Court of Appeals of Indiana | Memorandum Decision 79A02-1509-CR-1439 | May 26, 2016 Page 1 of 7

MEMORANDUM DECISION

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.

ATTORNEY FOR APPELLANT

Timothy P. Broden

Lafayette, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Paula J. Beller

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Nicholas G. Collins,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

May 26, 2016

Court of Appeals Case No.

79A02-1509-CR-1439

Appeal from the Tippecanoe 

Superior Court

The Honorable Steven P. Meyer, 

Judge

Trial Court Cause No.

79D02-1504-F5-26

May, Judge.
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[1] Nicholas G. Collins appeals his sentence for Level 5 felony operating a motor 

vehicle while privileges are forfeited for life.1

 Collins raises two issues:

1) Whether the trial court abused its discretion when considering 

mitigating circumstances, and

2) Whether his sentence is inappropriate. 

[2] We affirm.

Facts and Procedural History

[3] On March 16, 2015, Collins began serving a sentence at Community 

Corrections for operating a motor vehicle while privileges are forfeited for life. 

On April 16, 2015, staff at Community Corrections saw him drive a car into the 

parking lot. Collins was arrested and charged with Level 5 operating a motor 

vehicle while privileges are forfeited for life.

[4] On July 23, 2015, Collins pleaded guilty without benefit of a plea agreement. 

Collins said he drove the car because his moped was “messed up” and he 

“didn’t want to miss [his] meeting down there at Community Corrections.” 

(Tr. at 15.) The trial court sentenced Collins to five years to be served at the 

Department of Correction.

 

1 Ind. Code § 9-30-10-17 (2015).
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Discussion and Decision

1. Mitigating Circumstances

[5] Collins asserts the trial court entered his sentence without considering the 

mitigating circumstance of undue hardship on his dependents. Sentencing rests 

within the sound discretion of the trial court and if the sentence is within the 

statutory range, we review it for an abuse of discretion. Croy v. State, 953 

N.E.2d 660, 663 (Ind. Ct. App. 2011), reh’g denied. An abuse of discretion 

occurs when the decision is clearly against the logic and effect of the evidence 

before the court or the reasonable inferences to be drawn therefrom. Id.

[6] When challenging the court’s finding of mitigators, an appellant has the burden 

of showing the alleged mitigator was offered to the trial court and is both 

significant and clearly supported by the record. Anglemyer v. State, 868 N.E.2d 

482, 493 (Ind. 2007), modified on other grounds on reh’g 875 N.E.2d 218 (Ind.

2007). A trial court is not required to accept a defendant’s argument as to what 

is a mitigating factor or to provide mitigating factors the same weight as does a 

defendant. Conley v. State, 972 N.E.2d 864, 873 (Ind. 2012), reh’g denied. It is 

not error to decline to find a mitigating factor that is “highly disputable in 

nature, weight, or significance.” Healey v. State, 969 N.E.2d 607, 616 (Ind. Ct.

App. 2012) (citation omitted), trans. denied. A trial court is not required to 

explain why it did not find a factor significantly mitigating. Newsome v. State, 

797 N.E.2d 293, 301 (Ind. Ct. App. 2003), trans. denied. 
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[7] Collins contends the trial court should have found a mitigator in the hardship 

his incarceration would cause his minor children. He testified their 

grandparents “are struggling to provide for them and take care of them while 

[he’s] incarcerated.” (Tr. at 28.) However, he presented no other supporting 

evidence, and the trial court was not required to believe his self-serving 

testimony. See Allen v. State, 453 N.E.2d 1011, 1013 (Ind. 1983) (trial “court 

had no duty to believe defendant’s self-serving statements . . . so these 

statements cannot be considered as mitigating circumstances”). 

[8] Nor does Collins explain on appeal why this mitigator is particularly 

significant. As many incarcerated people have children, absent special 

circumstances, the trial court was not required to find Collins’ incarceration 

would cause his dependents undue hardship. See Dowdell v. State, 720 N.E.2d 

1146, 1154 (Ind. 1999) (trial courts are not required to find undue hardship on 

dependents if no special circumstances presented). As Collins has not 

demonstrated the trial court overlooked a significant mitigator that was clearly 

supported by the record, we find no abuse of discretion.

2. Appropriateness of Sentence

[9] Collins also asserts his sentence is inappropriate and requests we reduce the 

five-year sentence to four years as his offense was not particularly egregious and 

his criminal history does not include violent offenses. We may revise a 

sentence if it is inappropriate in light of the nature of the offense and the 

character of the offender. Williams v. State, 891 N.E.2d 621, 633 (Ind. Ct. App. 

2008) (citing Ind. Appellate Rule 7(B)). As we conduct our review, we consider
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“myriad other factors that come to light in a given case.” Cardwell v. State, 895 

N.E.2d 1219, 1224 (Ind. 2008). The appellant bears the burden of 

demonstrating his sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 

1080 (Ind. 2006).

[10] When considering the nature of the offense, the advisory sentence is the starting 

point to determine the appropriateness of a sentence. Anglemyer, 868 N.E.2d at 

494. The sentencing range for a level 5 felony is “a fixed term of between one 

(1) and six (6) years, with the advisory sentence being three (3) years.” Ind. 

Code § 35-50-2-6(b) (2014). 

[11] Regarding the nature of the offense, Collins, while serving a sentence for 

driving on a forfeited license, drove his vehicle to Community Corrections. 

While the judge stated the offense was not very egregious, we also find nothing 

in the record to indicate it was any less egregious than a typical operating a 

motor vehicle while privileges are forfeited for life offense.

[12] When considering the character of the offender, one relevant fact is the

defendant’s criminal history. Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct. 

App. 2007). The significance of a criminal history in assessing a defendant’s 

character varies based on the gravity, nature, and number of prior offenses in 

relation to the current offense. Id.

[13] Collins’ criminal history started while he was a juvenile. He was placed on 

diversion for theft; placed on an informal adjustment for obstruction of justice, 

minor consumption, and theft; adjudicated a delinquent for assisting a criminal 
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and possession of paraphernalia; and waived from juvenile jurisdiction for 

possession of marijuana, possession of paraphernalia, and theft. As an adult, 

Collins has been convicted of two counts of possession of marijuana; two 

counts of resisting law enforcement; and one count each of criminal trespass, 

residential entry, operating while intoxicated, being an habitual substance 

offender, operating a vehicle as an habitual traffic violator, operating a motor 

vehicle after lifetime forfeiture of driving privileges, and criminal conversion. 

Four other charges were dismissed pursuant to plea agreements. While he was 

serving the sentences for those convictions, Collins’ probation was revoked four 

times. The trial court noted:

[I]ts [sic] time and time and time and time again that you 

continue to violate the laws of this State and after been [sic] given 

several opportunities. But yet, you’ve shown an unwillingness to 

follow the rules and to follow what your [sic] expected to for 

Probation.

(Tr. at 38-39.) 

[14] Collins’ criminal history and the fact that he repeatedly flouts the rules reflect 

Collins’ disregard for the law. See Sanchez v. State, 891 N.E.2d 174, 177 (Ind. 

Ct. App. 2008) (disregard for laws speaks to character). In light of Collins’ 

character, we cannot find his five-year sentence was inappropriate. See, e.g., 

Johnson v. State, 986 N.E.2d 852, 857 (Ind. Ct. App. 2013) (affirming sentence 

as not inappropriate based on criminal history).
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Conclusion

[15] Collins has not demonstrated the trial court abused its discretion in its 

consideration of mitigating factors or that his sentence is inappropriate. 

Accordingly, we affirm.

[16] Affirmed. 

Baker, J., and Brown, J., concur.