MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                    FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                             Sep 09 2016, 8:08 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Paula M. Sauer                                           Gregory F. Zoeller
Danville, Indiana                                        Attorney General of Indiana
                                                         Karl Scharnberg
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Marco Lator Smith,                                       September 9, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         32A05-1512-CR-2287
        v.                                               Appeal from the
                                                         Hendricks Superior Court
State of Indiana,                                        The Honorable
Appellee-Plaintiff.                                      Mark A. Smith, Judge
                                                         Trial Court Cause No.
                                                         32D04-1412-F6-363




Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 32A05-1512-CR-2287 | September 9, 2016      Page 1 of 13
[1]   Marco Lator Smith (“Smith”) pleaded guilty to resisting law enforcement1 as a

      Level 6 felony and to theft2 as a Level 6 felony and to being a habitual offender.3

      The trial court sentenced him to eight years fully executed in the Department of

      Correction. Smith appeals, arguing that he was improperly sentenced, and

      raises the following restated issues for our review:


                 I. Whether the trial court abused its discretion when it found no
                 mitigating factors;


                 II. Whether Smith’s sentence is inappropriate in light of the
                 nature of the offense and the character of the offender; and


                 III. Whether Smith’s sentence violated the proportionality clause
                 of the Indiana Constitution.


[2]   We affirm.


                                       Facts and Procedural History
[3]   On December 9, 2014, detectives from Boone County, who were investigating

      Smith in connection with burglaries that occurred in Boone County, observed

      Smith and another man breaking into three vehicles in the parking lot of

      Metropolis Mall in Hendricks County. The detectives alerted Plainfield Police

      officers to the thefts, and K-9 Deputy Schaeffer (“Deputy Schaeffer”) of the




      1
          See Ind. Code § 35-44.1-3-1(a)(3), (b)(1)(A).
      2
          See Ind. Code § 35-43-4-2(a)(1)(A).
      3
          See Ind. Code § 35-50-2-8.


      Court of Appeals of Indiana | Memorandum Decision 32A05-1512-CR-2287 | September 9, 2016   Page 2 of 13
      Hendricks County Sheriff’s Department responded. Smith and the other man

      fled the parking lot in a white van, and Deputy Schaeffer followed the van and

      attempted to initiate a traffic stop. Smith accelerated and then pulled into the

      parking lot of a Best Buy, where he stopped the van, and both men tried to

      escape on foot. Deputy Schaeffer gave commands for the men to stop, and

      when they did not do so, the deputy deployed his K-9 partner, who was able to

      apprehend Smith. The other man was arrested inside a nearby store. A search

      of the van yielded three stolen laptops, a computer bag, Bose headphones,

      medications, a passport, and a backpack from The North Face. The stolen

      property was returned to the owners.


[4]   The State originally charged Smith with resisting law enforcement as a Level 6

      felony, driving while suspended as a Class A misdemeanor, criminal mischief

      as a Class B misdemeanor, theft as a Level 6 felony, unauthorized entry of a

      motor vehicle as a Class B misdemeanor, and a learner’s permit violation, an

      infraction. The State later charged Smith with two additional counts of theft as

      Level 6 felonies and one count of theft as a Class A misdemeanor and alleged

      Smith to be a habitual offender. The State also later moved to dismiss several

      of the counts, consolidated two counts, and renumbered the remaining five

      counts.


[5]   On October 26, 2015, on the morning of the scheduled jury trial, Smith agreed

      to plead guilty. Smith then pleaded guilty to one count of Level 6 felony

      resisting law enforcement and one count of Level 6 felony theft and to being a

      habitual offender in exchange for the dismissal of the remaining counts and a

      Court of Appeals of Indiana | Memorandum Decision 32A05-1512-CR-2287 | September 9, 2016   Page 3 of 13
      sentencing cap of eight-and-a-half years. At the sentencing hearing, the trial

      court found Smith’s extensive criminal history and the fact that he was on

      parole at the time of the present offenses as aggravating factors and found no

      mitigating factors. The trial court then sentenced Smith to two-and-a-half years

      for the resisting law enforcement conviction enhance by five-and-a-half years

      for Smith’s habitual offender status. It also sentenced Smith to two-and-a-half

      years on his theft conviction, which was ordered to be served concurrent with

      the sentence for resisting law enforcement, for an aggregate sentence of eight

      years executed. Smith now appeals.


                                     Discussion and Decision

                                       I. Abuse of Discretion
[6]   Sentencing decisions are within the discretion of the trial court and are

      reviewed on appeal 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 (2007). “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. (quoting K.S. v. State, 849 N.E.2d 538,

      544 (Ind. 2006)). A trial court may abuse its discretion (1) by failing to issue a

      sentencing statement or (2) by issuing a sentencing statement that bases a

      sentence on reasons that are not clearly supported by the record; omits reasons

      both advanced for consideration and clearly supported by the record; or

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



      Court of Appeals of Indiana | Memorandum Decision 32A05-1512-CR-2287 | September 9, 2016   Page 4 of 13
[7]   Smith argues that the trial court abused its discretion when it sentenced him

      because it failed to identify two mitigating circumstances that he claims were

      clearly supported by the record. He specifically contends that the trial court

      failed to find his guilty plea and his history of mental illness to be mitigating

      factors. Smith asserts that his guilty plea saved the State “the considerable

      effort and expense of trying the case to a jury” and should have been considered

      as a mitigating circumstance in sentencing. Appellant’s Br. at 7. He further

      claims that his history of paranoid schizophrenia and bipolar disorder

      “presumably impacted his overall functioning” and should have been factored

      into his sentence. Id. at 8.


[8]   The finding of mitigating factors is not mandatory and rests within the

      discretion of the trial court. Flickner v. State, 908 N.E.2d 270, 273 (Ind. Ct. App.

      2009). The trial court is not obligated to accept the defendant’s arguments as to

      what constitutes a mitigating factor and not required to give the same weight to

      proffered mitigating factors as the defendant does. Id. (citing Gross v. State, 769

      N.E.2d 1136, 1140 (Ind. 2002)). Additionally, the trial court is not obligated to

      explain why it did not find a factor to be significantly mitigating. Id.

      “However, the trial court may ‘not ignore facts in the record that would

      mitigate an offense, and a failure to find mitigating circumstances that are

      clearly supported by the record may imply that the trial court failed to properly

      consider them.’” Id. (quoting Sherwood v. State, 749 N.E.2d 36, 38 (Ind. 2001)).

      An allegation that the trial court failed to identify or find a mitigating factor




      Court of Appeals of Indiana | Memorandum Decision 32A05-1512-CR-2287 | September 9, 2016   Page 5 of 13
       requires the defendant to establish that the mitigating evidence is both

       significant and clearly supported by the record. Id.


[9]    Here, when sentencing Smith, the trial court found two aggravating factors and

       no mitigating factors. The trial court then sentenced him to an aggregate eight

       years executed. Smith does not challenge the two aggravating factors found by

       the trial court – his prior criminal history and that he was on parole at the time

       of the present offenses. He merely challenges the trial court’s failure to find two

       mitigating factors he claims were clearly supported by the record. However,

       during sentencing Smith did not present or argue any mitigating factors to the

       trial court, and in fact, his attorney stated his argument was not “an aggravator

       mi[t]igator argument” because Smith “doesn’t have any of that in his favor.”

       Tr. at 44. “‘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)). Thus, because Smith did

       not advance any mitigators at sentencing, he is precluded from raising them for

       the first time on appeal. We will, however, still determine whether the trial

       court abused its discretion.


[10]   “Even when a defendant does not specifically argue that his guilty plea should

       be considered in mitigation, the defendant may subsequently argue on appeal

       that the trial court abused its discretion in failing to find the plea as a mitigating

       factor.” Caraway v. State, 959 N.E.2d 847, 853 (Ind. Ct. App. 2011), trans.

       Court of Appeals of Indiana | Memorandum Decision 32A05-1512-CR-2287 | September 9, 2016   Page 6 of 13
       denied. A guilty plea is not always a significant mitigating circumstance. Id. A

       guilty plea’s significance is reduced if it is made on the eve of trial, if the

       circumstances indicate the defendant is not taking responsibility for his actions,

       or if substantial admissible evidence exists against the defendant. Id. Also, the

       plea may not be significant when the defendant receives a substantial benefit in

       return for the plea. Id.


[11]   In the present case, Smith’s guilty plea occurred the morning that his jury trial

       was to begin. The jury venire had already been called and was being shown an

       orientation video, the parties had argued their motions in limine, and the

       preliminary jury instructions had been determined when Smith decided to plead

       guilty. Therefore, the State had already prepared for trial, and the trial was to

       begin within a very short period of time; the guilty plea did not spare the State

       from its burden of preparing for trial. Further, Smith received a substantial

       benefit in pleading guilty. As a result of his plea, another felony theft count and

       a misdemeanor count of unauthorized entry into a motor vehicle were

       dismissed. His sentence was also capped at eight-and-a-half years although he

       could have faced a possible maximum eleven-year sentence.4 Because the

       timing of Smith’s guilty plea did not lessen the State’s burden of preparing for

       trial and because he received a substantial benefit from pleading guilty, we




       4
         Smith could have faced a possible eleven-year sentence if his sentences for the two Level 6 felony
       convictions were ordered to be served consecutively (two-and-a-half years plus two-and-a-half years equals
       five years) and if he was give the full six-year enhancement for his habitual offender adjudication.

       Court of Appeals of Indiana | Memorandum Decision 32A05-1512-CR-2287 | September 9, 2016         Page 7 of 13
       conclude that the trial court did not abuse its discretion in not finding it to be a

       mitigating factor.


[12]   Regarding Smith’s claim that his mental illness should have been found to be a

       mitigating circumstance, he did not present any evidence that he committed his

       offenses as a result of his mental illness. The trial court must consider several

       factors in determining what, if any, mitigating weight to give to any evidence of

       a defendant’s mental illness, which include: (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. Krempetz v. State, 872 N.E.2d 605, 615 (Ind. 2007).

       Because Smith did not present any evidence concerning his mental illness, the

       trial court could not have applied these factors and, therefore, did not abuse its

       discretion in not finding Smith’s mental illness as a mitigating factor.


                                    II. Inappropriate Sentence
[13]   Under Indiana Appellate Rule 7(B), “we may revise any sentence authorized by

       statute if we deem it to be inappropriate in light of the nature of the offense and

       the character of the offender.” Corbally v. State, 5 N.E.3d 463, 471 (Ind. Ct.

       App. 2014). The question under Appellate Rule 7(B) is not whether another

       sentence is more appropriate; rather, the question is whether the sentence

       imposed is inappropriate. King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App.

       2008). It is the defendant’s burden on appeal to persuade the reviewing court


       Court of Appeals of Indiana | Memorandum Decision 32A05-1512-CR-2287 | September 9, 2016   Page 8 of 13
       that the sentence imposed by the trial court is inappropriate. Chappell v. State,

       966 N.E.2d 124, 133 (Ind. Ct. App. 2012), trans. denied.


[14]   Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate

       sentence to the circumstances presented, and the trial court’s judgment “should

       receive considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind.

       2008). The principal role of appellate review is to attempt to “leaven the

       outliers.” Id. at 1225. Whether we regard a sentence as inappropriate 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 facts that

       come to light in a given case.” Id. at 1224.


[15]   Smith argues that his eight-year sentence is inappropriate in light of the nature

       of the offense and the character of the offender. He specifically contends that

       there was nothing particularly egregious about the nature of his offenses that

       would make it different or worse than other offenses of the same kind and,

       therefore, no justification for an enhanced sentence. Smith further claims that,

       although he had a lengthy criminal history, his character, including his history

       of mental illness and acceptance of responsibility by pleading guilty, does not

       place him among the worst offenders, and his sentence is inappropriate.


[16]   When considering the nature of the offense, the advisory sentence is the starting

       point to determine the appropriateness of a sentence. Johnson v. State, 986

       N.E.2d 852, 856 (Ind. Ct. App. 2013) (citing Anglemyer, 868 N.E.2d at 494).

       Here, Smith pleaded guilty to one count of Level 6 felony resisting law


       Court of Appeals of Indiana | Memorandum Decision 32A05-1512-CR-2287 | September 9, 2016   Page 9 of 13
       enforcement and one count of Level 6 felony theft. A person who commits a

       Level 6 felony shall be imprisoned for a fixed term of between six months and

       two and one-half years, with the advisory sentence being one year. Ind. Code §

       35-50-2-7(b). Smith also admitted to being a habitual offender. When a person

       is found to be a habitual offender, the trial court shall sentence the person to an

       additional term that is between two years and six years for a person convicted

       of a Level 6 felony. Ind. Code § 35-50-2-8(i)(2). The trial court sentenced

       Smith to two and a half years for each of his Level 6 felony convictions with the

       sentences to run concurrently; it enhanced the resisting law enforcement

       sentence by five and a half years because of the habitual offender adjudication,

       resulting in an aggregate sentence of eight years.


[17]   As to the nature of the offenses, Smith and another man were observed

       breaking into three cars in a shopping center parking lot and stealing items from

       the cars. When the police attempted to stop them, Smith drove into a nearby

       parking lot to evade the police, and when he did stop the van, he ran from the

       police on foot before being apprehended. The “revision of a sentence under

       Indiana Appellate Rule 7(B) requires the appellant to demonstrate that his

       sentence is inappropriate in light of both the nature of his offenses and his

       character.” Williams v. State, 891 N.E.2d 621, 633 (Ind. Ct. App. 2008) (citing

       Ind. Appellate Rule 7(B)).


[18]   The evidence relevant to Smith’s character shows that he has a lengthy and

       extensive criminal history, which includes eleven felony convictions and six

       misdemeanor convictions. His first conviction, for grand theft auto, occurred in

       Court of Appeals of Indiana | Memorandum Decision 32A05-1512-CR-2287 | September 9, 2016   Page 10 of 13
       1982 in California, and in the intervening years, he has been convicted of felony

       transporting or selling narcotics, felony grand theft from a person, Class C

       misdemeanor operating a vehicle with no proof of insurance, Class B

       misdemeanor disorderly conduct, Class D felony residential entry, Class A

       misdemeanor battery, Class A misdemeanor criminal mischief, Class B felony

       dealing in cocaine, six counts of Class D felony theft or receiving stolen

       property, a habitual offender adjudication, four counts of Class A misdemeanor

       resisting law enforcement, and Class C felony forgery. At the time he

       committed the present offenses, Smith was on parole and had a pending charge

       for Level 6 felony theft. Additionally, the evidence shows that he has been

       sentenced to probation, community corrections, jail, and the Department of

       Correction over the length of his criminal history, and none of these has

       deterred him from committing further offenses. We conclude that Smith’s

       eight-year executed sentence is not inappropriate in light of the nature of the

       offense and the character of the offender.


                                    III. Proportionality Clause
[19]   The proportionality requirement of Article 1, Section 16 of the Indiana

       Constitution provides, “All penalties shall be proportioned to the nature of the

       offense.” Hazelwood v. State, 3 N.E.3d 39, 42 (Ind. Ct. App. 2014). The nature

       and extent of penal sanctions is primarily a legislative consideration, and our

       review of these sanctions is highly restrained and very deferential. Newkirk v.

       State, 898 N.E.2d 473, 477 (Ind. Ct. App. 2008), trans. denied. We will not



       Court of Appeals of Indiana | Memorandum Decision 32A05-1512-CR-2287 | September 9, 2016   Page 11 of 13
       disturb the General Assembly’s determination of the appropriate penalty absent

       a showing of clear constitutional infirmity. Id.


[20]   A criminal penalty violates the proportionality clause “‘only when a criminal

       penalty is not graduated and proportioned to the nature of the offense.’” Knapp

       v. State, 9 N.E.3d 1274, 1289 (Ind. 2014) (quoting Phelps v. State, 969 N.E.2d

       1009, 1021 (Ind. Ct. App. 2012), trans. denied), cert. denied, 135 S. Ct. 978 (2015).

       Thus, a legislatively determined penalty will not be set aside merely because it

       seems too severe. Id. at 1290. Our Supreme Court has held that the

       proportionality analysis of a habitual offender penalty has two components. Id.

       First, a reviewing court should make an inquiry into the nature and gravity of

       the present felony. Id. Second, a reviewing court should consider the nature of

       the predicate felonies upon which the habitual offender sentence is based. Id.


[21]   Smith argues that the enhancement of his sentence under the habitual offender

       statute was unconstitutional under Article 1, Section 16. He asserts that the

       five-and-a-half-year enhancement was disproportionate to the “modest nature

       of the current offense.” Appellant’s Br. at 17. Smith contends that the advisory

       for the underlying offenses, both Level 6 felonies, was only one year, and his

       eight-year total sentence was an eight-fold increase to this advisory sentence,

       which was unconstitutionally disproportionate to the nature of the offenses.


[22]   Looking at the nature and gravity of the present felonies in the instant case, the

       offenses were not that serious in nature and gravity, consisting of the theft of

       items by breaking into parked cars and resisting law enforcement by pulling into


       Court of Appeals of Indiana | Memorandum Decision 32A05-1512-CR-2287 | September 9, 2016   Page 12 of 13
       a parking lot to evade the police and then running away on foot. However, the

       nature of the predicate offenses upon which the habitual offender sentence was

       based was much more significant. These offenses consisted of numerous thefts,

       dealing in a narcotic drug, and forgery. Further, Smith’s pre-sentence

       investigation report stated that he had eleven felony convictions and six

       misdemeanor convictions. The number of prior offenses and the similarity of

       Smith’s prior offenses to the present conviction show that the enhancement of

       his sentence was not disproportionate to the nature of the offense.


[23]   To support his argument, Smith discusses Best v. State, 566 N.E.2d 1027 (Ind.

       1991). In that case, the defendant was convicted of operating a vehicle while

       intoxicated with a prior conviction as a Class D felony and was given the

       presumptive sentence of two years, which was enhanced by twenty years under

       the habitual offender statute. Id. at 1031. Our Supreme Court found that a ten-

       fold enhancement of the defendant’s operating a vehicle while intoxicated

       sentence was disproportionate under the Indiana Constitution. Id. at 1032. In

       the present case, the trial court enhanced Smith’s two-and-a-half-year sentence

       for Level 6 felony theft by five-and-a-half years, which is far less than the ten-

       fold enhancement found to be constitutionally disproportionate in Best. Smith’s

       sentence did not violate Article 1, Section 16 of the Indiana Constitution.


[24]   Affirmed.


[25]   Riley, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 32A05-1512-CR-2287 | September 9, 2016   Page 13 of 13
