Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be                   Mar 18 2014, 9:19 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:

HUGH N. TAYLOR                                     GREGORY F. ZOELLER
Hugh N. Taylor, P.C.                               Attorney General of Indiana
Auburn, Indiana
                                                   RICHARD C. WEBSTER
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

GAYLE CLARK, JR.,                                  )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )       No. 76A05-1305-CR-261
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                      APPEAL FROM THE STEUBEN CIRCUIT COURT
                           The Honorable Allen N. Wheat, Judge
                              Cause No. 76C01-1110-FD-970



                                         March 18, 2014


                MEMORANDUM DECISION - NOT FOR PUBLICATION


KIRSCH, Judge
       Gayle Clark, Jr. appeals from the trial court’s sentencing order following Clark’s

jury trial at the conclusion of which he was found guilty of one count of possession of

marijuana1 as a Class D felony and one count of possession of paraphernalia 2 as a Class A

misdemeanor, contending that the trial court abused its discretion at sentencing by failing

to find a significant mitigating circumstance.

       We affirm.

                           FACTS AND PROCEDURAL HISTORY

       On October 5, 2011, Steuben County Deputy Sheriff Phillip Nott received a tip that

Clark had marijuana at his residence located at 4210 West County Road 150 South in

Steuben County. Acting on that tip, Deputy Nott and Deputy Michael Meeks drove toward

Clark’s residence at approximately 9:00 a.m. and encountered Clark on Golden Lake Road.

After speaking with Clark, the deputies followed Clark to his residence, where they were

joined by another deputy shortly after arriving there. Deputy Nott told Clark that he had

received information that there may be marijuana in Clark’s residence. Clark admitted that

he might have some cut marijuana in his residence. Deputy Nott obtained Clark’s consent

to search the residence, and the officers entered the residence and proceeded to conduct

their search.

       In the kitchen area, the deputies observed two paper plates sitting on a table, with

one plate stacked on top of the other. Each plate contained an amount of green, cut, plant

material. The deputies also observed on top of a portable stereo, a packet of rolling papers


       1
           See Ind. Code § 35-48-4-11(1).
       2
           See Ind. Code § 35-48-4-8.3(b).

                                             2
used to smoke marijuana. Next to the stereo, the deputies observed a metal pipe also used

to smoke marijuana. The pipe contained what the deputies observed to be residue in the

bowl of the pipe, which smelled like burnt marijuana. In a cabinet in the kitchen area, the

deputies discovered two zip-lock plastic bags containing green, leafy, plant material.

         Clark admitted that he smoked marijuana and claimed that he obtained the

marijuana from plants in the area. He further admitted that the amount he possessed was

more than thirty grams. All of the green cut plant material, rolling papers, and metal pipe

were recovered by Deputy Nott. The green, cut plant material was submitted for chemical

analysis, after which it was determined to be marijuana with an aggregate weight of 194

grams.

         The State charged Clark as detailed above, and after his jury trial, Clark was found

guilty as charged. At Clark’s sentencing hearing, he argued that despite having a lengthy

criminal history, the facts of this case were not particularly aggravating. Clark admitted

possession of the marijuana and requested that less than the maximum sentence be imposed

for the offenses. The trial court found Clark’s substantial, prior criminal history to be an

aggravating circumstance and found no mitigating circumstances. Clark was sentenced to

three years executed for his Class D felony conviction and to a one-year sentence for his

Class A misdemeanor conviction, with the sentences to be served concurrently. Clark now

appeals.

                              DISCUSSION AND DECISION

         Clark appeals from the trial court’s sentencing order contending that the trial court

abused its discretion by failing to find what he claims was a significant, mitigating

                                               3
circumstance.    Clark argues that the trial court should have found as a mitigating

circumstance that his crime did not cause or threaten to cause serious harm to persons or

property.

       Trial courts are required to enter sentencing statements whenever imposing sentence

for a felony offense. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on

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

recitation of the trial court’s reasons for imposing a particular sentence. Id. If the recitation

includes a finding of aggravating or mitigating circumstances, then the statement must

identify all significant mitigating and aggravating circumstances and explain why each

circumstance has been determined to be mitigating or aggravating. Id. Sentencing

decisions rest within the sound discretion of the trial court and are reviewed on appeal 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.

       A trial court may abuse its discretion by entering a sentencing statement that omits

mitigating factors that are clearly supported by the record and advanced for consideration.

Id. at 490-91. Because the trial court no longer has any obligation to “weigh” aggravating

and mitigating factors against each other when imposing a sentence, a trial court cannot

now be said to have abused its discretion in failing to “properly weigh” such factors. Id.

at 491. Once the trial court has entered a sentencing statement, which may or may not

include the existence of aggravating and mitigating factors, it may then “impose any



                                               4
sentence that is . . . authorized by statute; and . . . permissible under the Constitution of the

State of Indiana.” Ind. Code § 35-38-1-7.1(d).

       The finding of mitigating factors is not mandatory and rests within the trial court’s

discretion. Storey v. State, 875 N.E.2d 243, 252 (Ind. Ct. App. 2007). “The trial court is

not obligated to accept the defendant’s arguments as to what constitutes a mitigating

factor.” Id. Additionally, the trial court is not required to attribute the same weight to

proffered mitigating factors as does the defendant. Id. Nonetheless, the trial court may not

ignore factors in the record that would mitigate an offense. Id. To fail to find mitigating

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

not consider those circumstances. Id. In order to prevail on appeal, the defendant must

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

record. Id.

       We observe as an initial matter that Clark did not raise or argue his proposed

mitigating circumstance at his sentencing hearing. “A defendant who fails to raise

proposed mitigators at the trial court level is precluded from advancing them for the first

time on appeal.” Pennington v. State, 821 N.E.2d 899, 905 (Ind. Ct. App. 2005). Waiver

notwithstanding, we conclude that the trial court did not abuse its discretion.             The

mitigating circumstance advanced by Clark is a discretionary mitigating circumstance

found in Indiana Code section 35-38-1-7.1(b)(1). The statutory language provides that the

trial court “may” find certain mitigating circumstances, but is not required to do so. Ind.

Code § 35-38-1-7.1(b)(1). Moreover, the record is silent on the issue of whether any harm

was caused by Clark’s offenses.

                                               5
      In sum, Clark waived his appellate claim by failing to first present it to the trial

court. Waiver notwithstanding, Clark has failed to establish that the mitigating evidence

was both significant and supported by the record.

      Affirmed.

FRIEDLANDER, J., and BAILEY, J., concur.




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