MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any                              Jun 04 2019, 9:19 am

court except for the purpose of establishing                               CLERK
the defense of res judicata, collateral                                Indiana Supreme Court
                                                                          Court of Appeals
                                                                            and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Randall J. Hammond                                      Curtis T. Hill, Jr.
Deputy Public Defender                                  Attorney General of Indiana
Fort Wayne, Indiana
                                                        Marjorie Lawyer-Smith
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Randy D. Stokes,                                        June 4, 2019
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A-CR-2793
        v.                                              Appeal from the Allen Superior
                                                        Court
State of Indiana,                                       The Honorable Frances C. Gull,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause Nos.
                                                        02D05-1708-F6-911
                                                        02D05-1709-F6-1079
                                                        02D05-1709-F6-1080



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2793 | June 4, 2019                   Page 1 of 14
                               Case Summary and Issues
[1]   Following three separate incidents, Randy Stokes was charged in three separate

      causes with theft, all Level 6 felonies, pleaded guilty in each matter, and entered

      into a drug court program. After Stokes violated the terms of the program, he

      was convicted and sentenced to one year in each matter, to be served

      consecutively. Stokes appeals his sentences and raises two issues on appeal: (1)

      whether the trial court abused its discretion in sentencing him; and (2) whether

      his sentences are inappropriate in light of the nature of his offenses and his

      character. Concluding the trial court did not abuse its discretion and Stokes’

      sentences are not inappropriate, we affirm.



                            Facts and Procedural History
[2]   On May 8, 2017, Stokes visited a Walmart in Fort Wayne, Indiana. A

      customer service manager observed Stokes select several packages of meat,

      valued at $96.20, place them into his shopping cart, push the cart through all

      points of pay, and exit the store. On May 23, Stokes entered a local Kroger

      store, selected an empty shopping cart, pushed it to the back of the store, and

      placed eleven packages of meat in his cart. Stokes pushed the cart into another

      aisle, placed cardboard boxes over the meat in an attempt to hide the items, and

      left the store without paying. The value of the stolen merchandise was $251.66.

      Four days later, Stokes returned to the Walmart and placed two containers of

      beer, valued at $18.56, in his shopping cart. As Stokes pushed the cart past all



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2793 | June 4, 2019   Page 2 of 14
      points of pay toward the exit, he was approached by the store’s asset protection

      officer.


[3]   The State charged Stokes with three separate counts of theft, all Level 6

      felonies, in separate causes.1 On October 10, 2017, Stokes pleaded guilty to the

      charges and the trial court placed him in the Allen County Drug Court

      Diversion Program. On September 17, 2018, Stokes’ case manager filed a

      petition to terminate his participation in the drug court program. The petition

      alleged that Stokes violated the conditions of the program by failing a drug

      screen on August 31, failing to submit to a random drug screen on September 4,

      and failing to report to the Allen County Lock-Up Facility. The trial court

      revoked his participation in drug court, ordered a pre-sentence investigation,

      and scheduled a sentencing hearing.


[4]   A sentencing hearing was held on October 30 and the trial court found Stokes

      guilty of theft in each cause. In sentencing Stokes, the trial court identified

      mitigating and aggravating circumstances:


               I do find as mitigating circumstances your plea of guilty and
               acceptance of responsibility. I do find as aggravating
               circumstances your prior criminal record, with failed efforts at
               rehabilitation covering a period of time from 1993 to 2018, where
               you’ve accumulated 12 misdemeanor convictions, three prior



      1
       Stokes was charged with theft as a Level 6 felony in each cause due to his prior conviction for theft in 2007.
      See Ind. Code § 35-43-4-2(a)(1)(C)(i) (“A person who knowingly or intentionally exerts unauthorized control
      over property of another person, with intent to deprive the other person of any part of its value or use,
      commits theft, a Class A misdemeanor. However, the offense is . . . a Level 6 felony if . . . the person has a
      prior unrelated conviction for . . . theft[.]”).

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2793 | June 4, 2019                       Page 3 of 14
        felony convictions. You’ve been given short jail sentences,
        longer jail sentences, treatment at Caring About People. You’ve
        been ordered to perform community service; you’ve been
        assessed fines; you’ve been on unsupervised probation; you’ve
        had services through Criminal Division Services; you’ve been
        through Community Corrections programing. You’ve been on
        active adult probation; home detention; the Department of
        Correction; and Drug Court, and Drug Court was not once, but
        twice. I think you were one of the first people that we took back
        into Drug Court when we changed the way that we were doing
        our assessments, and nothing has worked[.] You continue to lie
        to yourself and manipulate the system. You failed to appear in
        [court] on September 4th. You were aware on September 4th that
        we were going to address your relapse. You made no effort to
        contact [your case manager] to tell him that you were at Park
        Center or that you would be admitted. Park Center told us you
        were admitted at 2:15 on September 4th. They indicated you
        reported to . . . the medication clinic [that] morning. . . said you
        were depressed and needed to be admitted, tested positive for
        cocaine upon your admission to the unit, and you were to be
        discharged on September 6th. They said, “No, we’re gonna hold
        onto you another day.” You checked out against medical advice
        the evening of September 6th. You spoke with [your case
        manager] on September 7th, you were clearly instructed to turn
        yourself in. You did not turn yourself in until September 10th;
        and when [your case manager] met with you at the jail you, were
        confronted with all of the things that I just said and you,
        ultimately, admitted you didn’t want to spend extra time in jail.
        You thought if you turned yourself in on Friday, you’d get
        released on Monday and that would be the end of that. You
        clearly don’t get it, [Mr. Stokes].


Transcript, Volume 2 at 20-21. Stokes was sentenced to one year in the Indiana

Department of Correction in each cause with the sentences to be served



Court of Appeals of Indiana | Memorandum Decision 18A-CR-2793 | June 4, 2019   Page 4 of 14
      consecutively. The trial court also ordered Stokes to pay $251.66 in restitution

      to Kroger. Stokes now appeals.



                                Discussion and Decision
                                     I. Abuse of Discretion
[5]   Sentencing decisions rest within the sound discretion of the trial court.

      Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d

      218. Thus, we review only for an abuse of discretion, which occurs if the trial

      court’s decision is “clearly against the logic and effect of the facts and

      circumstances before [it], or the reasonable, probable, and actual deductions to

      be drawn therefrom.” Id. A trial court may abuse its discretion by: (1) failing

      to enter a sentencing statement; (2) entering a sentencing statement that

      explains reasons for imposing the sentence that are unsupported by the record;

      (3) omitting reasons clearly supported by the record and advanced for

      consideration; or (4) finding factors that are improper as a matter of law.

      Kimbrough v. State, 979 N.E.2d 625, 628 (Ind. 2012). The identification or

      omission of reasons provided for imposing a sentence are reviewable on appeal

      for an abuse of discretion, but the weight given to those reasons is not subject to

      appellate review. Weedman v. State, 21 N.E.3d 873, 893 (Ind. Ct. App. 2014),

      trans. denied.


[6]   We first note that the determination of mitigating circumstances is within the

      trial court’s discretion. Healey v. State, 969 N.E.2d 607, 616 (Ind. Ct. App.

      2012), trans. denied. A trial court is not obligated to accept a defendant’s claim
      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2793 | June 4, 2019   Page 5 of 14
      as to what constitutes a mitigating circumstance, Weedman, 21 N.E.3d at 893,

      nor is it required to weigh a mitigating factor as heavily as the defendant

      requests, Field v. State, 843 N.E.2d 1008, 1010 (Ind. Ct. App. 2006), trans.

      denied. “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.

      Here, the trial court identified Stokes’ guilty plea and acceptance of

      responsibility as mitigating circumstances in imposing his sentences. On

      appeal, Stokes argues the trial court “failed to identify mitigating factors that

      were both significant and clearly supported by the record[,]” namely his

      remorse and history with substance abuse and mental health issues. Brief of

      Appellant at 19.


[7]   We begin by addressing Stokes’ contention that the trial court should have

      identified his remorse as a mitigating factor. Remorse has been recognized by

      our supreme court as a valid mitigating factor. Hape v. State, 903 N.E.2d 977,

      1002 (Ind. Ct. App. 2009), trans. denied. However, a trial court is under no

      obligation to accept a defendant’s alleged remorse as a mitigating circumstance.

      Phelps v. State, 969 N.E.2d 1009, 1020 (Ind. Ct. App. 2012), trans. denied.

      Because the trial court has the ability to directly observe the defendant, it is in

      the best position to determine whether a defendant’s remorse is genuine. Id.

      And a trial court’s assessment of a defendant’s proclaimed remorse is similar to

      a determination of credibility. Pickens v. State, 767 N.E.2d 530, 535 (Ind. 2002).

      “Without evidence of some impermissible consideration by the court, we accept

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2793 | June 4, 2019   Page 6 of 14
      its determination of credibility.” Id. Thus, we afford the trial court’s evaluation

      of a defendant’s remorse substantial deference. Phelps, 969 N.E.2d at 1020.


[8]   At the sentencing hearing, Stokes stated:


              I feel awful for not completing Drug Court, I know I could have
              done it, and I did everything, everything to the best of my
              abilities, and I just let myself down when I ended up using that
              last time. I hate that I’m addicted to this awful drug.


      Tr., Vol. 2 at 19. In response, however, the trial court explained that Stokes has

      been provided with two opportunities to participate in the drug program and

      failed to turn himself in after being instructed to do so. The trial court stated

      Stokes “continue[s] to lie to [himself] and manipulate the system.” Id. at 20.

      Notably, as the State points out, Stokes’ statement of remorse is confined to his

      relapse and failure to complete the drug court program rather than his

      participation in the underlying offenses. The record clearly demonstrates that

      after listening to Stokes, the trial court did not believe his remorse was genuine

      and exercised its discretion in determining it should not be considered a

      mitigating circumstance. We will not second guess the trial court’s evaluation

      of Stokes’ professed remorse. See Phelps, 969 N.E.2d at 1020; see also Pickens,

      767 N.E.2d at 535.


[9]   Stokes also argues the trial court failed to recognize his history of substance

      abuse as a mitigating factor. Although we have recognized that a defendant’s

      history with substance abuse may be a mitigating circumstance, Hape, 903

      N.E.2d at 1002, it may also be an aggravating circumstance, Healey, 969 N.E.2d

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2793 | June 4, 2019   Page 7 of 14
       at 617. “[W]hen a defendant is aware of a substance abuse problem but has not

       taken appropriate steps to treat it, the trial court does not abuse its discretion by

       rejecting the addiction as a mitigating circumstance.” Hape, 903 N.E.2d at

       1002.


[10]   Stokes’ presentence investigation report reveals that he began consuming

       alcohol and using marijuana as a teenager. He began using cocaine daily from

       age twenty-four until age forty-seven. He then quit for several years but

       resumed using again. Most recently, he indicated he used cocaine twice in 2018

       while in the drug court program and has attended AA/NA meetings since

       1998. At sentencing, Stokes argued he suffered from severe cocaine and

       alcohol-use disorder and had been doing well in the drug court program prior to

       his relapse. Stokes’ criminal history reveals several convictions related to his

       drug and alcohol use. However, despite treatment, Stokes continued to abuse

       substances while in the drug court program. Thus, we find no error in the trial

       court’s decision not to recognize Stokes’ history with substance abuse as a

       mitigating circumstance.2


[11]   Stokes also argues the trial court should have found his mental health issue,

       namely depression, a mitigating circumstance. Mental illness is not necessarily

       a significant mitigator; “rather, it is a mitigating factor to be used in certain

       circumstances, such as when the evidence demonstrates longstanding mental



       2
        Even if this court determined the trial court failed to identify this as a mitigating circumstance, we are not
       convinced the trial court would have imposed a lesser sentence.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2793 | June 4, 2019                         Page 8 of 14
       health issues or when the jury finds that a defendant is mentally ill.” Townsend

       v. State, 45 N.E.3d 821, 831 (Ind. Ct. App. 2015), trans. denied. Our supreme

       court has outlined several factors for courts to consider in weighing the

       mitigating force of a defendant’s mental health issues, including the extent of

       the inability to control behavior, the overall limit on function, the duration of

       the illness, and the nexus between the illness and the crime. Covington v. State,

       842 N.E.2d 345, 349 (Ind. 2006).


[12]   “In order for a defendant’s mental history to provide a basis for establishing a

       mitigating factor, there must be a nexus between the defendant’s mental health

       and the crime in question.” Steinberg v. State, 941 N.E.2d 515, 534 (Ind. Ct.

       App. 2011), trans. denied. At sentencing, Stokes argued, by counsel, that while

       in the drug court program he “became overwhelmed, he became depressed, and

       he simply didn’t use the tools that he had learned while he was in the program,

       didn’t think that the meds that they were giving him for his depression were

       working. . . . Depression, more often [than] not for [Stokes], leads to using poor

       judgment and, oftentimes, relapse[.]” Tr., Vol. 2 at 17. His attorney asserted

       that Stokes’ criminal history is related to his mental health and substance abuse

       issues. Similarly, in his statement to the trial court, Stokes explained that all of

       his arrests have been related to his drug or alcohol use, mainly cocaine.


[13]   The State contends that Stokes “has not alleged or demonstrated any nexus

       between his mental health and the thefts, the crimes in question.” Brief of

       Appellee at 12. We agree. Although the record demonstrates Stokes suffers

       from mental health issues, Stokes’ proffered explanation only provides some

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2793 | June 4, 2019   Page 9 of 14
       evidence of a possible nexus between his mental health issues and his failure to

       comply with the drug court program rather than offering any explanation for

       how they relate to the underlying crimes. Stokes has failed to demonstrate that

       his mental health issues are significant and clearly supported by the record, nor

       has he provided any link between his mental health and the instant offenses.

       The trial court did not abuse its discretion when it did not recognize Stokes

       mental health issues as a mitigating circumstance.


[14]   In sum, the trial court did not err in omitting Stokes’ proffered mitigating

       circumstances and therefore did not abuse its discretion in sentencing Stokes.


                                  II. Inappropriate Sentence
                                       A. Standard of Review
[15]   Article 7, Sections 4 and 6 of the Indiana Constitution authorize independent

       appellate review and revision of sentences through Indiana Appellate Rule 7(B).

       King v. State, 894 N.E.2d 265, 267 (Ind. Ct. App. 2008). Rule 7(B) provides,

       “The Court may revise a sentence authorized by statute if, after due

       consideration of the trial court’s decision, the Court finds that the sentence is

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

       offender.” Sentencing decisions rest within the discretion of the trial court and,

       as such, should receive considerable deference. Cardwell v. State, 895 N.E.2d

       1219, 1222 (Ind. 2008). “Such deference should prevail unless overcome by

       compelling evidence portraying in a positive light the nature of the offense (such

       as accompanied by restraint, regard, and lack of brutality) and the defendant’s


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2793 | June 4, 2019   Page 10 of 14
       character (such as substantial virtuous traits or persistent examples of good

       character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015).


[16]   It is the defendant who bears the burden of demonstrating his or her sentence is

       inappropriate under the standard, Childress v. State, 848 N.E.2d 1073, 1080 (Ind.

       2006), and we may look to any factors in the record for such a determination,

       Reis v. State, 88 N.E.3d 1099, 1102 (Ind. Ct. App. 2017). Ultimately, “whether

       we regard a sentence as [in]appropriate at the end of the day turns on our sense

       of the culpability of the defendant, the severity of the crime, the damage done to

       others, and myriad other factors that come to light in a given case.” Cardwell,

       895 N.E.2d at 1224.


                                     B. Nature of the Offenses
[17]   We begin our analysis of the “nature of the offense” prong with the advisory

       sentence. Reis, 88 N.E.3d at 1104. The advisory sentence is the starting point

       the Indiana legislature has selected as an appropriate sentence for the

       committed crime. Childress, 848 N.E.2d at 1081. The sentencing range for a

       Level 6 felony is between six months and two and one-half years, with an

       advisory sentence of one year. Ind. Code § 35-50-2-7(b). Stokes received the

       advisory sentence in each cause.


[18]   The nature of the offense is found in the details and circumstances of the

       offenses and the defendant’s participation therein. Lindhorst v. State, 90 N.E.3d

       695, 703 (Ind. Ct. App. 2017). Stokes argues that all three offenses were non-

       violent in nature and the stores suffered little financial loss in each offense,

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2793 | June 4, 2019   Page 11 of 14
       specifically no more than $251.66. See Br. of Appellant at 21. He also notes

       that he was charged with the lowest level felony in each theft. Although the

       circumstances surrounding the offenses are not egregious, the underlying facts

       of each theft were nearly identical and the thefts were all committed in the same

       month, demonstrating a clear pattern of criminal conduct. Ultimately, we

       cannot conclude Stokes’ advisory sentences are inappropriate in light of the

       nature of the offenses.


                                  C. Character of the Offender
[19]   Next, we evaluate whether Stokes’ character renders his sentences

       inappropriate. We conclude it does not. In this case, the trial court recognized

       Stokes’ criminal history and failed rehabilitation efforts as aggravating

       circumstances in imposing his sentences.


[20]   The “character of the offender” portion of the Rule 7(B) standard refers to the

       general sentencing considerations and relevant aggravating and mitigating

       factors. Williams v. State, 782 N.E.2d 1039, 1051 (Ind. Ct. App. 2003), trans.

       denied. A defendant’s life and conduct are illustrative of his or her character.

       Morris v. State, 114 N.E.3d 531, 539 (Ind. Ct. App. 2018), trans. denied. And a

       defendant’s criminal history is one relevant factor in analyzing his or her

       character. Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct. App. 2007). The

       significance of a criminal history varies based on the “gravity, nature, and

       number of prior offenses in relation to the current offense.” Id. This court has




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2793 | June 4, 2019   Page 12 of 14
       held that “[e]ven a minor criminal record reflects poorly on a defendant’s

       character[.]” Reis, 88 N.E.3d at 1105.


[21]   Stokes’ criminal history is comprised of twelve misdemeanor convictions and

       three felony convictions spanning twenty-five years. Among these are three

       convictions for criminal conversion and one conviction for theft. These same or

       similar offenses are significant in relation to the instant offenses and illustrate a

       disregard for the law and a pattern of undeterred criminal conduct despite

       intervention. Stokes’ criminal record is also comprised of various failed

       rehabilitation efforts since 1993, including: varying periods of incarceration;

       community service; fines; unsupervised probation; community corrections

       program; drug court twice; active adult probation; home detention; treatment at

       Caring About People; and services through the Criminal Division Services. See

       Tr., Vol. 2 at 20. Stokes claims his enthusiasm and periods of compliance with

       the drug court program, prior to his relapse, demonstrate his good character.

       Although we commend Stokes on his efforts, as the trial court acknowledged,

       “[N]othing has worked . . . [Stokes] continue[s] to lie to [himself] and

       manipulate the system.” Id. Despite Stokes’ frequent contact with our criminal

       justice system, he was not deterred from committing the present offenses. See

       Rutherford, 866 N.E.2d at 874.


[22]   The principal role of this court in reviewing of a defendant’s sentence is “not to

       achieve a perceived ‘correct’ result in each case[,]” but to attempt to leaven the

       outliers. Cardwell, 895 N.E.2d at 1225. Thus, the question is not whether the

       defendant’s sentence is appropriate or another sentence is more appropriate;

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2793 | June 4, 2019   Page 13 of 14
       rather, the test is whether the sentence is inappropriate. Perry v. State, 78

       N.E.3d 1, 13 (Ind. Ct. App. 2017). Given Stokes’ lengthy criminal history,

       failed rehabilitation efforts, and pattern of property-related crimes, we conclude

       Stokes’ sentences are not inappropriate in light of his character and his offenses.



                                               Conclusion
[23]   For the foregoing reasons, we conclude the trial court did not abuse its

       discretion when it did not recognize Stokes’ remorse, history of substance

       abuse, and mental health issues as mitigating circumstances, and Stokes’

       sentences are not inappropriate in light of his character and the nature of his

       offenses. Therefore, we affirm.


[24]   Affirmed.


       Baker, J., and Najam, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2793 | June 4, 2019   Page 14 of 14
