MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be May 26 2016, 8:48 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Timothy P. Broden Gregory F. Zoeller Lafayette, Indiana Attorney General of Indiana
Paula J. Beller Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Nicholas G. Collins, May 26, 2016 Appellant-Defendant, Court of Appeals Case No. 79A02-1509-CR-1439 v. Appeal from the Tippecanoe Superior Court State of Indiana, The Honorable Steven P. Meyer, Appellee-Plaintiff. Judge Trial Court Cause No. 79D02-1504-F5-26
May, Judge.
Court of Appeals of Indiana | Memorandum Decision 79A02-1509-CR-1439 | May 26, 2016 Page 1 of 7 [1] Nicholas G. Collins appeals his sentence for Level 5 felony operating a motor
vehicle while privileges are forfeited for life. 1 Collins raises two issues:
1) Whether the trial court abused its discretion when considering mitigating circumstances, and
2) Whether his sentence is inappropriate.
[2] We affirm.
Facts and Procedural History [3] On March 16, 2015, Collins began serving a sentence at Community
Corrections for operating a motor vehicle while privileges are forfeited for life.
On April 16, 2015, staff at Community Corrections saw him drive a car into the
parking lot. Collins was arrested and charged with Level 5 operating a motor
vehicle while privileges are forfeited for life.
[4] On July 23, 2015, Collins pleaded guilty without benefit of a plea agreement.
Collins said he drove the car because his moped was “messed up” and he
“didn’t want to miss [his] meeting down there at Community Corrections.”
(Tr. at 15.) The trial court sentenced Collins to five years to be served at the
Department of Correction.
1 Ind. Code § 9-30-10-17 (2015).
Court of Appeals of Indiana | Memorandum Decision 79A02-1509-CR-1439 | May 26, 2016 Page 2 of 7 Discussion and Decision 1. Mitigating Circumstances [5] Collins asserts the trial court entered his sentence without considering the
mitigating circumstance of undue hardship on his dependents. Sentencing rests
within the sound discretion of the trial court and if the sentence is within the
statutory range, we review it for an abuse of discretion. Croy v. State, 953
N.E.2d 660, 663 (Ind. Ct. App. 2011), reh’g denied. An abuse of discretion
occurs when the decision is clearly against the logic and effect of the evidence
before the court or the reasonable inferences to be drawn therefrom. Id.
[6] When challenging the court’s finding of mitigators, an appellant has the burden
of showing the alleged mitigator was offered to the trial court and is both
significant and clearly supported by the record. Anglemyer v. State, 868 N.E.2d
482, 493 (Ind. 2007), modified on other grounds on reh’g 875 N.E.2d 218 (Ind.
2007). A trial court is not required to accept a defendant’s argument as to what
is a mitigating factor or to provide mitigating factors the same weight as does a
defendant. Conley v. State, 972 N.E.2d 864, 873 (Ind. 2012), reh’g denied. It is
not error to decline to find a mitigating factor that is “highly disputable in
nature, weight, or significance.” Healey v. State, 969 N.E.2d 607, 616 (Ind. Ct.
App. 2012) (citation omitted), trans. denied. A trial court is not required to
explain why it did not find a factor significantly mitigating. Newsome v. State,
797 N.E.2d 293, 301 (Ind. Ct. App. 2003), trans. denied.
Court of Appeals of Indiana | Memorandum Decision 79A02-1509-CR-1439 | May 26, 2016 Page 3 of 7 [7] Collins contends the trial court should have found a mitigator in the hardship
his incarceration would cause his minor children. He testified their
grandparents “are struggling to provide for them and take care of them while
[he’s] incarcerated.” (Tr. at 28.) However, he presented no other supporting
evidence, and the trial court was not required to believe his self-serving
testimony. See Allen v. State, 453 N.E.2d 1011, 1013 (Ind. 1983) (trial “court
had no duty to believe defendant’s self-serving statements . . . so these
statements cannot be considered as mitigating circumstances”).
[8] Nor does Collins explain on appeal why this mitigator is particularly
significant. As many incarcerated people have children, absent special
circumstances, the trial court was not required to find Collins’ incarceration
would cause his dependents undue hardship. See Dowdell v. State, 720 N.E.2d
1146, 1154 (Ind. 1999) (trial courts are not required to find undue hardship on
dependents if no special circumstances presented). As Collins has not
demonstrated the trial court overlooked a significant mitigator that was clearly
supported by the record, we find no abuse of discretion.
2. Appropriateness of Sentence [9] Collins also asserts his sentence is inappropriate and requests we reduce the
five-year sentence to four years as his offense was not particularly egregious and
his criminal history does not include violent offenses. We may revise a
sentence if it is inappropriate in light of the nature of the offense and the
character of the offender. Williams v. State, 891 N.E.2d 621, 633 (Ind. Ct. App.
2008) (citing Ind. Appellate Rule 7(B)). As we conduct our review, we consider Court of Appeals of Indiana | Memorandum Decision 79A02-1509-CR-1439 | May 26, 2016 Page 4 of 7 “myriad other factors that come to light in a given case.” Cardwell v. State, 895
N.E.2d 1219, 1224 (Ind. 2008). The appellant bears the burden of
demonstrating his sentence is inappropriate. Childress v. State, 848 N.E.2d 1073,
1080 (Ind. 2006).
[10] When considering the nature of the offense, the advisory sentence is the starting
point to determine the appropriateness of a sentence. Anglemyer, 868 N.E.2d at
494. The sentencing range for a level 5 felony is “a fixed term of between one
(1) and six (6) years, with the advisory sentence being three (3) years.” Ind.
Code § 35-50-2-6(b) (2014).
[11] Regarding the nature of the offense, Collins, while serving a sentence for
driving on a forfeited license, drove his vehicle to Community Corrections.
While the judge stated the offense was not very egregious, we also find nothing
in the record to indicate it was any less egregious than a typical operating a
motor vehicle while privileges are forfeited for life offense.
[12] When considering the character of the offender, one relevant fact is the
defendant’s criminal history. Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct.
App. 2007). The significance of a criminal history in assessing a defendant’s
Free access — add to your briefcase to read the full text and ask questions with AI
MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be May 26 2016, 8:48 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Timothy P. Broden Gregory F. Zoeller Lafayette, Indiana Attorney General of Indiana
Paula J. Beller Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Nicholas G. Collins, May 26, 2016 Appellant-Defendant, Court of Appeals Case No. 79A02-1509-CR-1439 v. Appeal from the Tippecanoe Superior Court State of Indiana, The Honorable Steven P. Meyer, Appellee-Plaintiff. Judge Trial Court Cause No. 79D02-1504-F5-26
May, Judge.
Court of Appeals of Indiana | Memorandum Decision 79A02-1509-CR-1439 | May 26, 2016 Page 1 of 7 [1] Nicholas G. Collins appeals his sentence for Level 5 felony operating a motor
vehicle while privileges are forfeited for life. 1 Collins raises two issues:
1) Whether the trial court abused its discretion when considering mitigating circumstances, and
2) Whether his sentence is inappropriate.
[2] We affirm.
Facts and Procedural History [3] On March 16, 2015, Collins began serving a sentence at Community
Corrections for operating a motor vehicle while privileges are forfeited for life.
On April 16, 2015, staff at Community Corrections saw him drive a car into the
parking lot. Collins was arrested and charged with Level 5 operating a motor
vehicle while privileges are forfeited for life.
[4] On July 23, 2015, Collins pleaded guilty without benefit of a plea agreement.
Collins said he drove the car because his moped was “messed up” and he
“didn’t want to miss [his] meeting down there at Community Corrections.”
(Tr. at 15.) The trial court sentenced Collins to five years to be served at the
Department of Correction.
1 Ind. Code § 9-30-10-17 (2015).
Court of Appeals of Indiana | Memorandum Decision 79A02-1509-CR-1439 | May 26, 2016 Page 2 of 7 Discussion and Decision 1. Mitigating Circumstances [5] Collins asserts the trial court entered his sentence without considering the
mitigating circumstance of undue hardship on his dependents. Sentencing rests
within the sound discretion of the trial court and if the sentence is within the
statutory range, we review it for an abuse of discretion. Croy v. State, 953
N.E.2d 660, 663 (Ind. Ct. App. 2011), reh’g denied. An abuse of discretion
occurs when the decision is clearly against the logic and effect of the evidence
before the court or the reasonable inferences to be drawn therefrom. Id.
[6] When challenging the court’s finding of mitigators, an appellant has the burden
of showing the alleged mitigator was offered to the trial court and is both
significant and clearly supported by the record. Anglemyer v. State, 868 N.E.2d
482, 493 (Ind. 2007), modified on other grounds on reh’g 875 N.E.2d 218 (Ind.
2007). A trial court is not required to accept a defendant’s argument as to what
is a mitigating factor or to provide mitigating factors the same weight as does a
defendant. Conley v. State, 972 N.E.2d 864, 873 (Ind. 2012), reh’g denied. It is
not error to decline to find a mitigating factor that is “highly disputable in
nature, weight, or significance.” Healey v. State, 969 N.E.2d 607, 616 (Ind. Ct.
App. 2012) (citation omitted), trans. denied. A trial court is not required to
explain why it did not find a factor significantly mitigating. Newsome v. State,
797 N.E.2d 293, 301 (Ind. Ct. App. 2003), trans. denied.
Court of Appeals of Indiana | Memorandum Decision 79A02-1509-CR-1439 | May 26, 2016 Page 3 of 7 [7] Collins contends the trial court should have found a mitigator in the hardship
his incarceration would cause his minor children. He testified their
grandparents “are struggling to provide for them and take care of them while
[he’s] incarcerated.” (Tr. at 28.) However, he presented no other supporting
evidence, and the trial court was not required to believe his self-serving
testimony. See Allen v. State, 453 N.E.2d 1011, 1013 (Ind. 1983) (trial “court
had no duty to believe defendant’s self-serving statements . . . so these
statements cannot be considered as mitigating circumstances”).
[8] Nor does Collins explain on appeal why this mitigator is particularly
significant. As many incarcerated people have children, absent special
circumstances, the trial court was not required to find Collins’ incarceration
would cause his dependents undue hardship. See Dowdell v. State, 720 N.E.2d
1146, 1154 (Ind. 1999) (trial courts are not required to find undue hardship on
dependents if no special circumstances presented). As Collins has not
demonstrated the trial court overlooked a significant mitigator that was clearly
supported by the record, we find no abuse of discretion.
2. Appropriateness of Sentence [9] Collins also asserts his sentence is inappropriate and requests we reduce the
five-year sentence to four years as his offense was not particularly egregious and
his criminal history does not include violent offenses. We may revise a
sentence if it is inappropriate in light of the nature of the offense and the
character of the offender. Williams v. State, 891 N.E.2d 621, 633 (Ind. Ct. App.
2008) (citing Ind. Appellate Rule 7(B)). As we conduct our review, we consider Court of Appeals of Indiana | Memorandum Decision 79A02-1509-CR-1439 | May 26, 2016 Page 4 of 7 “myriad other factors that come to light in a given case.” Cardwell v. State, 895
N.E.2d 1219, 1224 (Ind. 2008). The appellant bears the burden of
demonstrating his sentence is inappropriate. Childress v. State, 848 N.E.2d 1073,
1080 (Ind. 2006).
[10] When considering the nature of the offense, the advisory sentence is the starting
point to determine the appropriateness of a sentence. Anglemyer, 868 N.E.2d at
494. The sentencing range for a level 5 felony is “a fixed term of between one
(1) and six (6) years, with the advisory sentence being three (3) years.” Ind.
Code § 35-50-2-6(b) (2014).
[11] Regarding the nature of the offense, Collins, while serving a sentence for
driving on a forfeited license, drove his vehicle to Community Corrections.
While the judge stated the offense was not very egregious, we also find nothing
in the record to indicate it was any less egregious than a typical operating a
motor vehicle while privileges are forfeited for life offense.
[12] When considering the character of the offender, one relevant fact is the
defendant’s criminal history. Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct.
App. 2007). The significance of a criminal history in assessing a defendant’s
character varies based on the gravity, nature, and number of prior offenses in
relation to the current offense. Id.
[13] Collins’ criminal history started while he was a juvenile. He was placed on
diversion for theft; placed on an informal adjustment for obstruction of justice,
minor consumption, and theft; adjudicated a delinquent for assisting a criminal
Court of Appeals of Indiana | Memorandum Decision 79A02-1509-CR-1439 | May 26, 2016 Page 5 of 7 and possession of paraphernalia; and waived from juvenile jurisdiction for
possession of marijuana, possession of paraphernalia, and theft. As an adult,
Collins has been convicted of two counts of possession of marijuana; two
counts of resisting law enforcement; and one count each of criminal trespass,
residential entry, operating while intoxicated, being an habitual substance
offender, operating a vehicle as an habitual traffic violator, operating a motor
vehicle after lifetime forfeiture of driving privileges, and criminal conversion.
Four other charges were dismissed pursuant to plea agreements. While he was
serving the sentences for those convictions, Collins’ probation was revoked four
times. The trial court noted:
[I]ts [sic] time and time and time and time again that you continue to violate the laws of this State and after been [sic] given several opportunities. But yet, you’ve shown an unwillingness to follow the rules and to follow what your [sic] expected to for Probation.
(Tr. at 38-39.)
[14] Collins’ criminal history and the fact that he repeatedly flouts the rules reflect
Collins’ disregard for the law. See Sanchez v. State, 891 N.E.2d 174, 177 (Ind.
Ct. App. 2008) (disregard for laws speaks to character). In light of Collins’
character, we cannot find his five-year sentence was inappropriate. See, e.g.,
Johnson v. State, 986 N.E.2d 852, 857 (Ind. Ct. App. 2013) (affirming sentence
as not inappropriate based on criminal history).
Court of Appeals of Indiana | Memorandum Decision 79A02-1509-CR-1439 | May 26, 2016 Page 6 of 7 Conclusion [15] Collins has not demonstrated the trial court abused its discretion in its
consideration of mitigating factors or that his sentence is inappropriate.
Accordingly, we affirm.
[16] Affirmed.
Baker, J., and Brown, J., concur.
Court of Appeals of Indiana | Memorandum Decision 79A02-1509-CR-1439 | May 26, 2016 Page 7 of 7