      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                   FILED
      regarded as precedent or cited before any                           Jul 27 2017, 9:16 am
      court except for the purpose of establishing
                                                                              CLERK
      the defense of res judicata, collateral                             Indiana Supreme Court
                                                                             Court of Appeals
      estoppel, or the law of the case.                                        and Tax Court




      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Stacy R. Uliana                                          Curtis T. Hill, Jr.
      Bargersville, Indiana                                    Attorney General of Indiana

                                                               James B. Martin
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Janet M. King,                                           July 27, 2017
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               90A02-1701-CR-156
              v.                                               Appeal from the Wells Circuit
                                                               Court
      State of Indiana,                                        The Honorable Kenton Kiracofe,
      Appellee-Plaintiff.                                      Judge
                                                               Trial Court Cause No.
                                                               90C01-1605-F6-53



      Barnes, Judge.


                                             Case Summary
[1]   Janet King appeals her sentence for Level 6 felony theft. We affirm.

      Court of Appeals of Indiana | Memorandum Decision 90A02-1701-CR-156 | July 27, 2017         Page 1 of 7
                                                     Issues
[2]   King raises two issues, which we restate as:


                     I.        whether the trial court abused its discretion
                               when it sentenced her; and

                    II.        whether her sentence is inappropriate in light
                               of the nature of the offenses and the character
                               of the offender.

                                                     Facts
[3]   On May 8, 2016, an asset protection associate saw fifty-year-old King place

      multiple items in her purse at a Wal-Mart store in Bluffton. The employee

      stopped King at the front of the store and contacted police. King was arrested

      and admitted to the officer that she tried to take the items. The State charged

      King with Level 6 felony theft. The offense was enhanced to a Level 6 felony

      based on a prior conversion conviction.


[4]   In October 2016, King pled guilty to Level 6 felony theft without a plea

      agreement. At the sentencing hearing, the trial court found King’s criminal

      history as an aggravating circumstance. The trial court sentenced King to two

      years in the Department of Correction. King now appeals.


                                                   Analysis
                                           I. Abuse of Discretion

[5]   King argues that the trial court abused its discretion when it sentenced her.

      Sentencing decisions are 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
      Court of Appeals of Indiana | Memorandum Decision 90A02-1701-CR-156 | July 27, 2017   Page 2 of 7
      218. However, a trial court may be found to have abused its sentencing

      discretion in a number of ways, including: (1) failing to enter a sentencing

      statement at all; (2) entering a sentencing statement that explains reasons for

      imposing a sentence where the record does not support the reasons; (3) entering

      a sentencing statement that omits reasons that are clearly supported by the

      record and advanced for consideration; and (4) entering a sentencing statement

      in which the reasons given are improper as a matter of law. Id. at 490-91. The

      reasons or omission of reasons given for choosing a sentence are reviewable on

      appeal for an abuse of discretion. Id. at 491. The weight given to those reasons,

      i.e. to particular aggravators or mitigators, is not subject to appellate review. Id.


[6]   King argues that the trial court improperly failed to identify her guilty plea and

      acceptance of responsibility as significant mitigating circumstances. A trial

      court is not obligated to accept a defendant’s claim as to what constitutes a

      mitigating circumstance. Rascoe v. State, 736 N.E.2d 246, 249 (Ind. 2000). A

      claim that the trial court failed to find a mitigating circumstance 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. A guilty plea is not

      necessarily a mitigating factor where the defendant receives substantial benefit

      from the plea or where evidence against the defendant is so strong that the

      decision to plead guilty is merely pragmatic. Amalfitano v. State, 956 N.E.2d

      208, 212 (Ind. Ct. App. 2011), trans. denied. Here, Wal-Mart employees saw

      King place items in her purse and try to leave the store. There was surveillance

      video of King’s activities. She admitted to the officer that she tried to take the


      Court of Appeals of Indiana | Memorandum Decision 90A02-1701-CR-156 | July 27, 2017   Page 3 of 7
      items. Based on the evidence against her, we cannot conclude that her guilty

      plea was anything but pragmatic. The trial court did not abuse its discretion

      when it did not consider her guilty plea and acceptance of responsibility as

      mitigating factors.1


                                          II. Inappropriate Sentence

[7]   King argues that her two-year sentence is inappropriate under Indiana

      Appellate Rule 7(B). King requests the imposition of a one-year sentence with

      any additional time served on probation.


[8]   Appellate Rule 7(B) provides that we may revise a sentence authorized by

      statute if, after due consideration of the trial court’s decision, we find that the

      sentence is inappropriate in light of the nature of the offenses and the character

      of the offender. When considering whether a sentence is inappropriate, we

      need not be “extremely” deferential to a trial court’s sentencing decision.

      Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007). Still, we must

      give due consideration to that decision. Id. We also understand and recognize

      the unique perspective a trial court brings to its sentencing decisions. Id. Under

      this rule, the burden is on the defendant to persuade the appellate court that his




      11
         King argues that whether a guilty plea is mitigating focuses on the benefits to the parties, not the strength
      of the State’s case. However, in Anglemyer v. State, 875 N.E.2d 218, 221 (Ind. 2007), our supreme court found
      that the trial court did not abuse its discretion by omitting reference to the defendant’s guilty plea when
      imposing sentence. The supreme court’s decision was based, in part, on the fact that the plea agreement was
      “‘more likely the result of pragmatism than acceptance of responsibility and remorse’” because the evidence
      against the defendant was overwhelming. Anglemyer, 875 N.E.2d at 221 (quoting Mull v. State, 770 N.E.2d
      308, 314 (Ind. 2002)). King’s argument fails.

      Court of Appeals of Indiana | Memorandum Decision 90A02-1701-CR-156 | July 27, 2017                 Page 4 of 7
       or her sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind.

       2006).


[9]    The principal role of Rule 7(B) review “should be to attempt to leaven the

       outliers, and identify some guiding principles for trial courts and those charged

       with improvement of the sentencing statutes, but not to achieve a perceived

       ‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.

       2008). We “should focus on the forest—the aggregate sentence—rather than

       the trees—consecutive or concurrent, number of counts, or length of the

       sentence on any individual count.” Id. When reviewing the appropriateness of

       a sentence under Rule 7(B), we may consider all aspects of the penal

       consequences imposed by the trial court in sentencing the defendant, including

       whether a portion of the sentence was suspended. Davidson v. State, 926 N.E.2d

       1023, 1025 (Ind. 2010).


[10]   Indiana Code Section 35-50-2-7(b) provides that a person who commits a Level

       6 felony “shall be imprisoned for a fixed term of between six (6) months and

       two and one-half (2 ½) years, with the advisory sentence being one (1) year.”

       The trial court here imposed a two-year sentence on King, which is above the

       advisory sentence but less than the maximum sentence allowable.


[11]   The nature of the offense reveals that King attempted to shoplift over $100 in

       items from a Wal-Mart store. The nature of the offense is not egregious.


[12]   King’s character, however, left the trial court few options in imposing the

       sentence here. King has a substantial criminal history, and a history of

       Court of Appeals of Indiana | Memorandum Decision 90A02-1701-CR-156 | July 27, 2017   Page 5 of 7
       violating probation and home detention. In 1991, King pled guilty to Class C

       misdemeanor operating a motor vehicle without financial responsibility. She

       violated her probation in that case on two occasions. In 1992, King pled guilty

       to Class B misdemeanor public intoxication. She again violated her probation

       on two occasions. In 2000, King pled guilty to Class A misdemeanor

       conversion, and she violated her probation on two occasions. In 2005, King

       pled guilty to Class A misdemeanor check deception, and she violated her

       probation. In 2006, King pled guilty to Class D felony theft and Class C felony

       burglary. In 2008, King pled guilty to two counts of Class B felony dealing in a

       schedule IV controlled substance. In 2012, she pled guilty to Class A

       misdemeanor conversion and later violated her home detention.


[13]   King has been unemployed for the past five years. She lives with her thirteen-

       year-old daughter, who is currently on probation. King argues that she is

       changing her behavior by participating in counseling and remaining drug free.

       King and her daughter had been participating in SCAN counseling twice a

       week because of her daughter’s probation. King also had plans to participate in

       psychological counseling. King claimed in the PSI that she had not been using

       drugs since the instant offense. We cannot say, however, that King’s recent

       alleged improvements overshadow her extensive criminal history. Given her

       criminal history and repeated probation violations, a two-year executed

       sentence is not inappropriate.




       Court of Appeals of Indiana | Memorandum Decision 90A02-1701-CR-156 | July 27, 2017   Page 6 of 7
                                                 Conclusion
[14]   The trial court did not abuse its discretion when it sentenced King, and her two-

       year sentence is not inappropriate in light of the nature of the offense and the

       character of the offender. We affirm.


[15]   Affirmed.


       Baker, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 90A02-1701-CR-156 | July 27, 2017   Page 7 of 7
