MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                      FILED
this Memorandum Decision shall not be                                  May 26 2016, 8:48 am
regarded as precedent or cited before any                                   CLERK
court except for the purpose of establishing                            Indiana Supreme Court
                                                                           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
Timothy P. Broden                                       Gregory F. Zoeller
Lafayette, Indiana                                      Attorney General of Indiana

                                                        Paula J. Beller
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Nicholas G. Collins,                                    May 26, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        79A02-1509-CR-1439
        v.                                              Appeal from the Tippecanoe
                                                        Superior Court
State of Indiana,                                       The Honorable Steven P. Meyer,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        79D02-1504-F5-26



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 79A02-1509-CR-1439 | May 26, 2016             Page 1 of 7
[1]   Nicholas G. Collins appeals his sentence for Level 5 felony operating a motor

      vehicle while privileges are forfeited for life. 1 Collins raises two issues:


                 1) Whether the trial court abused its discretion when considering
                    mitigating circumstances, and


                 2) Whether his sentence is inappropriate.


[2]   We affirm.



                               Facts and Procedural History
[3]   On March 16, 2015, Collins began serving a sentence at Community

      Corrections for operating a motor vehicle while privileges are forfeited for life.

      On April 16, 2015, staff at Community Corrections saw him drive a car into the

      parking lot. Collins was arrested and charged with Level 5 operating a motor

      vehicle while privileges are forfeited for life.


[4]   On July 23, 2015, Collins pleaded guilty without benefit of a plea agreement.

      Collins said he drove the car because his moped was “messed up” and he

      “didn’t want to miss [his] meeting down there at Community Corrections.”

      (Tr. at 15.) The trial court sentenced Collins to five years to be served at the

      Department of Correction.




      1
          Ind. Code § 9-30-10-17 (2015).


      Court of Appeals of Indiana | Memorandum Decision 79A02-1509-CR-1439 | May 26, 2016   Page 2 of 7
                                Discussion and Decision
                                   1. Mitigating Circumstances
[5]   Collins asserts the trial court entered his sentence without considering the

      mitigating circumstance of undue hardship on his dependents. Sentencing rests

      within the sound discretion of the trial court and if the sentence is within the

      statutory range, we review it for an abuse of discretion. Croy v. State, 953

      N.E.2d 660, 663 (Ind. Ct. App. 2011), reh’g denied. An abuse of discretion

      occurs when the decision is clearly against the logic and effect of the evidence

      before the court or the reasonable inferences to be drawn therefrom. Id.


[6]   When challenging the court’s finding of mitigators, an appellant has the burden

      of showing the alleged mitigator was offered to the trial court and is both

      significant and clearly supported by the record. Anglemyer v. State, 868 N.E.2d

      482, 493 (Ind. 2007), modified on other grounds on reh’g 875 N.E.2d 218 (Ind.

      2007). A trial court is not required to accept a defendant’s argument as to what

      is a mitigating factor or to provide mitigating factors the same weight as does a

      defendant. Conley v. State, 972 N.E.2d 864, 873 (Ind. 2012), reh’g denied. It is

      not error to decline to find a mitigating factor that is “highly disputable in

      nature, weight, or significance.” Healey v. State, 969 N.E.2d 607, 616 (Ind. Ct.

      App. 2012) (citation omitted), trans. denied. A trial court is not required to

      explain why it did not find a factor significantly mitigating. Newsome v. State,

      797 N.E.2d 293, 301 (Ind. Ct. App. 2003), trans. denied.




      Court of Appeals of Indiana | Memorandum Decision 79A02-1509-CR-1439 | May 26, 2016   Page 3 of 7
[7]   Collins contends the trial court should have found a mitigator in the hardship

      his incarceration would cause his minor children. He testified their

      grandparents “are struggling to provide for them and take care of them while

      [he’s] incarcerated.” (Tr. at 28.) However, he presented no other supporting

      evidence, and the trial court was not required to believe his self-serving

      testimony. See Allen v. State, 453 N.E.2d 1011, 1013 (Ind. 1983) (trial “court

      had no duty to believe defendant’s self-serving statements . . . so these

      statements cannot be considered as mitigating circumstances”).


[8]   Nor does Collins explain on appeal why this mitigator is particularly

      significant. As many incarcerated people have children, absent special

      circumstances, the trial court was not required to find Collins’ incarceration

      would cause his dependents undue hardship. See Dowdell v. State, 720 N.E.2d

      1146, 1154 (Ind. 1999) (trial courts are not required to find undue hardship on

      dependents if no special circumstances presented). As Collins has not

      demonstrated the trial court overlooked a significant mitigator that was clearly

      supported by the record, we find no abuse of discretion.


                                  2. Appropriateness of Sentence
[9]   Collins also asserts his sentence is inappropriate and requests we reduce the

      five-year sentence to four years as his offense was not particularly egregious and

      his criminal history does not include violent offenses. We may revise a

      sentence if it is inappropriate in light of the nature of the offense and the

      character of the offender. Williams v. State, 891 N.E.2d 621, 633 (Ind. Ct. App.

      2008) (citing Ind. Appellate Rule 7(B)). As we conduct our review, we consider
      Court of Appeals of Indiana | Memorandum Decision 79A02-1509-CR-1439 | May 26, 2016   Page 4 of 7
       “myriad other factors that come to light in a given case.” Cardwell v. State, 895

       N.E.2d 1219, 1224 (Ind. 2008). The appellant bears the burden of

       demonstrating his sentence is inappropriate. Childress v. State, 848 N.E.2d 1073,

       1080 (Ind. 2006).


[10]   When considering the nature of the offense, the advisory sentence is the starting

       point to determine the appropriateness of a sentence. Anglemyer, 868 N.E.2d at

       494. The sentencing range for a level 5 felony is “a fixed term of between one

       (1) and six (6) years, with the advisory sentence being three (3) years.” Ind.

       Code § 35-50-2-6(b) (2014).


[11]   Regarding the nature of the offense, Collins, while serving a sentence for

       driving on a forfeited license, drove his vehicle to Community Corrections.

       While the judge stated the offense was not very egregious, we also find nothing

       in the record to indicate it was any less egregious than a typical operating a

       motor vehicle while privileges are forfeited for life offense.


[12]   When considering the character of the offender, one relevant fact is the

       defendant’s criminal history. Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct.

       App. 2007). The significance of a criminal history in assessing a defendant’s

       character varies based on the gravity, nature, and number of prior offenses in

       relation to the current offense. Id.


[13]   Collins’ criminal history started while he was a juvenile. He was placed on

       diversion for theft; placed on an informal adjustment for obstruction of justice,

       minor consumption, and theft; adjudicated a delinquent for assisting a criminal

       Court of Appeals of Indiana | Memorandum Decision 79A02-1509-CR-1439 | May 26, 2016   Page 5 of 7
       and possession of paraphernalia; and waived from juvenile jurisdiction for

       possession of marijuana, possession of paraphernalia, and theft. As an adult,

       Collins has been convicted of two counts of possession of marijuana; two

       counts of resisting law enforcement; and one count each of criminal trespass,

       residential entry, operating while intoxicated, being an habitual substance

       offender, operating a vehicle as an habitual traffic violator, operating a motor

       vehicle after lifetime forfeiture of driving privileges, and criminal conversion.

       Four other charges were dismissed pursuant to plea agreements. While he was

       serving the sentences for those convictions, Collins’ probation was revoked four

       times. The trial court noted:

               [I]ts [sic] time and time and time and time again that you
               continue to violate the laws of this State and after been [sic] given
               several opportunities. But yet, you’ve shown an unwillingness to
               follow the rules and to follow what your [sic] expected to for
               Probation.


       (Tr. at 38-39.)


[14]   Collins’ criminal history and the fact that he repeatedly flouts the rules reflect

       Collins’ disregard for the law. See Sanchez v. State, 891 N.E.2d 174, 177 (Ind.

       Ct. App. 2008) (disregard for laws speaks to character). In light of Collins’

       character, we cannot find his five-year sentence was inappropriate. See, e.g.,

       Johnson v. State, 986 N.E.2d 852, 857 (Ind. Ct. App. 2013) (affirming sentence

       as not inappropriate based on criminal history).




       Court of Appeals of Indiana | Memorandum Decision 79A02-1509-CR-1439 | May 26, 2016   Page 6 of 7
                                               Conclusion
[15]   Collins has not demonstrated the trial court abused its discretion in its

       consideration of mitigating factors or that his sentence is inappropriate.

       Accordingly, we affirm.


[16]   Affirmed.


       Baker, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 79A02-1509-CR-1439 | May 26, 2016   Page 7 of 7
