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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: STANLEY L. CAMPBELL Fort Wayne, Indiana

FILED
Oct 07 2009, 9:38 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana KELLY A. MIKLOS Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
DEBORAH J. SCHWARTZ, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 02A03-0905-CR-203

APPEAL FROM THE ALLEN SUPERIOR COURT The Honorable Frances C. Gull, Judge Cause No. 02D04-0812-FD-1138

October 7, 2009 MEMORANDUM DECISION - NOT FOR PUBLICATION

MAY, Judge

Deborah J. Schwartz appeals her two-year sentence for theft as a Class D felony. We affirm. FACTS AND PROCEDURAL HISTORY On December 16, 2008, Schwartz stole $120 worth of merchandise from a Von Maur Department Store in Allen County. At that time, Schwartz was on probation from separate 2007 and 2008 proceedings in which she was convicted, respectively, of Class D felony theft and Class C misdemeanor check deception. The State charged Schwartz with Class D felony theft. Schwartz pled guilty, and the court ordered a two-year sentence. DISCUSSION AND DECISION Schwartz asserts she is challenging whether her "sentence was inappropriate in light of the nature of the offense and the character of the Defendant," (Br. of DefendantAppellant at 2), and sets out a single-sentence standard of review therefor. (See id. at 5.) However, the bulk of her argument focuses on whether the trial court improperly overlooked her mental health issues as a significant mitigator. Arguing for that additional mitigator is the only manner in which Schwartz discusses her "character," and at no point does she offer argument about "the nature of the offense." See Ind. Appellate R. 7(B). Whether the trial court overlooked a significant mitigator and whether a defendant received an inappropriate sentence are two distinct arguments with different standards of review. See Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007), clarified on reh'g 875 N.E.2d 218 (Ind. 2007). We remind counsel that an argument presented in terms of "inappropriateness" of a sentence is subject to waiver when the focus of the argument is 2

on the trial court's consideration of aggravating and mitigating circumstances. See Ford v. State, 718 N.E.2d 1104, 1107 n.1 (Ind. 1999) (Ford's argument with respect to the former "review and revise" provision of the Indiana constitution waived for failure to state a cogent argument when Ford recited that standard but then focused only on the propriety of the trial court's use of his criminal history and his need for correctional or rehabilitative treatment as aggravating circumstances). quickly reject both possible claims. When sentencing a defendant, the court "must identify all significant mitigating and aggravating circumstances and explain why each circumstance has been determined to be mitigating or aggravating." Anglemyer, 868 N.E.2d at 490. The court is not required, however, to explain why it did not find certain factors were mitigators. Id. at 493. We review the court's findings for an abuse of discretion. Id. at 491. To Waiver notwithstanding, we

demonstrate the court abused its discretion by failing to identify a mitigator, a defendant must "establish that the mitigating evidence is both significant and clearly supported by the record." Id. at 493. Schwartz proposed the court find a mitigator in her history of mental health treatment for depression and post traumatic stress disorder, both of which resulted from her father abusing her when she was a child. The court noted: "According to you, between your mental disorders and your medications you snapped and committed this Theft." (Tr. at 10.) That comment demonstrates the court considered, but rejected, her proposed mitigator. Schwartz did not explain to the trial court, or to us, the relevance of 3

her mental health issues to this theft or to her continued commission of crimes. We are not convinced her mental health issues were so significant to make their rejection an abuse of discretion. We may revise a sentence if we find it "inappropriate in light of the nature of the offense and the character of the offender." App. R. 7(B). To revise a sentence, we need not first find the trial court abused its discretion in determining the sentence. Smith v. State, 889 N.E.2d 261, 263 (Ind. 2008). The "defendant must persuade [us] that his or her sentence has met this inappropriateness standard of review." Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). The sentencing range for a Class D felony is six months to three years, with the advisory sentence being eighteen months. Ind. Code

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