Bernard A. Burrell v. State of Indiana

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before Jun 30 2014, 10:01 am
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:
P. JEFFRY SCHLESINGER GREGORY F. ZOELLER
Appellate Public Defender Attorney General of Indiana
Crown Point, Indiana
JAMES B. MARTIN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
BERNARD A. BURRELL, )
)
Appellant-Defendant, )
)
vs. ) No. 45A03-1311-CR-431
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE LAKE SUPERIOR COURT
The Honorable Clarence D. Murray, Judge
Cause No. 45G02-1010-FA-40
June 30, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
GARRARD, Senior Judge
Bernard Burrell was charged with three counts of dealing in cocaine as Class A
felonies, and one count of dealing in cocaine as a Class B felony. See Ind. Code §35-48-
4-1 (2006). He entered into a plea agreement with the State to plead guilty to the Class B
felony, in exchange for which all of the Class A felonies would be dismissed. Under the
agreement, the parties were free to argue the appropriate sentence but agreed the sentence
would be capped at twelve years.1
The trial court found Burrell’s criminal record, which included one juvenile
adjudication, one misdemeanor, and five felony convictions, to be an aggravating
circumstance. It found Burrell’s admission of guilt, thus saving the time and expense of
trial, to be a mitigator. The trial court determined the aggravating factor outweighed the
mitigating factor and sentenced Burrell to twelve years as permitted by the plea agreement
with eleven years executed and one year suspended to probation.
The only error Burrell alleges on appeal is that the trial court should have found the
small amount of cocaine involved in this offense to be an additional mitigating factor and
imposed only the advisory sentence.
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 reh’g, 875 N.E.2d 218 (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.
1
Pursuant to Indiana Code section 35-50-2-5 (2005), the maximum sentence for a Class B felony is
twenty years, and the advisory sentence is ten years.
2
One way in which a trial court may abuse its discretion is by entering a sentencing
statement that omits mitigating factors that are clearly supported by the record and
advanced for consideration. Id. at 490-91.
The finding of mitigating circumstances is not mandatory but is within the discretion
of the trial court. Page v. State, 878 N.E.2d 404, 408 (Ind. Ct. App. 2007), trans. denied.
Further, the trial court is neither obligated to accept the defendant’s arguments as to what
constitutes a mitigating factor nor required to give the same weight to a proffered
mitigating factor as does the defendant. Id. An allegation that the trial court failed to
identify or find a mitigating factor requires the defendant on appeal to establish that the
mitigating evidence is both significant and clearly supported by the record. Id.
The statute defining the offense of dealing in cocaine states that if the amount of the
drug involved weighs three grams or more the offense is elevated to a Class A felony. Ind.
Code § 35-48-4-1(b)(1). However, it provides no distinction concerning lesser amounts.
Additionally, at the time Burrell committed this offense and was sentenced, Indiana Code
section 35-38-1-7.1(b) (2008) enumerated eleven instances that might be considered to be
mitigators. The amount of an unlawful drug is not among them.
The trial court considered Burrell’s argument and observed that it had never
considered the amount of the substance to be a mitigating factor and believed that the
legislature was of the same view. Thus, the trial court considered the amount of cocaine
involved in this offense but did not find it to be a significant mitigating circumstance, and
the court was well within its discretion to do so.
Affirmed.
3
RILEY, J., and MAY, J., concur.
4