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:

ANDREW B. ARNETT GREGORY F. ZOELLER

Indianapolis, Indiana Attorney General of Indiana

LARRY D. ALLEN

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

JOSHUA S. F. NELSON, )

)

Appellant-Defendant, )

)

vs. ) No. 73A01-1304-CR-178

)

STATE OF INDIANA, )

)

Appellee-Plaintiff. )

APPEAL FROM THE SHELBY CIRCUIT COURT 

The Honorable Charles D. O’Connor, Judge 

Cause No. 73C01-1106-FA-11

February 3, 2014

 

MEMORANDUM DECISION - NOT FOR PUBLICATION

KIRSCH, Judge 
2

Joshua S. F. Nelson (“Nelson”) pleaded guilty to dealing in cocaine1 as a Class A 

felony, dealing in a narcotic drug2 as a Class B felony, and resisting law enforcement3 as a 

Class A misdemeanor and was sentenced to an aggregate term of twenty years with sixteen 

years executed and four years suspended to probation. He appeals, raising the following 

restated issues4for our review:

I. Whether the trial court abused its discretion in failing to find certain 

mitigating factors; and

II. Whether his sentence is inappropriate in light of the nature of the 

offense and the character of the offender.

We affirm.

FACTS AND PROCEDURAL HISTORY

On June 10, 2011, Nelson and two others sold cocaine and heroin to a confidential 

informant (“the CI”) working with the Shelby County Drug Task Force. Nelson sold 8.61 

grams of cocaine and five foil packets of heroin to the CI. When the police attempted to 

stop the vehicle in which Nelson and the others were traveling, the vehicle refused to stop 

and drove around the stopped marked police cars. The vehicle then pulled in to a parking 

lot, and Nelson exited the car. He refused police orders to stop and tried to walk away. He 

 

1 See Ind. Code § 35-48-4-1.

2 See Ind. Code § 35-48-4-1.

3 See Ind. Code § 35-44-3-3.

4 Although Nelson states his issue as whether his sentence is inappropriate, we address his argument 

as two separate issues to ensure we thoroughly reach his contentions.
3

then attempted to dispose of evidence by throwing the money used by the CI to purchase 

the drugs under a nearby car. 

The State charged Nelson with dealing in cocaine as a Class A felony, dealing in a 

narcotic drug as a Class B felony, and resisting law enforcement as a Class A misdemeanor. 

The State later amended the charging information to add obstruction of justice as a Class 

D felony. On March 13, 2013, Nelson pleaded guilty to Class A felony dealing in cocaine, 

Class B felony dealing in a narcotic drug, and Class A misdemeanor resisting law 

enforcement, and upon a motion by the State, the trial court dismissed the obstruction of 

justice charge. On March 19, 2013, the trial court sentenced Nelson to twenty years with 

four years suspended to probation for Class A felony dealing in cocaine, eight years with 

two years suspended for Class B felony dealing in a narcotic drug, and one year for Class 

A misdemeanor resisting law enforcement. The trial court ordered the sentences to be 

served concurrently to each other for an aggregate sentence of sixteen years executed. 

Nelson now appeals. Additional facts will be added as necessary.

DISCUSSION AND DECISION

I. Abuse of Discretion

Sentencing decisions are within the discretion of the trial court and are reviewed on 

appeal 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. “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. (quoting K.S. v. 

State, 849 N.E.2d 538, 544 (Ind. 2006)). A trial court may abuse its discretion (1) by failing 
4

to issue a sentencing statement or (2) by issuing a sentencing statement that bases a 

sentence on reasons that are not clearly supported by the record; omits reasons both 

advanced for consideration and clearly supported by the record; or includes reasons that 

are improper as a matter of law. Id. at 490-91. 

The trial court is not required to find mitigating factors, nor is it obligated to accept 

as mitigating each of the circumstances proffered by the defendant. Ashby v. State, 904 

N.E.2d 361, 363 (Ind. Ct. App. 2009). If the trial court has abused its discretion, we will 

remand for resentencing “if we cannot say with confidence that the trial court would have 

imposed the same sentence had it properly considered reasons that enjoy support in the 

record.” Anglemyer, 868 N.E.2d at 491. However, under the current statutory scheme, the 

relative weight or value assignable to reasons properly found, or those that should have 

been found, is not subject to review for abuse of discretion. Benefield v. State, 904 N.E.2d 

239, 247 (Ind. Ct. App. 2009), trans. denied. 

Nelson argues that the trial court abused its discretion when it failed to recognize 

certain things as mitigating factors. He contends that the trial court erred when it did not 

find that he took full responsibility for his actions as a mitigating factor. Nelson further 

asserts that it was error not to find that he would respond affirmatively to probation and 

that the situation involved circumstances unlikely to reoccur as mitigating factors.

Here, the trial court found there were no aggravating factors and found Nelson’s 

lack of significant adult felony and misdemeanor convictions as a significant mitigating 

factor. Appellant’s App. at 20. In pronouncing Nelson’s sentence, the trial court discussed 

Nelson’s likelihood to reoffend, noting that the pre-sentence investigation report (“PSI”) 
5

stated that Nelson was a moderate risk for re-offending and finding that it was too 

speculative to give further weight to Nelson’s claims. Tr. at 22. While the trial court did 

not mention Nelson’s other argued mitigators, taking full responsibility for his actions and 

that he would respond positively to probation, the trial court was not required to find 

mitigating factors, nor was it obligated to accept as mitigating each of the circumstances 

proffered by Nelson. Ashby, 904 N.E.2d at 363. Further, the burden is on the defendant to 

establish that the mitigating evidence is both significant and clearly supported by the 

record. Corbett v. State, 764 N.E.2d 622, 630 (Ind. 2002). Nelson has not presented 

sufficient evidence to establish that either of these two proffered mitigating factors were 

significant and clearly supported by the record. We, therefore, conclude that the trial court 

did not abuse its discretion when it did not find Nelson’s argued factors to be mitigating.

II. Inappropriate Sentence

Nelson argues that his sentence is inappropriate in light of the nature of the offense 

and the character of the offender. “This court has authority to revise a sentence ‘if, after 

due consideration of the trial court’s decision, the court finds that the sentence is 

inappropriate in light of the nature of the offense and the character of the offender.’” Delao 

v. State, 940 N.E.2d 849, 853 (Ind. Ct. App. 2011) (quoting Ind. Appellate Rule 7(B)), 

trans. denied. “Although Indiana Appellate Rule 7(B) does not require us to be extremely 

deferential to a trial court’s sentencing decision, we still must give due consideration to 

that decision.” Patterson v. State, 909 N.E.2d 1058, 1062-63 (Ind. Ct. App. 2009) (quoting 

Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007)). We understand and 

recognize the unique perspective a trial court brings to its sentencing decisions. Id. at 1063. 
6

The defendant bears the burden of persuading this court that his sentence is inappropriate. 

Id.

Regarding the nature of the offense, the advisory sentence is the starting point the 

Legislature has selected as an appropriate sentence for the crime committed. Childress v. 

State, 848 N.E.2d 1073, 1081 (Ind. 2006). Class A felony dealing in cocaine has an 

advisory sentence of thirty years and Class B felony dealing in a narcotic drug has an 

advisory sentence of ten years. Ind. Code § 35-50-2-4; Ind. Code § 35-50-2-5. Class A 

misdemeanor resisting law enforcement has a maximum sentence of one year and no 

advisory sentence. Ind. Code § 35-50-3-2. 

The evidence showed that Nelson was arrested after selling 8.61 grams of cocaine 

and five foil packets of heroin to the CI. The amount of cocaine sold was almost three 

times what was required to elevate dealing in cocaine to a Class A felony. See Ind. Code 

§ 35-48-4-1(b)(1) (“The offense is a Class A felony if: the amount of the drug involved 

weighs three grams or more.”). Further, when the police stopped the vehicle driven by the 

defendants, Nelson exited the car, but refused police orders to stop and, instead, tried to 

walk away. He then attempted to dispose of evidence by throwing the money used by the 

CI to purchase the drugs under a nearby car. The trial court sentenced Nelson to less than 

the advisory for both of his felony convictions and ordered his sentences to be served 

concurrently to each other. His sentence is not inappropriate as to the nature of the offense.

Regarding the character of the defendant, Nelson did have a minimal criminal 

history that consisted of a juvenile adjudication for possession of marijuana and no prior 

adult convictions. However, as an adult, he had been arrested twice for carrying a handgun 
7

without a license, but one of those charges was dismissed and the other was never filed. 

The PSI evidence also showed that Nelson had dropped out of high school and had not held 

a job for a year prior to being arrested in the present case. Further, the evidence 

demonstrated that he was not entirely forthcoming in his answers in the PSI because he 

denied he was ever on probation or even in trouble as a minor. He also denied that he had 

used marijuana before he was eighteen years old, even though he had been adjudicated 

delinquent for possession of marijuana as a minor and participated in a substance abuse 

program. We conclude that Nelson’s aggregate sentence of twenty years with four years 

suspended for a total executed sentence of sixteen years is not inappropriate in light of the 

nature of the offense and the character of the offender.

Affirmed.

FRIEDLANDER, J., and BAILEY, J., concur.