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:
DONALD C. SWANSON, JR.
Fort Wayne, Indiana
GREGORY F. ZOELLER
Attorney General of Indiana
KATHERINE M. COOPER
Deputy Attorney General
Sep 13 2011, 9:26 am
COURT OF APPEALS OF INDIANA
JAMES E. SIMS,
STATE OF INDIANA,
APPEAL FROM THE ALLEN SUPERIOR COURT
The Honorable John F. Surbeck, Jr., Judge
Cause No. 02D06-1009-FD-936
September 13, 2011
MEMORANDUM DECISION - NOT FOR PUBLICATION
of the supreme court,
court of appeals and
James E. Sims (“Sims”) appeals after pleading guilty to one count of attempted theft1
as a Class D felony and one count of criminal mischief2 as a Class A misdemeanor. Sims
raises the following restated issue for our review: whether Sims’ three-year aggregate,
executed sentence is inappropriate in light of the nature of the offense and the character of
FACTS AND PROCEDURAL HISTORY
On September 20, 2010, Sims broke into the property of Frontier Communications in
Allen County through a hole in a chain-link fence surrounding the property. Frontier
Communications had posted on its property several “No Trespassing” signs, and access to the
property could only be had through a controlled gate. Sims entered the property twice with
Anthony Harris (“Harris”).
Surveillance equipment on the property recorded Sims placing scrap communication
wire in a pile after Harris handed it to Sims from a dumpster located on the property. When
Fort Wayne police officers arrived at the property, they found Sims and Harris attempting to
steal the wire. Sims admitted that he did not have permission to be on the property, and that
he and Harris intended to profit from stealing the wire by selling it at a scrap yard.
The State charged Sims with attempted theft and criminal mischief, and Sims pleaded
guilty as charged. At the conclusion of Sims’ sentencing hearing, the trial court imposed a
three-year executed sentence for the attempted theft conviction and a one-year executed
See Ind. Code § 35-43-4-2(a); Ind. Code § 35-41-5-1.
See Ind. Code § 35-43-2-2.
sentence for the criminal mischief conviction, each sentence to be served concurrently. Sims
DISCUSSION AND DECISION
Sims appeals, arguing that the trial court failed to recognize proffered mitigating
circumstances, and that his sentence is inappropriate in light of the nature of the offense and
the character of the offender.
Trial courts are required to enter sentencing statements whenever imposing 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 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. Another example includes a sentencing statement that
explains reasons for imposing a sentence, including mitigating and aggravating
circumstances, which are not supported by the record. Id. at 490-91. A court may also abuse
its discretion by citing reasons that are contrary to law. Id. at 491. Finally, a trial court may
abuse its discretion by entering a sentencing statement that omits mitigating factors that are
clearly supported by the record and advanced for consideration. 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
. . . permissible under the Constitution of the State of Indiana.” Ind. Code § 35-38-1-7.1(d).
Sims argues that the trial court failed to recognize mitigating factors, which he
contends are substantial. In particular, Sims argues that the trial court abused its discretion
by ignoring the proffered mitigating factors. However, the record reflects that the trial court
acknowledged that Sims cooperated with authorities by making a full confession, that no
restitution was due to Frontier Communications, and that Sims had dependent children. Tr.
at 8. The trial court noted, however, that Sims had an extensive criminal history, consisting
of twenty-three criminal convictions accumulated over a period of thirty-five years. Id. at 12.
The trial court found that Sims’ criminal history was an aggravating factor that outweighed
any mitigating circumstances and justified the imposition of an enhanced sentence.
A defendant who pleads guilty generally deserves “some” mitigating weight afforded
to the plea. McElroy v. State, 865 N.E.2d 584, 591 (Ind. 2007) (citing Cotto v. State, 829
N.E.2d 520, 525 (Ind. 2005)). However, a trial court does not necessarily abuse its discretion
by failing to recognize a defendant’s guilty plea as a significant mitigating circumstance. Id.
A guilty plea is not automatically a significant mitigating factor. Mull v. State, 770 N.E.2d
308, 314 (Ind. 2002). A guilty plea does not rise to the level of significant mitigation where
the decision to plead guilty is merely a pragmatic one. Wells v. State, 836 N.E.2d 475, 479
(Ind. Ct. App. 2005). Such is the case here. Sims was caught on the property of Frontier
Communications stealing from the business. We agree with the trial court’s assessment of
the aggravating and proffered mitigating circumstances and find no abuse of discretion here.
Sims also asserts that his sentence is inappropriate in light of the nature of the offense
and the character of the offender. This court has the authority to revise a sentence “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.” Ind.
Appellate Rule 7(B). Assuming without deciding that the nature of Sims’ offenses are not
remarkable, we conclude that the sentence imposed here is appropriate given Sims’ character.
During a thirty-five year period of time, Sims has amassed ten misdemeanor convictions and
thirteen felony convictions, and has twice had his probation and parole revoked. Those
convictions include five theft convictions, one armed robbery conviction and one criminal
trespass conviction. Sims’s five-year unemployment history, history of substance abuse, and
failure to support his dependents poorly reflect on his character. Thus, we conclude that
Sims’ sentence is not inappropriate in light of the nature of the offense and the character of
BAKER, J., and BROWN, J., concur.