MEMORANDUM DECISION
                                                                            FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                   Jul 25 2018, 9:40 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
Christopher L. Clerc                                     Curtis T. Hill, Jr.
Columbus, Indiana                                        Attorney General of Indiana
                                                         Angela N. Sanchez
                                                         Assistant Section Chief, Criminal
                                                         Appeals
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Amanda L. Zeigler,                                       July 25, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         03A01-1711-CR-2781
        v.                                               Appeal from the Bartholomew
                                                         Circuit Court
State of Indiana,                                        The Honorable Kelly S. Benjamin,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         03C01-1707-F6-3739



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 03A01-1711-CR-2781 | July 25, 2018            Page 1 of 9
[1]   Amanda L. Zeigler appeals her sentence for unlawful possession of a syringe as

      a level 6 felony. Zeigler raises one issue which we restate as whether the trial

      court abused its discretion in sentencing her. We affirm.


                                           Facts and Procedural History

[2]   On July 7, 2017, the State charged Zeigler with unlawful possession of a syringe

      and maintaining a common nuisance as level 6 felonies and possession of

      paraphernalia as a class C misdemeanor.


[3]   On September 11, 2017, the court held a hearing at which Zeigler pled guilty to

      unlawful possession of a syringe as a level 6 felony.1 The court entered an order

      finding there was a basis in fact for Zeigler’s plea of guilty, stating that it would

      take the matter under advisement, and noting that Zeigler indicated she did not

      want to be evaluated for the WRAP Program.


[4]   On October 19, 2017, the court held a hearing at which Zeigler’s mother, Sarah

      Dorn, testified in part that Zeigler went to a treatment facility in Florida for a

      thirty-day program but that it “was not sufficient” to change her. Transcript

      Volume II at 11. She also stated that she thought the WRAP Program would

      be very beneficial and she was upset Zeigler had turned down the program.

      After a brief recess, the court indicated that it had a discussion regarding the

      WRAP Program and asked Zeigler’s counsel if there was any change, and

      Zeigler’s counsel stated: “I’ve spoken with my client about the WRAP Program



      1
          The record does not contain a copy of the transcript of this hearing.


      Court of Appeals of Indiana | Memorandum Decision 03A01-1711-CR-2781 | July 25, 2018   Page 2 of 9
      and she still indicates she has no desire to do the program.” Id. at 17. The

      court ordered that Zeigler be evaluated for the WRAP Program.


[5]   On November 2, 2017, the court continued the sentencing hearing and stated

      that it had received a response from the WRAP Program indicating that Zeigler

      could benefit from the program. Zeigler stated that she was willing to

      participate in the WRAP Program and stated: “Thank you for saving my life

      and I got myself back and my body back and I wouldn’t be here today probably

      if you didn’t make me sit in here, so thank you.” Id. at 22. When asked on

      cross-examination if she had the right attitude for the WRAP Program, she

      answered: “I’m trying to.” Id. at 23. When asked if the court should place her

      in the WRAP Program, she answered: “Sure.” Id. The prosecutor argued that

      she did not sense any real commitment from Zeigler and was concerned about

      the integrity of the WRAP Program and the effect Zeigler’s participation may

      have on other participants. The court stated:


              Ms. Zeigler, you certainly don’t make this easy. I would like to
              believe what you just said to me is what you really think. I’m not
              convinced of that. You can’t thank me because I can’t do
              anything about it. I didn’t save your life. Those who are going
              to save your life, you need to look in a mirror. Once you realize
              that that I can’t do it, he can’t do it, she can’t do it, and they can’t
              do it. That’s when it becomes real and so I completely
              understand [the prosecutor’s] position because you will be in
              with other people who want to get better, who believe they need
              to be there and so then I have to sit here and think of is it your
              brain controlling this or are you still under that, which is more
              than likely, brain of I don’t need help, I’m going to get out, I can
              handle this on my own, no one is going to tell me what to do and

      Court of Appeals of Indiana | Memorandum Decision 03A01-1711-CR-2781 | July 25, 2018   Page 3 of 9
              your judgment is still flawed. I don’t know. Some people get
              nervous when they get on the stand and they react in different
              ways. You may it [sic] very hard to read and very hard to trust.
              It’s not a game.

              I can tell you for the four people sitting in the gallery, I think they
              completely get it, it’s really about life and death. I’m not sure
              you get that.

              I recall telling you last time I wasn’t giving up on you. . . . The
              Court will note that she does have a . . . only a prior criminal
              history of one conviction of Illegal Consumption, A
              Misdemeanor. On probation one time before. A Petition to
              Revoke filed once. She is young and has a limited criminal
              history. Those are mitigating factors. An aggravating factor
              specific to this case is my concern regarding her attitude and her
              commitment and passion to help herself.


      Id. at 24-25.


[6]   The court sentenced Zeigler to the Bartholomew County Jail for 730 days,

      ordered that she serve 296 days, gave her credit for 118 days, suspended 434

      days, and ordered that she serve probation for a period of 547 days upon

      release. The court stated:


              That’s going to give you a little extra time to sit in jail before I do
              place you in the WRAP Program to think about what your
              attitude is going to be when you go in with other people who are
              trying to save their own lives and are serious about it and make
              sure you are serious about it. If there’s an opening in the WRAP
              Program and they deem it appropriate prior to the end of that jail
              term, I will approve you being transferred to WRAP when that . .
              . that opens up. But that would give you approximately an
              additional 33 days to serve. But if the bed does open up, they can
              place you in there earlier if that happens.
      Court of Appeals of Indiana | Memorandum Decision 03A01-1711-CR-2781 | July 25, 2018   Page 4 of 9
      Id. at 26.


[7]   On November 13, 2017, the court held a hearing and stated it received a letter

      on November 8, 2017, reportedly signed by Zeigler stating that she felt coerced

      into the WRAP Program. Upon questioning by her counsel, Zeigler testified

      that she was willing to participate in the WRAP Program, that “[i]t’s 30 days to

      go down to WRAP and then a year in WRAP and then four hundred and some

      odd days to see . . . Community Corrections after I complete WRAP,” and she

      was objecting to “[t]he excess time after WRAP.” Id. at 31. The court entered

      an order amending the sentencing order “to reflect that if [Zeigler] violates

      while in the WRAP Program, the Court authorizes Community Corrections to

      place [her] back in jail until a hearing is held.” Appellant’s Appendix Volume

      II at 7.


                                                   Discussion

[8]   The issue is whether the trial court abused its discretion in sentencing Zeigler.

      We review the sentence for an abuse of discretion. Anglemyer v. State, 868

      N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218. An abuse of

      discretion occurs if the 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. A trial court abuses its discretion if it:

      (1) fails “to enter a sentencing statement at all;” (2) enters “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;” (3) enters a sentencing statement that “omits reasons that are clearly
      Court of Appeals of Indiana | Memorandum Decision 03A01-1711-CR-2781 | July 25, 2018   Page 5 of 9
       supported by the record and advanced for consideration;” or (4) considers

       reasons that “are improper as a matter of law.” Id. at 490-491. If the trial court

       has abused its discretion, we will remand for resentencing “if we cannot say

       with confidence that the trial court would have imposed the same sentence had

       it properly considered reasons that enjoy support in the record.” Id. at 491.

       The relative weight or value assignable to reasons properly found, or those

       which should have been found, is not subject to review for abuse of discretion.

       Id.


[9]    Zeigler argues that the trial court abused its discretion when it failed to consider

       her admissions to police and guilty plea as significant mitigating factors. She

       asserts that she chose to speak with police, admitted that she provided narcotics

       to people, and did not receive any benefit from her admissions and cooperation

       with the investigation. The affidavit signed by Columbus Police Detective

       Kelly Hibbs and cited by Zeigler on appeal states that the Bartholomew County

       Joint Narcotics Enforcement Team received information that Zeigler was

       selling narcotics out of her apartment and officers executed a search warrant

       and discovered Zeigler in her apartment with pieces of aluminum foil, a spoon

       with residue on it, and syringes in her bedroom. Detective Hibbs’s affidavit

       also indicates that she agreed to speak with police and that Zeigler admitted

       that sometimes people would come to her apartment, she would give them

       narcotics, and she was a heroin user.


[10]   The State argues that Zeigler fails to show that her guilty plea warrants

       significant mitigating consideration, she received a substantial benefit by

       Court of Appeals of Indiana | Memorandum Decision 03A01-1711-CR-2781 | July 25, 2018   Page 6 of 9
       pleading guilty, and the evidence against her was overwhelming. It also argues

       that she waived her argument regarding her cooperation with police and that,

       waiver notwithstanding, her admissions to police did not warrant significant

       mitigating weight. It contends that, even if the trial court abused its discretion,

       remand is not necessary because this Court can be confident that the trial court

       would have imposed the same sentence in light of the thoughtful sentence

       involving various degrees of confinement and treatment programs.


[11]   The determination of mitigating circumstances is within the discretion of the

       trial court. Rogers v. State, 878 N.E.2d 269, 272 (Ind. Ct. App. 2007), trans.

       denied. The court is not obligated to accept the defendant’s argument as to what

       constitutes a mitigating factor, and the court is not required to give the same

       weight to proffered mitigating factors as does a defendant. Id. An allegation

       that the trial court failed to identify or find a mitigating factor requires the

       defendant to establish that the mitigating evidence is both significant and clearly

       supported by the record. Anglemyer, 868 N.E.2d at 493. If the court does not

       find the existence of a mitigating factor after it has been argued by counsel, it is

       not obligated to explain why it has found that the factor does not exist. Id.


[12]   As for Zeigler’s assertion that she provided cooperation to the police, we note

       that she did not advance this as a mitigator to the trial court. “If the defendant

       does not advance a factor to be mitigating at sentencing, this Court will

       presume that the factor is not significant and the defendant is precluded from

       advancing it as a mitigating circumstance for the first time on appeal.” Henley v.



       Court of Appeals of Indiana | Memorandum Decision 03A01-1711-CR-2781 | July 25, 2018   Page 7 of 9
       State, 881 N.E.2d 639, 651 (Ind. 2008) (quoting Spears v. State, 735 N.E.2d 1161,

       1167 (Ind. 2000), reh’g denied).


[13]   However, even though Zeigler did not raise her guilty plea as a mitigating factor

       at sentencing, it can still be raised for the first time on appeal. See Anglemyer,

       875 N.E.2d at 220 (observing that the general proposition that a trial court does

       not abuse its discretion in failing to consider a mitigating factor that was not

       raised at sentencing “has at least one important exception, namely: pleas of

       guilty”).


[14]   A defendant who pleads guilty deserves some mitigating weight be given to the

       plea in return. Id. “But 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.” Id. at 220-221. The significance of a guilty plea as a

       mitigating factor varies from case to case. Id. For example, a guilty plea may

       not be significantly mitigating when it does not demonstrate the defendant’s

       acceptance of responsibility or when the defendant receives a substantial benefit

       in return for the plea. Id.


[15]   The plea agreement here was more likely the result of pragmatism than

       acceptance of responsibility and remorse. The record reveals that the State

       dismissed the charges of maintaining a common nuisance as a level 6 felony

       and possession of paraphernalia as a class C misdemeanor in exchange for

       Zeigler’s plea. In light of this benefit and her statements to police that she gave


       Court of Appeals of Indiana | Memorandum Decision 03A01-1711-CR-2781 | July 25, 2018   Page 8 of 9
       people narcotics, we cannot say that Zeigler has demonstrated that her guilty

       plea was a significant mitigating circumstance or that the trial court abused its

       discretion.


                                                   Conclusion

[16]   For the foregoing reasons, we affirm Zeigler’s sentence.


[17]   Affirmed.


       Pyle, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 03A01-1711-CR-2781 | July 25, 2018   Page 9 of 9
