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:
ANTHONY C. LAWRENCE
Attorney General Of Indiana
MONIKA PREKOPA TALBOT
Deputy Attorney General
COURT OF APPEALS OF INDIANA
STATE OF INDIANA,
APPEAL FROM THE MADISON SUPERIOR COURT
The Honorable Thomas Newman, Jr., Judge
Cause No. 48D03-0504-FB-162
November 30, 2006
MEMORANDUM DECISION - NOT FOR PUBLICATION
Case Summary and Issue
Jerome Poole was convicted following a guilty plea of dealing cocaine, a Class B
felony, and maintaining a common nuisance, a Class D felony, and sentenced to an aggregate
of fifteen years. At the same hearing, he pled guilty to possession of marijuana, a Class A
misdemeanor, driving while suspended, a Class A misdemeanor, and possession of
marijuana, a Class D felony, all arising out of a separate case. He was sentenced to an
aggregate of three years for these offenses, with this sentence to be served consecutive to the
aggregate fifteen-year sentence imposed above. He appeals, raising one issue that we expand
and restate as two: whether the trial court properly declined to find the guilty plea as a
mitigating factor; and whether the trial court imposed an inappropriate sentence. Concluding
that the trial court did not err in its determination regarding mitigating circumstances and that
the eighteen-year combined sentence is not inappropriate, we affirm.
Facts and Procedural History
In January 2005, Poole was arrested and charged with one count of resisting law
enforcement, a Class D felony, one count possession of marijuana, a Class A misdemeanor,
and one count of driving while suspended, a Class A misdemeanor (“Cause 280”). In
February 2005, the State added a fourth count of Class D felony possession of marijuana.
While awaiting trial on these charges, Poole was arrested and charged with one count of
dealing cocaine, a Class B felony, and one count of maintaining a common nuisance, a Class
D felony (“Cause 162”). On October 31, 2005, Poole pled guilty to both counts under Cause
162 and to both possession of marijuana charges and driving while suspended under Cause
280. The final remaining charge, resisting law enforcement, was dismissed.
At the sentencing hearing, the trial court sentenced Poole for both cause numbers. For
Cause 162, Poole was sentenced to fifteen years for dealing cocaine and thirty months for
maintaining a common nuisance, the sentences to be served concurrently. Under Cause 280,
Poole was sentenced to one year for driving while suspended, one year for misdemeanor
possession of marijuana, and three years for felony possession of marijuana, also to be served
concurrently. The sentences for the two causes were to be served consecutively, resulting in
an aggregate eighteen-year sentence. The trial court cited Poole’s criminal history as an
aggravating circumstance justifying the enhanced sentence on both causes and did not cite
any mitigating circumstances. Poole now appeals his sentence.
Discussion and Decision
I. Guilty Plea as Mitigating Circumstance
Poole contends that the trial court erred in failing to find his guilty plea as a significant
mitigating factor. In evaluating Poole’s contention, we must first address a recent change in
criminal sentencing in Indiana. Our legislature responded to Blakely v. Washington, 542
U.S. 296 (2004), by amending our sentencing statutes to replace “presumptive” sentences
with “advisory” sentences, effective April 25, 2005. Weaver v. State, 845 N.E.2d 1066, 1070
(Ind. Ct. App. 2006), trans. denied. Under the new advisory sentencing scheme, “a court
may impose any sentence that is authorized by statute and permissible under the Indiana
Constitution ‘regardless of the presence or absence of aggravating circumstances or
mitigating circumstances.’” Id. (quoting Ind. Code § 35-38-1-7.1(d)). Thus, while under the
previous presumptive sentencing scheme, a sentence must be supported by Blakelyappropriate aggravators and mitigators, under the new advisory sentencing scheme, a trial
court may impose any sentence within the proper statutory range regardless of the presence
or absence of aggravators or mitigators.
There is a split in this court as to whether the advisory sentencing scheme should be
applied retroactively. Compare Settle v. State, 709 N.E.2d 34, 35 (Ind. Ct. App. 1999)
(sentencing statute in effect at the time of the offense, rather than at the time of conviction or
sentencing, controls) and Weaver, 845 N.E.2d at 1070 (concluding that application of
advisory sentencing statute violates the prohibition against ex post facto laws if defendant
was convicted before effective date of the advisory sentencing statutes but was sentenced
after) with Samaniego-Hernandez v. State, 839 N.E.2d 798, 805 (Ind. Ct. App. 2005)
(concluding that change from presumptive sentences to advisory sentences is procedural
rather than substantive and therefore application of advisory sentencing scheme is proper
when defendant is sentenced after effective date of amendment even though offense was
committed before). Our supreme court has not yet had the opportunity to resolve this issue.
Poole was charged in Cause 280 on January 14, 2005, and in Cause 162 on April 5,
2005. He was sentenced on December 12, 2005. The change in our sentencing statutes was
effective on April 25, 2005. If the different sentencing statutes would produce a difference in
outcomes, this case would force the issue of whether or not the amendment should be
enforced retroactively. In this case, however, the outcome is the same regardless of which
sentencing scheme is applied, and therefore we need not decide the issue of retroactivity
herein. Rather, we will address Poole’s argument under each scheme.
A. Presumptive Sentencing Scheme
Prior to the April 25, 2005, amendments, sentencing was within the discretion of the
trial court. Cotto v. State, 829 N.E.2d 520, 524 (Ind. 2005). “If a trial court uses
aggravating or mitigating circumstances to enhance or reduce the presumptive sentence, it
must: (1) identify all significant mitigating and aggravating circumstances; (2) state the
specific reason why each circumstance is determined to be mitigating or aggravating; and (3)
articulate its evaluation and balancing of the circumstances.” Patterson v State, 846 N.E.2d
723, 727 (Ind. Ct. App. 2006). “The trial court’s assessment of the proper weight of
mitigating and aggravating circumstances is entitled to great deference on appeal and will be
set aside only upon a showing of a manifest abuse of discretion.” Id.
If we find an irregularity in a trial court’s sentencing decision, “we have the
option to remand to the trial court for a clarification or new sentencing
determination, to affirm the sentence if the error is harmless, or to reweigh the
proper aggravating and mitigating circumstances independently at the
Hope v. State, 834 N.E.2d 713, 718 (Ind. Ct. App. 2005) (quoting Cotto, 829 N.E.2d at 525).
During sentencing, a trial court is not obligated to weigh or credit mitigating factors in
the manner a defendant suggests. Frey v. State, 841 N.E.2d 231, 234 (Ind. Ct. App. 2006).
Nevertheless, if the trial court does not find a factor clearly supported by the record, a
reasonable belief arises that the mitigating factor was improperly overlooked. Id.
The trial court need only identify the mitigating circumstances it finds significant.
Sensback v. State, 720 N.E.2d 1160, 1163 (Ind. 1999). Our supreme court has noted that a
defendant’s guilty plea may be a significant mitigating factor as it saves court time and
judicial resources, and can demonstrate a willingness to accept responsibility. Widener v.
State, 659 N.E.2d 529, 534 (Ind. 1995). However, not every guilty plea must be credited as a
significant mitigating circumstance, and the determination is necessarily fact sensitive.
Trueblood v. State, 715 N.E.2d 1242, 1257 (1999), cert. denied, 531 U.S. 858 (2000).
Where the State receives a substantial benefit from the defendant’s plea of guilty, the
defendant is entitled to a substantial benefit in return. Patterson, 846 N.E.2d at 729. The
State dropping charges in exchange for a guilty plea can be considered a substantial benefit
to the defendant. Id.
The trial court in this case did not abuse its discretion in declining to find Poole’s
guilty plea a significant mitigating factor. In light of the amount of time it took Poole to
enter his guilty plea, the State did not receive a substantial benefit. It was over ten months
after Cause 280 was filed and six months after Cause 162 was filed that Poole pled guilty,
and the State did have to prepare a case against him. The State also dropped the Class D
felony charge of resisting arrest. Therefore, although the State did receive a minimal benefit
from Poole’s plea, Poole also received a benefit from his plea, and the trial court was within
its discretion not to consider Poole’s guilty plea a significant mitigating factor.
B. Advisory Sentencing Scheme
The amended sentencing statutes provide that for a Class B felony, a person “shall be
imprisoned for a fixed term of between six (6) and twenty (20) years, with the advisory
sentence being ten (10) years.” Ind. Code § 35-50-2-5. For a Class D felony, a person “shall
be imprisoned for a fixed term of between six (6) months and three (3) years, with the
advisory sentence being one and one-half (1/2) years.” Ind. Code § 35-50-2-7. For a Class A
misdemeanor, a person “shall be imprisoned for a fixed term of not more than (1) year.” Ind.
Code § 35-50-3-2.
Under the advisory sentencing scheme, a court may impose any legal sentence
“regardless of the presence or absence of aggravating circumstances or mitigating
circumstances.” Ind. Code § 35-38-1-7.1(d). Although our supreme court has not yet
interpreted this statute, its plain language seems to indicate that “a sentencing court is under
no obligation to find, consider, or weigh either aggravating or mitigating circumstances.”
Fuller v. State, 852 N.E.2d 22, 26 (Ind. Ct. App. 2006). Each of Poole’s sentences was
within the prescribed statutory range; therefore the trial court’s identification and balancing
of the aggravators and mitigators in this case cannot be error under the new sentencing
scheme. Even if the trial court still has an obligation to identify and balance aggravating and
mitigating circumstances, as discussed above, the trial court acted within its discretion in
identifying and balancing the aggravators and mitigators in this case.
II. Inappropriate Sentence
Poole also contends his eighteen-year sentence is inappropriate. According to Indiana
Appellate Rule 7(B), we “may revise a sentence authorized by statute if, after due
consideration of the trial court’s decision, the court finds that the sentence is inappropriate in
light of the nature of the offense and the character of the offender.” The “nature of the
offense” portion of the standard speaks to the statutory sentence for the class of crimes to
which the offense belongs. Williams v. State, 782 N.E.2d 1039, 1051 (Ind. Ct. App. 2003),
trans. denied. The “character of the offender” portion of the standard refers to the general
sentencing considerations and the relevant aggravating and mitigating circumstances. Id.
Poole has a significant criminal history, one that has not stopped growing even while
he was awaiting sentencing. The circumstances of these crimes demonstrate an escalation in
criminal activity, from possession of marijuana to dealing cocaine. In light of this history
and the absence of significant mitigating factors, it was reasonable for Poole’s sentence to be
enhanced. We cannot say that an eighteen-year sentence is inappropriate in this case.
Based on the foregoing, we conclude that the trial court did not err in failing to find
Poole’s guilty plea as a significant mitigating factor. Further, the eighteen-year sentence was
not inappropriate in light of Poole’s character and the nature of the offenses.
BARNES, J., concurs.
SULLIVAN, J., concurs in result.