Pursuant to Ind. Appellate Rule 65(D),
FILED this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of Jul 20 2012, 8:52 am establishing the defense of res judicata, collateral estoppel, or the law of the CLERK case. of the supreme court, court of appeals and tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
IAN O’KEEFE GREGORY F. ZOELLER Lafayette, Indiana Attorney General of Indiana
AARON J. SPOLARICH Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
JAMEY WAYNE THOMAS, ) ) Appellant-Defendant, ) ) vs. ) No. 79A02-1110-CR-1066 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE TIPPECANOE SUPERIOR COURT The Honorable Randy J. Williams, Judge Cause Nos. 79D01-1101-FC-1 and 79D01-0408-FC-69
July 20, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
DARDEN, Judge STATEMENT OF THE CASE
Jamey Thomas appeals the sentence imposed following his guilty plea to class C
felony operating a motor vehicle while privileges were forfeited for life.1
We affirm.
ISSUE
Whether the trial court erred in sentencing Thomas.
FACTS
According to the Probable Cause Affidavit filed in this case, on January 6, 2011,
Deputy Lendermon of the Tippecanoe County Sheriff’s Department was patrolling on
State Road 38 West when he noticed the operator of a vehicle fail to use his signal when
changing lanes. Deputy Lendermon ran the vehicle’s license plate and discovered that
the car was registered to a Jennifer Walton. Next, Deputy Lendermon activated his
emergency lights and stopped the vehicle. He had observed that Thomas was the driver
of the vehicle and there were two females in the vehicle, one in the front passenger seat
and the other in the rear seat. When Deputy Lendermon was approximately thirty feet
away from the vehicle, he witnessed Thomas cross over into the front passenger seat and
exit out of the passenger side door with the female. Deputy Lendermon asked Thomas
why both had exited the vehicle, and Thomas stated that he thought they were supposed
to do that.
1 Ind. Code § 9-30-10-17.
2 Deputy Lendermon identified the front passenger as Walton, who stated she had
been the one driving, and the rear passenger as Nancy Wright. Deputy Lendermon gave
dispatch Thomas’s information and discovered that Thomas’s license had been suspended
for life because he was an habitual traffic violator. Deputy Lendermon again asked
Walton who had been driving the vehicle, and she stated that she had been the one
driving. He then placed her under arrest for false informing. Deputy Lendermon then
asked Thomas who had been driving, and he responded that Walton had been driving.
He then placed Thomas under arrest for operating a vehicle as an habitual traffic violator.
On January 7, 2011, the State charged Thomas with Count I, class C felony
operating a motor vehicle while privileges are forfeited for life under cause number
79D01-1101-FC-1. On January 13, 2011, the State petitioned to revoke Thomas’s
probation under cause number 79D01-0408-FC-69.2 In addition, the trial court held the
initial hearing on the Petition to Revoke Probation on January 19, 2011.
Thomas pled guilty on September 7, 2011, without a plea agreement, to count I
and admitted to violating his probation. The trial court held a sentencing hearing on
October 5, 2011. During the sentencing hearing, Thomas testified that while he was
incarcerated, he met with Dr. Jeffrey Wendt for evaluation. Dr. Wendt “suggested
2 On June 29, 2005, Thomas had pled guilty to two counts of class C felony operating a motor vehicle while driving privileges were forfeited for life and one count of class A misdemeanor operating while intoxicated. The trial court had sentenced Thomas to thirteen years, with seven years to be executed at the Indiana Department of Correction, three years to be executed at Tippecanoe County Community Corrections, and three years to be suspended to supervised probation. A condition of Thomas’s probation was that he not commit another felony or misdemeanor. Thomas was released from the Department of Correction to community corrections on August 18, 2008.
3 [Thomas] may be suffering from Post[-t]raumatic stress disorder.” (PSI App. 14).
Thomas further testified that this evaluation of Post-traumatic stress disorder was
associated with him witnessing, at the age of seven, the death of his brother after he was
struck by a vehicle.
The trial court identified the following as aggravating factors: Thomas’s extensive,
nine-page criminal history, his arrearage in child support, his substance abuse, and that he
was on felony probation at the time he committed the instant offense. The trial court then
found Thomas’s guilty plea and that incarceration would cause an undue hardship on his
child to be mitigating factors but that the aggravating factors outweighed the mitigating
factors. The trial court sentenced Thomas to six years on Count I. Additionally, the trial
court imposed a previously suspended sentence of 546 days for the probation violation.
DECISION
Thomas contends that the trial court erred in sentencing him. Specifically, he
argues that the trial court failed to identify certain other mitigating factors and that his
sentence for his class C felony conviction was inappropriate.3
3 Thomas also argues that his sentence for violating probation is inappropriate. However, he has waived this argument on appeal because he failed to “develop a cogent argument or provide adequate citation to authority and portions of the record.” Lyles v. State, 834 N.E.2d 1035, 1050 (Ind. Ct. App. 2005), trans. denied. Waiver notwithstanding, we find that the trial court did not abuse its discretion in sentencing Thomas to 546 days for violating his probation. If the trial court finds that a person has violated the terms of his probation before the termination of the period and the petition to revoke is filed within the probationary period, the court may “order execution of all or part of the sentence that was suspended at the time of initial sentencing.” I.C. § 35-38-2-3. We find that the trial court was acting within its discretion.
4 1. Mitigating Factors
Thomas asserts that the trial court abused its discretion in failing to consider his
mental health issues, employment history, and remorse to be mitigating factors.4
“[S]entencing decisions rest within the sound discretion of the trial court and are
reviewed on appeal only 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). A court abuses its
discretion when a 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.” K.S. v. State, 849 N.E.2d 538, 544 (Ind. 2006) (quoting In re L.J.M.,
473 N.E.2d 637, 640 (Ind. Ct. App. 1985)).
The finding of a mitigating factor is within the trial court’s discretion. McCann v.
State, 749 N.E.2d 1116
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Pursuant to Ind. Appellate Rule 65(D),
FILED this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of Jul 20 2012, 8:52 am establishing the defense of res judicata, collateral estoppel, or the law of the CLERK case. of the supreme court, court of appeals and tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
IAN O’KEEFE GREGORY F. ZOELLER Lafayette, Indiana Attorney General of Indiana
AARON J. SPOLARICH Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
JAMEY WAYNE THOMAS, ) ) Appellant-Defendant, ) ) vs. ) No. 79A02-1110-CR-1066 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE TIPPECANOE SUPERIOR COURT The Honorable Randy J. Williams, Judge Cause Nos. 79D01-1101-FC-1 and 79D01-0408-FC-69
July 20, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
DARDEN, Judge STATEMENT OF THE CASE
Jamey Thomas appeals the sentence imposed following his guilty plea to class C
felony operating a motor vehicle while privileges were forfeited for life.1
We affirm.
ISSUE
Whether the trial court erred in sentencing Thomas.
FACTS
According to the Probable Cause Affidavit filed in this case, on January 6, 2011,
Deputy Lendermon of the Tippecanoe County Sheriff’s Department was patrolling on
State Road 38 West when he noticed the operator of a vehicle fail to use his signal when
changing lanes. Deputy Lendermon ran the vehicle’s license plate and discovered that
the car was registered to a Jennifer Walton. Next, Deputy Lendermon activated his
emergency lights and stopped the vehicle. He had observed that Thomas was the driver
of the vehicle and there were two females in the vehicle, one in the front passenger seat
and the other in the rear seat. When Deputy Lendermon was approximately thirty feet
away from the vehicle, he witnessed Thomas cross over into the front passenger seat and
exit out of the passenger side door with the female. Deputy Lendermon asked Thomas
why both had exited the vehicle, and Thomas stated that he thought they were supposed
to do that.
1 Ind. Code § 9-30-10-17.
2 Deputy Lendermon identified the front passenger as Walton, who stated she had
been the one driving, and the rear passenger as Nancy Wright. Deputy Lendermon gave
dispatch Thomas’s information and discovered that Thomas’s license had been suspended
for life because he was an habitual traffic violator. Deputy Lendermon again asked
Walton who had been driving the vehicle, and she stated that she had been the one
driving. He then placed her under arrest for false informing. Deputy Lendermon then
asked Thomas who had been driving, and he responded that Walton had been driving.
He then placed Thomas under arrest for operating a vehicle as an habitual traffic violator.
On January 7, 2011, the State charged Thomas with Count I, class C felony
operating a motor vehicle while privileges are forfeited for life under cause number
79D01-1101-FC-1. On January 13, 2011, the State petitioned to revoke Thomas’s
probation under cause number 79D01-0408-FC-69.2 In addition, the trial court held the
initial hearing on the Petition to Revoke Probation on January 19, 2011.
Thomas pled guilty on September 7, 2011, without a plea agreement, to count I
and admitted to violating his probation. The trial court held a sentencing hearing on
October 5, 2011. During the sentencing hearing, Thomas testified that while he was
incarcerated, he met with Dr. Jeffrey Wendt for evaluation. Dr. Wendt “suggested
2 On June 29, 2005, Thomas had pled guilty to two counts of class C felony operating a motor vehicle while driving privileges were forfeited for life and one count of class A misdemeanor operating while intoxicated. The trial court had sentenced Thomas to thirteen years, with seven years to be executed at the Indiana Department of Correction, three years to be executed at Tippecanoe County Community Corrections, and three years to be suspended to supervised probation. A condition of Thomas’s probation was that he not commit another felony or misdemeanor. Thomas was released from the Department of Correction to community corrections on August 18, 2008.
3 [Thomas] may be suffering from Post[-t]raumatic stress disorder.” (PSI App. 14).
Thomas further testified that this evaluation of Post-traumatic stress disorder was
associated with him witnessing, at the age of seven, the death of his brother after he was
struck by a vehicle.
The trial court identified the following as aggravating factors: Thomas’s extensive,
nine-page criminal history, his arrearage in child support, his substance abuse, and that he
was on felony probation at the time he committed the instant offense. The trial court then
found Thomas’s guilty plea and that incarceration would cause an undue hardship on his
child to be mitigating factors but that the aggravating factors outweighed the mitigating
factors. The trial court sentenced Thomas to six years on Count I. Additionally, the trial
court imposed a previously suspended sentence of 546 days for the probation violation.
DECISION
Thomas contends that the trial court erred in sentencing him. Specifically, he
argues that the trial court failed to identify certain other mitigating factors and that his
sentence for his class C felony conviction was inappropriate.3
3 Thomas also argues that his sentence for violating probation is inappropriate. However, he has waived this argument on appeal because he failed to “develop a cogent argument or provide adequate citation to authority and portions of the record.” Lyles v. State, 834 N.E.2d 1035, 1050 (Ind. Ct. App. 2005), trans. denied. Waiver notwithstanding, we find that the trial court did not abuse its discretion in sentencing Thomas to 546 days for violating his probation. If the trial court finds that a person has violated the terms of his probation before the termination of the period and the petition to revoke is filed within the probationary period, the court may “order execution of all or part of the sentence that was suspended at the time of initial sentencing.” I.C. § 35-38-2-3. We find that the trial court was acting within its discretion.
4 1. Mitigating Factors
Thomas asserts that the trial court abused its discretion in failing to consider his
mental health issues, employment history, and remorse to be mitigating factors.4
“[S]entencing decisions rest within the sound discretion of the trial court and are
reviewed on appeal only 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). A court abuses its
discretion when a 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.” K.S. v. State, 849 N.E.2d 538, 544 (Ind. 2006) (quoting In re L.J.M.,
473 N.E.2d 637, 640 (Ind. Ct. App. 1985)).
The finding of a mitigating factor is within the trial court’s discretion. McCann v.
State, 749 N.E.2d 1116, 1121 (Ind. 2001). A trial court may abuse its discretion if it
enters a sentencing statement that omits mitigating factors “that are clearly supported by
the record and advanced for consideration.” Anglemyer, 868 N.E.2d at 490-91. A
defendant who alleges that the trial court failed to identify a mitigating factor must
establish that the mitigating factor is both “significant and clearly supported by the
4 Additionally, Thomas asserts that the trial court abused its discretion in not finding the two letters written on his behalf; that his actions did not cause bodily injury to anyone; and, that his actions could not have potentially caused bodily injury to anyone to be mitigating. He, however, has waived any argument regarding the trial court’s failure to find the two aforementioned factors to be mitigators. A defendant is precluded from advancing a factor as mitigating for the first time on appeal. Creekmore v. State, 853 N.E.2d 523, 530 (Ind. Ct. App. 2006), clarified on reh'g, 858 N.E.2d 230 (Ind. Ct. App. 2006). Waiver notwithstanding, even if the judge had considered those factors as mitigators, the aggravating factors, especially Thomas’s extensive criminal history and violation of probation, would still support the sentence of six years.
5 record.” McCann, 749 N.E.2d at 1121. Moreover, a trial court is not required to accept a
defendant’s assertion as to what constitutes a mitigating factor. Rascoe v. State, 736
N.E.2d 246, 248-49 (Ind. 2000).
a. Mental Health
Thomas argues that the trial court failed to give his mental health issues any
mitigating weight. During the sentencing hearing, Thomas testified that Dr. Wendt
informed him that he could potentially be suffering from Post-traumatic stress disorder.
Subsequently, the trial judge stated, “I understand Dr. Wendt's report, the
recommendations.” (Tr. 24). However, he chose not to find Thomas’s alleged disorder a
mitigating factor, but he did recommend that Thomas receive a mental health evaluation
and counseling in the Department of Correction.
We agree with the trial court’s finding. Even considering Thomas’s testimony
regarding Dr. Wendt’s evaluation, there is no evidence that Dr. Wendt gave a definitive
diagnosis of Post-traumatic stress disorder. Thomas has also not persuaded us that his
mental health is a significant issue in this case as supported by the record. Hence, we
find no abuse of discretion in failing to find this to be a mitigating factor.
b. Employment
Thomas asserts that he has a good employment history, which the trial court
should have considered as mitigating. Although Thomas is a self-employed tree cutter
and he previously worked at Midwest Rentals, “many people are gainfully employed
such that this would not require the trial court to note it as a mitigating factor.” Newsome
6 v. State, 797 N.E.2d 293, 301 (Ind. Ct. App. 2003). Thomas’s employment history is not
a significant mitigating factor. Thus, we find the trial court did not abuse its discretion in
failing to find this to be a mitigating factor.
c. Remorse
Thomas contends that the trial court should have considered his remorse for his
actions as a mitigator. Thomas testified that he was “sorry for making the poor decision
[he] made. And if he had it to do over, [he’d] do it differently.” (Tr. 11). A trial court’s
decision to believe that a person is remorseful is similar to a trial court’s decision to
believe that a person is credible. Stout v. State, 834 N.E.2d 707, 711 (Ind. Ct. App.
2005). Since we accept a trial court’s determination of a witness’ credibility, we also
accept a trial court’s determination of a defendant’s remorse. Therefore, we cannot say
that the trial court abused its discretion in not finding Thomas’s remorse to be a
mitigating factor.
2. Inappropriate Sentence
Thomas argues that his six-year sentence is inappropriate. We have the authority
to revise a sentence if it is “inappropriate in light of the nature of the offense and the
character of the offender.” Ind. Appellate Rule 7(B). A court may impose any sentence
that is authorized by statute and allowed under the Indiana Constitution. I.C. § 35-38-1-
7.1(d). The defendant bears the burden of showing that his sentence is inappropriate.
Rich v. State, 890 N.E.2d 44, 53 (Ind. Ct. App. 2008). “Whether a sentence is
inappropriate ultimately turns on the culpability of the defendant, the severity of the
7 crime, the damage done to others, and myriad other factors that come to light in a given
case.” Coleman v. State, 952 N.E.2d 377, 384 (Ind. Ct. App. 2011).
In determining whether a sentence is inappropriate, the Legislature has
established the advisory sentence as an appropriate starting point based on the crime
committed. Rich, 890 N.E.2d at 53. The sentencing range for a class C felony is between
two and eight years, with the advisory sentence being four years. I.C. § 35-50-2-6. The
trial court sentenced Thomas to the six-year sentence he requested but not to Community
Corrections.
In regard to Thomas’s present offense and character, the record reveals that
Thomas failed to use a signal when changing lanes and, consequently, a deputy sheriff
stopped him. In an act of deception, Thomas then climbed over into the passenger seat
and exited out of the passenger door. When the deputy sheriff asked who had been
driving the car, both the passenger and Thomas lied and said that the passenger had been
driving.
In addition, we note that Thomas was on felony probation when the instant offense
was committed. He has a criminal history that spans over twenty-two years since he was
adjudicated a delinquent for battery in 1989. This extensive criminal history includes
numerous misdemeanor and felony convictions, including drug-related and violent crimes
and two convictions for operating while intoxicated. In 2005, he was convicted twice of
operating a motor vehicle after driving privileges forfeited for life, which is the same
offense in this case. Thomas has had twenty petitions to revoke probation filed against
8 him and eleven, including the one in this case, were found to be true. Additionally,
Thomas has failed to appear in court thirty-five times and has had at least ten violations
or notices of rejection from Community Corrections. Along with his frequent contact
with the criminal justice system, Thomas’s admitted illegal drug use and alcohol abuse
demonstrates that he is not living a law-abiding life. Thomas’s criminal history shows
that he has no respect for the law and disregards it with impunity.
In light of the nature of the offense and Thomas’s character, we cannot say that his
six-year sentence is inappropriate.
Affirmed.
RILEY, J., and NAJAM, J., concur.