Sandra M. Bowers v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: June 29, 2016
• Docket: 03A01-1511-CR-2042
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Jun 29 2016, 9:07 am this Memorandum Decision shall not be CLERK regarded as precedent or cited before any Indiana Supreme Court Court of Appeals court except for the purpose of establishing and Tax Court

the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Christopher L. Clerc Gregory F. Zoeller Columbus, Indiana Attorney General of Indiana

Richard C. Webster Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Sandra M. Bowers, June 29, 2016 Appellant-Defendant, Court of Appeals Case No. 03A01-1511-CR-2042 v. Appeal from the Bartholomew Superior Court State of Indiana, The Honorable James D. Worton, Appellee-Plaintiff. Judge Trial Court Cause No. 03D01-1501-F3-178

Brown, Judge.

Court of Appeals of Indiana | Memorandum Decision 03A01-1511-CR-2042 | June 29, 2016 Page 1 of 8 [1] Sandra M. Bowers appeals her sentence for dealing in methamphetamine as a

level 3 felony. Bowers raises one issue which we revise and restate as whether

the trial court abused its discretion in sentencing her. We affirm.

Facts and Procedural History

[2] On July 3, 2014, Bowers was stopped by police and found in possession of

methamphetamine. After she was placed in a police vehicle at her request, the

police discovered a digital scale with white powder residue on the floor near the

driver’s seat. The top of the scale tested positive for methamphetamine. One of

the officers informed Bowers that she was being arrested for possession of

paraphernalia. The police also discovered a clear baggy in her right front

pocket, and an officer asked her if she had anything else on her person. Bowers

reached her arms near the front of her pants, reached down, and retrieved a

clear bag containing methamphetamine. Upon questioning by police, Bowers

admitted to selling methamphetamine.

[3] On January 12, 2015, the State charged Bowers with Count I, dealing in

methamphetamine as a level 3 felony, and Count II, possession of

methamphetamine as a level 5 felony. On October 5, 2015, Bowers signed a

plea agreement in which she pled guilty to Count I, dealing in

methamphetamine as a level 3 felony, and Count II was dismissed.

[4] On October 30, 2015, the court held a hearing at which Bowers testified that

she dealt drugs on June 27, 2014, and July 2, 2014, and that a police officer

“knew that [she] was going to pick up some more, so he pulled me over.”

Court of Appeals of Indiana | Memorandum Decision 03A01-1511-CR-2042 | June 29, 2016 Page 2 of 8 Transcript at 14-15. On cross-examination, Bowers indicated that the

presentence investigation report stated that she reported that she was not a drug

dealer, only a drug user. She testified that she would have to sell drugs

regularly to qualify as a drug dealer, that she did not sell drugs “very often,”

and that she sold drugs “[e]very couple of days.” Id. at 27. After the

presentation of evidence, the court and the parties discussed whether the

sentence should be served consecutive to other cause numbers. When the court

asked for final argument from Bowers’s counsel, he stated in part: “[T]hat’s

preliminarily, or primarily our argument, Judge, that we would ask the Court,

in it’s [sic] discretion to run this case concurrently with uh 41C01-1411-FA-21 .

. . .” Id. at 36. He also stated that Bowers was doing well in prison and taking

advantage of the programs that the court in Johnson County recommended for

her.

[5] The court accepted the plea agreement, dismissed Count II, and entered a

judgment of conviction for Count I, dealing in methamphetamine as a level 3

felony. The court found no mitigating circumstances and the following

aggravating circumstances: Bowers’s criminal history or delinquent behavior,

her recent violation of the conditions of any probation, parole, community

corrections placement, or pretrial release, that she has had the opportunity for

treatment outside of a penal facility and has been unsuccessful, and that she has

been placed on probation multiple times and has had multiple petitions to

revoke probation filed against her. The court sentenced her to twelve years

Court of Appeals of Indiana | Memorandum Decision 03A01-1511-CR-2042 | June 29, 2016 Page 3 of 8 with ten years executed and two years suspended to probation, and ordered that

the sentence be served consecutive to three other cause numbers.

Discussion

[6] The issue is whether the trial court abused its discretion in sentencing Bowers.

Bowers argues that the trial court abused its discretion when it failed to consider

her admissions to and cooperation with police and guilty plea as significant

mitigating factors. She asserts that this Court could impose a sentence less than

twelve years or it could order that her sentence run concurrently with the

sentence from one of the three other causes.

[7] The State argues that Bowers waived appellate review of this issue because she

never raised or argued the mitigating circumstances she now claims the trial

court should have considered, and that, waiver notwithstanding, her arguments

do not have merit. It asserts that Bowers did not cooperate with the police from

the outset and waited until the officers discovered a set of scales with the white

powder residue of methamphetamine on it and advised her she was going to be

arrested. With respect to her guilty plea, the State contends that Bowers pled

guilty approximately two weeks before trial was scheduled to begin, substantial

evidence was recovered from her person and vehicle, and she received a

substantial benefit by pleading guilty.

[8] We review the sentence 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). An

abuse of discretion occurs if the decision is “clearly against the logic and effect

Court of Appeals of Indiana | Memorandum Decision 03A01-1511-CR-2042 | June 29, 2016 Page 4 of 8 of the facts and circumstances before the court, or the reasonable, probable, and

actual deductions to be drawn therefrom.” Id. A trial court abuses its

discretion if it: (1) fails “to enter a sentencing statement at all;” (2) enters “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;” (3) enters a sentencing statement that “omits reasons that

are clearly supported by the record and advanced for consideration;” or (4)

considers reasons that “are improper as a matter of law.” Id. at 490-491. If the

trial court has abused its discretion, we will remand for resentencing “if we

cannot say with confidence that the trial court would have imposed the same

sentence had it properly considered reasons that enjoy support in the record.”

Id. at 491. The relative weight or value assignable to reasons properly found, or

those which should have been found, is not subject to review for abuse of

discretion. Id.

[9] The determination of mitigating circumstances is within the discretion of the

trial court. Rogers v. State, 878 N.E.2d 269, 272 (Ind. Ct. App. 2007), trans.

denied. The trial court is not obligated to accept the defendant’s argument as to

what constitutes a mitigating factor, and a trial court is not required to give the

same weight to proffered mitigating factors as does a defendant. Id. An

allegation that the trial court failed to identify or find a mitigating factor

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.

If the trial court does not find the existence of a mitigating factor after it has

Court of Appeals of Indiana | Memorandum Decision 03A01-1511-CR-2042 | June 29, 2016 Page 5 of 8 been argued by counsel, it is not obligated to explain why it has found that the

factor does not exist. Id.

[10] As for Bowers’s assertion that she provided admissions and cooperation to the

police, we note that she did not advance this as a mitigator to the trial court. “If

the defendant does not advance a factor to be mitigating at sentencing, this

Court will presume that the factor is not significant and the defendant is

precluded from advancing it as a mitigating circumstance for the first time on

appeal.” Henley v. State, 881 N.E.2d 639, 651 (Ind. 2008) (quoting Spears v.

State, 735 N.E.2d 1161, 1167 (Ind. 2000), reh’g denied).

[11] However, even though Bowers did not raise her guilty plea as a mitigating

factor at sentencing, it can still be raised for the first time on appeal. See

Anglemyer, 875 N.E.2d at 220 (observing that the general proposition that a trial

court does not abuse its discretion in failing to consider a mitigating factor that

was not raised at sentencing “has at least one important exception, namely:

pleas of guilty,” holding that “[a]lthough Anglemyer did not argue before the

sentencing court that his guilty plea was a mitigating factor, this does not

preclude him from raising the issue for the first time on appeal,” and examining

the trial court’s failure to mention this factor under the abuse of discretion

standard of review).

[12] A defendant who pleads guilty deserves some mitigating weight be given to the

plea in return. Id. “But an allegation that the trial court failed to identify or

find a mitigating factor requires the defendant to establish that the mitigating

Court of Appeals of Indiana | Memorandum Decision 03A01-1511-CR-2042 | June 29, 2016 Page 6 of 8 evidence is not only supported by the record but also that the mitigating

evidence is significant.” Id. at 220-221. The significance of a guilty plea as a

mitigating factor varies from case to case. Id. For example, a guilty plea may

not be significantly mitigating when it does not demonstrate the defendant’s

acceptance of responsibility or when the defendant receives a substantial benefit

in return for the plea. Id.

[13] The record shows that Bowers did not plead guilty until almost nine months

after being charged and fifteen days before the scheduled jury trial. The plea

agreement was more likely the result of pragmatism than acceptance of

responsibility and remorse, as the evidence against her was discovered in the

vehicle she was driving and on her person. The trial court stated:

Ma’am your testimony it seems to me that, it sounds to me like you are blaming the Police Officer for stopping you and uh, you know I heard you say something that he knew I was going to get more drugs, so he waited for me to do that, as if somehow that places any burden or responsibility on the Police Officer, which I find, rather disturbing that you are placing that responsibility for your conduct on the Officer for stopping you and for finding these things. It is nobody’s fault that you are dealing drugs, other than yours, and you are, in fact a drug dealer, there is no question. There is no question it doesn’t matter if you deal it every single day, or every other day, or once a month, you are still a drug dealer and that is what you are doing. And when you deal drugs you are not only supporting your own habit, but you are causing other people to sink further into their own addiction. So you have accountability for your own actions.

Court of Appeals of Indiana | Memorandum Decision 03A01-1511-CR-2042 | June 29, 2016 Page 7 of 8 Transcript at 42. We cannot say that Bowers has demonstrated that her guilty

plea was a significant mitigating circumstance or that the trial court abused its

discretion.

[14] Even assuming that the trial court abused its discretion, we can say with

confidence that the trial court would have imposed the same sentence given its

comments at the sentencing hearing and the aggravators, which Bowers does

not challenge and which include a criminal history consisting of convictions for

possession of cocaine/methamphetamine or schedule I or II narcotic drug as a

class D felony and possession of marijuana/hash oil/hashish as a class A

misdemeanor in 2006; possession of methamphetamine as a class D felony in

2011; operating while intoxicated and endangering a person as a class A

misdemeanor, two counts of driving while suspended as class A misdemeanors,

unlawful possession or use of a legend drug or precursor as a class D felony,

and possession of paraphernalia as a class A misdemeanor in 2014; and dealing

in methamphetamine as a class B felony and dealing in methamphetamine as a

level 5 felony in 2015.

Conclusion

[15] For the foregoing reasons, we affirm Bowers’s sentence.

[16] Affirmed.

Baker, J., and May, J., concur.

Court of Appeals of Indiana | Memorandum Decision 03A01-1511-CR-2042 | June 29, 2016 Page 8 of 8