Ricky Lee Williford v. State of Indiana (NFP)
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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. Jul 08 2008, 9:35 am ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE: ROBERT J. HARDY Auburn, Indiana STEVE CARTER Attorney General of Indiana JUSTIN F. ROEBEL Deputy Attorney General Indianapolis, Indiana IN THE COURT OF APPEALS OF INDIANA RICKY LEE WILLIFORD, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) ) No. 17A03-0802-CR-44 APPEAL FROM THE DEKALB SUPERIOR COURT The Honorable Kevin P. Wallace, Judge Cause No. 17D01-0612-FB-32 & 17D01-0702-FC-4 July 8, 2008 MEMORANDUM DECISION - NOT FOR PUBLICATION BROWN, Judge Ricky Lee Williford appeals his sentence for attempted robbery as a class C felony 1 and possession of methamphetamine as a class C felony. 2 Williford raises one issue, which we revise and restate as whether the trial court abused its discretion in sentencing him. We affirm. The relevant facts follow. On December 8, 2006, the State charged Williford with attempted robbery as a class B felony. On February 2, 2007, the State charged Williford with possession of drug paraphernalia as a class A misdemeanor, possession of drug paraphernalia as a class D felony, and possession of methamphetamine as a class C felony under a separate cause number. Williford entered into a plea agreement and agreed to plead guilty to an amended charge of attempted robbery as a class C felony and possession of methamphetamine as a class C felony. The State agreed to dismiss the remaining charges and a theft charge that was brought under a separate cause number. At the sentencing hearing, the trial court imposed the advisory sentence of four years on the attempted robbery conviction and the advisory sentence of four years with two years suspended on the possession of methamphetamine conviction. The trial court ordered that the sentences be served consecutively because Williford was on bond for the attempted robbery offense when he committed the methamphetamine offense. 3 1 Ind. Code § 35-41-5-1, 35-42-5-1 (2004). 2 Ind. Code § 35-48-4-6.1 (Supp. 2006). 3 Ind. Code § 35-50-1-2(d) provides: If, after being arrested for one (1) crime, a person commits another crime: 2 The issue is whether the trial court abused its discretion in sentencing Williford. Williford first argues that the trial court failed to enter an adequate sentencing statement explaining the aggravators and mitigators. We note that Williford s offenses were committed after the April 25, 2005 revisions of the sentencing scheme. In clarifying these revisions, the Indiana Supreme Court has held: [U]nder the new statutory regime Indiana trial courts are required to enter sentencing statements whenever imposing sentence for a felony offense. In order to facilitate its underlying goals, . . . the statement must include a reasonably detailed recitation of the trial court s reasons for imposing a particular sentence. 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. Anglemyer v. State ( Anglemyer ), 868 N.E.2d 482, 490 (Ind. 2007) (internal citation omitted), clarified on reh g by Anglemyer v. State ( Anglemyer Rehearing ), 875 N.E.2d 218 (Ind. 2007). On the same day as Anglemyer, the Indiana Supreme Court also decided Windhorst v. State, 868 N.E.2d 504 (Ind. 2007), reh g denied. In Windhorst, the trial court imposed the advisory sentence without entering a sentencing statement. Id. at 505. Despite the trial court s failure to enter a sentencing statement, the Court affirmed the (1) before the date the person is discharged from probation, parole, or a term of imprisonment imposed for the first crime; or (2) while the person is released: (A) upon the person s own recognizance; or (B) on bond; the terms of imprisonment for the crimes shall be served consecutively, regardless of the order in which the crimes are tried and sentences are imposed. 3 trial court s imposition of the advisory sentence under Ind. Appellate Rule 7(B). Id. at 507. Here, in imposing the advisory sentences, the trial court entered a sentencing statement and discussed Williford s criminal history, previous attempts at probation, the nature and circumstances of the attempted robbery, and his newborn son and fiancée. Although the trial court did not specifically identify the factors as aggravators or mitigators, the trial court was not required to do so under Anglemyer, 868 N.E.2d at 490. Moreover, even if the trial court was required to identify aggravators and mitigators, the trial court s sentencing statement was clear enough to facilitate our review. We conclude that the trial court entered a sentencing statement that includes a reasonably detailed recitation of the trial court s reasons for imposing the advisory sentences. Williford next argues that the trial court overlooked his guilty plea as a mitigating factor. 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. However, [i]f the trial court does not find the existence of a mitigating factor after it has been argued by counsel, the trial court is not obligated to explain why it has found that the factor does not exist. Id. The Indiana Supreme Court has held that a defendant who pleads guilty deserves some mitigating weight be given to the plea in return. Anglemyer Rehearing, 875 4 N.E.2d at 220 (quoting McElroy v. State, 865 N.E.2d 584, 591 (Ind. 2007)). However, the significance of a guilty plea as a mitigating factor varies from case to case. Id. at 221. 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. (citing Sensback v. State, 720 N.E.2d 1160, 1165 (Ind. 1999)). Here, in exchange for Williford s guilty plea, the State amended the attempted robbery charge from a class B felony to a class C felony and dismissed charges of theft as a class D felony, possession of drug paraphernalia as a class A misdemeanor, and possession of drug paraphernalia as a class D felony. Given the significant benefit that Williford received as a result of the plea agreement, we conclude that the trial court did not abuse its discretion. See, e.g., Sensback, 720 N.E.2d at 1165. For the foregoing reasons, we affirm Williford s sentence for attempted robbery as a class C felony and possession of methamphetamine as a class C felony. Affirmed. NAJAM, J. and DARDEN, J. concur 5
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