Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                         Apr 03 2013, 8:27 am
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:

LISA M. JOHNSON                                      GREGORY F. ZOELLER
Brownsburg, Indiana                                  Attorney General of Indiana

                                                     JAMES B. MARTIN
                                                     Deputy Attorney General
                                                     Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

ALBERT LEE BAKER,                                    )
                                                     )
       Appellant-Defendant,                          )
                                                     )
               vs.                                   )      No. 53A01-1210-CR-490
                                                     )
STATE OF INDIANA,                                    )
                                                     )
       Appellee-Plaintiff.                           )


                      APPEAL FROM THE MONROE CIRCUIT COURT
                          The Honorable Teresa D. Harper, Judge
                              Cause No. 53C09-1108-FB-772



                                           April 3, 2013

                MEMORANDUM DECISION - NOT FOR PUBLICATION


KIRSCH, Judge
       Albert Lee Baker (“Baker”) pleaded guilty to one count of dealing in a narcotic

drug1 as a Class B felony and appeals from the trial court’s sentencing order from that

conviction. Baker presents the following restated issues for our review:

       I.        Whether the trial court abused its discretion when imposing Baker’s
                 sentence; and

       II.       Whether Baker’s sentence is inappropriate in light of the nature of
                 the offense and the character of the offender.

       We affirm.

                           FACTS AND PROCEDURAL HISTORY

       On August 16, 2011, two Bloomington police officers observed Baker arrive at a

Citgo gas station in Monroe County. Baker, who had an outstanding warrant for his

arrest issued in Morgan County, approached an unknown person in the parking lot and

exchanged two-tenths of a gram of heroin for fifty dollars. The officers arrested Baker,

and during a pat-down search incidental to the arrest, found additional amounts of heroin

on Baker’s person. After Baker was advised of his rights, he admitted to the officers that

he sold the unknown individual two-tenths of a gram of heroin for fifty dollars.

       The State charged Baker with one count of dealing in a narcotic drug as a Class B

felony. On September 26, 2012, Baker entered into a plea agreement, which consisted of

Baker’s agreement to plead guilty as charged in exchange for the State’s agreement to

dismiss one count of operating a motor vehicle after lifetime forfeiture as a Class C

felony charged under a separate cause number. The trial court accepted the guilty plea

and imposed a sentence of sixteen years executed with two years suspended to probation.

       1
           See Ind. Code § 35-48-4-1.

                                              2
Baker now appeals.

                               DISCUSSION AND DECISION

                                    I. Abuse of Discretion

          Baker contends that the trial court abused its discretion when sentencing. More

specifically, Baker claims that the trial court erred by failing to give sufficient weight to

Baker’s military service, substance abuse problems, and his potential to be successfully

rehabilitated. Baker further contends that that the trial court abused its discretion by

failing to recognize other mitigating factors that he proferred, including his diagnosis of

Post-Traumatic Stress Disorder (“PTSD”), acceptance of responsibility, and plea of

guilty.

          Trial courts are required to enter sentencing statements whenever a sentence for a

felony offense is imposed.        Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007),

clarified on reh’g, 875 N.E.2d 218 (Ind. 2007). That statement must include a reasonably

detailed recitation of the reasons for imposing the particular sentence selected. Id. If

there is a finding of aggravating and mitigating circumstances, the statement must

identify all significant mitigating and aggravating circumstances with an explanation of

the characterization of the circumstances as either aggravating or mitigating. Id.

          As long as the sentence is within the statutory range for the particular offense, we

must determine only if there was an abuse of discretion. An abuse of discretion exists if

the trial court’s 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. Id.

                                               3
       Of the ways in which a trial court can abuse its discretion in sentencing, the

examples relevant to our inquiry here include entering a sentencing statement that

explains the reasons for imposing a sentence accompanied by the finding of aggravating

and mitigating factors which are not supported by the record, entering a sentencing

statement that omits reasons clearly supported by the record and advanced for

consideration, or the reasons are improper as a matter of law. Id. We will remand the

matter for resentencing if we cannot say with confidence that the trial court would have

imposed the very same sentence had it considered the omitted reasons that are clearly

supported by the record for sentencing. Id. A trial court cannot be said to have abused its

discretion by improperly weighing aggravating and mitigating factors because the trial

court no longer has an obligation to do so when sentencing a defendant. Id.

       Baker was sentenced for his conviction of a Class B felony offense.               The

sentencing range for a Class B felony is a fixed term of between six years and twenty

years with an advisory sentence of ten years. Ind. Code § 35-50-2-5. The trial court

sentenced Baker to a term of sixteen years executed with two years suspended to

probation, and as such the sentence clearly falls within the statutory range for the offense.

       “In reviewing a sentencing decision in a non-capital case, we are not limited to the

written sentencing statement but may consider the trial court’s comments in the transcript

of the sentencing proceedings.” Corbett v. State, 764 N.E.2d 622, 631 (Ind. 2002). With

regard to Baker’s military service, substance abuse problems, and his potential to be

successfully rehabilitated, we note that the trial court explicitly acknowledged each of

those factors as is reflected in the transcript. In rejecting Baker’s argument here, we

                                              4
reiterate that a trial court cannot be said to have abused its discretion by improperly

weighing aggravating and mitigating factors because the trial court no longer has an

obligation to do so when sentencing a defendant. Anglemyer, 868 N.E.2d at 491. The

trial court did not abuse its discretion in this regard.

         Baker also argues that the trial court abused its discretion by failing to recognize in

its sentencing order, the proferred mitigating factors including, Baker’s diagnosis of

PTSD, his acceptance of responsibility, and guilty plea. The finding of mitigating factors

is not mandatory and rests within the discretion of the trial court. Storey v. State, 875

N.E.2d 243, 252 (Ind. Ct. App. 2007) (citing O’Neill v. State, 719 N.E.2d 1243, 1244

(Ind. 1999)), trans. denied (2008).        The trial court is not obligated to accept the

defendant’s arguments as to what constitutes a mitigating factor. Id. (citing Gross v.

State, 769 N.E.2d 1136, 1140 (Ind. 2002)). “However, the trial court may ‘not ignore

facts in the record that would mitigate an offense, and a failure to find mitigating

circumstances that are clearly supported by the record may imply that the trial court

failed to properly consider them.’” Id. (quoting Sherwood v. State, 749 N.E.2d 36, 38

(Ind. 2001)).

         With respect to Baker’s argument that the trial court omitted Baker’s diagnosis of

PTSD, we note that Baker did not advance this claimed mitigating factor during the

sentencing hearing. We acknowledge that the pre-sentence investigation report (“PSI”)

makes reference to Baker’s statement that he had been diagnosed with PTSD, and Baker

makes reference to the diagnosis and diagnosing physician in a letter written to the trial

court.    However, our Supreme Court, in Anglemyer, explicitly stated that with the

                                                5
exception of the defendant’s plea of guilty, a factor not advanced as a mitigating factor at

sentencing, is precluded from our review on appeal. 875 N.E.2d at 220. Baker has failed

to establish that his diagnosis of PTSD was clear and significant such that the trial court

abused its discretion at sentencing.

       With respect to Baker’s acceptance of responsibility and guilty plea, we note that

Baker’s decision appears to have been a pragmatic one. Baker pleaded guilty after more

than a year had passed after his commission of the offense, and his jury trial was set and

reset to four different dates. The evidence of Baker’s guilt was conclusive, as he was

observed by two officers in the act of selling heroin, and a search of his person revealed

additional amounts of heroin, individually wrapped and prepared.

       It is well settled that a trial court is not obligated to weigh or credit a
       mitigating factor as the defendant suggests. Further, the fact that a
       defendant pleaded guilty does not automatically amount to a significant
       mitigating factor. Where the State “reaps a substantial benefit” from a
       defendant’s guilty plea, “the defendant deserves to have a substantial
       benefit returned” in terms of the guilty plea being given significant
       mitigating weight. Sensback v. State, 720 N.E.2d 1160, 1164 (Ind. 1999).
       Where, however, the defendant has received a substantial benefit or where
       the evidence against him is such that the decision to plead guilty is a
       pragmatic one, the fact that a defendant pleaded guilty does not rise to the
       level of significant mitigation.

Lindsey v. State, 877 N.E.2d 190, 198 (Ind. Ct. App. 2007) (some internal citations

omitted).    The same is true of Baker’s argument regarding his acceptance of

responsibility. The State agreed to dismiss a Class C felony offense charged under a

separate cause number. Furthermore, while the State did not have to incur the expense of




                                             6
a jury trial, the matter remained pending for some time before Baker pleaded guilty. The

trial court did not abuse its discretion by failing to find these claimed mitigating factors.2

                                II. Appellate Rule 7(B) Analysis

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

appellate review and revision of sentences through Appellate Rule 7(B), which provides

that a court “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.” Reid v. State, 876 N.E.2d 1114,

1116 (Ind. 2007) (citing Anglemyer, 868 N.E.2d at 491). The defendant has the burden of

persuading us that his sentence is inappropriate. Id. (citing Childress v. State, 848 N.E.2d

1073 (Ind. 2006)).       Furthermore, our review under Appellate Rule 7(B) focuses on

whether the sentence imposed is inappropriate, rather than whether another sentence is

more appropriate. King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008).

        Assuming without deciding that the nature of Baker’s offense was not

extraordinary, we conclude that Baker’s sentence is not inappropriate in light of Baker’s

character as disclosed by his extensive criminal history.                  Notwithstanding Baker’s

juvenile record, which could not be located or verified, Baker’s adult criminal history is

extensive. Baker has been charged with more than 100 crimes, more than sixty of them

misdemeanors, and more than thirty of them felonies.                         Baker has twenty-five

misdemeanor convictions and has been convicted of thirteen felonies. Of the charges that

        2
         We will address Baker’s argument regarding his potential for rehabilitation in our analysis under
Indiana Appellate Rule 7(B). We simply note here, that during the sentencing hearing, the trial court
acknowledged Baker’s efforts to conquer his significant substance abuse issues.

                                                    7
did not result in convictions, a substantial number were dismissed pursuant to plea

agreements. Excluding the felony that was dismissed as part of the plea agreement at

issue, Baker had four felony and three misdemeanor charges pending at the time of his

sentencing in the present case. The offenses reduced to conviction range from theft,

intimidation, escape, and forgery, to offenses related to operating a vehicle while

intoxicated. We find the aggravating factor of criminal history to be significant and that

it supports the sentence imposed by the trial court.

        The trial court also noted and the PSI reflects that Baker has violated the terms of

his probation on numerous occasions, has violated the conditions of his work release, and

has violated the conditions of home detention. The trial court granted Baker a period of

two years served on probation in order for Baker to establish, prior to the completion of

his sentence, that he could lead a law-abiding life. Baker has failed to meet his burden of

establishing that his sentence is inappropriate in light of his character; thus, we affirm the

trial court.

        Affirmed.

VAIDIK, J., and PYLE, J., concur.




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