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 Dec 09 2013, 9:54 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JOHN T. WILSON GREGORY F. ZOELLER
Anderson, Indiana Attorney General of Indiana
MICHAEL GENE WORDEN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
JOSHUA WILSON, )
)
Appellant-Defendant, )
)
vs. ) No. 33A01-1305-CR-205
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE HENRY CIRCUIT COURT
The Honorable Bob A. Witham, Judge
Cause No. 33C03-1303-FD-79
December 9, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
PYLE, Judge
STATEMENT OF THE CASE
Joshua Wilson (“Wilson”) appeals his sentence following his guilty plea to Class
D felony theft1 and Class B misdemeanor criminal mischief.2
We affirm.
ISSUE
Whether the trial court abused its discretion when sentencing Wilson.
FACTS3
On January 25, 2013, while an incarcerated in the Henry County Jail, Wilson
exerted unauthorized control over a metal bar from a jail weight machine and damaged
the weight machine. The day before these offenses, the trial court had revoked Wilson’s
probation on a prior Class D felony theft conviction and ordered him to serve the
remainder of his suspended sentence in the jail. Wilson’s theft probation was revoked
after he pled guilty to Class A misdemeanor domestic battery, Class B misdemeanor
public intoxication, and Class B misdemeanor disorderly conduct and was sentenced to
360 days in jail. Wilson also had prior adult convictions for the misdemeanor offenses of
public intoxication, contributing to the delinquency of a minor, trafficking with an
inmate, operating a vehicle while intoxicated, and illegal consumption of alcohol, as well
as juvenile adjudications for theft and illegal consumption of alcohol.
1
Ind. Code § 35-43-4-2(a).
2
I.C. § 35-43-1-2(a)(1).
3
We note that the copies of Wilson’s Brief of Appellant are missing page 3, which contained his
Statement of Facts section. The original of Wilson’s brief does, however, contain page 3.
2
On March 1, 2013, the State charged Wilson with Class D felony theft and Class B
misdemeanor criminal mischief. On March 8, 2013, Wilson pled guilty as charged. The
trial court held a sentencing hearing on April 8, 2013. During the sentencing hearing,
Wilson asked the trial court “if [he] could get daily reporting or something.” (Tr. 9). He
told the trial court that he “did a substance abuse class at the jail” and that, when he got
out of jail, he was planning to try to find a sponsor, enroll in Ivy Tech, and live with his
grandmother. (Tr. 9). The trial court determined that Wilson’s guilty plea and
acceptance of responsibility was a mitigating circumstance. The trial court found that
Wilson’s prior criminal history and his recent violation of probation were aggravating
circumstances that outweighed the mitigating circumstance. The trial court imposed a
sentence of two (2) years for Wilson’s Class D felony theft conviction and did not enter a
sentence for his Class B misdemeanor criminal mischief conviction. The trial court
ordered Wilson to serve his two-year sentence in the Department of Correction and
ordered that it be served consecutively to his sentence from his prior theft conviction.
Wilson now appeals.
DECISION
Wilson argues that the trial court abused its discretion when sentencing him.
Specifically, Wilson contends that the trial court erred by failing to consider his guilty
plea as a “significant” mitigating circumstance and that the trial court should have
considered an alternative to incarceration. (Wilson’s Br. 5).
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).
3
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 in a number of ways, including: (1) failing to enter a sentencing
statement at all; (2) entering a sentencing statement that includes aggravating and
mitigating factors that are unsupported by the record; (3) entering a sentencing statement
that omits reasons that are clearly supported by the record; or (4) entering a sentencing
statement that includes reasons that are improper as a matter of law. Id. at 490–91.
“‘[T]he trial court no longer has any obligation to ‘weigh’ aggravating and mitigating
factors against each other when imposing a sentence” and thus “a trial court can not now
be said to have abused its discretion in failing to ‘properly weigh’ such factors.’”
Kimbrough v. State, 979 N.E.2d 625, 628 (Ind. 2012) (quoting Anglemyer, 868 N.E.2d at
491).4
We first turn to Wilson’s contention that the trial court should have “accorded
significant mitigating weight” to his guilty plea. (Wilson’s Br. 7). This argument is
nothing more than a challenge to the weight the trial court gave to this mitigator, which is
not reviewable on appeal. See Anglemyer, 868 N.E.2d at 491 (explaining that the relative
weight assigned to aggravators and mitigators is not subject to appellate review).
Next, we address Wilson’s argument that the trial court abused its discretion by
not considering alternative placement such as community corrections. “[A] defendant is
4
We specifically direct Wilson’s counsel to take note of the proper standard of review as he cites to the
“presumptive” sentence instead of the “advisory” sentence and relies on pre-Anglemyer cases in his brief.
4
not entitled to serve his sentence in a community corrections program[.]” Million v.
State, 646 N.E.2d 998, 1001–02 (Ind. Ct. App. 1995). The “consideration and imposition
of alternatives to incarceration is a ‘matter of grace’ left to the discretion of the trial
court.” Wolf v. State, 793 N.E.2d 328, 330 (Ind. Ct. App. 2003) (quoting Million, 646
N.E.2d at 1001–02). Given Wilson’s criminal history and the fact that he committed this
current offense while incarcerated in the Henry County Jail after he violated his probation
on his prior theft conviction, we conclude that the trial court did not abuse its discretion
by ordering incarceration instead of community corrections. See, e.g., Wolf, 793 N.E.2d
at 330 (affirming the trial court’s decision to order defendant to incarceration).
Accordingly, the trial court did not abuse its discretion when sentencing Wilson.
Affirmed.
MATHIAS, J., and BRADFORD, J., concur.
5