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:
VICTORIA L. BAILEY
Marion County Public Defender Agency
GREGORY F. ZOELLER
Attorney General of Indiana
RICHARD C. WEBSTER
Deputy Attorney General
Dec 22 2011, 9:13 am
COURT OF APPEALS OF INDIANA
STATE OF INDIANA,
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Steven Eichholtz, Judge
The Honorable Peggy Hart, Commissioner
Cause No. 49G20-1006-FA-050986
December 22, 2011
MEMORANDUM DECISION – NOT FOR PUBLICATION
of the supreme court,
court of appeals and
George Parker (“Parker”) pleaded guilty in Marion Superior Court to Class A
felony dealing in cocaine and was ordered to serve a thirty-year sentence in the
Department of Correction. Parker appeals and argues that the trial court abused its
discretion when it failed to consider that his incarceration will result in undue hardship to
his dependents as a mitigating circumstance when the court imposed Parker’s sentence.
Facts and Procedural History
On June 29, 2010, Parker was charged with Class A felony dealing in cocaine and
Class B felony possession of cocaine. The State alleged the offenses were committed
within 1,000 feet of a Family Housing Complex.
On March 8, 2011, a jury trial
commenced. The jury was sworn and the State’s first witness had testified when Parker
informed the court that he wanted to plead guilty. Thereafter, a guilty plea hearing was
held and Parker pleaded guilty to both charged offenses, but the trial court determined
that the offenses merged.
Parker’s sentencing hearing was held on March 18, 2011. Parker argued several
mitigating circumstances, but the trial court found only one: Parker’s guilty plea. The
trial court declined to assign significant mitigating weight to his guilty plea because
Parker agreed to plead guilty only after the State presented evidence to the jury that
Parker sold the cocaine to an undercover officer in an apartment complex parking lot in
broad daylight with children present. The trial court considered Parker’s criminal history
as an aggravating circumstance. Parker was then ordered to serve thirty years executed in
the Department of Correction for his Class A felony dealing in cocaine conviction.
Parker now appeals.
Discussion and Decision
The trial court ordered Parker to serve thirty years executed for his Class A felony
dealing in cocaine conviction. See Ind. Code § 35-50-2-4 (providing that the sentencing
range for a Class A felony is twenty to fifty years, with thirty years being the advisory
term). On appeal, Parker argues that the trial court abused its discretion when failed to
consider the following mitigating circumstance: that a lengthy incarceration would result
in undue hardship to his dependents.
Sentencing decisions rest within the sound discretion of the trial court. Anglemyer
v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007).
So long as the sentence is within the statutory range, it is subject to review only for an
abuse of discretion. Id. An abuse of discretion will be found where 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. A trial court may
abuse its discretion by issuing an inadequate sentencing statement, finding aggravating or
mitigating factors that are not supported by the record, omitting factors that are clearly
supported by the record and advanced for consideration, or by finding factors that are
improper as a matter of law. Id. at 490–91.
The hardship to a defendant’s dependents is not necessarily a significant
mitigating factor because incarceration will always be a hardship on dependents.
McElroy v. State, 865 N.E.2d 584, 592 (Ind. 2007); Vazquez v. State, 839 N.E.2d 1229,
1234 (Ind. Ct. App. 2005), trans. denied.
Many persons convicted of crimes have
dependents and, in the absence of special circumstances showing an excessive undue
hardship, a trial court does not abuse its discretion by failing to consider it as a mitigating
circumstance. Benefield v. State, 904 N.E.2d 239, 247 (Ind. Ct. App. 2009), trans.
During the sentencing hearing, Parker failed to argue that his incarceration would
result in undue hardship for his dependents.1 Consequently, his argument is waived. See
Georgopulos v. State, 735 N.E.2d 1138, 1145 (Ind. 2000).
Waiver notwithstanding, at the sentencing hearing, Parker alone testified that his
fiancée suffers from a syndrome similar to Lupus. Parker alone testified that he has
provided special care for her needs in the past. There was no evidence of his fiancée’s
current condition and/or any special care she currently requires, whether through Parker
or through any other witness. Parker’s fiancée did not testify. For all of these reasons,
we conclude that Parker failed to present any evidence of special circumstances that
would support his claim on appeal that his incarceration will result in undue hardship to
The trial court did not abuse its discretion when it sentenced Parker to thirty years
executed in the Department of Correction.
FRIEDLANDER, J., and RILEY, J., concur.
Parker argued that “[t]he next mitigator I’d ask for is the concern for his family.” Tr. p. 68. Parker’s
“concern” was the potential for a lengthy separation between himself and his family members. Id.