MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                            FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                                    Mar 29 2018, 11:12 am

court except for the purpose of establishing                                      CLERK
                                                                              Indiana Supreme Court
the defense of res judicata, collateral                                          Court of Appeals
                                                                                   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

                                                         Laura R. Anderson
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

James L. Cantrell, Jr.,                                  March 29, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         03A05-1710-CR-2381
        v.                                               Appeal from the Bartholomew
                                                         Circuit Court
State of Indiana,                                        The Honorable Kelly S. Benjamin,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         03C01-1612-F2-6440



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 03A05-1710-CR-2381 | March 29, 2018             Page 1 of 6
                                       Statement of the Case
[1]   James L. Cantrell, Jr. appeals his sentence following his guilty plea to dealing in

      methamphetamine, as a Level 3 felony, and dealing in a narcotic drug, as a

      Level 3 felony. He raises one issue for our review, namely, whether the trial

      court abused its discretion when it sentenced him.


[2]   We affirm.


                                 Facts and Procedural History
[3]   On October 11, 2016, a confidential informant (“CI”) for the Bartholomew

      County Joint Narcotics Enforcement Team purchased twenty-eight grams of

      methamphetamine from Cantrell in exchange for $975. On October 27, the CI

      purchased 86.49 grams of methamphetamine from Cantrell in exchange for

      $3,200. And, on November 9, the CI purchased 12 grams of a substance from

      Cantrell that Cantrell claimed to be heroin in exchange for $1,500. However,

      the results of a field test indicated that the substance was not heroin but was,

      instead, fentanyl. During all three of the transactions, the CI was equipped

      with an audio/video recording device and electronic recording equipment in

      order to record the transactions.


[4]   On December 2, the State charged Cantrell with two counts of dealing in

      methamphetamine, as Level 2 felonies (Counts I and II), and one count of

      dealing in a narcotic drug, as a Level 2 felony (Count III). On July 17, 2017,

      Cantrell entered into a plea agreement with the State in which he agreed to

      plead guilty to one count of dealing in methamphetamine, as a Level 3 felony,

      Court of Appeals of Indiana | Memorandum Decision 03A05-1710-CR-2381 | March 29, 2018   Page 2 of 6
      and one count of dealing in a narcotic drug, as a Level 3 felony. In exchange

      for this plea, the State dismissed Count II. The plea agreement was silent as to

      the length of the sentences, but it provided that the sentences shall run

      concurrent with one another. On August 31, the trial court accepted Cantrell’s

      guilty plea, entered judgment of conviction, and held a sentencing hearing.


[5]   During the sentencing hearing, Cantrell asked the court for a recommendation

      for purposeful incarceration, which the court denied. The trial court identified

      as aggravating circumstances the fact that Cantrell has a lengthy criminal

      history, which includes eighteen felony convictions and twelve misdemeanor

      convictions; that Cantrell had previously been placed on probation on two

      occasions, both of which were revoked; that Cantrell had used alcohol and

      drugs while incarcerated; and that he had violated jail rules while the current

      case was pending. The trial court found no mitigating circumstances. The trial

      court sentenced Cantrell to concurrent sentences of sixteen years in the

      Department of Correction.1 This appeal ensued.


                                       Discussion and Decision
[6]   Cantrell contends that the trial court abused its discretion when it sentenced

      him because the trial court failed to identify two mitigating circumstances. As

      our Supreme Court has stated:




      1
        Pursuant to Indiana Code Section 35-50-2-5, the sentencing range for a Level 3 felony is three to sixteen
      years. The advisory sentence is nine years.

      Court of Appeals of Indiana | Memorandum Decision 03A05-1710-CR-2381 | March 29, 2018              Page 3 of 6
              Sentencing is left to the discretion of the trial court, and abuse of
              that discretion arises by the court: (1) failing to enter a
              sentencing statement at all; (2) entering a sentencing statement in
              which the aggravating and mitigating factors are not supported
              by the record; (3) entering a sentencing statement that does not
              include reasons that are clearly supported by the record and
              advanced for consideration; or (4) entering a sentencing
              statement in which the reasons provided in the statement are
              improper as a matter of law.


      Ackerman v. State, 51 N.E.3d 171, 193 (Ind. 2016) (quotation marks omitted).


[7]   Cantrell first asserts that the trial court abused its discretion when it sentenced

      him because the trial court failed “to give any mitigating weight to Cantrell’s

      guilty plea[.]” Appellant’s Br. at 8. It is well established that “a defendant who

      pleads guilty deserves to have mitigating weight extended to the guilty plea in

      return.” Francis v. State, 817 N.E.2d 235, 238 (Ind. 2004). However, it is just as

      well established that “the significance of a guilty plea as a mitigating factor

      varies from case to case,” and “a guilty plea may not be significantly mitigating

      when . . . the defendant receives a substantial benefit in return for the plea.”

      Anglemyer v. State, 875 N.E.2d 218, 221 (Ind. 2007). Similarly, a guilty plea is

      not necessarily a mitigating factor “where evidence against the defendant is so

      strong that the decision to plead guilty is merely pragmatic.” Amalfitano v. State,

      956 N.E.2d 208, 212 (Ind. Ct. App. 2011), trans. denied.


[8]   We agree with the State that Cantrell received a substantial benefit in exchange

      for his plea because the State agreed to dismiss one count of dealing in

      methamphetamine, as a Level 2 felony. That charge could have resulted in as

      Court of Appeals of Indiana | Memorandum Decision 03A05-1710-CR-2381 | March 29, 2018   Page 4 of 6
       much as an additional thirty years to his sentence.2 Further, while the plea

       agreement was silent as to the length of the sentences, the agreement provided

       that the sentences shall run concurrent with one another. We also agree with

       the State that its evidence against Cantrell was strong. All three transactions

       between Cantrell and the CI, which served as the basis for the State’s charges,

       were recorded using audio/visual recording equipment. Accordingly, we

       conclude that Cantrell has not met his burden on appeal to show that his guilty

       plea was a significant mitigating circumstance, and we cannot say that the trial

       court abused its discretion when it did not identify his plea as such.


[9]    Cantrell next asserts that the trial court abused its discretion when it failed to

       consider his “cooperation with the police” when he “chose to speak with police,

       waiving his right to remain silent” as a mitigating factor. Appellant’s Br. at 8.

       However, Cantrell did not raise this as a mitigating factor at the sentencing

       hearing. A “trial court does not abuse its discretion in failing to consider a

       mitigating factor that was not raised at sentencing.” Anglemeyer, 875 N.E.2d at

       220. Because Cantrell did not raise his cooperation with police as a mitigating

       factor at his sentencing hearing, the trial court did not abuse its discretion when

       it failed to consider it. We affirm Cantrell’s sentence.


[10]   Affirmed.




       2
         Pursuant to Indiana Code Section 35-50-2-4.5, the sentencing range for a Level 2 felony is ten to thirty
       years. The advisory sentence is seventeen and one-half years.



       Court of Appeals of Indiana | Memorandum Decision 03A05-1710-CR-2381 | March 29, 2018               Page 5 of 6
Robb, J., and Altice, J., concur.




Court of Appeals of Indiana | Memorandum Decision 03A05-1710-CR-2381 | March 29, 2018   Page 6 of 6
