MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
Feb 28 2020, 10:26 am
regarded as precedent or cited before any
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Jennifer L. Koethe Curtis T. Hill, Jr.
Navarre, Florida Attorney General of Indiana
Lauren A. Jacobsen
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Franklin Powell, February 28, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-1913
v. Appeal from the LaPorte Circuit
Court
State of Indiana, The Honorable Thomas Alevizos,
Appellee-Plaintiff Judge
The Honorable Pamela S.
Munsey, Magistrate
Trial Court Cause No.
46C01-1808-F6-961
May, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1913 | February 28, 2020 Page 1 of 11
[1] Franklin Powell appeals his two-year sentence for Level 6 felony theft with a
prior conviction. 1 Powell raises two issues on appeal, which we restate as: (1)
whether his sentence is inappropriate in light of the nature of his offense and his
character; and (2) whether the trial court abused its discretion when the
Magistrate failed to consider purported mitigating circumstances and the
Judge’s prior statements. We affirm.
Facts and Procedural History
[2] On August 27, 2018, a La Porte County (“LPC”) Sergeant received a phone
call from a Valparaiso Police Department (“VPD”) Detective about an enclosed
trailer that had been recovered after being reported stolen. The trailer was
purchased from Powell on August 24, 2018. The purchaser was suspicious of
the trailer, so he had a North Judson police officer—with whom he has a
familial relationship —conduct a license plate check on the trailer, and the
report indicted the VPD had received a report that the trailer had been stolen.
With the VPD detective’s knowledge, the purchaser set up a meeting to
purchase a second trailer from Powell, believing that trailer also to be stolen.
[3] At the scene of the purchase, Powell was detained with a black spray painted,
enclosed trailer attached to his pickup truck. The officers could not locate any
VIN numbers on the trailer, but they located two holes where the VIN plate
1
Ind. Code § 35-43-4-2(a)(1)(C).
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was previously fastened. Since they could not identify the trailer as stolen
without the VIN numbers, the officers decided to transport Powell to the LPC
Sheriff’s office. A detective later made contact with the owner of the trailer
who positively identified the trailer by telling the detective that “there was a
black tool box fixed by 2X4s to the front interior of the trailer, along with a
weight on the floor.” (App. Vol. II at 22.) Also, the detective conducted a
criminal history search on Powell and found he was previously convicted for
theft.
[4] On August 28, 2018, a detective was monitoring inmate phone calls placed in
the LPC Jail and heard Powell instructing his family to sell a lawnmower.
Because Powell was a suspect in multiple thefts, the detective went to Powell’s
family’s registered address to inspect the lawnmower. The detective found the
lawnmower’s serial number, and contacted the store manager to find out who
bought it. The detective obtained the purchaser’s contact information, and the
purchaser informed him that the lawnmower had been inside the same trailer
that he reported stolen to the VPD on August 24.
[5] On August 28, 2018, the State charged Powell with Level 6 felony theft and
Level 6 felony theft with a prior conviction. On September 7, 2018, a public
defender accepted appointment and filed appearance. On September 11, 2018,
the State filed a motion to amend information by adding Level 6 felony dealing
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in altered property 2 and Level 6 felony attempted dealing in altered property. 3
The trial court granted the State’s motion to amend charges.
[6] On November 7, 2018, the State offered Powell a plea agreement with the
following terms:
a. Defendant agrees to enter a plea of guilty to [t]heft, Level 6
[f]elony.
b. The [d]efendant shall be sentenced to 2.5 years in the [LPC]
Jail.
c. Defendant may serve 1 year of his sentence in the [LPC]
Community Corrections Work Release Program, so long as
he is eligible and compliant.
d. Defendant may serve the remaining balance of his sentence
in the [LPC] Community Corrections GPS Program, so
long as he is eligible and compliant.
e. The [d]efendant’s sentence shall be consecutive to any
sentence imposed in 46C01-1507-F5-577.
f. The [d]efendant shall pay restitution in the amount of $500
to Ed Whitcomb Carpet & Tile as a condition of his
placement in Work Release.
g. The [d]efendant shall pay a $1.00 fine and [c]ourt costs of
$185.00.
h. The State shall dismiss the remaining charges in this Cause.
(App. Vol. II. at 120-21.) The plea agreement called for Community
Corrections consideration. On November 27, 2018, Community Corrections
reported that there was no appropriate placement in Community Corrections
2
Ind. Code § 35-43-4-2.3(b).
3
Ind. Code § 35-41-5-1 (attempt); Ind. Code § 35-43-4-2.3 (dealing in altered property).
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for Powell. 4 On May 31, 2019, Powell pled guilty to Level 6 felony theft with a
prior conviction and left sentencing up to the court. On June 12, 2019, the trial
court sentenced Powell to two years in the Indiana Department of Correction,
with sixty-five days of credit under Class I. On the same day, the State moved
to dismiss the remaining charges, and the court granted the motion.
Discussion and Decision
Inappropriate Sentence
[7] Powell asserts his sentence is inappropriate. Under Indiana Appellate Rule
7(B), we may revise a sentence if, after due consideration of the trial court’s
decision, we determine the sentence is inappropriate in light of the nature of the
offense and the character of the offender. Adams v. State, 120 N.E.3d 1058,
1064 (Ind. Ct. App. 2019). We consider aggravating, mitigating, and any other
factors appearing in the record. Johnson v. State, 986 N.E.2d 852, 856 (Ind. Ct.
App. 2013). Our goal is to decide whether the appellant’s sentence is
inappropriate, not whether some other sentence would be more appropriate.
Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012), reh’g denied. Powell bears the
burden of demonstrating his sentence is inappropriate. See Childress v. State, 848
4
In the transcript, Counsel for Powell stated the court rejected the plea agreement offer. (Tr. Vol. II at 6.)
However, the appendix reveals that Powell was ineligible for Community Corrections placement because he
had two probation revocations and owed $100 in fees. (App. Vol. II at 134.)
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N.E.2d 1073, 1080 (Ind. 2006) (“defendant must persuade the appellate court
that his or her sentence has met this inappropriateness standard of review”).
[8] When considering the nature of the offense, we start by looking at the advisory
sentence to determine the appropriateness of a sentence. Anglemyer v. State, 868
N.E.2d 482, 494 (Ind. 2007), clarified on reh’g 875 N.E.2d 218 (Ind. 2007). The
sentencing range for a Level 6 felony is “a fixed term of between six (6) months
and two and one half (2 ½) years” with a one-year advisory sentence. Ind.
Code § 35-50-2-7(b). Powell was sentenced to two years, which he contends is
inappropriate because his “offense was related to [his] substance abuse issues.”
(Appellant’s Br. at 12.)
[9] Powell stole two box trailers valued over $1000 each and a lawnmower valued
overt $5800, and he had a prior conviction for Level 6 felony theft. (App. Vol.
II at 90, 132.) Though Powell admits he has a substance abuse problem, Powell
does not explain the alleged relationship between his offense and his substance
abuse issues. As such, he has failed to explain why his sentence is
inappropriate for his crime. See Reis v. State, 88 N.E.3d 1099, 1105-06 (Ind. Ct.
App. 2017) (defendant failed to advance an argument regarding why his
sentence is inappropriate in consideration of his alcohol problem).
[10] When considering the character of the offender, one relevant fact is the
defendant’s criminal history. Johnson, 986 N.E.2d at 857. The significance of
criminal history varies based on the gravity, nature, and number of prior
offenses in relation to the current offense. Id. Powell’s criminal history consists
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of: (1) juvenile adjudications such as criminal mischief; false informing; leaving
home without permission of parent, guardian, or custodian; habitual
disobedience of parent, guardian or custodian; failure to return to lawful
detention; burglary; truancy; theft; and auto theft; (2) misdemeanors such as
conversion; false informing; and theft; and (3) felonies such as burglary;
receiving stolen property; theft—aiding, inducing, or causing an offense; and
larceny.
[11] Powell contends that this offense was related to his substance abuse issue, that
he has taken responsibility for his actions, that he has shown remorse, and that
he wants to address his substance abuse issues. However, Powell has an
extensive criminal history that includes similar crimes. Furthermore, he has a
history of unsatisfactorily releases from probation. Given Powell’s criminal
history and probation revocation history, we cannot say that the sentence is
inappropriate for his character. See Rasnick v. State, 2 N.E.3d 17, 29 (Ind. Ct.
App. 2013) (defendant’s sentence not inappropriate when the facts in the case
and defendant’s criminal history “strongly support the trial court’s sentencing
judgment”), trans. denied.
Abuse of Discretion
[12] Powell also claims the trial court abused its sentencing discretion by
disregarding: (1) his plea of guilty, (2) his remorse, (3) his need for drug
treatment, and (4) the Judge’s statements prior to his plea entry. Sentencing
decisions ‘“rest within the sound discretion of the trial court and are reviewed
on appeal only for an abuse of discretion.”’ McElfresh v. State, 51 N.E.3d 103,
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107 (Ind. 2016) (quoting Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007),
clarified on reh’g 875 N.E.2d 218 (Ind. 2007)). An abuse of discretion occurs if
the trial court’s 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.” Lewis v. State, 31 N.E.3d 539, 541-42 (Ind.
Ct. App. 2015).
[13] A trial court may abuse its sentencing discretion by finding reasons not
supported by the record. Anglemyer, 868 N.E.2d at 490. We review “the court’s
finding of aggravators and mitigators to justify a sentence, but we cannot review
the relative weight assigned to those factors.” Baumholser v. State, 62 N.E.3d
411, 416-17 (Ind. Ct. App. 2016) (citing Anglemyer, 868 N.E.2d at 490-91), trans.
denied. When reviewing the aggravating and mitigating circumstances in the
sentencing order, we will remand only if “the record does not support the
reasons, or the sentencing statement omits reasons that are clearly supported by
the record, and advanced for consideration, or the reasons given are improper
as a matter of law.” Id. The court “is neither obligated to accept the
defendant’s arguments as to what constitutes a mitigating factor nor required to
give the same weight to a proposed mitigating factor as does the defendant.”
Hunter v. State, 72 N.E.3d 928, 935 (Ind. Ct. App. 2017). On appeal, the
defendant must “establish that the mitigating evidence is both significant and
clearly supported by the record.” Id.
[14] Powell argues the trial should have considered his guilty plea as a mitigating
factor. “While the trial court must assess the potential mitigating weight of a
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guilty plea, the significance of a guilty plea varies from case to case.” Jackson v.
State, 973 N.E.2d 1123, 1131 (Ind. Ct. App. 2012), trans. denied. Here, Powell
relies on Sipple v. State, which states that “a guilty plea should be accorded
significant mitigating weight” when: (1) it “‘saves the State the time and
expense inherent in a lengthy trial;’” (2) it “‘extends a benefit to the State and
the victim’s family by avoiding a full-blown trial;’” and (3) the defendant
demonstrates “‘acceptance of responsibility of a crime.’” 788 N.E.2d 473, 483
(Ind. Ct. App. 2003) (quoting Trueblood v. State, 715 N.E.2d 1242, 1257 (Ind.
1999), rev’d on other grounds 301 F.3d 784 (7th Cir. 2002)). Powell’s guilty plea
satisfies the elements in Sipple; it saved the State time and expense, and it
extended a benefit to the State and victims as well as demonstrated Powell’s
acceptance of responsibility for his crime. See Felder v. State, 870 N.E.2d 554,
558 (Ind. Ct. App. 2001) (“a guilty plea demonstrates acceptance of a
responsibility for a crime and must be considered a mitigating factor”) (citing
Sheckel v. State, 655 N.E.2d 506, 511 (Ind. 1995)). However, Powell’s plea is
not entitled to much weight because he received a substantial benefit in return
for his plea.
[15] The State charged Powell with Level 6 felony theft with a prior conviction,
Level 6 felony attempted dealing in altered property, Level 6 felony dealing in
altered property, and Level 6 felony theft. Powell pled guilty to only the Level
6 felony theft with a prior conviction, and the State dismissed the remaining
charges. We agree with the State that Powell “received a substantial benefit in
exchange for his plea.” (State’s Br. at 12.) The trial court did not abuse its
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discretion when it did not consider Powell’s guilty plea as a significant
mitigating factor. See Wells v. State, 836 N.E.2d 479, 594 (Ind. Ct. App. 2005)
(“a guilty plea does not rise to the level of significant mitigation where the
defendant has received a substantial benefit from the plea or where the evidence
against him is such that the decision to plead guilty is merely a pragmatic one”),
trans. denied.
[16] Powell also contends the trial court erroneously failed to see his remorse and
drug treatment as significant mitigating factors. When asked why he wanted to
plead guilty, Powell stated that he wanted “to get the time done,” that it was
“the right thing to do,” and that he wanted to stay clean since it was his first
time being clean. (Tr. Vol. II at 5, 9.) Powell contends those three reasons
should be given weight as mitigating factors. We disagree that Powell’s guilty
plea and statements constitute remorse, and the record does not show anything
contrary to the trial court’s omission of remorse as a mitigating factor. The trial
court did not abuse its discretion when it did not find Powell’s remorse as a
mitigating factor. See Stout v. State, 834 N.E.2d 707, 711 (Ind. Ct. App. 2005)
(“without evidence of some impermissible consideration by the trial court, a
reviewing court will accept its determination as to remorse”), trans. denied.
[17] In the same manner, the trial court has discretion for the weight it gives
Powell’s need for drug treatment as a mitigating factor. Here, the Magistrate
did not see Powell’s need for drug treatment and the prior judge’s statements—
that the trial court would probably give him a year-and a half with the
probability of serving that time on work release and would put him into a drug
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treatment program (Tr. Vol. II at 10)—as mitigating factors. Just because
Powell believes those two reasons should mitigate his sentence does not mean
that the court should agree with that belief. See Hunter v. State, 72 N.E.3d 928,
935 (Ind. Ct. App. 2017) (“the court is neither obligated to accept the
defendant’s arguments as to what constitutes a mitigating factor nor required to
give the same weight to a proposed mitigating factor as does the defendant”),
trans. denied. The court did not abuse its discretion when it did not find any of
Powell’s proffered sentencing mitigators.
Conclusion
[18] Powell failed to demonstrate that his sentence was inappropriate in light of the
nature of his offense and his character. Additionally, the trial court was not
obliged to accept Powell’s proffered mitigators and did not abuse its discretion
when it sentenced Powell to two years. Accordingly, we affirm.
[19] Affirmed.
Crone, J., and Pyle, J., concur.
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