Amanda L. Zeigler v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be Jul 25 2018, 9:40 am
regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
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 Curtis T. Hill, Jr.
Columbus, Indiana Attorney General of Indiana
Angela N. Sanchez
Assistant Section Chief, Criminal
Appeals
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Amanda L. Zeigler, July 25, 2018
Appellant-Defendant, Court of Appeals Case No.
03A01-1711-CR-2781
v. Appeal from the Bartholomew
Circuit Court
State of Indiana, The Honorable Kelly S. Benjamin,
Appellee-Plaintiff. Judge
Trial Court Cause No.
03C01-1707-F6-3739
Brown, Judge.
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[1] Amanda L. Zeigler appeals her sentence for unlawful possession of a syringe as
a level 6 felony. Zeigler raises one issue which we restate as whether the trial
court abused its discretion in sentencing her. We affirm.
Facts and Procedural History
[2] On July 7, 2017, the State charged Zeigler with unlawful possession of a syringe
and maintaining a common nuisance as level 6 felonies and possession of
paraphernalia as a class C misdemeanor.
[3] On September 11, 2017, the court held a hearing at which Zeigler pled guilty to
unlawful possession of a syringe as a level 6 felony.1 The court entered an order
finding there was a basis in fact for Zeigler’s plea of guilty, stating that it would
take the matter under advisement, and noting that Zeigler indicated she did not
want to be evaluated for the WRAP Program.
[4] On October 19, 2017, the court held a hearing at which Zeigler’s mother, Sarah
Dorn, testified in part that Zeigler went to a treatment facility in Florida for a
thirty-day program but that it “was not sufficient” to change her. Transcript
Volume II at 11. She also stated that she thought the WRAP Program would
be very beneficial and she was upset Zeigler had turned down the program.
After a brief recess, the court indicated that it had a discussion regarding the
WRAP Program and asked Zeigler’s counsel if there was any change, and
Zeigler’s counsel stated: “I’ve spoken with my client about the WRAP Program
1
The record does not contain a copy of the transcript of this hearing.
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and she still indicates she has no desire to do the program.” Id. at 17. The
court ordered that Zeigler be evaluated for the WRAP Program.
[5] On November 2, 2017, the court continued the sentencing hearing and stated
that it had received a response from the WRAP Program indicating that Zeigler
could benefit from the program. Zeigler stated that she was willing to
participate in the WRAP Program and stated: “Thank you for saving my life
and I got myself back and my body back and I wouldn’t be here today probably
if you didn’t make me sit in here, so thank you.” Id. at 22. When asked on
cross-examination if she had the right attitude for the WRAP Program, she
answered: “I’m trying to.” Id. at 23. When asked if the court should place her
in the WRAP Program, she answered: “Sure.” Id. The prosecutor argued that
she did not sense any real commitment from Zeigler and was concerned about
the integrity of the WRAP Program and the effect Zeigler’s participation may
have on other participants. The court stated:
Ms. Zeigler, you certainly don’t make this easy. I would like to
believe what you just said to me is what you really think. I’m not
convinced of that. You can’t thank me because I can’t do
anything about it. I didn’t save your life. Those who are going
to save your life, you need to look in a mirror. Once you realize
that that I can’t do it, he can’t do it, she can’t do it, and they can’t
do it. That’s when it becomes real and so I completely
understand [the prosecutor’s] position because you will be in
with other people who want to get better, who believe they need
to be there and so then I have to sit here and think of is it your
brain controlling this or are you still under that, which is more
than likely, brain of I don’t need help, I’m going to get out, I can
handle this on my own, no one is going to tell me what to do and
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your judgment is still flawed. I don’t know. Some people get
nervous when they get on the stand and they react in different
ways. You may it [sic] very hard to read and very hard to trust.
It’s not a game.
I can tell you for the four people sitting in the gallery, I think they
completely get it, it’s really about life and death. I’m not sure
you get that.
I recall telling you last time I wasn’t giving up on you. . . . The
Court will note that she does have a . . . only a prior criminal
history of one conviction of Illegal Consumption, A
Misdemeanor. On probation one time before. A Petition to
Revoke filed once. She is young and has a limited criminal
history. Those are mitigating factors. An aggravating factor
specific to this case is my concern regarding her attitude and her
commitment and passion to help herself.
Id. at 24-25.
[6] The court sentenced Zeigler to the Bartholomew County Jail for 730 days,
ordered that she serve 296 days, gave her credit for 118 days, suspended 434
days, and ordered that she serve probation for a period of 547 days upon
release. The court stated:
That’s going to give you a little extra time to sit in jail before I do
place you in the WRAP Program to think about what your
attitude is going to be when you go in with other people who are
trying to save their own lives and are serious about it and make
sure you are serious about it. If there’s an opening in the WRAP
Program and they deem it appropriate prior to the end of that jail
term, I will approve you being transferred to WRAP when that . .
. that opens up. But that would give you approximately an
additional 33 days to serve. But if the bed does open up, they can
place you in there earlier if that happens.
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Id. at 26.
[7] On November 13, 2017, the court held a hearing and stated it received a letter
on November 8, 2017, reportedly signed by Zeigler stating that she felt coerced
into the WRAP Program. Upon questioning by her counsel, Zeigler testified
that she was willing to participate in the WRAP Program, that “[i]t’s 30 days to
go down to WRAP and then a year in WRAP and then four hundred and some
odd days to see . . . Community Corrections after I complete WRAP,” and she
was objecting to “[t]he excess time after WRAP.” Id. at 31. The court entered
an order amending the sentencing order “to reflect that if [Zeigler] violates
while in the WRAP Program, the Court authorizes Community Corrections to
place [her] back in jail until a hearing is held.” Appellant’s Appendix Volume
II at 7.
Discussion
[8] The issue is whether the trial court abused its discretion in sentencing Zeigler.
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. 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
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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] Zeigler argues that the trial court abused its discretion when it failed to consider
her admissions to police and guilty plea as significant mitigating factors. She
asserts that she chose to speak with police, admitted that she provided narcotics
to people, and did not receive any benefit from her admissions and cooperation
with the investigation. The affidavit signed by Columbus Police Detective
Kelly Hibbs and cited by Zeigler on appeal states that the Bartholomew County
Joint Narcotics Enforcement Team received information that Zeigler was
selling narcotics out of her apartment and officers executed a search warrant
and discovered Zeigler in her apartment with pieces of aluminum foil, a spoon
with residue on it, and syringes in her bedroom. Detective Hibbs’s affidavit
also indicates that she agreed to speak with police and that Zeigler admitted
that sometimes people would come to her apartment, she would give them
narcotics, and she was a heroin user.
[10] The State argues that Zeigler fails to show that her guilty plea warrants
significant mitigating consideration, she received a substantial benefit by
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pleading guilty, and the evidence against her was overwhelming. It also argues
that she waived her argument regarding her cooperation with police and that,
waiver notwithstanding, her admissions to police did not warrant significant
mitigating weight. It contends that, even if the trial court abused its discretion,
remand is not necessary because this Court can be confident that the trial court
would have imposed the same sentence in light of the thoughtful sentence
involving various degrees of confinement and treatment programs.
[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 court is not obligated to accept the defendant’s argument as to what
constitutes a mitigating factor, and the 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 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] As for Zeigler’s assertion that she provided 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.
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State, 881 N.E.2d 639, 651 (Ind. 2008) (quoting Spears v. State, 735 N.E.2d 1161,
1167 (Ind. 2000), reh’g denied).
[13] However, even though Zeigler 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”).
[14] 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
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.
[15] The plea agreement here was more likely the result of pragmatism than
acceptance of responsibility and remorse. The record reveals that the State
dismissed the charges of maintaining a common nuisance as a level 6 felony
and possession of paraphernalia as a class C misdemeanor in exchange for
Zeigler’s plea. In light of this benefit and her statements to police that she gave
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people narcotics, we cannot say that Zeigler has demonstrated that her guilty
plea was a significant mitigating circumstance or that the trial court abused its
discretion.
Conclusion
[16] For the foregoing reasons, we affirm Zeigler’s sentence.
[17] Affirmed.
Pyle, J., and Altice, J., concur.
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