Sandra M. Bowers v. State of Indiana (mem. dec.) ( 2016 )

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Jun 29 2016, 9:07 am
this Memorandum Decision shall not be
CLERK
regarded as precedent or cited before any Indiana Supreme Court
Court of Appeals
court except for the purpose of establishing and Tax Court
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
Richard C. Webster
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Sandra M. Bowers, June 29, 2016
Appellant-Defendant, Court of Appeals Case No.
03A01-1511-CR-2042
v. Appeal from the Bartholomew
Superior Court
State of Indiana, The Honorable James D. Worton,
Appellee-Plaintiff. Judge
Trial Court Cause No.
03D01-1501-F3-178
Brown, Judge.
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[1] Sandra M. Bowers appeals her sentence for dealing in methamphetamine as a
level 3 felony. Bowers raises one issue which we revise and restate as whether
the trial court abused its discretion in sentencing her. We affirm.
Facts and Procedural History
[2] On July 3, 2014, Bowers was stopped by police and found in possession of
methamphetamine. After she was placed in a police vehicle at her request, the
police discovered a digital scale with white powder residue on the floor near the
driver’s seat. The top of the scale tested positive for methamphetamine. One of
the officers informed Bowers that she was being arrested for possession of
paraphernalia. The police also discovered a clear baggy in her right front
pocket, and an officer asked her if she had anything else on her person. Bowers
reached her arms near the front of her pants, reached down, and retrieved a
clear bag containing methamphetamine. Upon questioning by police, Bowers
admitted to selling methamphetamine.
[3] On January 12, 2015, the State charged Bowers with Count I, dealing in
methamphetamine as a level 3 felony, and Count II, possession of
methamphetamine as a level 5 felony. On October 5, 2015, Bowers signed a
plea agreement in which she pled guilty to Count I, dealing in
methamphetamine as a level 3 felony, and Count II was dismissed.
[4] On October 30, 2015, the court held a hearing at which Bowers testified that
she dealt drugs on June 27, 2014, and July 2, 2014, and that a police officer
“knew that [she] was going to pick up some more, so he pulled me over.”
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Transcript at 14-15. On cross-examination, Bowers indicated that the
presentence investigation report stated that she reported that she was not a drug
dealer, only a drug user. She testified that she would have to sell drugs
regularly to qualify as a drug dealer, that she did not sell drugs “very often,”
and that she sold drugs “[e]very couple of days.” Id. at 27. After the
presentation of evidence, the court and the parties discussed whether the
sentence should be served consecutive to other cause numbers. When the court
asked for final argument from Bowers’s counsel, he stated in part: “[T]hat’s
preliminarily, or primarily our argument, Judge, that we would ask the Court,
in it’s [sic] discretion to run this case concurrently with uh 41C01-1411-FA-21 .
. . .” Id. at 36. He also stated that Bowers was doing well in prison and taking
advantage of the programs that the court in Johnson County recommended for
her.
[5] The court accepted the plea agreement, dismissed Count II, and entered a
judgment of conviction for Count I, dealing in methamphetamine as a level 3
felony. The court found no mitigating circumstances and the following
aggravating circumstances: Bowers’s criminal history or delinquent behavior,
her recent violation of the conditions of any probation, parole, community
corrections placement, or pretrial release, that she has had the opportunity for
treatment outside of a penal facility and has been unsuccessful, and that she has
been placed on probation multiple times and has had multiple petitions to
revoke probation filed against her. The court sentenced her to twelve years
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with ten years executed and two years suspended to probation, and ordered that
the sentence be served consecutive to three other cause numbers.
Discussion
[6] The issue is whether the trial court abused its discretion in sentencing Bowers.
Bowers argues that the trial court abused its discretion when it failed to consider
her admissions to and cooperation with police and guilty plea as significant
mitigating factors. She asserts that this Court could impose a sentence less than
twelve years or it could order that her sentence run concurrently with the
sentence from one of the three other causes.
[7] The State argues that Bowers waived appellate review of this issue because she
never raised or argued the mitigating circumstances she now claims the trial
court should have considered, and that, waiver notwithstanding, her arguments
do not have merit. It asserts that Bowers did not cooperate with the police from
the outset and waited until the officers discovered a set of scales with the white
powder residue of methamphetamine on it and advised her she was going to be
arrested. With respect to her guilty plea, the State contends that Bowers pled
guilty approximately two weeks before trial was scheduled to begin, substantial
evidence was recovered from her person and vehicle, and she received a
substantial benefit by pleading guilty.
[8] We review the sentence 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 (Ind. 2007). An
abuse of discretion occurs if the decision is “clearly against the logic and effect
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of the facts and circumstances before the court, or the reasonable, probable, and
actual deductions to be drawn therefrom.” Id. A trial court abuses its
discretion if it: (1) fails “to enter a sentencing statement at all;” (2) enters “a
sentencing statement that explains reasons for imposing a sentence – including
a finding of aggravating and mitigating factors if any – but the record does not
support the reasons;” (3) enters a sentencing statement that “omits reasons that
are clearly supported by the record and advanced for consideration;” or (4)
considers reasons that “are improper as a matter of law.” Id. at 490-491. If the
trial court has abused its discretion, we will remand for resentencing “if we
cannot say with confidence that the trial court would have imposed the same
sentence had it properly considered reasons that enjoy support in the record.”
Id. at 491. The relative weight or value assignable to reasons properly found, or
those which should have been found, is not subject to review for abuse of
discretion. Id.
[9] The determination of mitigating circumstances is within the discretion of the
trial court. Rogers v. State, 878 N.E.2d 269, 272 (Ind. Ct. App. 2007), trans.
denied. The trial court is not obligated to accept the defendant’s argument as to
what constitutes a mitigating factor, and a trial court is not required to give the
same weight to proffered mitigating factors as does a defendant. Id. An
allegation that the trial court failed to identify or find a mitigating factor
requires the defendant to establish that the mitigating evidence is both
significant and clearly supported by the record. Anglemyer, 868 N.E.2d at 493.
If the trial court does not find the existence of a mitigating factor after it has
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been argued by counsel, it is not obligated to explain why it has found that the
factor does not exist. Id.
[10] As for Bowers’s assertion that she provided admissions and cooperation to the
police, we note that she did not advance this as a mitigator to the trial court. “If
the defendant does not advance a factor to be mitigating at sentencing, this
Court will presume that the factor is not significant and the defendant is
precluded from advancing it as a mitigating circumstance for the first time on
appeal.” Henley v. State, 881 N.E.2d 639, 651 (Ind. 2008) (quoting Spears v.
State, 735 N.E.2d 1161, 1167 (Ind. 2000), reh’g denied).
[11] However, even though Bowers did not raise her guilty plea as a mitigating
factor at sentencing, it can still be raised for the first time on appeal. See
Anglemyer, 875 N.E.2d at 220 (observing that the general proposition that a trial
court does not abuse its discretion in failing to consider a mitigating factor that
was not raised at sentencing “has at least one important exception, namely:
pleas of guilty,” holding that “[a]lthough Anglemyer did not argue before the
sentencing court that his guilty plea was a mitigating factor, this does not
preclude him from raising the issue for the first time on appeal,” and examining
the trial court’s failure to mention this factor under the abuse of discretion
standard of review).
[12] A defendant who pleads guilty deserves some mitigating weight be given to the
plea in return. Id. “But an allegation that the trial court failed to identify or
find a mitigating factor requires the defendant to establish that the mitigating
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evidence is not only supported by the record but also that the mitigating
evidence is significant.” Id. at 220-221. The significance of a guilty plea as a
mitigating factor varies from case to case. Id. For example, a guilty plea may
not be significantly mitigating when it does not demonstrate the defendant’s
acceptance of responsibility or when the defendant receives a substantial benefit
in return for the plea. Id.
[13] The record shows that Bowers did not plead guilty until almost nine months
after being charged and fifteen days before the scheduled jury trial. The plea
agreement was more likely the result of pragmatism than acceptance of
responsibility and remorse, as the evidence against her was discovered in the
vehicle she was driving and on her person. The trial court stated:
Ma’am your testimony it seems to me that, it sounds to me like
you are blaming the Police Officer for stopping you and uh, you
know I heard you say something that he knew I was going to get
more drugs, so he waited for me to do that, as if somehow that
places any burden or responsibility on the Police Officer, which I
find, rather disturbing that you are placing that responsibility for
your conduct on the Officer for stopping you and for finding
these things. It is nobody’s fault that you are dealing drugs, other
than yours, and you are, in fact a drug dealer, there is no
question. There is no question it doesn’t matter if you deal it
every single day, or every other day, or once a month, you are
still a drug dealer and that is what you are doing. And when you
deal drugs you are not only supporting your own habit, but you
are causing other people to sink further into their own addiction.
So you have accountability for your own actions.
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Transcript at 42. We cannot say that Bowers has demonstrated that her guilty
plea was a significant mitigating circumstance or that the trial court abused its
discretion.
[14] Even assuming that the trial court abused its discretion, we can say with
confidence that the trial court would have imposed the same sentence given its
comments at the sentencing hearing and the aggravators, which Bowers does
not challenge and which include a criminal history consisting of convictions for
possession of cocaine/methamphetamine or schedule I or II narcotic drug as a
class D felony and possession of marijuana/hash oil/hashish as a class A
misdemeanor in 2006; possession of methamphetamine as a class D felony in
2011; operating while intoxicated and endangering a person as a class A
misdemeanor, two counts of driving while suspended as class A misdemeanors,
unlawful possession or use of a legend drug or precursor as a class D felony,
and possession of paraphernalia as a class A misdemeanor in 2014; and dealing
in methamphetamine as a class B felony and dealing in methamphetamine as a
level 5 felony in 2015.
Conclusion
[15] For the foregoing reasons, we affirm Bowers’s sentence.
[16] Affirmed.
Baker, J., and May, J., concur.
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