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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: LEANNA WEISSMANN Lawrenceburg, Indiana

ATTORNEYS FOR APPELLEE: STEVE CARTER Attorney General of Indiana MARA MCCABE Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
CRAIG HARTMAN, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 69A01-0605-CR-197

APPEAL FROM THE RIPLEY CIRCUIT COURT The Honorable Carl H. Taul, Judge Cause No. 69C01-0412-FC-34

October 27, 2006

MEMORANDUM DECISION - NOT FOR PUBLICATION

NAJAM, Judge

STATEMENT OF THE CASE Craig Hartman appeals his sentence after he pleaded guilty to Theft, as a Class D felony. Hartman presents two issues for review, namely: 1. Whether the trial court abused its discretion when it identified and balanced aggravating and mitigating circumstances. Whether his sentence is inappropriate under Indiana Appellate Rule 7(B).

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We affirm. FACTS AND PROCEDURAL HISTORY In February 2004, Hartman and another man stole cigarettes, lottery tickets, and car keys from Borgman's Auto Sales. When police interviewed Hartman in October 2004, he admitted that he had participated in the theft but said that he did not enter the premises. In December 2004, the State charged Hartman with theft, as a Class D felony, and Burglary, as a Class C felony. Hartman negotiated a plea agreement with the State, but withdrew his consent to the agreement before the plea hearing. In March 2006, Hartman submitted another plea agreement, which the trial court rejected. The State subsequently moved to dismiss the burglary count for lack of prosecutorial merit. Following the dismissal of that count, Hartman entered an open plea to theft in April 2006. The trial court entered judgment of conviction accordingly and sentenced him to an enhanced term of three years. This appeal ensued.

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DISCUSSION AND DECISION Issue One: Mitigating Circumstances Hartman first contends that the trial court abused its discretion when it did not find certain circumstances mitigating. Specifically, he maintains that the trial court abused its discretion when it did not find as mitigators his guilty plea and the hardship to his family. We address each argument in turn. Sentencing decisions rest within the sound discretion of the trial court, and we generally review sentencing only for an abuse of discretion. Archer v. State, 689 N.E.2d 678, 683 (Ind. 1997), amended on other grounds, 1998 Ind. LEXIS 8. "The trial court's discretion includes the ability to determine whether the presumptive[ 1 ] sentence for a crime will be increased or decreased because of aggravating or mitigating circumstances, and whether sentences on different counts will be served concurrently or consecutively." Id. (citations omitted). "When the trial court imposes a sentence other than the

presumptive sentence, or imposes consecutive sentences where not required to do so by statute, we will examine the record to ensure that the court explained its reasons for selecting the sentence it imposed." Id. The trial court's statement of reasons must include the following three elements: (1) identification of all significant mitigating and aggravating circumstances found; (2) specific facts and reasons which lead the court to find the existence of each such circumstance; and (3) articulation demonstrating that the
Although the sentencing statutes were amended in April 2005 to provide for an advisory sentence within a range, the sentencing statutes in effect in 2004, when Hartmann committed the instant offense, provided for a presumptive sentence within a range. The law that was in effect at the time of the commission of the crime controls the resolution of sentencing issues. Peace v. State, 736 N.E.2d 1261, 1267 (Ind. Ct. App. 2000), trans. denied. Thus, we analyze the sentencing issues using the presumptive sentencing scheme in effect in 2004.
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mitigating and aggravating circumstances have been evaluated and balanced in determination of the sentence. Id. A finding of mitigating circumstances lies within the trial court's discretion, and the court is not obligated to find that mitigating circumstances exist at all. Widener v. State, 659 N.E.2d 529, 533 (Ind. 1995). "Inclusion of mitigators in the sentencing statement is mandatory only if they are used to reduce the presumptive sentence or to offset aggravators." Battles v. State, 688 N.E.2d 1230, 1236 (Ind. 1997) (citation

omitted). And only those mitigators found to be significant must be enumerated. Id. In addition, the sentencing court is not required to place the same value on a mitigating circumstance as does the defendant. Beason v. State, 690 N.E.2d 277, 283-84 (Ind. 1998). Indeed, "the `proper' weight to be afforded by the trial court to the mitigating factors may be to give them no weight at all." Crain v. State, 736 N.E.2d 1223, 1242 (Ind. 2000). Although a trial court must consider evidence of mitigating circumstances presented by the defendant, it is not obligated to explain why it has found that the mitigator does not exist. Allen v. State, 722 N.E.2d 1246, 1252 (Ind. Ct. App. 2000). First, Hartman maintains that the trial court abused its discretion when it did not consider his guilty plea as a mitigating circumstance. A guilty plea is a significant mitigating factor in some circumstances. Ruiz v. State, 818 N.E.2d 927, 929 (Ind. 2004). And guilty pleas may be accorded significant mitigating weight because they save judicial resources and spare the victim from a lengthy trial. Id. However, as our supreme court has frequently observed, a plea is not necessarily a significant mitigating factor. Id. (holding that trial court's failure to accord substantial weight to defendant's guilty plea
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was not abuse of discretion where defendant's statements after pleading "undermined his acceptance of responsibility for the crime"). Here, Hartman negotiated a plea agreement but withdrew the agreement before the plea hearing. The trial court rejected a subsequent plea agreement, and the State later dismissed the burglary charge. 2 Hartman then entered an open guilty plea to the

remaining theft charge, sixteen months after the information was filed. Up to that point, the State had spent time and resources to negotiate two plea agreements and to prepare for trial for over one year. Again, the sentencing court is not required to place the same value on a mitigating circumstance as does the defendant. Beason, 690 N.E.2d at 283-84. On the record before us, we conclude that Hartman has not shown that the trial court abused its discretion when it failed to identify his guilty plea as a significant mitigator. Hartman also contends that the trial court should have considered the hardship to his family when it imposed an enhanced sentence. "A sentencing court is not required to find a defendant's incarceration would result in undue hardship on his dependents." Weaver v. State, 845 N.E.2d 1066, 1074 (Ind. Ct. App. 2006), trans. denied. "Our Indiana Supreme Court has often noted this mitigator can properly be assigned no weight when the defendant fails to show why incarceration for a particular term will cause more hardship than incarceration for a shorter term." Id. (citation omitted). Here, Hartman has not shown how imprisonment for an enhanced term of three years will cause more

The State also argues that Hartman's guilty plea is not a proper mitigator because he received a benefit from the State's dismissal of the burglary charge. But the record does not indicate that the State dismissed the burglary charge in order to induce Hartman to plead guilty to the remaining charge. Instead, the record clearly shows that the State dismissed the burglary charge for lack of prosecutorial merit. Thus, the State's argument in this regard must fail.

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hardship than incarceration for the presumptive term of one and one-half years. Thus, his argument on this issue fails. Issue Two: Indiana Appellate Rule 7(B) Hartman also maintains that his sentence is inappropriate in light of the nature of the offense and his character. As noted above, sentencing decisions lie within the trial court's discretion. Archer, 689 N.E.2d at 683. If the sentence imposed is authorized by statute, we will not revise or set aside the sentence unless it is inappropriate in light of the nature of the offense and the character of the offender. Ind. App. R. 7(B). "When considering the appropriateness of the sentence for the crime committed, courts should initially focus upon the presumptive sentence." Asher v. State, 790 N.E.2d 567, 570 (Ind. Ct. App. 2003). That sentence is meant to be the starting point for the trial court's consideration of the sentence that is appropriate for the crime committed. Id. "The trial court may then consider deviation from the presumptive sentence based upon a balancing of the factors that must be considered in accordance with Indiana Code Section 35-38-17.1(a), together with any discretionary aggravating and mitigating factors found to exist." Id. The presumptive sentence for a Class D felony is one and one-half years, but the trial court may enhance the sentence to a maximum of three years or reduce it to a minimum of six months. Ind. Code

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