MEMORANDUM DECISION
                                                                            FILED
Pursuant to Ind. Appellate Rule 65(D), this
                                                                       Sep 05 2017, 6:35 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the                          CLERK
                                                                        Indiana Supreme Court
purpose of establishing the defense of res judicata,                       Court of Appeals
collateral estoppel, or the law of the case.                                 and Tax Court




ATTORNEY FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
Jacob P. Wahl                                          Curtis T. Hill, Jr.
Ripstra Law Office                                     Attorney General of Indiana
Jasper, Indiana
                                                       Jodi Kathryn Stein
                                                       Deputy Attorney General
                                                       Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Jason W. Green,                                            September 5, 2017

Appellant-Defendant,                                       Court of Appeals Case No.
                                                           51A01-1702-CR-428

        v.                                                 Appeal from the
                                                           Martin Circuit Court
State of Indiana,                                          The Hon. Lynne E. Ellis, Judge
                                                           Trial Court Cause No.
Appellee-Plaintiff.
                                                           51C01-1608-F4-123




Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 51A01-1702-CR-428 | September 5, 2017         Page 1 of 9
                                            Case Summary
[1]   After a police search of Appellant-Defendant Jason Green’s truck uncovered,

      inter alia, methamphetamine, the State charged Green with Level 4 felony

      dealing in methamphetamine, Level 6 felony methamphetamine possession,

      Level 6 felony maintaining a common nuisance, and Class C misdemeanor

      paraphernalia possession. Green pled guilty to Level 5 felony dealing in

      methamphetamine pursuant to a written plea agreement in which he agreed to

      a three-year sentence in exchange for dismissal of the remaining charges against

      him. Additionally, Green’s placement was left to the discretion of the trial

      court. The trial court sentenced Green to three years in the purposeful

      incarceration program1 in the Department of Correction (“DOC”). Green

      contends that the trial court abused its discretion in ordering incarceration and

      that his placement is inappropriately harsh. Because we disagree, we affirm.



                             Facts and Procedural History
[2]   On August 17, 2016, Green’s vehicle was stopped by Major T.A. Burkhardt of

      the Martin County Sheriff’s Department after Green failed to completely stop

      his truck at a stop sign. A K-9 conducted a sweep of Green’s vehicle and

      indicated the presence of narcotics. Major Burkhardt searched the vehicle,




      1
        Purposeful incarceration is for “chemically addicted offenders” who, upon successful completion of an
      “IDOC Therapeutic community[,]” can seek a sentence modification. See http://www.in.gov/idoc/
      2798.htm (last visited August 25, 2017).

      Court of Appeals of Indiana | Memorandum Decision 51A01-1702-CR-428 | September 5, 2017          Page 2 of 9
      discovering Green’s wallet and driver’s license under the driver seat, $1189.00

      in cash, scales, and 1.4 grams of methamphetamine.


[3]   On August 18, 2016, the State charged Green with Level 4 felony dealing in

      methamphetamine, Level 6 felony methamphetamine possession, Level 6

      felony maintaining a common nuisance, and Class C misdemeanor

      paraphernalia possession. On January 31, 2017, Green pled guilty pursuant to

      a written plea agreement to Level 5 felony dealing in methamphetamine and

      agreed to a three-year sentence in exchange for the dismissal of the remaining

      charges. Placement of Green—whether in the DOC or in the Martin County

      Community Corrections program—was left to the trial court’s discretion.


[4]   Green admitted at the sentencing hearing that he had been dealing

      methamphetamine in the community “on occasion” and for a “few months.”

      Tr. p. 24. Finding Green’s guilty plea mitigating, the trial court found two

      aggravating circumstances: 1) Green’s act of dealing methamphetamine in the

      community and 2) that Green failed to join a substance abuse treatment class

      while in jail. The trial court sentenced Green to three years in the DOC,

      allowing for purposeful incarceration.


                                 Discussion and Decision
[5]   At the outset, we note that Green incorrectly claims that his plea agreement

      capped his sentence at three years when, in fact, the record is clear that he

      agreed to a three-year executed sentence with only the question of placement



      Court of Appeals of Indiana | Memorandum Decision 51A01-1702-CR-428 | September 5, 2017   Page 3 of 9
      being within the trial court’s discretion. Consequently, we review Green’s

      claims in terms of his placement, not the length of his sentence.


                                     I. Abuse of Discretion
[6]   Under our current sentencing scheme, “the trial court must enter a statement

      including reasonably detailed reasons or circumstances for imposing a

      particular sentence.” Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007),

      modified on other grounds on reh’g, 875 N.E.2d 218 (Ind. 2008) (“Anglemyer II”).

      We review the sentence for an abuse of discretion. Id. An abuse of discretion

      occurs if “the decision is clearly against the logic and effect of the facts and

      circumstances.” Id.


[7]   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 490-91. 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. However, the relative weight or value

      assignable to reasons properly found, or to those which should have been

      found, is not subject to review for abuse of discretion. Id. There is no


      Court of Appeals of Indiana | Memorandum Decision 51A01-1702-CR-428 | September 5, 2017   Page 4 of 9
      requirement that a trial court generate a list of aggravating and mitigating

      circumstances, only that it state reasonably detailed reasons. Id. at 490. A

      single aggravating factor can support upper-level sentences. See Willey v. State,

      712, N.E.2d 434, 446 (Ind. 1999) (stating that a single aggravating circumstance

      may be sufficient to support an enhanced sentence). Although material

      elements of the crime may not be considered as aggravating factors at

      sentencing, the particularized circumstances of the elements properly may be

      considered as such. See, e.g., McElroy v. State, 865 N.E.2d 584, 598-99 (Ind.

      2007); Scott v. State, 840 N.E.2d 376, 382 (Ind. Ct. App. 2006).


                                 A. Aggravating Circumstances
[8]   The trial court found two aggravating circumstances:2 1) Green’s act of dealing

      methamphetamine in the community and 2) that Green failed to join a

      substance abuse treatment class while in jail. Green argues that the trial court

      abused its discretion in finding the first aggravating circumstance on the basis

      that it is merely restating an element of his crime, dealing in methamphetamine.

      Under the circumstances of this case, this is incorrect. Green pled guilty to

      possession methamphetamine with the intent to deliver it, not the actual

      delivery of it. He did, however, admit to actual dealing of methamphetamine in



      2
        Green claims that the trial court found four distinct aggravating circumstances. We disagree. Green claims
      that the trial court found him responsible for deaths in Martin County and that Green’s son had forgiven
      him. The trial court merely observed that “it [(methamphetamine)] is killing people in my community”
      without even suggesting that Green himself was responsible for any person’s death. Tr. p. 35. The trial court
      also merely observed that Green’s fourteen-year-old son had forgiven him without identifying this fact as
      aggravating. In any event, we are at a loss to understand how the forgiveness of Green’s son could be
      considered aggravating.

      Court of Appeals of Indiana | Memorandum Decision 51A01-1702-CR-428 | September 5, 2017           Page 5 of 9
       the community over the course of a few months. Because Green’s dealing of

       methamphetamine in the community over the course of a few months was not

       the crime to which he pled guilty, the trial court did not abuse its discretion in

       this regard.


                                  B. Mitigating Circumstances
[9]    Green argues that the trial court abused its discretion in failing to find the

       hardship on his son to be a mitigating circumstance. Determining what is a

       proper mitigating circumstance is within the discretion of the trial court. See

       Rogers v. State, 878 N.E.2d 269 (Ind. Ct. App. 2007), 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 not only supported by the

       record but also that the mitigating evidence is significant. See Anglemyer II, 875

       N.E.2d at 220–21.


[10]   One of the factors the trial court may consider as mitigating is whether

       “[i]mprisonment of the person will result in undue hardship to the person or the

       dependents of the person.” See Ind. Code §35-38-1-7.1(b)(10). Green, however,

       did not present this allegedly mitigating circumstance to the trial court in any

       specific terms. If the defendant does not advance a factor to be mitigating at

       sentencing, we 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. Spears v. State, 735 N.E.2d 1161, 1167 (Ind. 2000). While Green noted

       his contribution of child support to his son who lives with his ex-wife, Green


       Court of Appeals of Indiana | Memorandum Decision 51A01-1702-CR-428 | September 5, 2017   Page 6 of 9
       failed to present any evidence or argument that his ex-wife had inadequate

       resources to raise their son during his short period of incarceration. In short,

       Green did not argue that his son would suffer any undue hardship during his

       incarceration. Consequently, Green has waived this particular claim for

       appellate consideration.


                              II. Appropriateness of Sentence
[11]   We “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.” Ind.

       Appellate Rule 7(B). “Although appellate review of sentences must give due

       consideration to the trial court’s sentence because of the special expertise of the

       trial bench in making sentencing decisions, Appellate Rule 7(B) is an

       authorization to revise sentences when certain broad conditions are satisfied.”

       Shouse v. State, 849 N.E.2d 650, 660 (Ind. Ct. App. 2006), trans. denied (citations

       and quotation marks omitted). “[W]hether we regard a sentence as 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 v. State, 895 N.E.2d 1219, 1224 (Ind.

       2008). In addition to the “due consideration” we are required to give to the

       trial court’s sentencing decision, “we understand and recognize the unique

       perspective a trial court brings to its sentencing decisions.” Rutherford v. State,

       866 N.E.2d 867, 873 (Ind. Ct. App. 2007). Following Green’s guilty plea to

       Level 5 felony methamphetamine delivery, the trial court sentenced him to

       Court of Appeals of Indiana | Memorandum Decision 51A01-1702-CR-428 | September 5, 2017   Page 7 of 9
       three years of purposeful incarceration in the DOC. “A person who commits a

       Level 5 felony (for a crime committed after June 30, 2014) shall be imprisoned

       for 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). Again, we limit our review to

       whether Green’s placement was appropriate, not the length of his sentence,

       which was fixed at three years by the plea agreement.


[12]   The nature of Green’s offense justifies incarceration, as opposed to community

       corrections. Green was convicted of possessing enough methamphetamine to

       support a Level 5 felony conviction, he admitted to facts that would have

       supported a Level 4 conviction, see Ind. Code § 35-48-4-1.1(c)(1), for which he

       could have received a sentence of twelve years of incarceration. See Ind. Code §

       35-50-2-5.5. Moreover, Green’s offense was admittedly only the latest part of

       his ongoing methamphetamine dealing operation in the community. The

       nature of Green’s offense justifies his incarceration.


[13]   Green’s character also justifies his incarceration. Although Green’s criminal

       history is not lengthy, he does have a 1993 conviction for Class B misdemeanor

       reckless driving and a 2002 conviction for Class A misdemeanor marijuana

       possession. Green, who was forty-four years old at sentencing, admitted to first

       taking methamphetamine when he was twenty-three, using it frequently in his

       thirties, and taking it last the day before his arrest in this case. Although Green

       has graduated from a methamphetamine user to a methamphetamine dealer,

       his actions do not show that he has fully acknowledged his substance-abuse

       issues, as shown by his failure to enroll in a substance-abuse treatment program

       Court of Appeals of Indiana | Memorandum Decision 51A01-1702-CR-428 | September 5, 2017   Page 8 of 9
       while in jail prior to his guilty plea in this case. Perhaps commitment to

       purposeful incarceration will provide Green with the help he apparently needs.

       In light of the nature of his offense and his character, Green has failed to

       establish that his commitment to purposeful incarceration in the DOC in

       inappropriate.


[14]   We affirm the judgment of the trial court.


       May, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 51A01-1702-CR-428 | September 5, 2017   Page 9 of 9
