Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
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:

DONALD C. SWANSON, JR.                               GREGORY F. ZOELLER
Fort Wayne, Indiana                                  Attorney General of Indiana

                                                     AARON J. SPOLARICH
                                                     Deputy Attorney General

                                                                                   FILED
                                                     Indianapolis, Indiana


                               IN THE                                          Mar 14 2012, 9:28 am

                     COURT OF APPEALS OF INDIANA                                       CLERK
                                                                                     of the supreme court,
                                                                                     court of appeals and
                                                                                            tax court




CHRISTOPHER L. OVERLA,                )
                                      )
       Appellant,                     )
                                      )
               vs.                    )        No. 02A05-1108-CR-474
                                      )
STATE OF INDIANA,                     )
                                      )
       Appellee.                      )


                      APPEAL FROM THE ALLEN SUPERIOR COURT
                           The Honorable Frances C. Gull, Judge
                             Cause No. 02D05-1012-FD-1274


                                          March 14, 2012

                MEMORANDUM DECISION – NOT FOR PUBLICATION

MATHIAS, J.
        Following his guilty plea to Class D felony invasion of privacy, Christopher L.

Overla (“Overla”) was sentenced to two years executed in the Department of Correction.

Overla appeals and argues that the trial court abused its discretion in failing to consider

certain mitigating factors and that his sentence is inappropriate in light of the nature of

the offense and the character of the offender. We affirm.

                                   Facts and Procedural History

        At some point prior to April of 2010, Angela Smith (“Smith”) obtained a

protective order against Overla. Thereafter, Smith and Overla apparently reconciled, and

they were married on June 12, 2010. On the evening of December 10, 2010, while the

protective order was still in effect, police responded to a report of a domestic disturbance

at Smith’s residence. When officers arrived, both Smith and Overla were present. When

police discovered that Smith had an active protective order against Overla, the officers

arrested Overla. As a result of this incident, Overla was charged with Class D felony

invasion of privacy. Overla pleaded guilty on June 22, 2011, and he was sentenced to

two years executed in the Department of Correction on July 18, 2011. Overla now

appeals.

                                       Discussion and Decision

        In the first part of his challenge to his sentence, Overla argues that the trial court

abused its discretion by overlooking mitigating factors that were supported by the

record.1     Sentencing decisions rest within the sound discretion of the trial court.

1
 Overla also asks this court “to re-weigh the aggravating and mitigating circumstances.” Appellant’s Br. at 6.
However, we will not review the relative weight or value assigned to aggravating and mitigating circumstances.
Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218.

                                                      2
Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218.

So long as the sentence is within the statutory range, it is subject to review only for an

abuse of discretion. Id. “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. at 491.

       A trial court may abuse its sentencing discretion in a number of ways, including:

(1) failing to enter a sentencing statement at all; (2) entering a sentencing statement that

includes aggravating and mitigating factors that are unsupported by the record; (3)

entering a sentencing statement that omits reasons that are clearly supported by the

record; or (4) entering a sentencing statement that includes reasons that are improper as a

matter of law. Id. at 490-491. If the trial court abuses its discretion in one of these or

another way, remand for resentencing is the appropriate remedy “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.

       At his sentencing hearing, Overla advanced the following purportedly mitigating

factors for consideration: (1) that the victim and Overla were married subsequent to the

entry of the protective order and had unsuccessfully attempted to have protective order

dismissed, (2) that there had been no violence between Overla and the victim since they

were married in June of 2010, (3) that Overla attended church, and (4) that Overla

attended Alcoholics Anonymous meetings and was involved in an alcohol dependence

treatment program. Sentencing Tr. p. 19. In sentencing Overla, the trial court recognized

his guilty plea and attendance at Alcoholics Anonymous meetings as mitigating factors.

                                             3
Id. at 23. The trial court found Overla’s extensive criminal history and failed attempts at

rehabilitation as aggravating factors. Id. On appeal, Overla argues that the trial court

abused its discretion in failing to consider the following purportedly mitigating factors:

(1) Overla’s alleged drug and alcohol addiction, (2) Overla’s volunteer work in the

community, (3) Overla’s involvement in his church, (4) the fact that Overla and the

victim were married at the time of the instant offense, and (5) that Overla and the victim

allegedly believed that the protective order had been dismissed at the time of the instant

offense.

       Overla did not advance his alleged drug and alcohol addiction or his volunteer

work as mitigating factors at sentencing. “‘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.’” Hollin v. State, 877 N.E.2d 462, 465 (Ind. 2007) (quoting Spears v.

State, 735 N.E.2d 1161, 1167 (Ind. 2000)); see also Anglemyer, 868 N.E.2d at 492

(holding that a sentencing court “does not abuse its discretion in failing to consider a

mitigating factor that was not raised at sentencing”). Accordingly, Overla’s argument

with regard to these purportedly mitigating factors is waived.

       With respect to the remaining purportedly mitigating factors, we note that an

allegation that the trial court failed to identify a mitigating factor requires the defendant

to establish that the mitigating evidence is both significant and clearly supported by the

record. Id. at 493. And if the trial court does not find the existence of a mitigating factor



                                             4
that has been argued by counsel, the trial court is not obligated to explain why it has

found that the factor does not exist. Id.

        Overla has not established that his involvement in church or his marriage to Smith

at the time of the instant offense is entitled to significant mitigating weight. Indeed,

Overla’s marriage to Smith while the protective order was still active could very well be

considered an aggravating factor, as it strongly suggests that Overla violated the

protective order on occasions prior to the instant offense. Moreover, we cannot conclude

that the trial court abused its discretion in failing to identify Overla’s purported belief that

the protective order had been lifted as a mitigating factor. As an initial matter, we note

that the trial court was in no way obligated to believe Overla’s and Smith’s testimony that

they believed the protective order was no longer in effect at the time of the instant

offense. Accordingly, Overla has not established that this purported mitigator was clearly

supported by the record. And even if the trial court credited Overla’s and Smith’s

testimony, we cannot conclude that Overla has established that it was entitled to

significant mitigating weight. At his sentencing hearing, Overla testified that he “should

not [have] just took [Smith’s] word that, you know, she represented to me like she had

taken care of that issue. But I, I should’ve been aware and maybe followed through and

just made sure that the no contact order was dismissed.” Sentencing Tr. p. 22. For all of

these reasons, we cannot conclude that the trial court abused its discretion in failing to

identify the mitigating factors advanced for consideration on appeal.2


2
 Human nature being what it is, couples who have been the subject of a protective order sometimes marry while the
order is still in effect. Perhaps automatic nullification of such orders upon marriage would be an attractive

                                                       5
         In any event, even if we were to conclude that the trial court abused its discretion

in failing to identify these purportedly mitigating factors, remand for resentencing is only

warranted if we cannot say with confidence that the trial court would have imposed the

same sentence had it properly considered these factors. See Anglemyer, 868 N.E.2d at

491. The trial court properly found Overla’s extensive criminal history and his failed

efforts at rehabilitation as aggravating circumstances, and it is clear from the trial court’s

sentencing statement that it attributed great weight to these factors. Accordingly, we can

say with confidence that the trial court would have imposed the same sentence even if it

had considered the purportedly mitigating factors Overla advances for consideration on

appeal.

         Next, Overla argues that his two-year executed sentence is inappropriate in light of

the nature of the offense and the character of the offender. Although a trial court may

have acted within its lawful discretion in imposing a sentence, Article 7, Sections 4 and 6

of the Indiana Constitution authorize independent appellate review and revision of a

sentence imposed by the trial court. Alvies v. State, 905 N.E.2d 57, 64 (Ind. Ct. App.

2009) (citing Anglemyer, 868 N.E.2d at 491). This appellate authority is implemented

through Indiana 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.” Anglemyer, 868 N.E.2d at 491. However, “we must and



alternative to the current situation and others like it, but that is a policy decision left to the legislative branch of our
government.

                                                             6
should exercise deference to a trial court’s sentencing decision, both because Rule 7(B)

requires us to give ‘due consideration’ to that decision and because we understand and

recognize the unique perspective a trial court brings to its sentencing decisions.” Stewart

v. State, 866 N.E.2d 858, 866 (Ind. Ct. App. 2007). The burden is on the defendant to

persuade us that his sentence is inappropriate. Reid v. State, 876 N.E.2d 1114, 1116 (Ind.

2007).       Finally, although we have the power to review and revise sentences, “[t]he

principal role of appellate review should be to attempt to leaven the outliers, and identify

some guiding principles for trial courts and those charged with improvement of the

sentencing statutes, but not to achieve a perceived ‘correct’ result in each case.”

Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008).

         Overla committed Class D felony invasion of privacy, for which the sentencing

range is six months to three years, with an advisory sentence of one and one-half years.

Ind. Code § 35-50-2-7 (2004). Overla was sentenced to two years executed in the

Department of Correction, a term six months longer than the advisory sentence.

         Turning first to the nature of the offense, we hesitate to attribute the facts as

described in the probable cause affidavit to Overla because he did not admit to them

during his guilty plea hearing.3 Instead, he admitted only to the bare-bones factual basis

necessary to support his guilty plea to Class D felony invasion of privacy. Our review of

the nature of the offense is therefore limited, and we are constrained to conclude that the

offense was not more egregious than a typical invasion of privacy.

3
  We also note that Smith testified on Overla’s behalf at his sentencing hearing, and that on cross-examination by the
State, she testified to some of the facts set forth in the probable cause affidavit. But again, Overla never admitted to
those facts. Because we reach the same result without relying on these facts, we need not consider them.

                                                           7
         But Overla’s character alone, as reflected in his lengthy and often violent criminal

history, easily supports the trial court’s imposition of a two-year executed sentence.

Overla’s adult criminal history includes felony convictions for residential entry, battery

resulting in serious bodily injury, and criminal confinement. Overla was also convicted

of stalking in Ohio in 2000.4 Overla’s adult criminal history also includes multiple

misdemeanors, including illegal possession of alcohol by a minor, criminal mischief,

criminal conversion, resisting law enforcement, battery, invasion of privacy,5 reckless

driving, and drunk driving offenses. Overla’s history of juvenile delinquency includes

adjudications for theft and criminal mischief, as well as two adjudications for battery.6

Additionally, at the time of sentencing in this case, Overla had felony theft charges

pending in two separate Indiana counties. We also note that Overla has had a suspended

sentence for operating while intoxicated modified to require him to spend one weekend in

jail, and he has twice had suspended sentences revoked.                           Overla’s criminal history

establishes that, despite being shown leniency in the past, Overla has continued to

reoffend, and that he is either unwilling or unable to conform his behavior to the law. We

therefore cannot conclude that Overla’s two-year executed sentence for Class D felony

invasion of privacy, which is only six months longer than the advisory sentence, is

inappropriate.

4
 Although the Pre-Sentence Investigation Report lists the stalking offense as a felony, Overla contends that the case
was handled as a misdemeanor. Regardless of whether the crime qualifies as a felony or a misdemeanor, it reflects
poorly on Overla’s character.
5
 It was this previous conviction for Class A misdemeanor invasion of privacy that elevated the instant offense to a
Class D felony. See Ind. Code § 35-46-1-15.1 (2004).
6
  Our recitation of Overla’s history of juvenile delinquency omits an alleged adjudication for burglary that was
reflected in the Pre-Sentence Investigation Report, but contested by Overla at sentencing.

                                                         8
       Affirmed.

FRIEDLANDER, J., concurs.

RILEY, J., concurs in result.




                                9
