MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                            FILED
this Memorandum Decision shall not be                        Aug 29 2016, 5:53 am

regarded as precedent or cited before any                         CLERK
                                                              Indiana Supreme Court
court except for the purpose of establishing                     Court of Appeals
                                                                   and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Gary A. Cook                                             Gregory F. Zoeller
Peru, Indiana                                            Attorney General of Indiana

                                                         Karl Scharnberg
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jackie Butler,                                           August 29, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         34A05-1512-CR-2240
        v.                                               Appeal from the Howard Superior
                                                         Court
State of Indiana,                                        The Honorable George A.
Appellee-Plaintiff.                                      Hopkins, Judge
                                                         Trial Court Cause No.
                                                         34D04-1504-F4-80



Altice, Judge.


                                         Case Summary




Court of Appeals of Indiana | Memorandum Decision 34A05-1512-CR-2240 | August 29, 2016   Page 1 of 6
[1]   Jackie Butler pleaded guilty to unlawful possession of a firearm by a serious

      violent felon, a Level 4 felony. The trial court sentenced Butler to six years

      imprisonment and ordered the sentence to be served consecutive to the sentence

      imposed in another cause. On appeal, Butler challenges the sentence imposed.


[2]   We affirm.


                                       Facts & Procedural History


[3]   On June 16, 2015, the State charged Butler with Count I, unlawful possession

      of a firearm by a serious violent felon, a Level 4 felony, and Count II, resisting

      law enforcement, a Class A misdemeanor. The State subsequently filed a

      notice of intent to seek habitual offender status. On November 6, 2015, Butler

      pled guilty to Count I, and in exchange, the State agreed to dismiss Count II

      and the habitual offender allegation. Pursuant to the plea agreement,

      sentencing was left to the trial court’s discretion.


[4]   On November 20, 2015, the trial court accepted Butler’s plea and then

      conducted a sentencing hearing. During the hearing, Butler presented evidence

      that the heart surgery he had undergone in June 2014 changed his personality

      and made him moodier. Butler also argued that the heart surgery caused him to

      suffer depression and feelings of inadequacy due to his diminished capacity and

      urged the trial court to consider such to be mitigating factors. Butler also

      stressed that he did not use the gun or show it to anyone. Ultimately, Butler

      requested the trial court to sentence him to ten years, with four years suspended

      to probation or home detention. The probation officer who prepared the pre-

      Court of Appeals of Indiana | Memorandum Decision 34A05-1512-CR-2240 | August 29, 2016   Page 2 of 6
      sentence investigation report (PSI) recommended a ten-year sentence with eight

      years executed and two years suspended to supervised probation. The State

      urged the court to accept the probation officer’s recommendation. The trial

      court sentenced Butler to the advisory sentence of six years,1 all executed.


                                            Discussion & Decision


[5]   Butler frames the issue as whether the trial court erred in sentencing him to six

      years. Within his argument, he challenges the trial court’s findings relating to

      mitigating factors and also notes evidence weighing on his character, seemingly

      suggesting that his sentence is also inappropriate.


[6]   Sentencing decisions rest within the sound discretion of the trial court and are

      reviewed on appeal for an abuse of discretion. Lewis v. State, 31 N.E.3d 539,

      541 (Ind. Ct. App. 2015). One way in which a trial court may abuse its

      discretion is with a sentencing statement that omits reasons that are clearly

      supported by the record and advanced for consideration. Id. at 542. A trial

      court, however, need not consider proffered mitigating circumstances that are

      highly disputable in nature, weight, or significance. Creekmore v. State, 853

      N.E.2d 523, 530 (Ind. Ct. App. 2006), clarified on reh’g, 858 N.E.2d 238. On

      appeal, the burden rests with Butler to establish that the mitigating evidence is




      1
       See Ind. Code § 35-50-2-5.5 (“[a] person who commits a Level 4 felony shall be imprisoned for a fixed term
      of between two (2) and twelve (12) years, with the advisory sentence being six (6) years”).

      Court of Appeals of Indiana | Memorandum Decision 34A05-1512-CR-2240 | August 29, 2016           Page 3 of 6
      both significant and clearly supported by the record. Carter v. State, 711 N.E.2d

      835, 838 (Ind. 1999).


[7]   Butler first argues that the trial court failed to take into consideration his change

      in behavior, depression, and feelings of inadequacy that followed his heart

      surgery. We note that in its sentencing statement, the trial court acknowledged

      that from the evidence presented at the hearing, Butler did “need some help.”

      Transcript at 40. The trial court qualified this statement, noting its concerns that

      Butler would not follow through with services now given his failure to follow

      through with services in the past. In the context of his main argument during

      the sentencing hearing, we find the trial court’s statement to be directed, in part,

      to Butler’s claims of depression and feelings of inadequacy. We also note that

      in the PSI, it was noted that Butler requested treatment for mental health issues,

      as well as services for substance abuse. The trial court was simply not

      convinced that Butler’s mental health issues were a significant mitigating factor.

      We find no abuse of discretion in this regard.


[8]   Butler also argues that the trial court failed to find his guilty plea to be a

      mitigating circumstance. A defendant who pleads guilty deserves some

      mitigating weight be given to the plea in return. Anglemyer v. State, 875 N.E.2d

      218, 220 (2007). The significance of a guilty plea as a mitigating factor varies

      from case to case. Id. Here, in exchange for his guilty plea to unlawful

      possession of a firearm by a serious violent felon, the State agreed to dismiss a

      resisting law enforcement charge and a habitual offender allegation. Butler thus

      benefited from his decision to plead guilty.

      Court of Appeals of Indiana | Memorandum Decision 34A05-1512-CR-2240 | August 29, 2016   Page 4 of 6
[9]    With regard to acceptance of responsibility aspect of pleading guilty, we note

       that Butler, who has eight prior felony convictions, was found in possession of a

       handgun. In light of the evidence against him and the benefits extended to him

       by the State, Butler’s decision to plead guilty was more likely the result of

       pragmatism than an acceptance of responsibility. Butler has not established

       that the trial court abused its discretion in refusing to afford significant

       mitigating weight to his guilty plea.


[10]   Butler also attempts to challenge his sentence as inappropriate by reciting our

       standard of review for such claims and then asserting that his expression of

       remorse and history of depression were considerations to take into account in

       assessing his character. Butler, however, makes no argument relating to the

       nature of the offense. He has therefore waived this issue for our review. See

       Anderson v. State, 989 N.E.2d 823, 827 (Ind. Ct. App. 2013) (holding that where

       defendant failed to make an argument relating to nature of the offense,

       challenge to appropriateness of the sentence was waived), trans. denied.


[11]   In any event, we note that the sentence imposed was actually less than the

       sentence Butler requested. Indeed, Butler urged the trial court to impose a ten-

       year sentence with six years executed and four years suspended to probation or

       home detention. Butler thus essentially agreed that the six-year-executed

       sentence imposed by the trial court was appropriate under the circumstances.




       Court of Appeals of Indiana | Memorandum Decision 34A05-1512-CR-2240 | August 29, 2016   Page 5 of 6
       Butler cannot now be heard to complain that his six-year sentence is

       inappropriate.2


[12]   We affirm.


[13]   Bradford, J. and Pyle, J., concur.




       2
         The State argues that the six-year sentence is “inappropriately low” and requests that this court increase
       Butler’s sentence to ten years, with six years executed and four years suspended to probation or home
       detention. Appellee’s Brief at 14. Where a defendant requests appellate review and revision of a criminal
       sentence pursuant to the authority derived from Article 7, Sections 4 or 6 of the Indiana Constitution, the
       reviewing court is presented with the issue of whether to affirm, reduce, or increase the sentence imposed.
       See McCullough v. State, 900 N.E.2d 745, 750 (Ind. 2009). While we understand the State’s reasons for
       requesting an upward revision of Butler’s sentence, we respectfully decline to exercise our discretion in this
       case.

       Court of Appeals of Indiana | Memorandum Decision 34A05-1512-CR-2240 | August 29, 2016               Page 6 of 6
