MEMORANDUM DECISION
Mar 25 2015, 9:35 am
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
Christopher L. Clerc Gregory F. Zoeller
Columbus, Indiana Attorney General of Indiana
Karl M. Scharnberg
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Bayley Joy Smith, March 25, 2015
Appellant-Defendant, Court of Appeals Case No.
03A01-1409-CR-371
v. Appeal from the Bartholomew
Superior Court.
The Honorable James D. Worton,
State of Indiana, Judge.
Appellee-Plaintiff. Cause No. 03D01-1403-FB-1105
Sharpnack, Senior Judge
Statement of the Case
[1] Bayley Joy Smith appeals the sentence the trial court imposed following her
plea of guilty to one count of dealing in a schedule I controlled substance. Ind.
Code § 35-48-4-2 (2011). We affirm.
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Issue
[2] Smith raises one issue, which we restate as: whether the trial court abused its
discretion in sentencing Smith.
Facts and Procedural History
[3] The State charged Smith with two counts of dealing in a schedule I controlled
substance (heroin), both Class B felonies. Smith and the State entered into a
plea agreement. Under the terms of the deal, Smith agreed to plead guilty to
one count of dealing in a schedule I controlled substance, a Class B felony. In
exchange, the State agreed to: (1) dismiss the other count; (2) refrain from
amending the remaining charge based on Smith committing her offense within
1000 feet of a family housing complex; and (3) cap the executed portion of
Smith’s sentence at eight years.
[4] The trial court accepted the plea agreement and scheduled a sentencing hearing.
After hearing evidence and the parties’ arguments, the court determined that
Smith’s history of criminal behavior was “a slight aggravator.” Appellant’s Br.
1
p. 6. The court declined to find any mitigating factors. Based on these
considerations, the court sentenced Smith to ten years, with six years suspended
on probation. The court further ordered that Smith would serve four years of
her probation in a community corrections program.
1
Smith included the sentencing order in her Brief but not in her Appendix.
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[5] Smith filed a motion to correct error, asking the trial court to reconsider her
sentence. The court held a hearing, after which it granted the motion in part
and denied it in part. Specifically, the court eliminated Smith’s history of
criminal behavior as an aggravating factor. The court also stated that it would
retain jurisdiction over the case and consider sentence modification if Smith
completed a therapeutic program while incarcerated. The court did not
otherwise revise Smith’s sentence. This appeal followed.
Discussion and Decision
2
[6] Smith argues that the trial court erred by overlooking several mitigating factors.
Sentencing decisions rest within the sound discretion of the trial court and are
reviewed on appeal only for an abuse of discretion. Anglemyer v. State, 868
N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (2007). An abuse
of discretion occurs if the decision is clearly against the logic and effect of the
facts and circumstances before the trial court, or the reasonable, probable, and
actual deductions to be drawn therefrom. Id.
[7] When imposing a sentence for a felony, a trial court must enter a sentencing
statement, including reasonably detailed reasons for imposing a particular
sentence. Id. at 491. A trial court may abuse its sentencing discretion in several
ways, including: (1) failing to issue a sentencing statement; (2) entering a
sentencing statement that explains reasons for the sentence, but the record does
2
She does not argue that her sentence is inappropriate pursuant to Indiana Appellate Rule 7(B).
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not support the reasons; (3) omitting reasons clearly supported by the record
and advanced for consideration; or (4) stating reasons that are improper as a
matter of law. Kimbrough v. State, 979 N.E.2d 625, 628 (Ind. 2012).
[8] A finding of mitigating circumstances is not mandatory but is within the
discretion of the trial court. Page v. State, 878 N.E.2d 404, 408 (Ind. Ct. App.
2007), trans. denied. The court is not obligated to accept the defendant’s
argument concerning what constitutes a mitigating factor. Barker v. State, 994
N.E.2d 306, 311 (Ind. Ct. App. 2013), trans. denied. In order to show that the
court abused its discretion in failing to find a mitigating factor, the defendant
must establish that the mitigating evidence is both significant and clearly
supported by the record. Rogers v. State, 958 N.E.2d 4, 9 (Ind. Ct. App. 2011).
[9] Smith argues that her guilty plea was a valid and significant mitigating
circumstance. The trial court was clearly aware of Smith’s guilty plea because
it approved the plea agreement and sentenced Smith according to the
agreement’s terms. A guilty plea is not necessarily a mitigating factor where the
defendant receives a substantial benefit from the plea. Barker, 994 N.E.2d at
312. In exchange for Smith’s guilty plea to one charge, the State dismissed
another charge, promised not to seek to amend the remaining charge to a more
serious offense, and agreed to a cap on Smith’s executed sentence. She received
a substantial benefit from her plea, and the trial court did not abuse its
discretion.
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[10] Smith next argues that the trial court should have determined that her remorse
was a mitigating factor. She did not present this argument to the trial court, so
it is waived for appellate review. McSchooler v. State, 15 N.E.3d 678, 684 (Ind.
Ct. App. 2014). Waiver notwithstanding, the trial court observed Smith’s
demeanor and was in a better position to evaluate her sincerity or lack thereof.
Barker, 994 N.E.2d at 312. A trial court’s determination of a defendant’s
remorse is similar to its determination of credibility: without evidence of some
impermissible consideration by the trial court, we accept its decision. Pickens v.
State, 767 N.E.2d 530, 535 (Ind. 2002).
[11] At sentencing, Smith stated that her arrest and incarceration was “a blessing”
because it forced her to become sober. Tr. p. 25. This statement is not
equivalent to an apology or acceptance of responsibility. Smith points to no
other alleged statements of remorse. The trial court did not abuse its discretion
in declining to find that Smith’s remorse was entitled to mitigating weight.
Conclusion
[12] For the foregoing reasons, we affirm the judgment of the trial court.
[13] Affirmed.
Friedlander, J., and Kirsch, J., concur.
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