The opinion
MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this Jul 08 2015, 8:33 am
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 ATTORNEYS FOR APPELLEE
Steven E. Ripstra Gregory F. Zoeller
Ripstra Law Office Attorney General of Indiana
Jasper, Indiana
Christina D. Pace
Deputy Attorney General
Indianapolis Indiana
IN THE
COURT OF APPEALS OF INDIANA
Eric L. Carter, July 8, 2015
Appellant-Defendant, Court of Appeals Case No.
63A01-1412-CR-527
v. Appeal from the Pike Circuit Court
The Honorable Jeffrey L.
State of Indiana, Biesterveld, Judge
Appellee-Plaintiff.
Cause No. 63C01-1403-FB-124
Brown, Judge.
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[1] Eric L. Carter appeals his sentence for possession of a firearm by a serious
violent felon as a class B felony. Carter raises two issues which we revise and
restate as:
I. Whether the trial court abused its discretion in sentencing him; and
II. Whether his sentence is inappropriate in light of the nature of the
offense and the character of the offender.
We affirm.
Facts and Procedural History
[2] On June 30, 2011, Carter was convicted of Count I, burglary as a class C
felony, and Count II, burglary as a class B felony, under cause number 63C01-
0902-FB-76 (“Cause No. 76”).
[3] On June 14, 2013, Carter knowingly possessed a firearm or firearms,
specifically a “RG 22 caliber revolver” and an “Iver Johnson 32 caliber
revolver.” Transcript at 16. On March 31, 2014, the State charged Carter with
unlawful possession of a firearm by a serious violent felon as a class B felony
under cause number 63C01-1403-FB-124 (“Cause No. 124”). On April 1, 2014,
the State filed a motion to revoke probation under Cause No. 76. On August 4,
2014, the State charged Carter with theft as a class D felony under cause
number 63C01-1408-FD-355 (“Cause No. 355”).
[4] On October 7, 2014, pursuant to the terms of a plea agreement, Carter pled
guilty to unlawful possession of a firearm by a serious violent felon as a class B
felony under Cause No. 124, he agreed to admit to the violation of the terms of
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his probation in Cause No. 76, he agreed to a cap of twelve years on his total
sentence, and the State agreed to dismiss the charges in Cause No. 355.
[5] On November 12, 2014, the court held a sentencing hearing. Carter’s father
testified that he received a lung transplant in July, that he would have to find
someone in the family to help him or hire someone should Carter be
incarcerated, and that he had hired someone to help him for the last few
months but that paying someone was a financial strain. He testified that after
Carter became a felon, they discussed guns and that Carter was not to own or
possess one. He indicated that Carter told him that Carter had guns as
collateral for a loan and “was just holding them for the night” and “some
people were coming back to pick ‘em up the next day.” Id. at 53. He also
testified that the guns were not loaded and on a shelf in a closet.
[6] Carter testified that he told his father around 2001 after he was convicted that
his father needed to take his guns or find somebody to buy them. He testified
that if he had known “the concept of possessory interest is the equivalent of
actual possession under this statute, we wouldn’t be having this hearing today.”
Id. at 71. With respect to the guns the State alleged he possessed, Carter stated
that he had no interest in the guns “other than that they were an assurance that
[he] was going to get [his] money back.” Id. at 66. He testified that he could
not reach the shelf where the guns were stored because he had a full arm cast on
one arm, his fingers were sprained and swollen, and he had a broken neck with
a rigid neck brace. He stated that the police knocked on the door to his father’s
house and said they had talked to “the guys that the firearms came from” and
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that they knew the firearms were in the house. Id. at 67. He testified that he
initially pretended like he had no idea what the officers were talking about, but
one of the officers said he knew that Carter was on probation, that Carter could
either cooperate and let the police gain access to the firearms, or he would go
with them. He provided a written statement to the police naming two
individuals involved in his receipt of the guns. During cross-examination,
Carter admitted that the written statement he made to the police when they
came to his house was not a true and accurate statement because he was under
the impression that if he did “what they wanted [him] to do, that this, that we
weren’t going to, that this wasn’t going to be an issue.” Id. at 79.
[7] At the hearing, the court found the most substantial aggravating factor to be
Carter’s criminal history. The court also found the fact that Carter was on
probation at the time of the offense as an aggravator. The court stated that it
considered the fact that Ind. Code § 35-50-2-2 “makes this a non-suspendable
offense” and that “is because this is a Class ‘B’ felony and the person has a prior
unrelated felony conviction.” Id. at 93. The court also considered that prior
lenient treatment, probation, and community corrections had not been
successful. The court found Carter’s guilty plea and that Carter “has made
restitution in the original case, for which probation revocation is being sought”
as mitigators. Id. The sentencing order found that Carter “did plead guilty and
saved the Court’s time and resources” as a mitigator. Appellant’s Appendix at
157. The order stated that the court considered: (1) Carter’s prior criminal
history; (2) Carter was on probation at the time when the new offense was
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committed; (3) prior lenient treatment and the prior consideration of probation
and placement in community corrections had not been successful; (4) Carter’s
testimony that he knew he was not supposed to possess a firearm; and (5) Ind.
Code § 35-50-2-2 makes this a non-suspendable offense “because this a [sic] call
[sic] ‘D’ [sic] Felony and the Defendant has a prior non-related offense.” Id.
The court sentenced Carter to ten years under Cause No. 124 and two years
under Cause No. 76 to be served consecutively.
Discussion
I.
[8] The first issue is whether the trial court abused its discretion in sentencing
Carter. 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 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
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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] Carter argues that the trial court should have considered his cooperation with
the police and how the cooperation led to two burglary convictions 1 and the
undue burden on his father. He contends that the sentencing order omits the
second mitigator that the court mentioned during the sentencing hearing that he
made restitution in the original case for which probation revocation was being
sought. Lastly, he asserts that “any argument made that the court abused its
discretion when sentencing the defendant on the new charge in [Cause No.
124], should be applied to the probation violation proceedings.” Appellant’s
Brief at 14-15.
[10] The State argues that Carter’s cooperation with the police was merely a
pragmatic decision and downplays his involvement. With respect to the burden
of incarceration on Carter’s father, the State points out that Carter’s adult sister
and his mother are still living but there was no discussion of these family
members at his sentencing hearing.
1
Carter cites a letter he previously sent to the trial court dated November 3, 2014, to support his contention
that his cooperation led to the arrests of two individuals.
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[11] 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
been argued by counsel, it is not obligated to explain why it has found that the
factor does not exist. Id.
[12] With respect to his cooperation with the police, the record reveals that Carter
testified that he initially pretended like he had no idea what the police were
talking about. He conceded during cross-examination that the written
statement he made to the police when they came to his house was not a true
and accurate statement. We cannot say that Carter has demonstrated that the
mitigating evidence is both significant and clearly supported by the record.
[13] As for the burden on Carter’s father, “absent special circumstances, trial courts
are not required to find that imprisonment will result in an undue hardship.”
Dowdell v. State, 720 N.E.2d 1146, 1154 (Ind. 1999); see also Benefield v. State, 904
N.E.2d 239, 247-248 (Ind. Ct. App. 2009) (recognizing that incarceration
“almost always” works a hardship on others and concluding that the defendant
failed to show “special circumstances” because there were other people who
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could take care of the defendant’s mother while she was incarcerated), trans.
denied. Again, we cannot say that Carter has demonstrated that the mitigating
evidence is both significant and clearly supported by the record.
[14] To the extent that Carter asserts that the sentencing order did not include his
restitution as a mitigator, we observe that the trial court found that Carter’s
restitution in the original case for which probation revocation was being sought
was a mitigator during the sentencing hearing. “The approach employed by
Indiana appellate courts in reviewing sentences in non-capital cases is to
examine both the written and oral sentencing statements to discern the findings
of the trial court.” McElroy v. State, 865 N.E.2d 584, 589 (Ind. 2007). We
examine the oral statement alongside the written sentencing statement to assess
the conclusions of the trial court. Id. Under the circumstances, we cannot say
that the court abused its discretion.2
II.
[15] The next issue is whether Carter’s sentence is inappropriate in light of the
nature of the offense and the character of the offender. Ind. Appellate Rule
7(B) provides that we “may revise a sentence authorized by statute if, after due
consideration of the trial court’s decision, [we find] that the sentence is
2
Carter also argues that the sentencing order differs from the statement given by the court at the conclusion
of the sentencing hearing because the order states that Ind. Code § 35-50-2-2 makes this a non-suspendable
offense “because this a [sic] call [sic] ‘D’ [sic] Felony and the Defendant has a prior non-related offense.”
Appellant’s Appendix at 157. We cannot say that the scrivener’s error referring to the offense as a class D
felony constitutes an abuse of discretion in sentencing Carter.
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inappropriate in light of the nature of the offense and the character of the
offender.” Under this rule, the burden is on the defendant to persuade the
appellate court that his or her sentence is inappropriate. Childress v. State, 848
N.E.2d 1073, 1080 (Ind. 2006).
[16] Carter argues that he agreed only to accept the three guns as collateral for a
loan, the guns were kept on a shelf in his father’s house where he was living and
he was unable to reach the shelf due to physical limitations, he consented to the
police seizing the firearms and gave a written statement about how they came
into his possession after the police promised not to arrest him or charge him
with a firearm violation, his statement was ultimately used to convict two
people of burglary, and he was unaware that merely having any property
interest in a firearm qualified as a crime. With respect to his character, he
argues that he is a college graduate, suffers from bipolar disorder, attention
deficit disorder, and obsessive compulsive disorder, none of his previous
offenses involved a firearm, he had less than two weeks remaining on his
probation, he believed his medication was a factor in clouding his decision to
accept a possessory interest in the guns, and he pled guilty.
[17] Our review of the nature of the offense reveals that Carter knowingly possessed
a firearm or firearms as a serious violent felon. Our review of the character of
the offender reveals that Carter pled guilty to unlawful possession of a firearm
by a serious violent felon as a class B felony under Cause No. 124 and agreed to
admit the violation of the terms of his probation in Cause No. 76, and the State
agreed to dismiss the charge in Cause No. 355 of theft as a class D felony. As
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an adult, Carter was convicted of illegal possession of alcohol by a minor as a
class C misdemeanor in 1994, possession of marijuana as a class A
misdemeanor in 1999, and operating a motor vehicle while intoxicated as a
class A misdemeanor in 1999. In 1999, he pled guilty to possession of a
controlled substance as a class D felony.3 He was convicted of possession of
marijuana as a class A misdemeanor, possession of marijuana as a class D
felony, operating a motor vehicle while intoxicated as a class D felony in 2001;
two counts of burglary as class C felonies, two counts of theft as class D
felonies, and reckless driving as a class B misdemeanor in 2003; theft as a class
D felony, criminal conversion as a class C misdemeanor, and possession of
marijuana as a class A misdemeanor in 2006; burglary as a class C felony in
2007; burglary as a class C felony, burglary as a class B felony, and possession
of paraphernalia as a class A misdemeanor in 2011.
[18] The presentence investigation report indicates that Carter had been diagnosed
with attention deficit disorder, obsessive compulsive disorder, and bipolar
disorder. Carter first started using alcohol at age nineteen, marijuana at age
fifteen, and methamphetamine at age twenty. He also used or abused
“Adderall (prescribed), cocaine powder, crack cocaine, hashish, ecstasy, heroin,
LSD/acid, Librium/Valium (prescribed), marijuana, synthetic marijuana,
Xanax, methamphetamine, opium, Ritalin (prescribed), Klonopin (prescribed)
and peyote/mushrooms.” Appellant’s Appendix at 249. He has failed multiple
3
The presentence investigation report indicates that the disposition for this offense is unknown.
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drug screens while being under the supervision of the court by means of
community corrections and/or probation. The report also indicates that
Carter’s overall risk assessment score puts him in the high risk category to
reoffend.
[19] After due consideration of the trial court’s decision, we cannot say that the
advisory sentence of ten years imposed by the trial court in Cause No. 124 and
a consecutive two years in Cause No. 76 is inappropriate in light of the nature
of the offense and the character of the offender.
Conclusion
[20] For the foregoing reasons, we affirm Carter’s sentence.
[21] Affirmed.
Crone, J., and Pyle, J., concur.
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