Benjamin S. McMillen v. State of Indiana

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 Nov 18 2014, 10:21 am
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
RANDY M. FISHER GREGORY F. ZOELLER
Leonard Hammond Thoma & Terrill Attorney General of Indiana
Fort Wayne, Indiana
MICHAEL GENE WORDEN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
BENJAMIN S. McMILLEN, )
)
Appellant-Defendant, )
)
vs. ) No. 02A03-1402-CR-57
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE ALLEN SUPERIOR COURT
The Honorable Frances C. Gull, Judge
Cause No. 02D06-1306-FB-105 & 02D06-1203-FB-47
November 18, 2014
MEMORANDUM DECISION – NOT FOR PUBLICATION
RILEY, Judge
STATEMENT OF THE CASE
In this consolidated appeal, Appellant-Defendant, Benjamin S. McMillen
(McMillen), challenges his aggregate eighteen-year sentence following the reinstatement
of his suspended sentence under Cause #047 and his conviction under Cause #105.
We affirm.
ISSUES
McMillen raises two issues on appeal, which we restate as follows:
(1) Whether the trial court abused its discretion in sentencing McMillen; and
(2) Whether McMillen’s sentence is inappropriate in light of the nature of the
offense and character of the offender.
FACTS AND PROCEDURAL HISTORY
On December 5, 2011, and again on December 12, 2011, police officers on the Allen
County Drug Task Force, utilizing a confidential informant, arranged to purchase narcotics
from McMillen. On the first occasion, McMillen sold the confidential informant 0.4 grams
of oxycodone and fentanyl; on the second occasion, McMillen sold the confidential
informant twelve Lortab (hydrocodone) pills. On March 9, 2012, the State filed an
Information under Cause #047, charging McMillen with Count I, dealing in a Schedule II
controlled substance, a Class B felony, Ind. Code § 35-48-4-2(a)(1)(C); and Count II,
dealing in a Schedule II and/or III controlled substance, a Class B felony, I.C. 35-48-4-
2(a)(1)(C). On July 2, 2012, pursuant to a plea agreement, McMillen pled guilty to Count
I as a Class B felony, and the State dismissed Count II. On July 30, 2012, the trial court
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imposed a ten-year sentence, with two years executed in the Allen County Community
Corrections Home Detention Program and eight years suspended. The trial court ordered
that McMillen spend four years of his suspended sentence on probation.
Thereafter, McMillen enrolled as a full-time student at Ivy Tech Community
College and secured full-time employment. He also sought treatment for his substance
abuse and passed all of his drug screens. On March 16, 2013, having successfully
completed his home detention program, McMillen began his probationary period.
Within a few weeks of his release from home detention, McMillen relapsed in his
substance abuse and was using heroin on a daily basis. Three months into his probation,
on the morning of June 2, 2013, Fort Wayne police officers were dispatched on a residential
break-in after a witness observed McMillen entering her neighbor’s house through the
garage. After verifying with the homeowners that McMillen’s entry was unauthorized,
police officers entered and apprehended him. The officers inspected the premises and
discovered a stockpile of the homeowners’ possessions, which included collectible gold
coins, a ring, and gold chains, on the floor of a bedroom closet. During his police interview,
McMillen explained that he had accessed the house with the homeowners’ garage door
opener, which an acquaintance had stolen a few days earlier. McMillen also admitted that
he intended to steal the items found piled in the closet in order to purchase heroin.
On June 6, 2013, the State filed an Information under Cause #105, charging
McMillen with Count I, burglary, a Class B felony, I.C. § 35-43-2-1(1); and Count II,
receiving stolen property, a Class D felony, I.C. § 35-43-4-2(b). On June 10, 2013, the
Allen County Probation Department filed a petition under Cause #047 to revoke
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McMillen’s probation. On December 31, 2013, McMillen admitted to the probation
violation and also pled guilty to both Counts charged in Cause #105 without the benefit of
a plea agreement.
On January 29, 2014, the trial court conducted a joint hearing on the matters of
McMillen’s probation revocation and his sentencing. In Cause #047, the trial court revoked
McMillen’s probation and reinstated his entire suspended sentence, ordering that he serve
eight years in the Indiana Department of Correction (DOC). In Cause #105, the trial court
sentenced McMillen to twelve years, with ten years executed in the DOC and two years
suspended to probation, for Count I, a Class B felony burglary; and two years, served
concurrently, for Count II, a Class D felony receiving stolen property. The trial court
ordered that McMillen serve his sentence under Cause #105 consecutive to his sentence
under Cause #047, for an aggregate, executed sentence of eighteen years.
On February 13, 2014, McMillen filed a separate Notice of Appeal in both Cause
#047 and Cause #105. On March 31, 2014, McMillen filed a motion to consolidate the
matters for appeal, which our court granted on April 11, 2014. Additional facts will be
provided as necessary.
DISCUSSION AND DECISION
I. Abuse of Sentencing Discretion
McMillen claims that the trial court abused its sentencing discretion by failing to
identify a number of mitigating circumstances. Sentencing decisions are a matter reserved
to the sound discretion of the trial court. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind.
2007), clarified on reh’g. A trial court may impose any sentence authorized by statute, and
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so long as a sentence falls within the statutory range, it may only be reviewed for an abuse
of discretion. Id. Our court will find an abuse of discretion only where a decision is
contrary to “the logic and effect of the facts and circumstances before the court, or the
reasonable, probable, and actual deductions to be drawn therefrom.” Id.
In making a sentencing determination, the trial court may consider whether there
are any aggravating or mitigating circumstances to merit a sentence enhancement or
reduction. I.C. § 35-38-1-7.1(a)-(b). If the trial court finds the existence of any aggravators
or mitigators, it “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. However, a trial court has no obligation to weigh
aggravating and mitigating factors. Id. at 491.
It is undisputed that the trial court’s imposition of twelve-year and two-year
sentences, running concurrently, falls within the statutorily permissible ranges for Class B
and Class D felonies, respectively. See I.C. §§ 35-50-2-5; -7. During the sentencing
hearing, the trial court accepted several of McMillen’s proffered mitigating circumstances,
including that McMillen had “accepted responsibility for [his] behavior” by pleading
guilty, as well as that he had extended “a genuine apology” to the victims and expressed
remorse for his actions. (Transcript p. 19). On appeal, McMillen contends that the trial
court abused its discretion by failing to also consider his educational background, his
employment history, his family support system, and his longstanding struggle with
substance abuse as circumstances warranting sentence mitigation.
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In order to establish that the trial court abused its discretion by failing to identify a
proper mitigating circumstance, the defendant must demonstrate “that the mitigating
evidence is both significant and clearly supported by the record.” Rogers v. State, 958
N.E.2d 4, 9 (Ind. Ct. App. 2011). If a mitigating circumstance is clearly supported by the
record, it may imply that the trial court improperly overlooked it; however, the trial court
is under no obligation “to explain why it has chosen not to find mitigating circumstances.”
Id. (quoting Anglemyer, 868 N.E.2d at 493). It is well settled that a trial court is not
required to accept a defendant’s arguments as to what constitutes a mitigating
circumstance. Id.
We agree with McMillen that the record demonstrates that he has completed one
year of college and wants to complete his degree; that he maintained employment in several
capacities up until his present incarceration; that he has loving and caring family members,
who have repeatedly implored the court for leniency and offered to supervise and support
his rehabilitation; that he has struggled with a heroin addiction for nearly a decade; and
that his criminal record stems from his prolific substance abuse problem. Nevertheless, we
cannot say that the trial court abused its discretion by failing to consider these factors. To
the contrary, the trial court explicitly considered and subsequently declined to find
McMillen’s education and employment histories as mitigating circumstances because such
attributes are “expected of adults in our society.” (Tr. p. 19). Additionally, the trial court
noted that the devotion and support of McMillen’s family, while “laudable[,]” was not
significant as a mitigating factor. (Tr. p. 19). Finally, the trial court also expressly
determined that McMillen’s drug use did not favor mitigation, stating,
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Your substance abuse, I note that your criminal record apparently is related
to your substance abuse. I refuse to find that as a mitigating circumstance.
You’ve had multiple opportunities at treatment, and in fact were clean and
sober for a pretty significant period of time before you went back to drugs.
(Tr. pp. 19-20). Thus, it is clear that the trial court did consider each of the factors
submitted by McMillen but ultimately made the specific choice not to construe them as
mitigating circumstances. See Rogers, 958 N.E.2d at 9.
Moreover, it is well established that the identification of even a single valid
aggravator is sufficient to sustain an enhanced sentence. Coy v. State, 999 N.E.2d 937, 947
(Ind. Ct. App. 2013). Here, the trial court specifically identified two aggravating factors
in support of its sentencing determination: McMillen’s criminal history and the fact that
he committed the offenses in Cause #105 while on probation in Cause #047. See I.C. § 35-
38-1-7.1(a)(2),(6). Along with the three felony convictions stemming from Cause #047
and Cause #105, McMillen’s criminal record includes an informal adjustment for
possession of marijuana as a juvenile and a misdemeanor conviction for possession of
marijuana in 2010. For the misdemeanor conviction, McMillen received a one-year
suspended sentence, but when McMillen failed to comply with the terms thereof, the trial
court ordered his incarceration for sixty days in the Allen County Jail. Accordingly,
because the trial court properly identified at least one valid aggravating circumstance, we
find no abuse of discretion in its decision to accord more weight to the aggravating factors
than to the mitigating factors.
II. Inappropriate Sentence
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Even where a trial court has not abused its discretion in imposing a sentence
authorized by statute, our court may nevertheless revise any sentence if we determine that
it “is inappropriate in light of the nature of the offense and the character of the offender.”
Ind. Appellate Rule 7(B). In reviewing the appropriateness of a sentence, we focus on the
length of the aggregate sentence and how it is to be served. Cardwell v. State, 895 N.E.2d
1219, 1224 (Ind. 2008). In addition, whether we regard a sentence as inappropriate will
hinge “on our sense of the culpability of the defendant, the severity of the crime, the
damage done to others, and myriad other factors that come to light in a given case.” Id.
Thus, we may look to any factors in the record. Spitler v. State, 908 N.E.2d 694, 696 (Ind.
Ct. App. 2009), trans. denied. McMillen bears the burden of persuading our court that his
sentence is inappropriate. Rogers, 958 N.E.2d at 10.
Regarding the nature of his offense, we find that McMillen was on probation for
dealing in a controlled substance, a Class B felony, at the time he committed burglary, also
a Class B felony, and receiving stolen property, a Class D felony. McMillen claims that
he intended to steal only as a means of buying heroin; yet the evidence of his steady
employment indicates that McMillen had a regular source of income but nevertheless chose
to commit serious felonies in order to finance his drug addiction. In addition, in light of
the fact that his acquaintance had stolen the homeowners’ garage door opener several days
beforehand, it is evident that McMillen targeted his victims, planned his burglary, and
monitored the homeowners’ whereabouts until presented with a window of opportunity to
access their house. In our view, this conduct exceeds that of an addict who is simply
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desperate to get his hands on some immediate drug money. See Weiss v. State, 848 N.E.2d
1070, 1072 (Ind. 2006).
As to the character of the offender, we find it clear from the record that McMillen
is not a malicious criminal. His early experimentation with drugs has forged a life of self-
destruction for which he needs treatment. Although McMillen has a significant history of
drug-related offenses, he has never injured another person or damaged any property in the
course of his crimes, and he appears to be genuinely remorseful for the harm he has
inflicted upon the victims of his burglary, as well as for the devastation that his substance
abuse has caused his family. That said, we note that McMillen’s crimes have consistently
escalated in severity, with the present offenses involving victims. Furthermore,
McMillen’s prior lenient sentences have not been sufficient to deter him from criminal
activity, and his lack of accountability has thwarted any progress achieved in his prior
rehabilitation opportunities. See Rich v. State, 890 N.E.2d 44, 54-55 (Ind. Ct. App. 2008),
trans. denied. Despite McMillen’s success in his home detention program, including his
eight-months of sobriety, he returned to his former drug habits within three months of his
release to probation. Unless he is held accountable, McMillen has no incentive to make
real changes in his life.
Considering the evidence of McMillen’s family, education, and criminal history, it
is apparent that his substance abuse changed the trajectory of his life. However, a drug
addiction is not an excuse for criminal behavior, and McMillen must endure the
consequences of his own making. Hopefully, the structured environment and programs
afforded by the DOC will serve to aid McMillen in combatting his addiction so that he may
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be a productive citizen upon his release. Accordingly, taking into account the fact that,
effectively, McMillen must execute only the advisory term for each of his two Class B
felonies (less the two years already served on home detention), we decline to find that his
aggregate eighteen-year sentence is inappropriate.
CONCLUSION
Based on the foregoing, we conclude that the trial court did not abuse its discretion
in sentencing McMillen, and McMillen’s sentence is not inappropriate in light of the nature
of his offense and character.
Affirmed.
MATHIAS, J. and CRONE, J. concur
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