MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                      FILED
regarded as precedent or cited before any                         Jan 30 2020, 9:51 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
P. Jeffrey Schlesinger                                   Curtis T. Hill, Jr.
Office of the Public Defender                            Attorney General of Indiana
Crown Point, Indiana
                                                         Lauren A. Jacobsen
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Michael Anthony Fisher,                                  January 30, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-1922
        v.                                               Appeal from the Lake Superior
                                                         Court
State of Indiana,                                        The Honorable Samuel L. Cappas,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         45G04-1901-F5-49



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1922 | January 30, 2020          Page 1 of 9
[1]   Michael Anthony Fisher appeals the sentence imposed by the trial court for

      Level 5 felony dealing in a narcotic drug and Level 6 felony resisting law

      enforcement, arguing that the trial court erred in its consideration of mitigating

      and aggravating circumstances. Finding no error, we affirm.


                                                     Facts
[2]   On January 24, 2019, the Hammond Police Department Narcotics Unit had a

      confidential informant conduct a pre-arranged heroin buy from Fisher. Just

      before 11 a.m., a blue Dodge Intrepid, driven by Fisher, arrived at the agreed-

      upon location. Fisher exited his vehicle and entered the informant’s vehicle,

      handing the informant a cigarette package in exchange for five twenty-dollar

      bills. Inside the cigarette package was a “brown rock like substance,”

      appellant’s app. vol. II p. 33, which later tested positive for heroin.


[3]   Fisher returned to his vehicle after this exchange, at which point officers

      wearing outer police identification “moved in to arrest” him and ordered him

      not to move. Id. Instead of complying with the officers’ orders, Fisher

      accelerated his vehicle and drove away from the scene, prompting a police

      chase through town. The officers had their emergency lights activated as they

      followed Fisher, but Fisher would not stop. Eventually Fisher stopped and

      abandoned his vehicle, fleeing on foot. After a short foot chase, Fisher was

      taken to the ground by officers and arrested. In a search incident to arrest,

      officers found in Fischer’s pocket the five twenty-dollar bills used by the

      informant to purchase the heroin.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1922 | January 30, 2020   Page 2 of 9
[4]   On January 25, 2019, the State charged Fisher, by an eighteen-count charging

      information, with three counts of Level 5 felony dealing in a narcotic drug, two

      counts of Level 5 felony dealing in cocaine, three counts of Level 6 felony

      possession of a narcotic drug, two counts of Level 6 felony possession of

      cocaine, three counts of Level 6 felony maintaining a common nuisance, one

      count of Level 6 felony resisting law enforcement, two counts of Class A

      misdemeanor resisting law enforcement, and two counts of Class B

      misdemeanor leaving the scene of an accident.


[5]   On June 5, 2019, Marshall agreed to plead guilty to one count of Level 5 felony

      dealing in a narcotic drug and one count of Level 6 felony resisting law

      enforcement. In exchange, the State agreed to dismiss all remaining counts and

      to cap the aggregate executed sentence at four years. The trial court accepted

      the plea agreement on July 17, 2019, and at the sentencing hearing held the

      same day, it imposed a sentence of four years in the Department of Correction,

      with the possibility of a future sentence modification.


[6]   During sentencing, the trial court identified the following as aggravating and

      mitigating factors:


              Aggravating Circumstances:


              1. The defendant has had eighteen (18) contacts with the
                 criminal justice system resulting in twelve (12) misdemeanor
                 convictions and three (3) felony convictions for a total of
                 fifteen (15) out of eighteen (18) convictions;



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1922 | January 30, 2020   Page 3 of 9
        2. The Court finds that the defendant has a substantial drug
           addiction beginning in 1998;


        3. The defendant has previously had the benefit of probation, for
           which he has failed;


        4. The defendant has had prior incarceration which failed to
           deter him from a life of crime;


        5. The defendant has received a substantial benefit by way of the
           plea agreement in that fourteen (14) charges were dismissed;


        6. The defendant has had prior substance abuse treatment which
           has failed to break him of his drug addiction; and,


        7. The defendant has failed to take responsibility for his life and
           drug addition [sic].


        Mitigating Circumstances:


        1. The defendant admitted his guilt by way of a plea agreement,
           thus saving the Court and the tax payers of this County the
           time and expense of a trial. The Court gives this minimal
           weight in that the defendant had great incentive to enter pleas
           of guilty due to having fourteen (14) charges dismissed,


        2. The defendant has expressed some degree of remorse which
           the Court finds hard to believe due to the defendant’s criminal
           history.


Id. at 64-65. The trial court concluded that the aggravating factors outweighed

the mitigating factors and imposed the agreed-upon maximum sentence of four


Court of Appeals of Indiana | Memorandum Decision 19A-CR-1922 | January 30, 2020   Page 4 of 9
      years. Recognizing the need for addiction treatment, the trial court stated that

      after one year in the Department of Correction, Fisher will be sent to a facility

      where he can participate in the Purposeful Incarceration Program for addicted

      offenders, and that upon successful completion of that program, the trial court

      would consider a sentence modification. Fisher now appeals.


                                   Discussion and Decision
[7]   Fisher argues that the trial court erred by considering improper aggravators and

      failing to recognize certain mitigating circumstances. Specifically, Fisher argues

      that the trial court improperly identified multiple aggravators that were all

      related to or derivative of the one proper aggravator—Fisher’s criminal history.

      With regards to the mitigating circumstances, Fisher contends that the trial

      court erroneously failed to acknowledge in its sentencing statement mitigators

      that were supported by the record—namely, his commitment to rehabilitation—

      and erroneously discounted the weight given to Fisher’s “professed remorse.”

      Appellant’s Br. p. 8.


[8]   Sentencing decisions are within the sound discretion of the trial court and we

      thus afford great deference to the trial court’s judgment. Anglemyer v. State, 868

      N.E.2d 482, 490 (Ind.), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007). The trial

      court may err in its sentencing process if it “enter[s] a sentencing statement that

      explains reasons for imposing a sentence—including a finding of aggravating

      and mitigating factors if any—but the record does not support the reasons, or

      the sentencing statement omits reasons that are clearly supported by the record


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1922 | January 30, 2020   Page 5 of 9
       and advanced for consideration, or the reasons given are improper as a matter

       of law.” Id. at 490-91. We will not review the relative weight the trial court gave

       to any properly found aggravators or mitigators. Id. at 491.


[9]    Fisher does not dispute that his criminal history is a valid aggravating factor.

       See, e.g., Ind. Code § 35-38-1-7.1(a)(2) (listing “a history of criminal or

       delinquent behavior” as one of many possible aggravating circumstances a trial

       court may consider during sentencing). Rather, he claims that the six other

       aggravators found by the trial court are merely derivative of the criminal history

       aggravator and are thus improper. See Morgan v. State, 829 N.E.2d 12, 17 (Ind.

       2005) (finding that failure of prior punishments to rehabilitate defendant was

       “derivative” of the criminal history aggravator and could not be considered

       separately).


[10]   In McMahon v. State, however, this Court clarified that the new statutory

       sentencing scheme superseded the rule cited by Fisher from Morgan v. State, and

       instead allowed for factors like criminal history, being on probation at the time

       of an offense, and prior unsuccessful attempts to rehabilitate to each be

       considered as separate aggravating circumstances. 856 N.E.2d 743, 751 (Ind.

       Ct. App. 2006). In a footnote, the Court wrote:


               We do note that in cases arising under the former presumptive
               sentencing scheme, a defendant’s criminal history and a judicial
               statement that prior attempts to rehabilitate him have been
               unsuccessful could not serve as separate aggravating
               circumstances because of the restrictions imposed by Blakely [v.
               Washington, 542 U.S. 296 (2004)]. Morgan v. State, 829 N.E.2d 12,

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1922 | January 30, 2020   Page 6 of 9
               17 (Ind. 2005). Because our legislature has remedied the Blakely
               infirmities in our sentencing scheme, this claim of error is not
               available to defendants sentenced under the new statutes. In
               addition, even under the presumptive scheme, the “failed to
               rehabilitate” statement properly adds weight to the criminal
               history and “on probation at the same time of the instant offense”
               aggravators. Morgan, 829 N.E.2d at 16-18.


       Id. at 751 n.8 (some internal citations omitted). As such, we find that the trial

       court’s inclusion of several similar aggravating circumstances in Fisher’s case,

       though each somewhat related to the criminal history aggravator and to one

       another, was not improper. Even if Fisher’s criminal history was the only

       proper aggravator, the trial court was nonetheless within its discretion to give it

       the weight it did in imposing Fisher’s four-year sentence. See, e.g., Cox v. State,

       780 N.E.2d 1150, 1156 (Ind. Ct. App. 2002) (“A sentence enhancement may

       still be upheld when a trial court improperly applies an aggravator but other

       valid aggravators exist.”).


[11]   With respect to the mitigators, Fisher next argues that the trial court erred by

       not mentioning his commitment to rehabilitation in its sentencing statement. At

       the sentencing hearing, Fisher introduced a certificate of completion for the

       Conquering Chemical Dependency program along with a letter from the

       instructor stating he had a good attitude and was committed to sobriety; Fisher

       had entered the program during the six months he was incarcerated pending

       resolution of this case. He also introduced letters from his mother and Duane

       Dedelow, the mayor of Hammond and a long-time family friend of the Fishers,

       vouching for his commitment to turning his life around.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1922 | January 30, 2020   Page 7 of 9
[12]   In response, when summarizing the mitigating circumstances it found, the trial

       court acknowledged Fisher’s stated remorse and desire to change, but expressed

       skepticism as to how committed he actually was: “Maybe you’ve expressed

       remorse, but I don’t know that it’s credible, because it would seem to me that

       for the 15 times that you were in front of other judges, I bet you did the same

       thing. . . . I bet you did say, I’m sorry, Judge. This [won’t] happen again, and

       then, of course, it did.” Tr. Vol. II p. 38. The trial court expressed a similar

       sentiment in its actual sentencing statement, listing as a mitigating circumstance

       that Fisher “expressed some degree of remorse,” but that the trial court found it

       “hard to believe” given his extensive pattern of criminal conduct. Appellant’s

       App. Vol. II p. 65.


[13]   Fisher’s argument is without merit. He contends that the trial court failed to

       include a mitigating circumstance supported by the record, yet the record shows

       the trial court explicitly acknowledged Fisher’s claimed commitment to sobriety

       and remorse both at the sentencing hearing and in the sentencing statement

       itself. Cf. Corbett v. State, 764 N.E.2d 622, 631 (Ind. 2002) (explaining that in the

       review of sentencing decisions 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”). The trial court also accounted for

       Fisher’s need and desire for rehabilitation when it provided for the transfer after

       one year to a facility offering the Purposeful Incarceration Program and the

       option for a sentence modification upon successful completion of the

       program—giving Fisher a chance to prove his commitment to sobriety is


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1922 | January 30, 2020   Page 8 of 9
       genuine. As such, Fisher’s claim instead ultimately amounts to a request that

       we review the weight given to this particular mitigating circumstance relative to

       the other mitigators and aggravators, which we may not do.


[14]   The judgment of the trial court is affirmed.


       Riley, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1922 | January 30, 2020   Page 9 of 9
