Gwayne Slater v. State of Indiana ( 2014 )


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  •  Pursuant to Ind.Appellate Rule 65(D), this
     Memorandum Decision shall not be
     regarded as precedent or cited before any                                          Jun 25 2014, 9:59 am
     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:
    
    MICHAEL R. FISHER                                         GREGORY F. ZOELLER
    Marion County Public Defender Agency                      Attorney General of Indiana
    Indianapolis, Indiana
                                                              CYNTHIA L. PLOUGHE
                                                              Deputy Attorney General
                                                              Indianapolis, Indiana
    
    
                                    IN THE
                          COURT OF APPEALS OF INDIANA
    
    GWAYNE SLATER,                                            )
                                                              )
           Appellant-Defendant,                               )
                                                              )
                    vs.                                       )      No. 49A02-1311-CR-987
                                                              )
    STATE OF INDIANA,                                         )
                                                              )
           Appellee-Plaintiff.                                )
    
    
                                      APPEAL FROM THE COURT
                                 The Honorable Michael Jensen, Magistrate
                                     Cause No. 49G20-1301-FB-1790
    
    
                                                    June 25, 2014
    
                     MEMORANDUM DECISION - NOT FOR PUBLICATION
    
    FRIEDLANDER, Judge
            Following a guilty plea, Gwayne Slater (“Slater”) was convicted of Possession of
    
    a Firearm by a Serious Violent Felon1 (SVF) as a class B felony and Possession of
    
    Marijuana2 as a class A misdemeanor. Slater now appeals, presenting two issues for our
    
    review:
    
            1.      Did the trial court abuse its discretion in sentencing Slater?
    
            2.      Is the sentence imposed inappropriate?
    
            We affirm.
    
            On January 7, 2013, Indianapolis Metropolitan Police Officer Charles Tice
    
    (“Officer Tice”) pulled over the car Slater was driving. After identifying everyone in the
    
    vehicle, Officer Tice ran Slater’s information and found that he had a prior conviction for
    
    criminal confinement. Officer Tice recognized the smell of marijuana emanating from the
    
    vehicle and called for backup. The officers removed everyone from the vehicle and
    
    searched the interior. Inside the vehicle, Officer Tice found a partially burnt marijuana
    
    joint in the ashtray and an unloaded handgun in the glove box. When questioned about the
    
    marijuana and gun, Slater admitted that they belonged to him. Slater also informed Officer
    
    Tice that the handgun’s magazine was under the front passenger seat.
    
            Slater was arrested and charged with SVF and possession of marijuana. On June
    
    24, 2013, Slater pleaded guilty as charged. The trial court initially scheduled the sentencing
    
    hearing for September 6, 2013, but granted Slater’s motion for a continuance and
    
    
    1
      Ind. Code Ann. § 35-47-4-5 (West, Westlaw current with all legislation of the Second Regular Session
    of the 118th General Assembly (2014) with effective dates through May 1, 2014).
    2
      Ind. Code Ann. § 35-48-4-11 (West, Westlaw current with all legislation of the Second Regular Session
    of the 118th General Assembly (2014) with effective dates through May 1, 2014).
    
                                                       2
    rescheduled the hearing for September 24, 2013. On September 24, 2013, Slater appeared
    
    and requested another continuance. The motion was denied and while the court was in
    
    recess, Slater fled the courthouse before the sentencing hearing could occur. Slater was
    
    rearrested on October 7, 2013, and a sentencing hearing was held on October 29, 2013.
    
    The trial court sentenced Slater to concurrent terms of ten years for SVF and one year for
    
    possession of marijuana. Slater now appeals.
    
                                                   1.
    
           Slater first argues the trial court abused its discretion in sentencing him. Sentencing
    
    decisions rest within the sound discretion of the trial court. Anglemyer v. State, 
    868 N.E.2d 482
     (Ind. 2007), clarified on reh’g, 
    875 N.E.2d 218
    . 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 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.’” Anglemyer v. State, 868 N.E.2d at 491 (quoting K.S. v. State, 
    849 N.E.2d 538
    , 544 (Ind. 2006)). A trial court may abuse its sentencing discretion in several
    
    ways, including entering an insufficient sentencing statement and failing to cite significant
    
    mitigating factors. Anglemyer v. State, 
    868 N.E.2d 482
    .
    
           A sentencing statement serves two primary purposes: (1) it guards against arbitrary
    
    and capricious sentencing; and (2) it provides an adequate basis for appellate review.
    
    Ramos v. State, 
    869 N.E.2d 1262
     (Ind. Ct. App. 2007) (citing Anglemyer v. State, 
    868 N.E.2d 482
    ). Failure to enter a sentencing statement is an abuse of discretion. Id. In order
    
    for this court to carry out its function of reviewing the trial court’s exercise of its sentencing
    
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    discretion, we must understand the trial court’s reasons for imposing the sentence, and this
    
    requires a statement of facts peculiar to the particular defendant and the crime, as opposed
    
    to general impressions or conclusions. Id. (citing Anglemyer v. State, 
    868 N.E.2d 482
    ).
    
           Slater argues that the trial court failed to make a sufficient sentencing statement. At
    
    the sentencing hearing, the trial court issued the following statement:
    
           The Court has reviewed the file, the PSI, arguments of counsel, statement of
           defendant. The record shows that the defendant only has one prior felony
           which is the predicate offense for this. The defendant has some other arrests
           but no other convictions. But when faced to do the right thing he chose to
           run. Which is really bad because that tells me that if things don’t go the way
           he wants them to go in the future his choice will be to run again. In view of
           that, the Court imposes ten years [in the] Department of Corrections.
    
    Transcript at 9. We find that the trial court sufficiently articulated its reasons for imposing
    
    the ten-year aggregate sentence.
    
           Next, Slater argues that the trial court abused its discretion by overlooking
    
    significant mitigating factors. To prevail on such a claim, a defendant must establish that
    
    the omitted mitigating circumstances are both significant and clearly supported by the
    
    record. Anglemyer v. State, 
    868 N.E.2d 482
    . A sentencing court is not obligated to find a
    
    circumstance to be mitigating merely because it is advanced as such by the defendant, nor
    
    is it required to explain why it chose not to make a finding of mitigation. Healey v. State,
    
    
    969 N.E.2d 607
     (Ind. Ct. App. 2007). Also, a trial court does not abuse its discretion in
    
    failing to find a mitigating factor that is highly disputable in nature, weight, or significance.
    
    Id.
    
           Slater argues that the trial court abused its discretion in overlooking the hardship his
    
    sentence would impose on his dependents. At the sentencing hearing, Slater presented a
    
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    personal letter from his girlfriend informing the court that she was pregnant with Slater’s
    
    child. The hardship to a defendant’s dependents is not necessarily a significant mitigating
    
    factor because incarceration will always be a hardship on dependents. McElroy v. State,
    
    
    865 N.E.2d 584
     (Ind. 2007). Many persons convicted of crimes have dependents and, in
    
    the absence of special circumstances showing an excessive undue hardship, a trial court
    
    does not abuse its discretion by failing to consider it as a mitigating circumstance.
    
    Benefield v. State, 
    904 N.E.2d 239
     (Ind. Ct. App. 2009). Because Slater has not alleged
    
    any such special circumstances, the trial court did not abuse its discretion in declining to
    
    recognize the alleged hardship to Slater’s defendants as a mitigating factor.
    
           Next, Slater argues that the trial court overlooked the fact that he completed nine
    
    programs while in jail in order to better himself. Although it is commendable that Slater
    
    completed the programs, the trial court was not bound to find his participation to be a
    
    significant mitigating circumstance. It is the defendant’s task to establish that the omitted
    
    mitigating circumstances are both significant and clearly supported by the record.
    
    Anglemyer v. State, 
    868 N.E.2d 482
    . In short, Slater has not established that this purported
    
    mitigating factor was significant and clearly supported.
    
           Slater also argues that the trial court abused its discretion by failing to recognize his
    
    guilty plea as a significant mitigating factor. “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.” Wells v. State, 
    836 N.E.2d 475
    , 479 (Ind. Ct. App. 2005). Slater was
    
    driving the car that contained the handgun and marijuana and he confessed that they
    
                                                   5
    belonged to him. In sum, the evidence of Slater’s guilt was overwhelming. It therefore
    
    appears that his decision to plead guilty was largely a pragmatic one that does not merit
    
    significant mitigating weight. For all of these reasons, we cannot conclude that the trial
    
    court abused its discretion in sentencing Slater.
    
                                                  2.
    
           Finally, Slater argues that his aggregate executed sentence of ten years for SVF and
    
    possession of marijuana is inappropriate in light of the nature of the offenses and the
    
    character of the offender. Article 7, section 4 of the Indiana Constitution grants our
    
    Supreme Court the power to review and revise criminal sentences. Pursuant to App. R. 7,
    
    the Supreme Court authorized this court to perform the same task. Cardwell v. State, 
    895 N.E.2d 1219
     (Ind. 2008). Per App. R. 7(B), we may revise a sentence “if, after due
    
    consideration of the trial court’s decision, the Court finds that the sentence is inappropriate
    
    in light of the nature of the offense and the character of the offender.” Wilkes v. State, 
    917 N.E.2d 675
    , 693 (Ind. 2009). Nevertheless, “we must and should exercise deference to a
    
    trial court’s sentencing decision, both because Rule 7(B) requires us to give ‘due
    
    consideration’ to that decision and because we understand and recognize the unique
    
    perspective a trial court brings to its sentencing decisions.” Stewart v. State, 
    866 N.E.2d 858
    , 866 (Ind. Ct. App. 2007).
    
           Whether we regard a sentence as inappropriate “turns on our sense of the culpability
    
    of the defendant, the severity of the crime, the damage done to others, and myriad other
    
    factors that come to light in a given case.” Cardwell v. State, 895 N.E.2d at 1224.
    
    Furthermore, “[t]he principal role of appellate review should be to attempt to leaven the
    
                                                  6
    outliers, and identify some guiding principles for trial courts and those charged with
    
    improvement of the sentencing statutes, but not to achieve a perceived ‘correct’ result in
    
    each case.” Id. at 1225. Accordingly, “the question under Appellate Rule 7(B) is not
    
    whether another sentence is more appropriate; rather, the question is whether the sentence
    
    imposed is inappropriate.” King v. State, 
    894 N.E.2d 265
    , 268 (Ind. Ct. App. 2008)
    
    (emphasis in original).
    
           Slater was convicted of class B felony SVF, for which the sentencing range is six to
    
    twenty years, with an advisory sentence of ten years. Ind. Code Ann. § 35-50-2-5 (West,
    
    Westlaw current with all legislation of the Second Regular Session of the 118th General
    
    Assembly (2014) with effective dates through May 1, 2014). Slater received the ten-year
    
    advisory sentence for his SVF conviction. In addition, Slater received the maximum one-
    
    year sentence for a class A misdemeanor conviction of possession of marijuana. See I.C.
    
    § 35-50-3-2 (West, Westlaw current with all legislation of the Second Regular Session of
    
    the 118th General Assembly (2014) with effective dates through May 1, 2014). The
    
    sentences were ordered to be served concurrently, resulting in an aggregate sentence of ten
    
    years, the advisory sentence for Slater’s class B felony conviction. Because the advisory
    
    sentence is the starting point for an appropriate sentence for the crime committed, the
    
    defendant bears a particularly heavy burden in persuading us that his sentence is
    
    inappropriate when the trial court imposes the advisory sentence. Golden v. State, 
    862 N.E.2d 1212
     (Ind. Ct. App. 2007), trans. denied.
    
           We now consider the nature of the offense. Although Slater was cooperative with
    
    the police, he was found with a .45 caliber handgun with a laser attached to the accessory
    
                                                 7
    rail and a loaded magazine within reaching distance. Furthermore, Slater was not licensed
    
    to carry the firearm. As to the character of the offender, although Slater did plead guilty
    
    and voiced his intentions to be a supportive father, Slater’s decision to flee the courtroom
    
    during a previous sentencing hearing when his motion for a continuance was denied
    
    showed disrespect to the court and the judicial process.
    
           Slater has failed to meet the heavy burden of persuading this court that his advisory
    
    sentence was inappropriate. The trial court concluded, “when faced to do the right thing
    
    he chose to run. Which is really bad because that tells me that if things don’t go the way
    
    he wants them to go in the future his choice will be to run again.” Transcript at 17. We
    
    agree with the trial court’s analysis. Slater’s sentence is not inappropriate.
    
           Judgment affirmed.
    
           MATHIAS, J., and PYLE, J., concur.
    
    
    
    
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