FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JOHN H. WATSON STEVE CARTER
Public Defender Attorney General of Indiana
Sunman, Indiana
MICHAEL GENE WORDEN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
BARRY N. GRAY, )
)
Appellant-Defendant, )
)
vs. ) No. 69A05-0212-CR-601
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE RIPLEY CIRCUIT COURT
The Honorable Carl H. Taul, Judge
Cause No. 69C01-0105-CF-19
June 19, 2003
OPINION - FOR PUBLICATION
RILEY, Judge
STATEMENT OF THE CASE
Appellant-Defendant, Barry N. Gray (Gray), appeals the sentenced
imposed on him by the trial court.
We affirm.
ISSUE
Gray raises one issue on appeal, which we restate as follows: whether
the trial court properly sentenced Gray.[1]
FACTS AND PROCEDURAL HISTORY
On May 18, 2001, the State charged Gray with Count I, home
improvement fraud, a Class C felony, Ind. Code § 35-43-6-13(c)(1); Count
II, theft, a Class D felony, I.C. § 35-43-4-2; Count III, home improvement
fraud, a Class A misdemeanor, I.C. § 35-43-6-12(a)(3)(b)(1); and Count IV,
habitual offender, I.C. § 35-50-2-8. These charges resulted from Gray
taking money from two different elderly men, Muncie Beverly and Elmer
Weise, for home improvements and then either not completing the work or not
doing any work at all for the money paid. The offenses in the present
case, and similar offenses in Jefferson County, were committed after Gray
was released on bail for similar charges in Vanderburgh County.
On March 27, 2002, a jury trial was set for October 1 and October 2,
2002. On September 24, 2002, Gray filed a Motion for Severance of Counts
to sever Count II, theft, a Class D felony, and Count III, home improvement
fraud, a Class C felony. On September 30, 2002, the trial court granted
Gray’s motion and ordered Count II, theft, a Class D felony, to be tried on
October 1, 2002, and Count III, home improvement fraud, a Class A
misdemeanor, rescheduled. On October 1, 2002, the State amended Count I,
reducing the home improvement fraud count from a Class C felony to a Class
D felony, pursuant to I.C. § 35-43-6-13(b), and amended the habitual
offender information. On that same date, Gray pled guilty to Count I, home
improvement, a Class C felony; Count II, theft, a Class D felony, and
amended Count IV, habitual offender.
On October 25, 2002, the Pre-Sentence Investigation Report was filed.
The Pre-Sentence Investigation Report showed that Gray had several home
improvement fraud and theft convictions in several counties in Indiana.
Additionally, on that same date, a Supplemental Pre-Sentence Investigation
Report was filed that contained a letter from Gray expressing his remorse.
On October 30, 2002, a sentencing hearing was held. At the
sentencing hearing, the State recommended a total sentence of ten and one-
half years, with three years suspended. Gray requested that the trial
court accept the State’s recommendation. After considering the Pre-
Sentence Investigation Report and all of the evidence presented, the trial
court imposed, in pertinent part, the following sentence:
Mr., uh, Gray has an extensive criminal history which involves exactly
the same sort of thing for which he stands convicted here today and
would indicate to this Court that, uh, he is not as he maintains in
his letter a bad businessman, he is a crook. Also contrary to what he
maintains, it appears that the money didn’t even go to the drugs that
he claims he has a problem with, but to gambling. And that money
didn’t go to his daughter who he maintains he cared so much for. And
I cannot personally see any particular reason why any of his sentence
should be suspended. However, since both parties seem to think that’s
appropriate and both parties are urging the Court to do so in some
vain [sic] hope that he will repay some of this money, which I also
doubt, I will sentence him to three years on each of the Class D
felony counts, four and a half years on the habitual offender count.
I’ll suspend three years on the, on Count II, place him on probation
for a period of three years. I direct the sentence be served
consecutively to that in Jefferson County and to that in Vanderburgh
County.
(Transcript pp. 16-17). Thus, the trial court sentenced Gray to the
Indiana Department of Correction for a total of ten and one-half years with
three years suspended. Gray was ordered to serve three years on probation.
Gray now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Standard of Review
At the outset, we note that sentencing decisions are within the trial
court’s discretion, and will be reversed only upon a showing of abuse of
discretion. Powell v. State, 751 N.E.2d 311, 314 (Ind. Ct. App. 2001).
The trial court’s sentencing discretion includes the determination of
whether to increase presumptive penalties. Madden v. State, 697 N.E.2d
964, 967 (Ind. Ct. App. 1998), trans. denied. In doing so, the trial court
determines which aggravating and mitigating circumstances to consider, and
is solely responsible for determining the weight to accord each of these
factors. Perry v. State, 751 N.E.2d 306, 309 (Ind. Ct. App. 2001). The
sentencing statement must: (1) identify significant aggravating and
mitigating circumstances; (2) state the specific reason why each
circumstance is aggravating and mitigating; and (3) demonstrate that the
aggravating and mitigating circumstances have been weighed to determine
that the aggravators outweigh the mitigators. Powell, 751 N.E.2d at 315.
We examine both the written sentencing order and the trial court’s comments
at the sentencing hearing to determine whether the trial court adequately
explained the reasons for the sentence. Id. A sentence enhancement will
be affirmed, if after due consideration of the trial court’s decision, this
court finds that the sentence was appropriate in light of the nature of the
offense and the character of the offender. See Ind. Appellate Rule 7(B);
See Rodriguez v. State, 785 N.E.2d 1169, 1174 (Ind. Ct. App. 2003).
II. Imposition of an Enhanced Sentence:
Gray argues that he was improperly sentenced. Specifically, Gray
contends that the trial court failed to recognize any of the proffered
mitigating factors when imposing his enhanced sentence. Alternatively, the
State maintains that the trial court properly declined to attach any
significant weight to Gray’s proffered mitigating factors.
In the present case, Gray received ten and one-half years with three
years suspended to probation for his conviction. The presumptive sentence
for a Class D felony is one and one-half years, with not more than one and
one-half years added for aggravating circumstances or not more than one
year subtracted for mitigating circumstances. See I.C. § 35-50-2-7. In
support of its sentence, the trial court noted the following aggravating
factors: “1. Defendant’s prior criminal history.” (Appellant’s App. p.
96). The trial court did not recognize any mitigating circumstances. Gray
now attempts to claim that the trial court erred by failing to take into
account any of the proffered mitigating circumstances. Specifically, Gray
maintains that the trial court failed to consider (1) his remorse, as
expressed by Gray in a letter proffered to the trial court; (2) his entry
of a guilty plea to the charges; and (3) the hardship imposed on his
dependents by his incarceration.
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.
Firestone v. State, 774 N.E.2d 109, 114 (Ind. Ct. App. 2002).
Additionally, trial courts are not required to include within the record a
statement that it considered all proffered mitigating circumstances, only
those that it considered significant. Id. at 115.
First, Gray contends that the trial court should have considered his
remorse as indicated by his proffered letter to the trial court as a
significant mitigating factor. However, we find that this proposed
mitigator is not significant. The record reveals that Gray has a history
of home improvement fraud scams perpetrated upon elderly people.
Specifically, Gray was convicted in Jefferson County and Vanderburgh County
of the same offense. Although Gray claims remorse in his proffered letter
by claiming that he was a bad businessman, we agree with the trial court
and reject this characterization of Gray’s actions. As previously stated,
a trial court does not err in failing to find a mitigating factor unless it
is both significant and clearly supported by the record. Firestone, 774
N.E.2d at 114. Our review of the record reveals that Gray is not remorseful
for his actions evidenced by repeated instances of his conduct. Thus, we
find that the trial court properly declined to attach any significant
weight to this proffered mitigator.
Gray also argues that the trial court erred by not attaching any
significant weight to his guilty plea. We have previously stated that
although a guilty plea is not automatically a significant mitigating
factor, where the State reaps a substantial benefit from the defendant’s
plea, the plea saves court time and the victim is spared the trauma of a
trial, the defendant should have a substantial benefit returned. Farmer v.
State, 772 N.E.2d 1025, 1027 (Ind. Ct. App. 2002). However, a guilty plea
is not automatically a significant mitigating factor. Mull v. State, 770
N.E.2d 308, 314 (Ind. 2002); see also Davies v. State, 758 N.E.2d 981, 987
(Ind. Ct. App. 2001), trans. denied (affirming the trial court’s refusal to
find defendant’s guilty pleas as a mitigating circumstance when the record
indicated that the plea was “more likely the result of pragmatism than
acceptance of responsibility and remorse”).
Such is the case here. Gray, not the State, received a substantial
benefit from his guilty plea. Specifically, the record reveals that Gray
pled guilty after Count I, home improvement fraud, a Class C felony, was
reduced to a Class D felony. Moreover, Gray did not plead guilty until the
morning of October 1, 2002, which was the morning scheduled for the jury
trial. Thus, judicial resources and time were still spent on Gray. See
Farmer, 772 N.E.2d at 1027 Under these circumstances, we do not believe
the trial court abused its discretion in according no weight to Gray’s
guilty plea. See Mull, 770 N.E.2d at 314.
Lastly, Gray contends that the trial court should have considered the
hardship upon his dependent daughter and father, who had a life threatening
illness, in enhancing his sentence. However, we have previously held that
the trial court is not required to find mitigating factors or to accept as
mitigating the circumstances proffered by the defendant. Powell, 751
N.E.2d at 317; Rodriguez, 785 N.E.2d at 1178. Specifically, the trial
court is not required to find that a defendant’s incarceration would result
in undue hardship upon his dependants. See Allen v. State, 743 N.E.2d
1222, 1237 (Ind. Ct. App. 2001), reh’g denied, trans. denied. Again, we
note that only when the trial court fails to find a significant mitigator
that is clearly supported by the record is there a reasonable belief that
it was overlooked. Rodriguez, 785 N.E.2d at 1179.
Here, the trial court did not mention in its oral or written
sentencing statement the hardship on Gray’s dependents due to his
incarceration as a significant mitigating circumstance. However, the
record indicates that Gray’s daughter was living with her mother. The
record further reveals that Gray spent his money on gambling, not on care
for his daughter or father. Additionally, even the minimum executed prison
term that Gray could have received would still result in a loss of
financial support to his daughter and father for a period of time. See
Battles v. State, 688 N.E.2d 1230, 1237 (Ind. 1997) (declining to attach
any significant weight to proffered mitigating circumstance between
presumptive and enhanced sentence would not impose much, if any, additional
hardship on the child). Therefore, we find that the trial court properly
declined to attach any significant weight to this proffered mitigating
circumstance. See Rodriguez, 785 N.E.2d at 1179; See Powell, 751 N.E.2d at
317.
Furthermore, our review of the record reveals that at the sentencing
hearing, Gray specifically requested that the State’s recommendation of ten
and one-half years imprisonment, with three years suspended, be accepted.
As we have previously observed, retaining a benefit while relieving oneself
of the burden of the plea agreement “would operate as a fraud upon the
court.” Spivey v. State, 553 N.E.2d 508, 509 (Ind. Ct. App. 1990). Thus,
Gray received the sentence that he agreed to.
With all of this in mind, it is our determination that the trial court
did not abuse its discretion when sentencing Gray. See Powell, 751 N.E.2d
at 314. Here, the trial court properly demonstrated that aggravating
circumstances existed to enhance Gray’s sentence and declined to attach any
significant weight to the proffered mitigating circumstances. Therefore,
the trial court properly evaluated Gray’s aggravating and proffered
mitigating circumstances when it imposed an enhanced sentence.
After due consideration of the trial court’s decision, we find that
Gray’s sentence was appropriate in light of the nature of the offense and
the character of the offender. See App. R. 7(B); See Rodriguez, 785 N.E.2d
at 1174.
CONCLUSION
Based on the foregoing, we conclude that the trial properly evaluated
Gray’s aggravating and proffered mitigating circumstances, and therefore,
the enhanced sentence was not inappropriate.
Affirmed.
SHARPNACK, J., and BARNES, J., concur.
-----------------------
[1] On July 19, 2002, our Supreme Court amended Appellate Rule 7(B)
effective January 1, 2003. The rule is directed to the reviewing court and
is made as of the date the decision or opinion is handed down.
Accordingly, although the sentence here was imposed prior to January 1,
2003, our review has taken place as of this date and the “inappropriate”
test is therefore applied.
