MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                FILED
this Memorandum Decision shall not be                            Dec 22 2016, 9:13 am
regarded as precedent or cited before any
court except for the purpose of establishing                          CLERK
                                                                  Indiana Supreme Court
                                                                     Court of Appeals
the defense of res judicata, collateral                                and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Nicholas F. Wallace                                     Gregory F. Zoeller
Deputy Public Defender                                  Attorney General of Indiana
Leonard, Hammond, Thoma & Terrill                       Christina D. Pace
Fort Wayne, Indiana                                     Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Trey M. Shirely,                                        December 22, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        02A03-1608-CR-1735
        v.                                              Appeal from the Allen Superior
                                                        Court
State of Indiana,                                       The Honorable Frances C. Gull,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        02D04-1601-F6-62



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 02A03-1608-CR-1735 | December 22, 2016   Page 1 of 11
[1]   Trey M. Shirely appeals his sentence for possession of a synthetic drug or

      synthetic drug lookalike substance as a level 6 felony. Shirely raises two issues

      which we revise and restate as:


            I.    Whether the trial court abused its discretion in sentencing him;
                  and

           II.    Whether his sentence is inappropriate in light of the nature of
                  the offense and the character of the offender.



      We affirm.


                                      Facts and Procedural History

[2]   On August 18, 2015, Shirely knowingly or intentionally possessed a synthetic

      drug or a synthetic drug lookalike substance. He had a prior conviction on July

      7, 2015, for possession of a synthetic drug or drug lookalike substance.


[3]   On January 14, 2016, the State charged Shirely with possession of a synthetic

      drug or synthetic drug lookalike substance as a level 6 felony, and alleged that

      he had a previous conviction for possession of a synthetic drug or synthetic drug

      lookalike substance.


[4]   On April 11, 2016, Shirely pled guilty as charged. The court took Shirely’s plea

      under advisement and placed him in the Drug Court Diversion Program.


[5]   On June 13, 2016, the State filed a Verified Petition to Terminate Drug Court

      Participation alleging that Shirely violated the terms and conditions of the Drug

      Court Participation Agreement by failing to successfully complete transitional


      Court of Appeals of Indiana | Memorandum Decision 02A03-1608-CR-1735 | December 22, 2016   Page 2 of 11
      living, testing positive for cocaine, providing a diluted urine screen, and failing

      to maintain good behavior by being arrested on or about June 8, 2016. The

      court held a hearing that same day and Shirely admitted the allegations. The

      court found that Shirely violated the terms of the Drug Court Participation

      Agreement, ordered him revoked from Drug Court, and scheduled a sentencing

      hearing.


[6]   A sentencing hearing was held on July 19, 2016. Shirely’s counsel admitted

      that Shirely did not “get off to a good start” in the Drug Court Program, tested

      positive for a benzodiazepine on April 27th, was subsequently incarcerated, was

      given another opportunity to be successful in the program, “got on track . . . for

      a short period of time” before he tested positive for cocaine on June 1st, 3rd,

      and 6th, was arrested on a new offense on June 8th, and was terminated from

      the Program. Transcript at 8. He argued that Shirely accepted responsibility,

      was remorseful, his criminal history was nonviolent and related to substance

      abuse, and he had two young children. He asked for a two-year sentence

      suspended to probation. Shirely stated that drugs ran his life since he was a

      child, that he was tired of it, that he was a completely different person, and that

      “I know I can do it this time if you give me one possible chance please.” Id. at

      13. The prosecutor argued for a sentence of two years with one year suspended

      to probation.


[7]   The court recognized Shirely’s plea of guilty, acceptance of responsibility, and

      remorse as mitigating circumstances. It found his criminal history with failed

      efforts at rehabilitation from 2009 to 2016, the fact that he was on probation at

      Court of Appeals of Indiana | Memorandum Decision 02A03-1608-CR-1735 | December 22, 2016   Page 3 of 11
      the time he committed the offense, and the fact that he had pending charges as

      aggravating circumstances. The court sentenced Shirely to the Allen County

      Confinement Facility for classification and confinement for a period of one and

      one-half years.


                                                  Discussion

                                                        I.


[8]   The first issue is whether the court abused its discretion in sentencing Shirely.

      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 (Ind. 2007). 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 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


      Court of Appeals of Indiana | Memorandum Decision 02A03-1608-CR-1735 | December 22, 2016   Page 4 of 11
       those which should have been found, is not subject to review for abuse of

       discretion. Id.


       A. Aggravating Circumstance


[9]    Shirely argues that the trial court erred in giving undue weight to his criminal

       history as an aggravating circumstance. As noted, the relative weight or value

       assignable to reasons properly found is not subject to review for abuse of

       discretion. Id.


       B. Mitigating Circumstances


[10]   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.


[11]   Shirely argues that the court failed to identify his history of substance abuse and

       the hardship on his dependent children as mitigating factors. The State argues

       that the record reflects that Shirely knew for some time that he had a substance


       Court of Appeals of Indiana | Memorandum Decision 02A03-1608-CR-1735 | December 22, 2016   Page 5 of 11
       abuse problem and did little or nothing to treat it even after he was given a

       deferral in this case and placed in the Drug Court Diversion Program. The

       State asserts that the court could have considered Shirely’s drug history as an

       aggravating factor, and that it did not abuse its discretion in declining to assign

       mitigating weight to the hardship on his children.


[12]   A history of substance abuse is sometimes found by trial courts to be an

       aggravator, not a mitigator. Iddings v. State, 772 N.E.2d 1006, 1018 (Ind. Ct.

       App. 2002), trans. denied. A trial court is not required to consider as mitigating

       circumstances allegations of appellant’s substance abuse. James v. State, 643

       N.E.2d 321, 323 (Ind. 1994).


[13]   The presentence investigation report (“PSI”) indicates that Shirely first started

       using marijuana at age fourteen, using “all day every day” until age eighteen

       when he claimed he quit. Appellant’s Appendix III at 9. Shirely reported using

       cocaine from age twenty-one until he was placed in the Drug Court Program

       and that he began using again in May 2016. He admitted using Spice/K2 from

       age nineteen until his incarceration. He stated that he completed substance

       abuse treatment at age seventeen or eighteen, but could not recall the name of

       the agency. He reported participating in substance abuse treatment at the

       Bowen Center in 2016 and that he currently attends Narcotics Anonymous

       meetings.


[14]   The PSI also states that, Shirely began the Allen Superior Drug Court Program

       on April 11, 2016, accumulated six positive drug screens while on the program,


       Court of Appeals of Indiana | Memorandum Decision 02A03-1608-CR-1735 | December 22, 2016   Page 6 of 11
       began residing at the Thirteen Step House on April 22, 2016, and was

       unsuccessfully discharged on April 27, 2016. The PSI states that he began

       residing at Potter’s House on May 9, 2016, and was unsuccessfully discharged

       on June 2, 2016, due to allegations that he was selling drugs at the Potter

       House.


[15]   Under the circumstances, we cannot say that Shirely has shown that the

       mitigating evidence is both significant and clearly supported by the record or

       that the trial court abused its discretion by not finding Shirely’s substance abuse

       to be a mitigating circumstance.


[16]   To the extent Shirely argues that the trial court abused its discretion by not

       finding the hardship on his dependents as a mitigator, we note that, at the

       sentencing hearing, Shirely’s counsel merely noted that Shirely had two young

       children. He did not raise hardship on the dependents as a proposed mitigator

       and has waived any argument that the trial court abused its discretion by failing

       to consider this issue as a mitigator. See Anglemyer Rehearing, 875 N.E.2d at 220

       (observing that the trial court does not abuse its discretion in failing to consider

       a mitigating factor that was not raised at sentencing).


[17]   Even assuming that Shirely raised this as a mitigating circumstance, we observe

       that “absent special circumstances, trial courts are not required to find that

       imprisonment will result in an undue hardship.” Dowdell v. State, 720 N.E.2d

       1146, 1154 (Ind. 1999); see also Benefield v. State, 904 N.E.2d 239, 247-248 (Ind.

       Ct. App. 2009) (recognizing that incarceration “almost always” works a


       Court of Appeals of Indiana | Memorandum Decision 02A03-1608-CR-1735 | December 22, 2016   Page 7 of 11
       hardship on others and concluding that the defendant failed to show “special

       circumstances” because there were other people who could take care of the

       defendant’s mother while she was incarcerated), trans. denied. The PSI indicates

       that Shirely had two dependent children, was expecting a third child, and had a

       work history of various jobs. 1 Shirely points to his letter to the court in which

       he stated: “I real[l]y need to be clean and stay sober my fiancée and babys [sic]

       real[l]y need me.” Appellant’s Appendix II at 36. We cannot say that Shirely

       has demonstrated that the mitigating evidence as to a burden on his children is

       both significant and clearly supported by the record or that the trial court

       abused its discretion.


                                                            II.


[18]   The next issue is whether Shirely’s sentence is inappropriate in light of the

       nature of the offense and his character. Ind. Appellate Rule 7(B) provides that

       we “may revise a sentence authorized by statute if, after due consideration of

       the trial court’s decision, [we find] that the sentence is inappropriate in light of

       the nature of the offense and the character of the offender.” Under this rule, the

       burden is on the defendant to persuade the appellate court that his or her

       sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).




       1
         Specifically, the PSI indicates that Shirely worked performing industrial cleaning from 2012 to 2013, as a
       forklift operator for nine or ten months in 2015, as a machine operator for two or three months in 2016, and
       as a roofer from May 10, 2016, until he was incarcerated. Shirely reported working various jobs through
       temporary agencies from 2013 until the beginning of 2016.

       Court of Appeals of Indiana | Memorandum Decision 02A03-1608-CR-1735 | December 22, 2016         Page 8 of 11
[19]   Shirely argues that his criminal history is not that significant, he is a remorseful,

       hard-working man who supports and loves his young family, and that he has a

       strong support system.


[20]   Our review of the nature of the offense reveals that Shirely knowingly or

       intentionally possessed a synthetic drug or a synthetic drug lookalike substance,

       and that he had a prior conviction for possession of a synthetic drug or drug

       lookalike substance.


[21]   Our review of the character of the offender reveals that Shirely pled guilty and

       was initially placed in the Drug Court Diversion Program, but he was

       unsuccessful in completing the program. He admitted to failing to successfully

       complete transitional living, testing positive for cocaine on June 1st, June 3rd,

       and June 6th, providing a diluted urine screen, and failing to maintain good

       behavior by being arrested on or about June 8, 2016.


[22]   Shirely was born on January 1, 1994, and as a juvenile was alleged to have

       committed criminal mischief as a class B misdemeanor if committed by an

       adult, was placed on an informal adjustment in January 2009, and was ordered

       to obtain a drug and alcohol assessment and participate in random urinalysis

       testing and/or alco-sensor testing. His period of informal adjustment was

       extended for three months, and he was unsuccessfully discharged from

       probation. In September 2009, he was found delinquent for interfering with

       drug/alcohol screening test and criminal mischief as class B misdemeanors if




       Court of Appeals of Indiana | Memorandum Decision 02A03-1608-CR-1735 | December 22, 2016   Page 9 of 11
       committed by an adult. In June 2010, he was found delinquent for criminal

       conversion as a class A misdemeanor if committed by an adult.


[23]   As an adult, Shirely was convicted of knowingly or intentionally operating a

       motor vehicle without ever receiving a license as a misdemeanor in 2013. In

       July 2015, he was convicted of possession of a synthetic drug or synthetic drug

       lookalike substance as a misdemeanor and sentenced to “365 days Allen

       County Jail, suspended, Alcohol Countermeasures Program.” Appellant’s

       Appendix III at 6. On January 22, 2016, Shirely was sentenced to 180 days

       suspended for false informing as a misdemeanor based upon an offense

       occurring on December 30, 2015. The PSI states that he was facing pending

       charges of theft of a firearm as a level 6 felony and carrying a handgun without

       a license as a class A misdemeanor.


[24]   Shirely has a history of substance abuse and was on probation when he

       committed the present offense. The PSI indicates that his overall risk

       assessment score puts him in the moderate risk category to reoffend.


[25]   After due consideration, we conclude that Shirely has not sustained his burden

       of establishing that his sentence of one and one-half years, following the

       termination of his participation in the Drug Court Diversion Program, is

       inappropriate in light of the nature of the offense and his character.


                                                   Conclusion

[26]   For the foregoing reasons, we affirm Shirely’s sentence.



       Court of Appeals of Indiana | Memorandum Decision 02A03-1608-CR-1735 | December 22, 2016   Page 10 of 11
[27]   Affirmed.


       Vaidik, C.J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 02A03-1608-CR-1735 | December 22, 2016   Page 11 of 11
