Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
MICHAEL E. BOONSTRA GREGORY F. ZOELLER Logansport, Indiana Attorney General of Indiana
GARY R. ROM Deputy Attorney General
FILED Indianapolis, Indiana
Jul 24 2012, 9:11 am IN THE COURT OF APPEALS OF INDIANA CLERK of the supreme court, court of appeals and tax court
JOHN W. BREEDLOVE, ) ) Appellant-Defendant, ) ) vs. ) No. 09A02-1111-CR-1116 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE CASS SUPERIOR COURT The Honorable Richard A. Maughmer, Judge Cause No. 09D02-1108-FB-29
July 24, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
KIRSCH, Judge John W. Breedlove (“Breedlove”) appeals his sentence for one count of dealing in
methamphetamine1 as a Class B felony contending that the trial court abused its discretion in
failing to identify the existence of mitigating circumstances and that his eighteen-year
executed sentence is inappropriate.
We affirm.
FACTS AND PROCEDURAL HISTORY
On June 5, 2009, Elijah Helderman (“Helderman”) was acting as a confidential
informant for the Cass County Drug Task Force. Helderman contacted Officer Jim
Klepinger (“Officer Klepinger”) about the possibility of conducting a controlled buy of
methamphetamine from Breedlove. Officer Klepinger prepared the buy money and met with
Helderman at the parking lot of the Dutch Mill Tavern in Logansport, Indiana. Officer
Klepinger gave Helderman $60 of buy money and outfitted Helderman with a video and
audio recording device. After Officer Klepinger searched Helderman’s vehicle, Helderman
met Breedlove at a predetermined location. Officer Klepinger followed Helderman in
another vehicle.
When Breedlove arrived, he entered Helderman’s car. Helderman gave Breedlove the
buy money, and Breedlove gave him what was later determined to be 0.26 grams of
methamphetamine. Breedlove instructed Helderman to call if he wanted any more “product.”
Tr. at 60. Helderman subsequently met with Officer Klepinger who searched Helderman
and his vehicle and took the methamphetamine into evidence.
1 See Ind. Code § 35-48-4-1.1.
2 The State charged Breedlove with one count of dealing in methamphetamine as a
Class B felony. At the conclusion of Breedlove’s jury trial, he was found guilty as charged.
The trial court sentenced Breedlove to a term of eighteen years executed in the Department of
Correction. Breedlove now appeals.
DISCUSSION AND DECISION
I. Sentencing Errors
Trial courts are required to enter sentencing statements whenever imposing a sentence
for a felony offense. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on
reh’g, 875 N.E.2d 218 (Ind. 2007). The statement must include a reasonably detailed
recitation of the trial court’s reasons for imposing a particular sentence. Id. If the recitation
includes a finding of aggravating or mitigating circumstances, then the statement must
identify all significant mitigating and aggravating circumstances and explain why each
circumstance has been determined to be mitigating or aggravating. Id. Sentencing decisions
rest within the sound discretion of the trial court and are reviewed on appeal only for an
abuse of that discretion. Id. 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.
One way in which a trial court may abuse its discretion is by failing to enter a
sentencing statement at all. Id. Other examples include entering 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, or the sentencing statement omits
3 reasons that are clearly supported by the record and advanced for consideration, or the
reasons given are improper as a matter of law. Id. at 490-91. Because the trial court no
longer has any obligation to “weigh” aggravating and mitigating factors against each other
when imposing a sentence, a trial court cannot now be said to have abused its discretion in
failing to “properly weigh” such factors. Id. at 491. Once the trial court has entered a
sentencing statement, which may or may not include the existence of aggravating and
mitigating factors, it may then “impose any sentence that is authorized by statute; and . . . is
permissible under the Constitution of the State of Indiana.” Ind. Code § 35-38-1-7.1(d).
A. Abuse of Discretion
Breedlove argues that the trial court abused its discretion by failing to find the
existence of mitigating circumstances. More specifically, Breedlove contends that the trial
court should have considered as mitigating circumstances the non-violent nature of the
offense and that the State induced or facilitated the offense. However, the State correctly
notes that Breedlove failed to argue during sentencing that the trial court should find these
factors to be mitigating circumstances. “If the defendant fails to advance a mitigating
circumstance at sentencing, this court will presume that the circumstance is not significant
and the defendant is precluded from advancing it as a mitigating circumstance for the first
time on appeal.” Simms v. State, 791 N.E.2d 225, 233 (Ind. Ct. App. 2003). Furthermore,
had Breedlove argued in favor of those mitigating circumstances, the trial court was not
required to accept his argument as to what constitutes a mitigating circumstance. Hape v.
State, 903 N.E.2d 977, 1000 (Ind. Ct. App. 2009). Breedlove has failed to establish that the
4 trial court abused its discretion during sentencing by failing to find the existence of
mitigating circumstances.
B. Inappropriate Sentence
Breedlove also contends that his eighteen-year sentence for his Class B felony
conviction is inappropriate in light of the nature of the offense and the character of the
offender. The sentencing range for a Class B felony conviction is a fixed term of
imprisonment between six years and twenty years with the advisory sentence being ten years.
Ind. Code §35-50-2-5. Appellate courts may revise a sentence after careful review of the
trial court’s decision if they conclude that the sentence is inappropriate based on the nature of
the offense and the character of the offender. Ind. Appellate Rule 7(B). Even if the trial
court followed the appropriate procedure in arriving at its sentence, the appellate court still
maintains a constitutional power to revise a sentence it finds inappropriate.
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Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
MICHAEL E. BOONSTRA GREGORY F. ZOELLER Logansport, Indiana Attorney General of Indiana
GARY R. ROM Deputy Attorney General
FILED Indianapolis, Indiana
Jul 24 2012, 9:11 am IN THE COURT OF APPEALS OF INDIANA CLERK of the supreme court, court of appeals and tax court
JOHN W. BREEDLOVE, ) ) Appellant-Defendant, ) ) vs. ) No. 09A02-1111-CR-1116 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE CASS SUPERIOR COURT The Honorable Richard A. Maughmer, Judge Cause No. 09D02-1108-FB-29
July 24, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
KIRSCH, Judge John W. Breedlove (“Breedlove”) appeals his sentence for one count of dealing in
methamphetamine1 as a Class B felony contending that the trial court abused its discretion in
failing to identify the existence of mitigating circumstances and that his eighteen-year
executed sentence is inappropriate.
We affirm.
FACTS AND PROCEDURAL HISTORY
On June 5, 2009, Elijah Helderman (“Helderman”) was acting as a confidential
informant for the Cass County Drug Task Force. Helderman contacted Officer Jim
Klepinger (“Officer Klepinger”) about the possibility of conducting a controlled buy of
methamphetamine from Breedlove. Officer Klepinger prepared the buy money and met with
Helderman at the parking lot of the Dutch Mill Tavern in Logansport, Indiana. Officer
Klepinger gave Helderman $60 of buy money and outfitted Helderman with a video and
audio recording device. After Officer Klepinger searched Helderman’s vehicle, Helderman
met Breedlove at a predetermined location. Officer Klepinger followed Helderman in
another vehicle.
When Breedlove arrived, he entered Helderman’s car. Helderman gave Breedlove the
buy money, and Breedlove gave him what was later determined to be 0.26 grams of
methamphetamine. Breedlove instructed Helderman to call if he wanted any more “product.”
Tr. at 60. Helderman subsequently met with Officer Klepinger who searched Helderman
and his vehicle and took the methamphetamine into evidence.
1 See Ind. Code § 35-48-4-1.1.
2 The State charged Breedlove with one count of dealing in methamphetamine as a
Class B felony. At the conclusion of Breedlove’s jury trial, he was found guilty as charged.
The trial court sentenced Breedlove to a term of eighteen years executed in the Department of
Correction. Breedlove now appeals.
DISCUSSION AND DECISION
I. Sentencing Errors
Trial courts are required to enter sentencing statements whenever imposing a sentence
for a felony offense. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on
reh’g, 875 N.E.2d 218 (Ind. 2007). The statement must include a reasonably detailed
recitation of the trial court’s reasons for imposing a particular sentence. Id. If the recitation
includes a finding of aggravating or mitigating circumstances, then the statement must
identify all significant mitigating and aggravating circumstances and explain why each
circumstance has been determined to be mitigating or aggravating. Id. Sentencing decisions
rest within the sound discretion of the trial court and are reviewed on appeal only for an
abuse of that discretion. Id. 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.
One way in which a trial court may abuse its discretion is by failing to enter a
sentencing statement at all. Id. Other examples include entering 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, or the sentencing statement omits
3 reasons that are clearly supported by the record and advanced for consideration, or the
reasons given are improper as a matter of law. Id. at 490-91. Because the trial court no
longer has any obligation to “weigh” aggravating and mitigating factors against each other
when imposing a sentence, a trial court cannot now be said to have abused its discretion in
failing to “properly weigh” such factors. Id. at 491. Once the trial court has entered a
sentencing statement, which may or may not include the existence of aggravating and
mitigating factors, it may then “impose any sentence that is authorized by statute; and . . . is
permissible under the Constitution of the State of Indiana.” Ind. Code § 35-38-1-7.1(d).
A. Abuse of Discretion
Breedlove argues that the trial court abused its discretion by failing to find the
existence of mitigating circumstances. More specifically, Breedlove contends that the trial
court should have considered as mitigating circumstances the non-violent nature of the
offense and that the State induced or facilitated the offense. However, the State correctly
notes that Breedlove failed to argue during sentencing that the trial court should find these
factors to be mitigating circumstances. “If the defendant fails to advance a mitigating
circumstance at sentencing, this court will presume that the circumstance is not significant
and the defendant is precluded from advancing it as a mitigating circumstance for the first
time on appeal.” Simms v. State, 791 N.E.2d 225, 233 (Ind. Ct. App. 2003). Furthermore,
had Breedlove argued in favor of those mitigating circumstances, the trial court was not
required to accept his argument as to what constitutes a mitigating circumstance. Hape v.
State, 903 N.E.2d 977, 1000 (Ind. Ct. App. 2009). Breedlove has failed to establish that the
4 trial court abused its discretion during sentencing by failing to find the existence of
mitigating circumstances.
B. Inappropriate Sentence
Breedlove also contends that his eighteen-year sentence for his Class B felony
conviction is inappropriate in light of the nature of the offense and the character of the
offender. The sentencing range for a Class B felony conviction is a fixed term of
imprisonment between six years and twenty years with the advisory sentence being ten years.
Ind. Code §35-50-2-5. Appellate courts may revise a sentence after careful review of the
trial court’s decision if they conclude that the sentence is inappropriate based on the nature of
the offense and the character of the offender. Ind. Appellate Rule 7(B). Even if the trial
court followed the appropriate procedure in arriving at its sentence, the appellate court still
maintains a constitutional power to revise a sentence it finds inappropriate. Hope v. State,
834 N.E.2d 713, 718 (Ind. Ct. App. 2005). The defendant has the burden of persuading the
appellate court that his sentence is inappropriate. King v. State, 894 N.E.2d 265, 267 (Ind.
Ct. App. 2008). The issue we are presented with in this context is not whether another
sentence is more appropriate, but whether the sentence that was imposed is inappropriate. Id.
at 268.
The amount of methamphetamine Breedlove sold to Helderman was not substantial.
However, he told the confidential informant to call him if he wanted to purchase more.
Furthermore, Breedlove was on parole for a prior felony methamphetamine conviction at the
time he committed this offense. Indiana Code section 35-38-1-7.1 allows the trial court to
5 consider if a person has recently violated the conditions of probation or parole as an
aggravating circumstance. Even a limited criminal history can be considered an aggravating
factor. Atwood v. State, 905 N.E.2d 479, 488 (Ind. Ct. App. 2009).
Additionally, Breedlove is at risk for recidivism. This was his second felony related to
methamphetamine. Breedlove, who was twenty-seven years old at the time he committed the
offense, was a daily smoker of marijuana from the age of thirteen to seventeen. He learned
how to manufacture methamphetamine when he was thirteen years old and used it daily
except when he was incarcerated. Although treatment was available, Breedlove could not
take advantage of that treatment while incarcerated because of his numerous write-ups and
loss of good-time credit. He served much of his sentence in segregation, which prevented
him from attending drug rehabilitation programs.
Breedlove has failed to meet his burden of persuading us that his sentence is
inappropriate in light of the nature of the offense and the character of the offender.
Affirmed.
BAKER, J., and BROWN, J., concur.