MEMORANDUM DECISION
                                                                        FILED
Pursuant to Ind. Appellate Rule 65(D),                             Jun 29 2016, 9:07 am
this Memorandum Decision shall not be
                                                                        CLERK
regarded as precedent or cited before any                           Indiana Supreme Court
                                                                       Court of Appeals
court except for the purpose of establishing                             and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Christopher L. Clerc                                     Gregory F. Zoeller
Columbus, Indiana                                        Attorney General of Indiana

                                                         Richard C. Webster
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Sandra M. Bowers,                                        June 29, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         03A01-1511-CR-2042
        v.                                               Appeal from the Bartholomew
                                                         Superior Court
State of Indiana,                                        The Honorable James D. Worton,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         03D01-1501-F3-178



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 03A01-1511-CR-2042 | June 29, 2016        Page 1 of 8
[1]   Sandra M. Bowers appeals her sentence for dealing in methamphetamine as a

      level 3 felony. Bowers raises one issue which we revise and restate as whether

      the trial court abused its discretion in sentencing her. We affirm.


                                      Facts and Procedural History

[2]   On July 3, 2014, Bowers was stopped by police and found in possession of

      methamphetamine. After she was placed in a police vehicle at her request, the

      police discovered a digital scale with white powder residue on the floor near the

      driver’s seat. The top of the scale tested positive for methamphetamine. One of

      the officers informed Bowers that she was being arrested for possession of

      paraphernalia. The police also discovered a clear baggy in her right front

      pocket, and an officer asked her if she had anything else on her person. Bowers

      reached her arms near the front of her pants, reached down, and retrieved a

      clear bag containing methamphetamine. Upon questioning by police, Bowers

      admitted to selling methamphetamine.


[3]   On January 12, 2015, the State charged Bowers with Count I, dealing in

      methamphetamine as a level 3 felony, and Count II, possession of

      methamphetamine as a level 5 felony. On October 5, 2015, Bowers signed a

      plea agreement in which she pled guilty to Count I, dealing in

      methamphetamine as a level 3 felony, and Count II was dismissed.


[4]   On October 30, 2015, the court held a hearing at which Bowers testified that

      she dealt drugs on June 27, 2014, and July 2, 2014, and that a police officer

      “knew that [she] was going to pick up some more, so he pulled me over.”


      Court of Appeals of Indiana | Memorandum Decision 03A01-1511-CR-2042 | June 29, 2016   Page 2 of 8
      Transcript at 14-15. On cross-examination, Bowers indicated that the

      presentence investigation report stated that she reported that she was not a drug

      dealer, only a drug user. She testified that she would have to sell drugs

      regularly to qualify as a drug dealer, that she did not sell drugs “very often,”

      and that she sold drugs “[e]very couple of days.” Id. at 27. After the

      presentation of evidence, the court and the parties discussed whether the

      sentence should be served consecutive to other cause numbers. When the court

      asked for final argument from Bowers’s counsel, he stated in part: “[T]hat’s

      preliminarily, or primarily our argument, Judge, that we would ask the Court,

      in it’s [sic] discretion to run this case concurrently with uh 41C01-1411-FA-21 .

      . . .” Id. at 36. He also stated that Bowers was doing well in prison and taking

      advantage of the programs that the court in Johnson County recommended for

      her.


[5]   The court accepted the plea agreement, dismissed Count II, and entered a

      judgment of conviction for Count I, dealing in methamphetamine as a level 3

      felony. The court found no mitigating circumstances and the following

      aggravating circumstances: Bowers’s criminal history or delinquent behavior,

      her recent violation of the conditions of any probation, parole, community

      corrections placement, or pretrial release, that she has had the opportunity for

      treatment outside of a penal facility and has been unsuccessful, and that she has

      been placed on probation multiple times and has had multiple petitions to

      revoke probation filed against her. The court sentenced her to twelve years




      Court of Appeals of Indiana | Memorandum Decision 03A01-1511-CR-2042 | June 29, 2016   Page 3 of 8
      with ten years executed and two years suspended to probation, and ordered that

      the sentence be served consecutive to three other cause numbers.


                                                  Discussion

[6]   The issue is whether the trial court abused its discretion in sentencing Bowers.

      Bowers argues that the trial court abused its discretion when it failed to consider

      her admissions to and cooperation with police and guilty plea as significant

      mitigating factors. She asserts that this Court could impose a sentence less than

      twelve years or it could order that her sentence run concurrently with the

      sentence from one of the three other causes.


[7]   The State argues that Bowers waived appellate review of this issue because she

      never raised or argued the mitigating circumstances she now claims the trial

      court should have considered, and that, waiver notwithstanding, her arguments

      do not have merit. It asserts that Bowers did not cooperate with the police from

      the outset and waited until the officers discovered a set of scales with the white

      powder residue of methamphetamine on it and advised her she was going to be

      arrested. With respect to her guilty plea, the State contends that Bowers pled

      guilty approximately two weeks before trial was scheduled to begin, substantial

      evidence was recovered from her person and vehicle, and she received a

      substantial benefit by pleading guilty.


[8]   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


      Court of Appeals of Indiana | Memorandum Decision 03A01-1511-CR-2042 | June 29, 2016   Page 4 of 8
      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

      those which should have been found, is not subject to review for abuse of

      discretion. Id.


[9]   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 trial court is not obligated to accept the defendant’s argument as to

      what constitutes a mitigating factor, and a trial 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 trial court does not find the existence of a mitigating factor after it has

      Court of Appeals of Indiana | Memorandum Decision 03A01-1511-CR-2042 | June 29, 2016   Page 5 of 8
       been argued by counsel, it is not obligated to explain why it has found that the

       factor does not exist. Id.


[10]   As for Bowers’s assertion that she provided admissions and cooperation to the

       police, we note that she did not advance this as a mitigator to the trial court. “If

       the defendant does not advance a factor to be mitigating at sentencing, this

       Court will presume that the factor is not significant and the defendant is

       precluded from advancing it as a mitigating circumstance for the first time on

       appeal.” Henley v. State, 881 N.E.2d 639, 651 (Ind. 2008) (quoting Spears v.

       State, 735 N.E.2d 1161, 1167 (Ind. 2000), reh’g denied).


[11]   However, even though Bowers did not raise her guilty plea as a mitigating

       factor at sentencing, it can still be raised for the first time on appeal. See

       Anglemyer, 875 N.E.2d at 220 (observing that the general proposition that a trial

       court does not abuse its discretion in failing to consider a mitigating factor that

       was not raised at sentencing “has at least one important exception, namely:

       pleas of guilty,” holding that “[a]lthough Anglemyer did not argue before the

       sentencing court that his guilty plea was a mitigating factor, this does not

       preclude him from raising the issue for the first time on appeal,” and examining

       the trial court’s failure to mention this factor under the abuse of discretion

       standard of review).


[12]   A defendant who pleads guilty deserves some mitigating weight be given to the

       plea in return. Id. “But an allegation that the trial court failed to identify or

       find a mitigating factor requires the defendant to establish that the mitigating


       Court of Appeals of Indiana | Memorandum Decision 03A01-1511-CR-2042 | June 29, 2016   Page 6 of 8
       evidence is not only supported by the record but also that the mitigating

       evidence is significant.” Id. at 220-221. The significance of a guilty plea as a

       mitigating factor varies from case to case. Id. For example, a guilty plea may

       not be significantly mitigating when it does not demonstrate the defendant’s

       acceptance of responsibility or when the defendant receives a substantial benefit

       in return for the plea. Id.


[13]   The record shows that Bowers did not plead guilty until almost nine months

       after being charged and fifteen days before the scheduled jury trial. The plea

       agreement was more likely the result of pragmatism than acceptance of

       responsibility and remorse, as the evidence against her was discovered in the

       vehicle she was driving and on her person. The trial court stated:

               Ma’am your testimony it seems to me that, it sounds to me like
               you are blaming the Police Officer for stopping you and uh, you
               know I heard you say something that he knew I was going to get
               more drugs, so he waited for me to do that, as if somehow that
               places any burden or responsibility on the Police Officer, which I
               find, rather disturbing that you are placing that responsibility for
               your conduct on the Officer for stopping you and for finding
               these things. It is nobody’s fault that you are dealing drugs, other
               than yours, and you are, in fact a drug dealer, there is no
               question. There is no question it doesn’t matter if you deal it
               every single day, or every other day, or once a month, you are
               still a drug dealer and that is what you are doing. And when you
               deal drugs you are not only supporting your own habit, but you
               are causing other people to sink further into their own addiction.
               So you have accountability for your own actions.




       Court of Appeals of Indiana | Memorandum Decision 03A01-1511-CR-2042 | June 29, 2016   Page 7 of 8
       Transcript at 42. We cannot say that Bowers has demonstrated that her guilty

       plea was a significant mitigating circumstance or that the trial court abused its

       discretion.


[14]   Even assuming that the trial court abused its discretion, we can say with

       confidence that the trial court would have imposed the same sentence given its

       comments at the sentencing hearing and the aggravators, which Bowers does

       not challenge and which include a criminal history consisting of convictions for

       possession of cocaine/methamphetamine or schedule I or II narcotic drug as a

       class D felony and possession of marijuana/hash oil/hashish as a class A

       misdemeanor in 2006; possession of methamphetamine as a class D felony in

       2011; operating while intoxicated and endangering a person as a class A

       misdemeanor, two counts of driving while suspended as class A misdemeanors,

       unlawful possession or use of a legend drug or precursor as a class D felony,

       and possession of paraphernalia as a class A misdemeanor in 2014; and dealing

       in methamphetamine as a class B felony and dealing in methamphetamine as a

       level 5 felony in 2015.


                                                   Conclusion

[15]   For the foregoing reasons, we affirm Bowers’s sentence.


[16]   Affirmed.


       Baker, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 03A01-1511-CR-2042 | June 29, 2016   Page 8 of 8
