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
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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