Pursuant to Ind. Appellate Ru le 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 : MICHAEL E. BOONSTRA GREGORY F. ZOELLER Logansport , Indiana Attorney General of Indiana GARY R. ROM Deputy Attorney General Indianapolis, Indiana


## IN THE COURT OF APPEALS OF INDIAN A

JOHN W. BREEDLOVE , ) ) Appellant

- Defendant , ) ) vs. ) No. 09A02

- 1111

- C R

- 1116 ) STATE OF INDIANA, ) ) Appellee

- Plaintiff

. )

APPEAL FROM THE CASS SUPERIOR COURT The Honorable Richard A. Maughmer , Judge Cause No. 09D02

- 1108

- FB

- 29

July 24 , 2012

MEMORANDUM DECISION
- NOT FOR PUBLICATION
KIRSCH, Judge2

John W. Breedlove ( “ Breedlove ” ) appeals his sentence f or one count of dealing in methamphetamine 1 as a Class B felony contending that the trial court abused its discretion in failing t o identify the existence of mitigating circ umstances and that his eighteen

- year executed sentence is inappropriate

. We affirm

. FACTS AND PROCEDURAL HISTORY On June 5, 2009, Elijah Helderman (“Helderman”) was acting as a confidential informant for the C ass County Drug Task Force. Helderman contacted Officer Jim Klepinger (“Officer Klepinger”) about the possibility of conducting a controlled buy of methamphetamine from Breedlove. Officer Klepinger prepared the buy money and met with Helderman at the par ki ng lot of the Dutch Mill Tavern in Logansport, Indiana. Officer Klepinger gave Helderman $60 of buy money and outfitted Helderman with a video and audio recording device. After Officer Klepinger searched Helderman’s vehicle , Helderman met Breedlove at a predetermined location. Officer Klepinger followed Helderman in another vehicle. When Breedlove arrived , he entered Helderman’s car. Helderman gave Breedlove the buy money , and B reedlove gave him w hat was later determined to be 0.26 grams of methamphe tamine. Breedlove instructed Helderma n to call if he wanted any more “product.”
Tr . at 60. Helderman subsequently met with Officer Klepinger who searched Helderman and his vehicle and took the methamphetamine into evidence

.

1 See Ind. Code § 35

- 48

- 4

- 1.1.3

The State charged Breedlove with one count of dealing in methamphetamine as a Class B felony. At the conclusion of Breedlove’s jury trial , he was found guilty as charged. The trial court sentenced Breedlove to a term of eighteen years executed in the Department of Correction. Bree dlove now appeals. DISCUSSION AND DECISION I. Sentencing Errors Trial courts are required to enter sentencing statements whenever imposing a sentence for a felony offense. Anglemyer v. State , 868 N. E .2d 482, 4 90 (Ind. 2007), clarified on reh’g , 875 N .E.2d 218 (Ind. 2007). The statement must include a reasonabl y detailed recitation of the trial court’s reasons for imposing a particular sentence. Id . If the recitation includes a finding of aggravating or mitigating circumstances, then the statement m ust identify all significant mitigating and aggravating circumstances and explain why each circumstance has been determined to be mitigating or aggravating. Id . Sentencing decision s rest within the sound discretion of the trial court and are reviewed on appeal only for an abuse of that discretion. Id . 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 theref rom.” Id

. One way in which a trial court may abuse its discretion is by failing to enter a sentencing statement at all. Id . Other examples include entering a sentencing statement that explains reasons for imposing a sentence, including a finding of a ggravating and mitigating factors if any, but the record does not support the reasons, or the sentencing statement omits4

reasons that are clearly supported by the record and advanced for considerat ion, or the reasons given are improper as a matter of law. Id . at 490

- 91. Because the trial court no longer has any obligation to “weigh” aggravating and mitigating factors against each other when imposing a sentence, a trial court cannot now be said to have abused its discretion in failing to “properly weigh” s uch factors. Id . at 491. 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 . . . is permissible u nder the Constitution of the State of Indiana.” Ind. Code § 35

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- 7.1(d). A. Abuse of Discretion Breedlove argues that the trial court abused its discretion by failing to find the existence of mitigating circumstances. More specifically, Breedlove contends that the trial court should have considered as mitigating circumstances the non

- violent nature of the offense and that the State induced or facilitated the offense. However, the State correctly notes that Breedlove failed to argue during sentenci ng that the trial court should find these factors to be mitigating circumstances . “If the defendant fails to advance a mitigating circumstance at sentencing, this court will presume that the circumstance is not significant and the defendant is precluded f rom advancing it as a mitigating circumstance for the first time on appeal.” Simms v. State , 791 N.E.2d 225, 233 (Ind. Ct. App. 2003). Furthermore, had Breedlove argued in favor of those mitigating circumstances, the trial court was not required to accep t his argument as to what constitutes a mitigating circumstance. Hape v. State , 903 N.E.2d 977, 1000 (Ind. Ct. App. 2009). Breedlove has failed to establish that the5

trial court abused its discretion during sentencing by failing to find the existence of mitigating circumstances

. B. Inappropriate Sentence Breedlove als o contends that his eighteen

- year sentence for his Class B felony conviction is inappropriate in light of the n ature of the offense and the character of the offender. The sentencing r ange for a Class B felony conviction is a fixed term of imprisonment between six years and twenty years with the advisory sentence being ten years. Ind. Code §35

- 50

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- 5. Appellate courts may revise a sentence after careful review of the trial court’s dec ision if they conclude that the sentence is inappropriate based on the nature of the offense and the character of the offender. Ind. Appellate Rule 7(B). Even if the trial court followed the appropriate procedure in arriving at its sentence, the appellat e court still maintains a constitutional power to revise a sentence it finds inappropriate. Hope v. State , 834 N.E.2d 713, 718 (Ind. Ct. App. 2005). The defendant has the burden of persuading the appellate court that his sentence is inappropriate. King v. State , 894 N.E.2d 265, 267 (Ind. Ct. App. 2008). The issue we are presented with in this context i s n ot whether another sentence is more appropriate, but whether the sentence that was imposed is inappropriate. Id

. at 268. The amount of methamphetamine Breedlove sold to Helderman wa s not substantial. However, he told the confidential informant to call him if he wante d to purchase more

. Furthermore, Breedlove was on parole for a prior felony methamphetamine conviction at the time he committed this offe nse. Indiana Code section 35

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- 1

- 7.1 allows the trial court to6

consider if a person has recently violated the conditions of probation or parole as an aggravating circumstance. Even a limited criminal history can be considered an aggravating factor. Atw ood v. State , 905 N.E.2d 479, 488 (Ind. Ct. App. 2009). Additionally, Breedlove is at risk for recidivism. This was his second felony related to methamphetamine. Breedlove, who was twenty

- seven years old at the time he committed the offense, was a daily smoker of marijuana from the age of thirteen to seventeen. He learned how to manufacture methamphetamine when he was thirteen years old and used it daily except when he was incarcerated. Although treatment was available, Breedlove could not take advanta ge of that treatment while incarcerated because of his numerous write

- ups and loss of good

- time credit. He served much of his sentence in segregation, which prevented him from attending drug rehabilitation programs. Breedlove has failed to meet h is burden of persuading us that his sentence is inappropriate in light of the nature of the offense and the character of the offender. Affirmed. BAKER, J., and BROWN, J., concur.