Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
                                                               Jul 02 2013, 8:46 am
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:

NANCY A. MCCASLIN                                GREGORY F. ZOELLER
McCaslin & McCaslin                              Attorney General of Indiana
Elkhart, Indiana
                                                 RICHARD C. WEBSTER
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

STEVEN C. CUPERY,                                )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )      No. 20A03-1212-CR-547
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                APPEAL FROM THE ELKHART SUPERIOR COURT NO. 5
                      The Honorable Charles Carter Wicks, Judge
                           Cause No. 20D05-0803-FD-84



                                        July 2, 2013

               MEMORANDUM DECISION – NOT FOR PUBLICATION

BAKER, Judge
          In this case, appellant-defendant Steve C. Cupery was charged with Possession of

Cocaine,1 a class D felony. Cupery entered into a plea agreement, whereby he pleaded

guilty as charged in exchange for the dismissal of an unrelated case and to a thirty-month

cap on any sentence imposed in the instant case. However, other than the sentencing cap,

sentencing was left to the trial court’s discretion. The trial court identified Cupery’s

criminal history as an aggravating circumstance and his guilty plea as a mitigating

circumstance. Finding that the aggravating factors outweighed the mitigating factors, the

trial court sentenced Cupery to two years of incarceration.

          Cupery appeals his two-year sentence, arguing that it is inappropriate in light of

the nature of the offense and his character. Specifically, Cupery alleges that his sentence

should be reduced to no more than the advisory term for several reasons:             (1) his

addiction to pain medication was a gateway to his addiction to cocaine; (2) he had

voluntarily attended outpatient therapy and was drug free at the time of sentencing; (3) he

accepted responsibility for his actions and entered a plea of guilty; (4) the conviction was

suspendible, and Cupery’s assessment showed he has a low risk of offending; (5) there

were several letters presented to the sentencing court that showed his caring attitude and

community involvement; and (6) two of the aggravators considered were related to cases

from approximately thirty years ago.          Concluding that Cupery was appropriately

sentenced and finding no other error, we affirm the judgment of the trial court.



1
    Ind. Code § 35-48-4-6(a).

                                              2
                                          FACTS

       On June 19, 2007, Cupery possessed less than three grams of cocaine. On March

6, 2008, the State charged Cupery with class D felony possession of cocaine. Thereafter,

on September 25, 2008, Cupery failed to appear for a status conference. The trial court

issued a bench warrant for Cupery’s arrest, and Cupery was extradited to Indiana from

Florida in January 2012.

       On October 31, 2012, Cupery agreed to plead guilty as charged in exchange for

the dismissal of an unrelated case and to a thirty-month cap on any sentence imposed in

the instant case. During the plea hearing, the trial court determined that Cupery was not

mentally ill or under the influence of drugs or alcohol and that his decision to plead guilty

was knowing and voluntary. The trial court further advised Cupery of the nature of the

offense and the possible sentence that could be imposed, which could range from six

months to three years with the standard advisory sentence being eighteen months, and

that by pleading guilty he did commit the crime as alleged. The trial court established a

factual basis for Cupery’s plea and took the plea under advisement before accepting it on

December 3, 2012.

       At the sentencing hearing on December 3, 2012, Cupery submitted letters

reflecting on his character and participation in the Elkhart community. In mitigation,

Cupery argued that he pleaded guilty and was remorseful. Cupery also pointed out that

he had been sober and drug free for approximately twenty years and that it was not until

his doctor prescribed pain medication for his migraines that he had become addicted to

                                             3
cocaine.     Consequently, he sought treatment in the Salvation Army Turning Point

Residential program followed by intensive outpatient therapy.

        The trial court found Cupery’s prior conviction for class D felony delivery of

marijuana and three violations of probation as aggravating circumstances, and it found as

a mitigating circumstance Cupery’s guilty plea. The trial court determined that the

aggravating factors outweighed the mitigating factor and sentenced him to six months

above the advisory term. More particularly, Cupery was sentenced to two years of

incarceration at the Department of Correction. Cupery now appeals.

                                 DISCUSSION AND DECISION

                                       I. Abuse of Discretion2

        Cupery argues the trial court erred by failing to consider mitigating factors he felt

were significant and by considering two aggravating factors that he claims were too

remote.

        Sentencing decisions are within the sound discretion of the trial court and are

reviewed only 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. 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 inferences drawn therefrom. Id. A trial court may abuse its discretion by

failing to enter a sentencing statement, entering a sentencing statement that explains

2
 Interspersed within Cupery’s inappropriate sentence argument is substantial analysis under the abuse of
discretion standard. This is a common mistake. However, to be clear, an inappropriate sentence analysis
should not contain references to the abuse of discretion standard. King v. State, 894 N.E.2d 265, 267 (Ind.
Ct. App. 2008). Thus, we address that argument separately.
                                                    4
reasons for imposing a sentence that the record does not support, omitting reasons that

are clearly supported by the record and advanced for consideration, or giving reasons that

are improper as a matter of law. Id. at 490-91.

       The trial court found Cupery’s guilty plea as a mitigating factor.             Cupery

contends, however, that the trial court failed to also consider as mitigating circumstances

the circumstances that led to his drug addiction, that he voluntarily attended outpatient

therapy and was drug free at the time of sentencing, that he accepted responsibility for his

actions and entered a guilty plea, that his conviction was suspendible, that his assessment

showed he has a low risk of offending, and the letters presented to the trial court that

showed Cupery’s good character and the help he renders to the community.

       Although the failure to find mitigating circumstances that are clearly supported by

the record may suggest they were overlooked, a trial court does not have to afford the

same credit or weight to the proffered mitigating circumstances as a defendant may

suggest. Thacker v. State, 709 N.E.2d 3, 10 (Ind. 1999). An allegation that the trial court

failed to identify or find a mitigating factor requires the defendant to establish that the

mitigating evidence is significant and clearly supported by the record. Gray v. State, 790

N.E.2d 174, 177 (Ind. Ct. App. 2003). Notwithstanding Cupery’s contention, if the trial

court does not find the existence of a mitigating factor after it has been argued by

counsel, the trial court is not obligated to explain why it has found that the factor does not

exist. Anglemyer, 868 N.E.2d at 493. We note that in Anglemyer, our Supreme Court

held that “because the trial court no longer has any obligation to ‘weigh’ aggravating and

                                              5
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.”

868 N.E.2d at 491.

       In this case, the trial court did not ignore nor fail to consider the mitigating

circumstances as Cupery alleges.       To the contrary, the trial court’s designation of

aggravating and mitigating circumstances shows that it did consider the factors Cupery

claims are mitigating circumstances. More particularly, the trial court found that the

letters and the other factors argued by Cupery were not significant and, thus, were not

factors influencing the trial court’s sentencing decision. This was within the trial court’s

discretion.

       Cupery also contends that two of the aggravating circumstances that the trial court

considered related to prior convictions that were entered nearly thirty years ago and thus

too remote to be significant.     The chronological remoteness of a defendant’s prior

criminal history should be taken into account. Buchanan v. States, 767 N.E. 2d 967, 972

(Ind. 2002). However, “we will not say that remoteness in time, to whatever degree

renders a prior conviction irrelevant.” Id. The remoteness of prior criminal history does

not preclude the trial court from considering it as an aggravating circumstance. Id. The

trial court could view the remoteness of the defendant’s criminal history as a mitigating

circumstance, or on the other hand, it could find the remoteness as irrelevant in its

consideration of the criminal history as an aggravating circumstance. Id. Either opinion

by the trial court would be within the ambit of its discretion. Id.

                                              6
         In this case, the trial court found that the remoteness of Cupery’s prior conviction

had no effect when it considered his criminal history as an aggravating circumstance.

The fact that the criminal act was committed many years ago does not negate the fact that

the crime was committed. Thus, the trial court had discretion in deciding whether to

consider it. Notwithstanding its remoteness, we decline to find that the trial court abused

its discretion by including those older convictions as an aggravating circumstance.

                                II. Appropriateness of Sentence

         Although citing Indiana Appellate Rule 7(B), Cupery tells us nothing about the

nature of the offense and little about his character. Instead, Cupery merely insists his

sentence should be reduced to either the advisory sentence or less.

         Although a trial court may have acted within its lawful discretion in sentencing a

defendant, Article VII, Section 6 of the Indiana Constitution gives this Court

constitutional authority to review and revise sentences.        This appellate authority is

implemented through Appellate Rule 7(B), which provides that: “The court shall not

revise a sentence authorized by statute unless the sentence is unreasonable in light of the

nature of the offense and the character of the offender.” Our Supreme Court has said that

“a defendant must persuade the appellate court that his or her sentence has met the

inappropriateness standard of review.” Childress v. State, 848 N.E.2d 1073, 1080, (Ind.

2006).

         The advisory sentence is the starting point to determine the appropriateness of a

sentence. Anglemyer, 868 N.E.2d 482, 494 (Ind. 2007). The advisory sentence for

                                              7
possession of cocaine, a class D felony, is one and one-half years with a sentencing range

from six months to three years. Ind. Code § 35-50-2-7. Cupery was sentenced to two

years, which is six months above the advisory term.              When considering the

appropriateness of a sentence, a highly relevant fact is the defendant’s criminal history.

Bailey v. State, 979 N.E.2d 133, 143 (Ind. 2012). Here, Cupery has an extensive criminal

history, much of which is drug related, and Cupery has repeatedly violated our laws since

1982. In 1983, Cupery was convicted of class D felony delivery of marijuana, an offense

relating to the current offense. Cupery also had a felony conviction that was reduced to a

misdemeanor and was convicted of several additional misdemeanors, including three

violations of his probation. In light of Cupery’s lengthy criminal history and multiple

probation violations, it is apparent that he has no respect for the law and continues to

reoffend. As a result, we decline to find Cupery’s sentence inappropriate.

      The judgment of the trial court is affirmed.

MAY, J., and MATHIAS, J., concur.




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