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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.

FILED
Aug 31 2011, 9:25 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEY FOR APPELLANT: DERICK W. STEELE Deputy Public Defender Kokomo, Indiana

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana JAMES E. PORTER Deputy Attorney General Indianapolis, Indiana

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

No. 34A04-1103-CR-103

APPEAL FROM THE HOWARD SUPERIOR COURT The Honorable William C. Menges, Jr., Judge Cause No. 34D01-1009-FB-752

August 31, 2011

MEMORANDUM DECISION - NOT FOR PUBLICATION

NAJAM, Judge

STATEMENT OF THE CASE Jacob J. Cummings appeals the sentence he received on his convictions for possession of methamphetamine, as a Class D felony; possession of a syringe, as a Class D felony; and possession of marijuana, as a Class A misdemeanor, following his guilty plea. Cummings raises a single issue for our review, which we restate as the following two issues: 1. Whether the trial court abused its discretion when it sentenced him to an aggregate term of three years. Whether his sentence is inappropriate in light of the nature of the offenses and his character.

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We affirm. FACTS AND PROCEDURAL HISTORY On August 30, 2010, Kokomo Police Department officials received a tip that Cummings had been involved in several local burglaries and was staying at a certain hotel in possession of methamphetamine. Officers arrived at that hotel to talk with Cummings, but he had fled the scene. The officers later tracked him down and, upon seeing the officers, they witnessed him throw away a pill case with four baggies of methamphetamine inside. The officers then executed a search warrant for the hotel room and seized two syringes, marijuana, a digital scale, baggies containing methamphetamine, a ledger for sales, a cell phone, and $142.99 in cash. On September 1, the State charged Cummings with multiple counts. On January 7, 2011, Cummings pleaded guilty to three counts and, in exchange, the State dismissed

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an allegation of dealing in methamphetamine, as a Class B felony. Later, the court sentenced Cummings to an aggregate sentence of three years, stating: I find that the defendant's prior history is an aggravating factor. I find the fact that he was a fairly recent graduate of drug court when this crime was committed is an aggravating factor. I don't find any mitigating factors. One thing, Mr. Cummings, you need to think about is your definition of relapse. Relapse is generally, at least in the drug addiction world, somebody who has episodic use of their drug of choice or a different drug of choice. . . . [Y]ou used continually . . . until you got caught. That's not a relapse. That's a pattern of behavior. This is a knowing and intentional choice that you made and it's not unusual for an addict to make that choice. . . . I believe you're an addict . . . . Home detention simply will not provide you supervision that you need, improvement that you need in order to stay clean and sober. Transcript at 19-21. This appeal ensued. DISCUSSION AND DECISION Issue One: Abuse of Discretion Cummings argues that the trial court abused its discretion when it sentenced him. Sentencing decisions rest within the sound discretion of the trial court and are reviewed on appeal only for an abuse of discretion. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on other grounds 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 of the facts and circumstances before the court, or the reasonable, probable, and actual deductions to be drawn therefrom. Id. One way in which a trial court may abuse its discretion is failing to enter a sentencing statement at all. Other examples include entering 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, 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. . . .
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[However, b]ecause the trial court no longer has any obligation to "weigh" aggravating and mitigating factors against each other when imposing a sentence, . . . a trial court can not now be said to have abused its discretion in failing to "properly weigh" such factors. Id. at 490-91. Cummings first asserts that the trial court's sentencing statement is insufficient for appellate review. We have reviewed the record and cannot agree. The trial court clearly articulated its rationale for Cummings' sentence. See transcript at 19-21. Similarly, Cummings contends that the trial court did not explain its rationale for imposing a sentence greater than the advisory sentence for his Class D felony conviction. But the court plainly stated that it imposed that sentence in light of Cummings' criminal history, his recent history in the drug court, and the fact that incarceration is necessary to provide the supervision for Cummings and his addiction. Thus, the enhancement was not an abuse of the court's discretion. Cummings next contends that the trial court failed to consider his proffered mitigators of remorse and his guilty plea. But Cummings makes no showing on appeal that his remorse was a significant mitigator. See, e.g., Ousley v. State, 807 N.E.2d 758, 763 (Ind. Ct. App. 2004) ("our concern upon appeal is to determine whether the trial court improperly overlooked a significant mitigating factor that is clearly supported by the record."). And in exchange for his guilty plea, the State dismissed a Class B felony allegation. Thus, Cummings had already received a significant benefit from his plea and the court was not obliged to extend him another. See Anglemyer, 875 N.E.2d at 221.

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Finally, Cummings states that the trial court failed to balance the aggravators and mitigators properly. This is a request for this court to reweigh those factors, which we will not do. See Anglemyer, 868 N.E.2d at 490-91. Issue Two: Appellate Rule 7(B) Cummings also contends that his three-year sentence is inappropriate in light of the nature of the offenses and his character. See Ind. Code

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