Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be Mar 18 2014, 9:19 am
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:
HUGH N. TAYLOR GREGORY F. ZOELLER
Hugh N. Taylor, P.C. Attorney General of Indiana
Auburn, Indiana
RICHARD C. WEBSTER
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
GAYLE CLARK, JR., )
)
Appellant-Defendant, )
)
vs. ) No. 76A05-1305-CR-261
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE STEUBEN CIRCUIT COURT
The Honorable Allen N. Wheat, Judge
Cause No. 76C01-1110-FD-970
March 18, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
KIRSCH, Judge
Gayle Clark, Jr. appeals from the trial court’s sentencing order following Clark’s
jury trial at the conclusion of which he was found guilty of one count of possession of
marijuana1 as a Class D felony and one count of possession of paraphernalia 2 as a Class A
misdemeanor, contending that the trial court abused its discretion at sentencing by failing
to find a significant mitigating circumstance.
We affirm.
FACTS AND PROCEDURAL HISTORY
On October 5, 2011, Steuben County Deputy Sheriff Phillip Nott received a tip that
Clark had marijuana at his residence located at 4210 West County Road 150 South in
Steuben County. Acting on that tip, Deputy Nott and Deputy Michael Meeks drove toward
Clark’s residence at approximately 9:00 a.m. and encountered Clark on Golden Lake Road.
After speaking with Clark, the deputies followed Clark to his residence, where they were
joined by another deputy shortly after arriving there. Deputy Nott told Clark that he had
received information that there may be marijuana in Clark’s residence. Clark admitted that
he might have some cut marijuana in his residence. Deputy Nott obtained Clark’s consent
to search the residence, and the officers entered the residence and proceeded to conduct
their search.
In the kitchen area, the deputies observed two paper plates sitting on a table, with
one plate stacked on top of the other. Each plate contained an amount of green, cut, plant
material. The deputies also observed on top of a portable stereo, a packet of rolling papers
1
See Ind. Code § 35-48-4-11(1).
2
See Ind. Code § 35-48-4-8.3(b).
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used to smoke marijuana. Next to the stereo, the deputies observed a metal pipe also used
to smoke marijuana. The pipe contained what the deputies observed to be residue in the
bowl of the pipe, which smelled like burnt marijuana. In a cabinet in the kitchen area, the
deputies discovered two zip-lock plastic bags containing green, leafy, plant material.
Clark admitted that he smoked marijuana and claimed that he obtained the
marijuana from plants in the area. He further admitted that the amount he possessed was
more than thirty grams. All of the green cut plant material, rolling papers, and metal pipe
were recovered by Deputy Nott. The green, cut plant material was submitted for chemical
analysis, after which it was determined to be marijuana with an aggregate weight of 194
grams.
The State charged Clark as detailed above, and after his jury trial, Clark was found
guilty as charged. At Clark’s sentencing hearing, he argued that despite having a lengthy
criminal history, the facts of this case were not particularly aggravating. Clark admitted
possession of the marijuana and requested that less than the maximum sentence be imposed
for the offenses. The trial court found Clark’s substantial, prior criminal history to be an
aggravating circumstance and found no mitigating circumstances. Clark was sentenced to
three years executed for his Class D felony conviction and to a one-year sentence for his
Class A misdemeanor conviction, with the sentences to be served concurrently. Clark now
appeals.
DISCUSSION AND DECISION
Clark appeals from the trial court’s sentencing order contending that the trial court
abused its discretion by failing to find what he claims was a significant, mitigating
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circumstance. Clark argues that the trial court should have found as a mitigating
circumstance that his crime did not cause or threaten to cause serious harm to persons or
property.
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.
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
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sentence that is . . . authorized by statute; and . . . permissible under the Constitution of the
State of Indiana.” Ind. Code § 35-38-1-7.1(d).
The finding of mitigating factors is not mandatory and rests within the trial court’s
discretion. Storey v. State, 875 N.E.2d 243, 252 (Ind. Ct. App. 2007). “The trial court is
not obligated to accept the defendant’s arguments as to what constitutes a mitigating
factor.” Id. Additionally, the trial court is not required to attribute the same weight to
proffered mitigating factors as does the defendant. Id. Nonetheless, the trial court may not
ignore factors in the record that would mitigate an offense. Id. To fail to find mitigating
circumstances that are clearly supported by the record may imply that the trial court did
not consider those circumstances. Id. In order to prevail on appeal, the defendant must
establish that the mitigating evidence is both significant and clearly supported by the
record. Id.
We observe as an initial matter that Clark did not raise or argue his proposed
mitigating circumstance at his sentencing hearing. “A defendant who fails to raise
proposed mitigators at the trial court level is precluded from advancing them for the first
time on appeal.” Pennington v. State, 821 N.E.2d 899, 905 (Ind. Ct. App. 2005). Waiver
notwithstanding, we conclude that the trial court did not abuse its discretion. The
mitigating circumstance advanced by Clark is a discretionary mitigating circumstance
found in Indiana Code section 35-38-1-7.1(b)(1). The statutory language provides that the
trial court “may” find certain mitigating circumstances, but is not required to do so. Ind.
Code § 35-38-1-7.1(b)(1). Moreover, the record is silent on the issue of whether any harm
was caused by Clark’s offenses.
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In sum, Clark waived his appellate claim by failing to first present it to the trial
court. Waiver notwithstanding, Clark has failed to establish that the mitigating evidence
was both significant and supported by the record.
Affirmed.
FRIEDLANDER, J., and BAILEY, J., concur.
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