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: 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MEMORANDUM DECISION - NOT FOR PUBLICATION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
2

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.
3

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. 
4

RILEY, J., and MAY, J., concur.