 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                              Sep 03 2013, 8:57 am
 establishing the defense of res judicata,
 collateral estoppel, or the law of the case.




ATTORNEY FOR APPELLANT:                              ATTORNEYS FOR APPELLEE:

WILLIAM VAN DER POL, JR.                             GREGORY F. ZOELLER
Martinsville, Indiana                                Attorney General of Indiana

                                                     KYLE HUNTER
                                                     Deputy Attorney General
                                                     Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

RUBEN MANCILLAS, JR.,                                )
                                                     )
       Appellant-Defendant,                          )
                                                     )
               vs.                                   )       No. 55A04-1208-CR-444
                                                     )
STATE OF INDIANA,                                    )
                                                     )
       Appellee-Plaintiff.                           )


                     APPEAL FROM THE MORGAN SUPERIOR COURT
                         The Honorable Jane Spencer Craney, Judge
                              Cause No. 55D03-1202-FC-303


                                         September 3, 2013

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

VAIDIK, Judge
                                           Case Summary

        Ruben Mancillas Jr. appeals his sentence for two counts of Class D felony

resisting law enforcement with a motor vehicle, two counts of Class B misdemeanor

failure to stop at an accident resulting in damage to a vehicle, one count of Class A

misdemeanor operating a vehicle while intoxicated, and being a habitual offender.

Finding no abuse of discretion in the trial court’s sentence and that Mancillas’ aggregate

seven-and-a-half-year sentence is not inappropriate in light of the nature of the offenses

and his character, we affirm.

                                 Facts and Procedural History1

        On February 25, 2012, Mancillas went to his ex-girlfriend’s house in Martinsville,

Indiana, and smoked “spice,” a type of synthetic marijuana. Tr. p. 24. After taking the

drug, Mancillas left in his car. He struck a car owned by Donna Richardson. When

Richardson pulled over, Mancillas sped by her and did not stop.

        Martinsville Police Department officers were later informed of the car’s location

and began to chase Mancillas. He failed to stop, leading the police on a high-speed chase

through the city of Martinsville. During the chase, Mancillas struck a second car owned

by Beth Spina.         Mancillas fled on foot and was chased by police until finally

apprehended.

        The State charged Mancillas with eleven counts and also alleged that he was a

habitual offender. In May 2012, the State and Mancillas entered into a plea agreement.

Appellant’s App. p. 42. In the plea agreement, Mancillas agreed to plead guilty to two


        1
         Because the factual basis for Mancillas’ plea is not very extensive, we glean some facts from the
probable-cause affidavit, as do the parties in this case.
                                                    2
counts of Class D felony resisting law enforcement with a motor vehicle, two counts of

Class B misdemeanor failure to stop at an accident resulting in damage to a vehicle, one

count of Class A misdemeanor operating a vehicle while intoxicated, and being a habitual

offender. Id. According to the agreement, all counts except the habitual-offender count

were to be served concurrently, with a maximum possible sentence of seven-and-a-half

years in prison. Id.

        At sentencing, the trial court identified two mitigators: (1) Mancillas was twenty-

two years old at the time of sentencing and (2) incarceration would have an undue

hardship on Mancillas’ dependent child. The court also identified three aggravators: (1)

Mancillas has a criminal and delinquent record for the past eleven years; (2) he has

violated the conditions of probation and parole multiple times; and (3) the level of danger

involved in this incident. The trial court sentenced Mancillas to three years for each

count of Class D felony resisting law enforcement, one year for Class A misdemeanor

operating a vehicle while intoxicated, and 180 days for each count of Class B

misdemeanor failure to stop at an accident. Id. at 32. The court also sentenced Mancillas

to four-and-a-half years for being a habitual offender,2 for an aggregate sentence of

seven-and-one-half years. Id. at 34.

        Mancillas now appeals his sentence.

                                     Discussion and Decision

        Mancillas raises two issues on appeal. First, he contends that the trial court abused

its discretion by failing to consider his mental illness as a mitigating circumstance.

        2
         The trial court should have enhanced his Class D felony sentence rather than enter it separately,
see Appellant’s App. p. 33, but this error was harmless in this case. See, e.g., Howard v. State, 873
N.E.2d 685, 689 (Ind. Ct. App. 2007).
                                                    3
Second, he contends that his seven-and-a-half-year sentence is inappropriate in light of

the nature of the offenses and his character.

                                      I. Abuse of Discretion

        Mancillas contends that the trial court abused its discretion by not considering his

mental illness as a mitigator.3 Sentencing decisions are within the sound discretion of the

trial court and are reviewed on appeal only for 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). As

long as the sentence is within the statutory range, it is only reviewable for 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. (citing K.S. v. State, 849 N.E.2d 538,

544 (Ind. 2006)).

        Mancillas argues that the trial court abused its discretion by failing to consider as a

mitigator that he was diagnosed with Major Depressive Effective Disorder in 2007 while

he was in the Department of Correction (DOC). Tr. p. 30; Appellant’s Am. Supplemental

App. p. 11. The trial court does not have to accept the defendant’s arguments as to what

the mitigating factors are. Rogers v. State, 878 N.E.2d 269, 272 (Ind. Ct. App. 2007),

trans. denied. A defendant is required to establish that the mitigating evidence is both

significant and clearly supported by the record when alleging that the court failed to


        3
            Mancillas also contends that the trial court erred by failing to articulate its weighing of
aggravating and mitigating circumstances. It is well settled that we do not review the weight given to an
aggravator or mitigator on appeal. See Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007) (“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 can not now be said to have abused its discretion in
failing to ‘properly weigh’ such factors.”), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007).
                                                   4
identify or find a mitigating factor. Carter v. State, 711 N.E.2d 835, 838 (Ind. 1999).

Additionally, if the trial court fails to recognize the existence of a mitigating factor after it

has been argued by counsel, then the trial court is under no obligation to explain why it

has found that the factor does not exist. Anglemyer, 868 N.E.2d at 493.

       A defendant’s mental illness may be a valid mitigating circumstance. See id. The

following considerations are relevant when the trial court determines the significance of a

defendant’s mental illness for sentencing: (1) the extent of the defendant’s inability to

control his or her behavior due to the disorder or impairment; (2) overall limitations on

functioning; (3) the duration of the mental illness; and (4) the extent of any nexus

between the disorder or impairment and the commission of the crime. Ankney v. State,

825 N.E.2d 965, 973 (Ind. Ct. App. 2005) (citing Weeks v. State, 697 N.E.2d 28, 30 (Ind.

1998)), trans. denied.

       Here, the court specifically addressed Mancillas’ mental illness at sentencing. The

record shows he was diagnosed with Major Depressive Effective Disorder in 2007 while

in the DOC’s custody. Defense counsel argued for Mancillas’ mental illness to be

considered a mitigator. The trial court, however, declined to find his mental illness as a

mitigator because it found that he failed to take his medicine. Tr. p. 31. In other words,

he had the ability to control his illness through medication, but did not. Moreover, the

record shows that Mancillas’ mental illness did not limit his functioning in society.

Mancillas admitted that he had been doing well during the five months before he was

arrested. He was living with his family, taking care of his son, and attending college.




                                               5
       The court did not overlook Mancillas’ mental illness, but rather carefully

considered it and decided it did not amount to a significant mitigator in this case. The

trial court did not abuse its discretion in failing to identify his mental illness as a

mitigator.

                                    II. Appropriateness

       Mancillas also contends that his seven-and-a-half-year sentence is inappropriate in

light of the nature of the offenses and his character.

       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 sentences 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 the sentence is inappropriate in

light of the nature of the offense and the character of the offender.” Reid v. State, 876

N.E.2d 1114, 1116 (Ind. 2007) (citing Anglemyer, 868 N.E.2d at 491). When assessing

the nature of the offense and the character of the offender, we may look to any factors

appearing in the record. Stetler v. State, 972 N.E.2d 404, 408 (Ind. Ct. App. 2012), trans.

denied. The defendant has the burden of persuading us that his sentence is inappropriate.

Reid, 876 N.E.2d at 1116 (citing Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006)).

       The principal role of Rule 7(B) 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). We “should focus on the forest—


                                              6
the aggregate sentence—rather than the trees—consecutive or concurrent, number of

counts, or length of the sentence on any individual count.” Id. Whether a sentence is

inappropriate ultimately turns on the culpability of the defendant, the severity of the

crime, the damage done to others, and a myriad of other factors that come to light in a

given case. Id. at 1224. In assessing whether a sentence is inappropriate, appellate courts

may take into account whether a portion of the sentence is ordered suspended or is

otherwise crafted using any of the variety of sentencing tools available to the trial judge.

Davidson v. State, 926 N.E.2d 1023, 1025 (Ind. 2010). These tools include probation,

home detention, placement in a community corrections program, executed time in a DOC

facility, concurrent rather than consecutive sentences, and restitution/fines. Id.

       A person who commits a Class D felony shall be imprisoned for a term of between

six months and three years, with one-and-a-half years being the advisory term. Ind. Code

§ 35-50-2-7(a). A person who commits a Class B misdemeanor may only be imprisoned

for a maximum of 180 days. There is no advisory term for this offense. Ind. Code § 35-

50-3-3. A person who commits a Class A misdemeanor shall be imprisoned for a term of

not more than one year. There is no advisory term for this offense. Ind. Code § 35-50-3-

2.

       Mancillas also pled guilty to being a habitual offender. A person found to be a

habitual offender will be sentenced to “an additional fixed term that is not less than the

advisory sentence for the underlying offense nor more than three (3) times the advisory

sentence for the underlying offense.” Ind. Code § 35-50-2-8(h).




                                              7
       Here, the trial court sentenced Mancillas to three years for each Class D felony

conviction, 180 days for his Class B misdemeanor conviction, and one year for his Class

A misdemeanor conviction and ordered the sentences to be served concurrently. This is

within the statutory range. For being a habitual offender, the court sentenced Mancillas

to four-and-a-half years, which is exactly three times the advisory sentence of a Class D

felony.   The aggregate term is seven-and-a-half years, which is within statutory

guidelines.

       Mancillas’ actions were a danger to both himself and the community. Tr. p. 16.

Mancillas smoked spice and became intoxicated. He then drove his car, striking two

separate vehicles and failing to stop. Moreover, several police officers in fully marked

cars with their lights on chased Mancillas through the streets of Martinsville before he

was finally apprehended.

       Regarding Mancillas’ character, we acknowledge that he entered a plea agreement

with the State and has been diagnosed with a mental illness. However, he has a growing

criminal history. As a juvenile, Mancillas had several adjudications for offenses that

would be felonies if committed by an adult, including two theft adjudications and an

adjudication for residential entry. Id. at 28; Appellant’s Am. Supplemental App. p. 6. As

an adult, Mancillas has already accumulated two felonies: Class C felony burglary and

Class D domestic battery. Tr. p. 7. Mancillas has also violated probation at least twice.

Appellant’s Am. Supplemental App. p. 5-7.




                                            8
       Mancillas also has a record of significant jail procedure violations. The trial court

noted that his were the “most violations of jail procedures I’ve ever seen in a

presentence” and that his record was “atrocious.” Tr. p. 33.

       Mancillas has a considerable history with drugs and alcohol that started when he

was a child.     He began smoking marijuana at the age of ten.            Appellant’s Am.

Supplemental App. p. 6. From age ten until age twenty-one, he smoked marijuana as

much as three or four times per week. Mancillas began drinking alcohol at age twelve

and has used methamphetamine since the age of fourteen or fifteen. He has experimented

with other drugs as well. Id. at 11.

       Given the nature of these offenses and Mancillas’ character, Mancillas has failed

to persuade us that his aggregate seven-and-a-half-year sentence is inappropriate. We

therefore affirm the trial court.

       Affirmed.

BAKER, J., and FRIEDLANDER, J., concur.




                                             9
