropriate question is not

       whether another sentence is more appropriate; rather, the question is whether

       the sentence imposed is inappropriate. Former v. State, 876 N.E.2d 340, 344

       (Ind. Ct. App. 2007). It is the defendant’s burden on appeal to persuade us that

       the sentence imposed by the trial court is inappropriate. Childress v. State, 848

       N.E.2d 1073, 1080 (Ind. 2006).


[23]   When reviewing the appropriateness of a sentence, we are not “to consider only

       the appropriateness of the aggregate length of the sentence without considering

       also whether a portion of the sentence is ordered suspended.” Marley v. State, 17

       N.E.3d 335, 339 (Ind. Ct. App. 2014), trans. denied (citing Davidson v. State, 926

       N.E.2d 1023, 1024 (Ind. 2010)). This does not preclude us from determining a

       sentence to be inappropriate due to its overall sentence length despite the

       suspension of a substantial portion thereof, as a defendant on probation is




       Court of Appeals of Indiana | Memorandum Decision No. 05A02-1411-CR-786 | June 9, 2015   Page 10 of 12
       subject to the revocation of probation and may be required to serve up to the

       full original sentence. Id.


[24]   Here, Sharp was convicted of a Class C felony. The sentencing range for a Class

       C felony is two to eight years, with the advisory sentence being four years. Ind.

       Code § 35-50-2-6. The trial court imposed a sentence of one year above the

       advisory but still three years under the maximum. Also, the trial court ordered

       only two years of the sentence executed, with the remaining three years

       suspended to probation. With this in mind, we address the nature of the offense

       and the character of the offender.


[25]   Here, the nature of the offense supports the trial court’s sentencing decision.

       Even if we were to ignore the fact that Sharp physically resisted the efforts of

       the law enforcement officers, it remains that Sharp possessed eleven grams of

       cocaine, significantly greater than the three grams required to elevate his crime

       of possession to a Class C felony.


[26]   Considering the character of the offender, we note that although Sharp does not

       have a significant criminal history, he failed to successfully complete his

       probation on his prior misdemeanor conviction. Moreover, he admittedly used

       marijuana while the current case was pending. None of this leads us to

       conclude that Sharp’s sentence is inappropriate.

                                                  Conclusion

[27]   The trial court did not abuse its discretion in its identification of aggravating

       factors or in its failure to consider certain factors as mitigating. Furthermore,



       Court of Appeals of Indiana | Memorandum Decision No. 05A02-1411-CR-786 | June 9, 2015   Page 11 of 12
       Sharp’s sentence of five years, with two years executed and three years

       suspended to probation, is not inappropriate in light of the nature of the offense

       and the character of the offender.


[28]   Affirmed.


       May, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision No. 05A02-1411-CR-786 | June 9, 2015   Page 12 of 12
