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 esto ppel, or the law of the case.

ATTORNEY FOR APPELLANT : ATTORNEYS FOR APPELLEE : MARY AN SPEARS GREGORY F. ZOELLER Gilroy Kammen Marya & Moudy Attorney General of Indiana Indianapolis, Indiana RICHARD C. WEBSTER Deputy Attorney General Indianapolis, Indiana


## IN THE CO URT OF APPEALS OF INDIANA

RUBEN GARCIA, ) ) Appellant

- Defendant, ) ) vs. ) No. 12A05

- 1112

- CR

- 646 ) STATE OF INDIANA, ) ) Appellee

- Plaintiff. )

APPEAL FROM THE CLINTON CIRCUIT COURT The Honorable Linley E. Pearson, Judge Cause No. 12C01

- 0403

- FC

- 111

June 29, 2012 MEMORANDUM DECISION
- NOT FOR PUBLICATION MAY, Judge2

Ruben Garcia challenges his sentence following a plea of guilty to Class C felony dealing in marijuana. 1 Garcia argues his sentence is inappropriate given the nature of his offense a nd the trial court relied on improper aggravating factors but did not find mitigating factors supported by the record. We affirm

.

FACTS AND PROCEDURAL HISTORY On March 15, 2004 , Ruben Garcia and Daniel Barr e i r o were driving on Interstate 65 in Clinton Co unty, Indiana. An Indiana State Trooper stopped the truck. T he Trooper discovered 261.5 pounds of marijuana. Garcia admitted he knew the marijuana was in the truck and he intend ed to deliver i t. The State charged Garcia with Cl ass C felony dealing mari juana . Garcia posted bond , then left Indiana. On January 18, 2005, Garcia was arrested with cocaine in Texas and charged with intent to deliver . Garcia pled guilty to the felony and was sentenced to 135 months in the
F ederal Bur eau of Prisons followed by five years of federal supervised release. On January 18, 2006, Garcia “ failed to appear for his guilty plea hearing ” in Indiana and a warrant was issued for his arrest. ( App. at 12

. ) While serving his sentence in Texas, Garcia sought to resolve his pending felony marijuana charge in Indiana and sent letters to the trial court inquiring about the status of his case. Garcia was extradited to Indiana and, in August of 2011, he pled guilty to Class C felony dealing in marijuana . The trial court impose d the maximum sentence allowed under the plea agreement

– si x years, with four years to be executed in the Indiana Depa rtment of

1 Ind. Code § 35

- 48

- 4

- 10(a)(2)

.3

Correction and two years to be suspended to probation . It noted Garcia was dishonest and committed two other similar crimes wh ile out on bond. DISCUSSION AND DECISION
T he sentencing statute in effect at the time a crime is committed governs the sentence for that crime. Harris v. State , 897 N.E.2d 927, 928

- 29 (Ind. 2008)

. Garcia’s crime occurred in March of 2004, at which t ime the sentence for a Class C felony was a presumptive sentence of four years, with a maximum of eight years and a minimum of two years. Ind. Code Ann. § 35

- 50

- 2

- 6 (West 2004).
P resumptive sentences were standard sentences prescribed by the legislature for every class of crime. Franc is v. State , 817 N.E.2d 235, 237 (Ind. 2004 ). The presumptive sentence was the starting point for deciding the length of any sentence. Then, a sentencing court had limited discretion to enhance a sentence to reflect aggra vating circumstances or to reduce a sentence to reflect mitigating circumstances. Id

. When imposing a sentence under this scheme, t he trial court was required to identify significant aggravating and mitigating circumstances, give a reason why each circum stance wa s classified as aggravating or mitigating, and demonstrate balancing of those circumstances. See Gregory v. State , 604 N.E.2d 1240, 1241 (Ind. Ct. App. 1992). “A trial court may enhance a presumptive sentence based upon the finding of only one v alid aggravating circumstance.” Bradley v. State, 765 N.E.2d 204, 209 (Ind. Ct. App. 2002).
1

. Abuse of Discretion Trial courts are granted broad discretion in imposing sentences, including the4

consideration of aggravating and mitigating circumstances, and we will reverse a sentencing decision only for an abuse of that discretion. Cherry v. State, 772 N.E.2d 433, 436 (Ind. Ct. App. 2002), trans. denied. A judge does not have to afford the same weight to the proffered mitigating circumstances as the def endant suggests. Herrera v. State , 679 N.E.2d 1322, 1326 (Ind. 1997). “The trial court is not obligated to explain why it did not find a factor to be significantly mitigating. Indeed, a sentencing court is under no obligation to find mitigating factors at all.” Newsome v. State , 797 N.E.2d 293, 301 (Ind. Ct. App. 2003). The trial court’s sentencing order noted: 1. After posting bond in this Cause, the defendant left the state of Indiana and committed similar crimes in both Texas and Mississippi. 2. The defendant has been arrested on drug offense [sic] on three occasions. The defendant is accountable for 261 pounds of marijuana seized in this offense as well as 1899 pounds of Marijuana seized by ICE Agents in Meridian, Mississippi, on July 19, 2004 , and 45.5 kilograms of cocaine seized by ICE Agents in Plano, Texas, on January 18, 2005. According to the Federal PSI, in all three instances, the defendant was with Daniel Barreiro. 3. The defendant has been incarcerated since 2005 for federal Drug ch arges. 4. The defendant was arrested for two similar crimes while out on bond on this Cause. 5. The defendant failed to appear for his Guilty Plea Hearing set on January 18, 2006. 6. This officer has assessed the defendant using the Indian a Risk Assessm ent System Community Supervision Tool (IRAS

- CST) and has determined that without the appropriate interventions, the defendant is at moderate risk to reoffend. 7. The defendant has been dishonest about his substance use history. 8. Further imprisonment of the defendant would cause undue hardship on his two children. ( App. at 12

. ) The trial court also granted Garcia “324 good time days for time spent in confinement [ in Indiana ] while this charge was pending

. ” ( Id. at 13

. )5

Garcia contends the trial court should have found a mitigator in his lack of a serious criminal history at the time of his Indiana offense. When considering a defendant’s criminal history , the trial court properly may consider a conviction that occurred after the instant offense but bef

ore sentencing. Robertson v. State , 871 N.E.2d 280, 287 (Ind. 2007) (court could find aggravator in criminal history based on conviction occurring between instant offense and sentencing). Garcia’s arrest and federal conviction of possession and deliver y of cocaine occurred while he was out on bond and before sentencing in this case. T he court properly considered Garcia’s federal conviction of possession and delivery of cocaine as part of his criminal history and was well within its discretion to find Gar cia’s criminal history aggravating rather than mitigating. See id. (conviction during time between offense and sentencing was proper aggravator at sentencing). Garcia also argues the trial court should have consider ed as a mitigating fact that his crim e did not cause or threaten serious harm to people or property, and that he did not contemplate causing any harm. T he absence of injuries or harm resulting from a crime does

not necessarily amount to a mitigating fact or . White v. S t ate , 433 N.E.2d 761, 7 63 (Ind. 1982). The record establishes Garcia transported over 260 pounds of marijuana with the intent to distribute it to others. Because the trial court is not oblig ed to find any fact mitigating and is obliged only to explain the circumstances surroun ding substantial mitigating facts, we cannot say the trial court abuse d its discretion by not finding a mitigat or in the alleged harmless ness of Garcia’s crime. Given the trial court’s broad discretion in the determination of aggravating and6

mitigating f

actors, it was not required to find as mitigators that Garcia had little criminal history or that his offense did not cause harm.
2. Appropriateness of Sentence We will not disturb a lawful sentence unless it is inappropriate based on the character of the offender and the nature of the offense. Ind. Appellate Rule 7(B); Boner v. State , 796 N.E.2d 1249, 1254 (Ind. Ct. App. 2003). The defendant bears the burden of demonstrating his sentence is inappropriate. Childress v. State , 848 N.E.2d 1073, 1080 ( Ind. 2006 ). Garcia has not carried his burden. Garcia contends his six year sentence, with two years suspended to probation, is inappropriate in light of the fact he is already serving a 1 35

- month sentence, with five years of supervised release , in the Federa l Bureau of Prisons. Garcia argues his children will be substantially harmed by his incarceration , and he asserts his awareness of the wrongfulness of his actions and his willingness to accept punishment, as exhibited by his guilty plea , should be conside red factors in favor of a lower sentence. When Garcia was arrested, he was in possession of more than 260 pounds of marijuana. This quantity of marijuana far exceeds what was necessary to establish the elements of the offense. See Ind. Code § 35

- 48

- 4

- 1 0(a)(2) (the amount of marijuana must be over ten pounds or three hundred grams for a Class C felony). Garcia fr eely acknowledged the marijuana was his and he intended t o deliver the marijuana as part of a drug transaction. Because Garcia possessed twent y - six times the amount of marijuana necessary for his conviction , we canno t say that a six

- year sentence, with two years suspended to probation is7

inappropriate. See Delao v. State , 940 N.E.2d 849, 853 (Ind. Ct. App. 2011) (rejecting inappropriateness cla im and affirming forty

- two

- year sentence for dealing cocaine because Delao possessed four times the amount required for conviction), trans. denied

. As for his character, Garcia fled Indiana while out on bond and did not appear for his guilty plea. While out on bond, Garcia continued his criminal drug activities , which resulted in his arrest in Texas where he possessed approximately 100 pounds of cocaine. Furthermore, Garcia was dishonest with his probation officer about his substance abuse history. Thes e factors do not reflect positively on Garcia’s character. See Donnegan v. State , 809 N.E.2d 966, 979 (Ind. Ct. App. 2004) (Donnegan’s continued drug dealing while on bond reflected poorly on the his character); Bennett v. State , 833 N.E.2d 888, 894 (Ind. Ct. App. 2008) ( flight while on bond showed poor character). Given Garcia’s crime and his character , we cannot say his sentence is inappropriate. CONCLUSION The trial court did not abuse its discretion by not considering as mitigating factors Garcia’s criminal history or Garcia’s perception his crime was harmless. Neither can we say a six year sentence is inappropriate in light of the nature of Garcia’s crime and his character.
Affirmed. FRIEDLANDER, J., and BARNES, J., concur.