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 : JONATHAN M. YOUNG GREGORY F. ZOELLER Newburgh, Indiana Attorney General of Indiana RICHARD C. WEBSTER Deputy Attorney General Indianapolis, Indiana



## IN THE COURT OF APPEALS OF INDIANA

MICKEY S. OWEN, ) ) Appellant

- Defendant, ) ) vs. ) No. 87A01

- 1111

- CR

- 562 ) STATE OF INDIANA, ) ) Appellee

- Plaintiff. )

APPEAL FROM THE WARRICK SUPERIOR COURT The Honorable Keith A. Meier, Judge Cause No. 87D01

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- FD

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June 20, 2012 MEMORANDU M DECISION

– NOT FOR PUBLICATION RILEY, Judge2 STATEMENT OF THE CASE Appellant

- Defendant, Mickey S. Owen (Owen), appeals his sentence following a guilty plea for two Counts of theft, Class D felon ies , Ind. C ode § 35

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- 2(a). We affirm. ISSUE S Owen rais es two issues on appeal, which we restate as : (1) Whether the trial court abused its discretion by imposing consecutive sentences; and (2) Whether the trial court properly sentenc ed Owen.

FACTS AND PROCEDURAL HISTORY On May 9 , 2011, Owen and others committed theft s of certain property in Lynnville Park in Warrick County, Indiana. The thefts occu rred between 11 p.m. on May 9, 2011 and 4 a.m. May 10, 2011 . Four separate victims reported property stolen from their campsites . The property consisted of a kayak and fi shing gear from one victim; a refrigerator, camping equipment, and beer from another; and an outboard fishing motor , battery, gasoline, and fishing gear from two other victims

. On May 1 3 , 2011, acting on a tip, a dep uty from the Warrick County She riff’s Department spotted Jeremy Alvey (Alvey), Michael Dyer Jr. (Dyer), and a third man with the kayak

. Both Alvey and Dyer denied knowing that the kayak was stolen and said that Owen had been staying at Alvey’s home since May 9, 2011

. Following a search of3

Al vey’s residence , additional stolen items were located and both Alvey and Dyer were arrested . Alvey later confessed that Dyer and Owen had stolen the items, pawn ed some of the property , and us ed the proceeds at the casino. On May 14, 2011, Owen was
arrest ed and later confessed that he had helped Dyer steal the property

. On May 16, 2011, the State filed an Information charging Owen with five Count s of theft , Class D felon ies , I.C. § 35

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- 2(a). On that same day, the State filed an additional Informatio n char g ing Owen with Count VI, being a habitual offender, I.C. § 35

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- 8(a). On October 21, 2011, Owen entered into a plea agreement with the State in which he agreed to plead guilty to Counts I and IV in exchange for the State ’s dismiss al of Counts II, III, V, and VI . The plea agreement left Owen’s sentence to the trial court’s discretion.
On November 28, 2011, the trial court conducted a sentencing hearing. Owen argued that his crimes amounted to a single episode of criminal conduct and therefore h is sentences should run concurrently

. In response , the State pointed out that Owen’s crimes were committed against different victims over the course of May 9 and May 10, 2011. The trial court sentenced Owen to thirty

- four months for each Count , with the sentences to be served consecutively at the Department of Correction , for an aggregate sentence of sixty

- eight months

. Owen now appeals. Additional facts will be provided as necessary.

D ISCUSSION AND DECISION
I. Consecutive Sentences4

Owen argues that the trial court abused its discretion by ordering him to serve consecutive sentences. The trial court has discretion to impose consecutive sentences and may do so after consideration of aggravating and mitigating circumstances. I.C. § 35

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- 2(c); Owens v. State , 916 N.E.2d 913, 917 (Ind. Ct. App. 2009)

. The trial court must state its reasons and find at least one aggravating circumstance before imposing consecutive sentences. Owens , 916 N.E.2d at 917. Here, Owen was convicted on two Counts of theft as Class D felon ies , and received a thirty

- four month sentence on each Count , with the sentences to run consecutively. A person who commits a Class D felony shall be imprisoned for a fixed term of between six months and three years, with the advisory sent ence being one and

one - half years. I.C. § 35

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- 7. However, I.C. § 35

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- 2(c) provides that:

e xcept for crimes of violence, the total of the consecutive terms of imprisonment, exclusive of te rms of imprisonment under [ I

. C

. §] 35

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- 8 [habitual offe nders] and [I.C. §] 35

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- 10 [habitual substance offenders], to which the defendant is sentenced for felony convictions arising out of an episode of criminal conduct shall not exceed the advisory sentence for a felony which is one (1) class of felony hig her than the most serious of the felonies for which the person has been convicted. Owen claims that his aggregate sentence of sixty

- eight months violates the final paragraph of I.C. § 35

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- 2(c), wh ich restricts the trial court’s ability to impose

conse cutive sentences for crimes arising from the same criminal episode. See Gootee v.
State , 942 N.E.2d 111, 114 (Ind. Ct. App. 2011), trans. denied

. Owen argues that because his crimes constituted a single episode of criminal conduct , his aggregate5

sentence may not exceed forty

- eight months, the advisory sentence for a Class C felony.
See I.C. § 35

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- 6. An “episode of criminal conduct” refers to “offenses or a connected series of offenses that are closely related in time, place, and circumstance.” I.C . § 35

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- 2(b). To determine whether multiple crimes constitute an episode of criminal conduct , emphasis has been placed on the timing of the offenses and the simultaneous and contemporaneous nature, if any, of the crimes. Gootee , 942 N.E.2d at 114. A lso relevant is whether the conduct is so closely related in time, place, and circumstance that a complete account of one charge cannot be related without referring to details of the other charge. See i d

. At the sentencing hearing, the trial court decline d to find that Owen’s thefts constituted a single episode of criminal conduct. Specifically, the trial court noted: [Y]ou’ve got two victims[.] The probable cause affidavit indicated that the offenses occurred between the hours of 11:00 p.m. on May the 9 th and 4:00 a.m. on May the 10th , so it was during that five hour time span there. In [first victim’s case], the items that were stolen were taken from his campsite. In [the second victim’s case], they were stolen from a boat. As I understand the case l aw that ha[s] dealt with this situation, this is not an episode of criminal conduct. These are two events, although they are closely related in time. They are not related in place, and they’re not related in circumstance. And I think it’s clear, you can account for one of these without reference to the other. (Transcript p. 17). We agree with the trial court that Owen’s thefts do not constitute a single episode of criminal conduct. Although the crimes occurred o ver a period of five hours in Lyn n vil le Park , it cannot be ignore d that Owen stole different items from different6

victims at different locations in and around the park

. Further, Owen points to no evidence in the record to show that the thefts were simultaneous or contemporaneous

. Instead, e ach theft was a crime in and of itself, for which there was no need to refer to the details of one to sustain the other. See Reynolds v. State , 657 N.E.2d 438, 440

- 41 (Ind. Ct. App. 1995). Thus, the trial court correctly found I.C. § 35

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- 2(c) inappli cable to Owen. We conclude that the trial court did not abuse its discretion in imposing consecutive sentences for an aggregate sixty

- eight month sentence.
II. Length of Sentence Owen next argues that the trial court abused its discretion by imposing a thirty

four month sentence for each theft. In particular, Owen a sserts that h ad the trial court properly considered and weighed the factors , it would not have sentenced him so close to the maximum possible sentence. The maximum sentence for a Class D fel ony is three years or thir ty

- six months. I.C. § 35

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- 7(a)

. Owen ’s sentence for each Count was two months short of the maximum possible sentence.
As Owen’s sentence s are each within the statutory range , they are subject to review 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 (Ind. 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 th e reasonable, probable, and actual deductions to be drawn therefrom. Id

. Ways in which the trial court may abuse its discretion include: wholly failing to issue a sentencing statement; issuing a sentencing statement that bases a sentence on reasons7

un su pported by the record, or that includes reasons that are improper as a matter of law. Phelps v. State , 914 N.E.2d 283, 290 (Ind. Ct. App. 2009). Owen claims that the trial court either failed to consider certain mitigating facts presented at the sentencin g hearing or failed to properly weigh such facts

. When alleging that the trial court failed to identify or find a mitigating factor , a defendant must establish that mitigating evidence is both significant and clearly supported by the record. Lavoie v. St ate , 903 N.E.2d 135, 141 (Ind. Ct. App. 2009). However, “[i] f the trial court does not find the existence of a mitigating factor after it has been argued by counsel, the trial court is not obligated to explain why it has found that the factor does not exi st.” Anglemyer , 868 N.E.2d at 493. Further, the trial court does not have the obligation to weigh aggravating and mitigating factors against each other when imposing a sentence , and does not abuse its discretion by failing to properly weigh such factors

. Id . at 491. Rather, once the trial court has entered a sentencing statement, which may or may not include the existence of aggravating and mitigating factors, it may then impose any sentence that is authorized by statute and permitted under the Indiana Constitution. Id

. Owen recites a number of mitigating factors , which he argues the trial court failed to properly consider. First, he argues that he claim ed responsibility for his actions early

on and cooperated with the She riff’s Department. He notes that his thefts were minor and all items stolen, except for gasoline, were returned to their rightful owners. While incarcerated, Owen sought treatment for substance abuse issues and attempted to better8

himself through a number of programs. Finally, Owe n emphasizes the importance of his guilty plea, which he notes saved both time and expense

. Our review of the record reveals that the trial court considered each of the factors advanced by Owen and reached a different conclusion. The trial court discoun ted his cooperation with the Sheriff’s Department based upon his early denials of culpability. Regarding his rehabilitation efforts and substance abuse treatment, the trial court noted that Owen’s prior attempts at rehabilitation were without effect and i nsufficient to deter him from further crimes. The trial court exhaustively reviewed Owen’s criminal career, and found it significant that it encompassed some twenty

- seven years, including nine felony convictions and fifteen misdemeanor convictions. Thus, we cannot say that the trial court improperly weighed this factor. Finally, while the trial court afforded some mitigating weight to Owen’s guilty plea , this argument is insufficient. Owen received a substantial benefit for his guilty plea by the State’ s dropping of three additional Class D felonies and the habitual offender charge. As Owen already received a substantial benefit in exchange , his guilty plea is properly not considered as a significant mitigator. See Anglemyer , 875 N.E.2d at 221. We the refore affirm the trial court’s imposition of Owen’s sixty

- eight month executed sentence. 1
CONCLUSION

1 Ind

. Appellate Rule 7(B) enables appellate review of the appropriateness of a sentence authorized by statute. However, because Owen makes no argument that his sentence is inappropriate under Rule 7(B) , w e do not discuss it

.9

Based on the foregoing, we conclude that the trial co u rt did not abuse its discretion in sentencing Owen. Affirmed. NAJAM, J. and DARDEN, J. concur