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. 87D01-1105-FD-229

June 20, 2012

MEMORANDUM DECISION – NOT FOR PUBLICATION

RILEY, Judge
2

STATEMENT OF THE CASE

Appellant-Defendant, Mickey S. Owen (Owen), appeals his sentence following a 

guilty plea for two Counts of theft, Class D felonies, Ind. Code § 35-43-4-2(a).

We affirm.

ISSUES

Owen raises 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 sentenced Owen.

FACTS AND PROCEDURAL HISTORY

On May 9, 2011, Owen and others committed thefts of certain property in 

Lynnville Park in Warrick County, Indiana. The thefts occurred 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 fishing 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 13, 2011, acting on a tip, a deputy from the Warrick County Sheriff’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 of 
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Alvey’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, pawned some 

of the property, and used the proceeds at the casino. On May 14, 2011, Owen was 

arrested and later confessed that he had helped Dyer steal the property. 

On May 16, 2011, the State filed an Information charging Owen with five Counts

of theft, Class D felonies, I.C. § 35-43-4-2(a). On that same day, the State filed an 

additional Information charging Owen with Count VI, being a habitual offender, I.C. § 

35-50-2-8(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 dismissal 

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 his 

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.

DISCUSSION AND DECISION

I. Consecutive Sentences
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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. § 35-50-

1-2(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 felonies, 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 sentence being one and 

one-half years. I.C. § 35-50-2-7. However, I.C. § 35-50-1-2(c) provides that:

except for crimes of violence, the total of the consecutive terms of 

imprisonment, exclusive of terms of imprisonment under [I.C. §] 35-50-2-8

[habitual offenders] and [I.C. §] 35-50-2-10 [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 higher 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. § 35-50-1-2(c), which restricts the trial court’s ability to impose 

consecutive 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 aggregate 
5

sentence may not exceed forty-eight months, the advisory sentence for a Class C felony. 

See I.C. § 35-50-2-6. 

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. § 35-50-1-2(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. Also 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 id.

At the sentencing hearing, the trial court declined 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 9th 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 law 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 over a period of five hours in 

Lynnville Park, it cannot be ignored that Owen stole different items from different 
6

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, each 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. § 35-50-1-2(c) inapplicable 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 thirtyfour month sentence for each theft. In particular, Owen asserts that had 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 felony is three 

years or thirty-six months. I.C. § 35-50-2-7(a). Owen’s sentence for each Count was two 

months short of the maximum possible sentence. 

As Owen’s sentences 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 the 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 reasons 
7

unsupported 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 sentencing 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. 

State, 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 exist.” 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 claimed responsibility for his actions early

on and cooperated with the Sheriff’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 better 
8

himself through a number of programs. Finally, Owen 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 discounted 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 insufficient 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 therefore 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), 

we do not discuss it. 
9

Based on the foregoing, we conclude that the trial court did not abuse its discretion 

in sentencing Owen.

Affirmed.

NAJAM, J. and DARDEN, J. concur