MEMORANDUM DECISION                                                       FILED
                                                                     May 18 2016, 7:38 am

Pursuant to Ind. Appellate Rule 65(D),                                    CLERK
this Memorandum Decision shall not be                                 Indiana Supreme Court
                                                                         Court of Appeals
                                                                           and Tax Court
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
Brett M. Roy                                            Gregory F. Zoeller
Roy Law Office                                          Attorney General of Indiana
Boonville, Indiana
                                                        Richard C. Webster
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Michael Joseph Mueller,                                 May 18, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        87A01-1510-CR-1739
        v.                                              Appeal from the Warrick Superior
                                                        Court
State of Indiana,                                       The Honorable Robert R.
Appellee-Plaintiff                                      Aylsworth, Judge
                                                        Trial Court Cause No.
                                                        87D02-1503-F6-000089



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 87A01-1510-CR-1739 | May 18, 2016           Page 1 of 5
                                           Case Summary
[1]   Michael Joseph Mueller (“Mueller”) challenges the two-year sentence imposed

      following his guilty plea to Auto Theft, a Level 6 felony. 1 He presents the sole

      issue of whether the trial court abused its sentencing discretion by ignoring

      appropriate mitigating circumstances. We affirm.



                                Facts and Procedural History
[2]   On July 6, 2015, Mueller pled guilty to Auto Theft, after acknowledging that he

      had stolen the vehicle of Carolyn Remfry on or about March 10, 2015. Mueller

      was sentenced to serve two years in the Indiana Department of Correction, with

      a recommendation that he be placed in a minimum security facility and be

      evaluated for participation in a therapeutic communities program. Mueller

      appeals.



                                     Discussion and Decision
[3]   Upon conviction of a Level 6 felony, Mueller faced a sentencing range of

      between six months and two and one-half years, with one year as the advisory

      term. I.C. § 35-50-2-7(b). In imposing the two-year term, the trial court stated:

      “I’m going to show that th[e] sentence is warranted and justified based upon

      your prior record, including misdemeanor and felony record as dictated or




      1
          Ind. Code § 35-43-4-2.5(b)(1).


      Court of Appeals of Indiana | Memorandum Decision 87A01-1510-CR-1739 | May 18, 2016   Page 2 of 5
      disclosed by the July 14, 2015 report to the court.” (Tr. at 30.) Mueller now

      argues that “the court failed to give proper weight to the mitigating factors in

      this action[.]” Appellant’s Brief at 4. According to Mueller, the trial court

      should have recognized his decision to plead guilty, his expression of remorse,

      and his medical condition – severe seizures – to be mitigating circumstances.


[4]   “So long as the sentence is within the statutory range, it is subject to review

      only for abuse of discretion.” Anglemyer v. State, 868 N.E.2d 482, 490 (Ind.

      2007), clarified on other grounds, 875 N.E.2d 218 (Ind. 2007) (Anglemyer II). This

      includes the finding of an aggravating circumstance and the omission to find a

      proffered mitigating circumstance. Id. at 490-91. When imposing a sentence

      for a felony, the trial court must enter “a sentencing statement that includes a

      reasonably detailed recitation of its reasons for imposing a particular sentence.”

      Id. at 491.


[5]   The trial court’s reasons must be supported by the record and must not be

      improper as a matter of law. Id. However, a trial court’s sentencing order may

      no longer be challenged as reflecting an improper weighing of sentencing

      factors.2 Id. A trial court abuses its discretion if its reasons and circumstances




      2
        In addition to making an unavailable argument that the trial court failed to properly weigh sentencing
      factors, Mueller’s brief also references an improper and obsolete standard for appellate revision of sentences
      upon independent review. Mueller states that this Court “may revise a sentence if it is ‘manifestly
      unreasonable in light of the nature of the offense and the character of the offender.’” Appellant’s Brief at 7
      (quoting Thacker v. State, 709 N.E.2d 3, 10 (Ind. 1999)). We remind counsel that, where independent
      appellate review and revision is sought pursuant to Indiana Appellate Rule 7(b), the standard is one of
      “inappropriateness.”

      Court of Appeals of Indiana | Memorandum Decision 87A01-1510-CR-1739 | May 18, 2016                 Page 3 of 5
      for imposing a particular sentence are 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. Hollin v. State, 877 N.E.2d 462, 464 (Ind.

      2007).


[6]   An allegation that the trial court failed to identify or find a mitigating factor

      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 II, 875 N.E.2d at 220-21. The trial court is not obligated to explain

      why it did not find a particular circumstance to be significantly mitigating.

      Sherwood v. State, 749 N.E.2d 36, 38 (Ind. 2001).


[7]   Mueller did not present to the trial court any argument upon a particular

      mitigating circumstance. Nonetheless, Mueller’s guilty plea was readily

      apparent. Although a trial court should be “inherently aware of the fact that a

      guilty plea is a mitigating circumstance,” a guilty plea is not always a significant

      mitigating circumstance. Francis v. State, 817 N.E.2d 235, 237 n.2 (Ind. 2004).

      A guilty plea does not rise to the level of significant mitigation where the

      evidence against the defendant is such that the decision to plead guilty is

      “purely pragmatic.” Abrajan v. State, 917 N.E.2d 709, 713 (Ind. Ct. App. 2009).

      Here, Meueller was found in possession of the stolen vehicle. His decision to

      plead guilty could reasonably be considered pragmatic.




      Court of Appeals of Indiana | Memorandum Decision 87A01-1510-CR-1739 | May 18, 2016   Page 4 of 5
[8]    As for the remaining claims of mitigation, the trial court will not be found to

       have abused its discretion by failing to find a mitigator not advanced for

       consideration. Anglemyer II, 875 N.E.2d at 221.



                                               Conclusion
[9]    Mueller has not shown that the trial court abused its sentencing discretion.


[10]   Affirmed.


       Bradford, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 87A01-1510-CR-1739 | May 18, 2016   Page 5 of 5
