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:

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 INDIANA

JOHN W. BREEDLOVE, )

)

Appellant-Defendant, )

)

vs. ) No. 09A02-1111-CR-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MEMORANDUM DECISION - NOT FOR PUBLICATION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, Judge 
2

John W. Breedlove (“Breedlove”) appeals his sentence for one count of dealing in 

methamphetamine1as a Class B felony contending that the trial court abused its discretion in 

failing to identify the existence of mitigating circumstances 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 Cass 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 parking 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 Breedlove gave him what was later determined to be 0.26 grams of 

methamphetamine. Breedlove instructed Helderman 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. Breedlove 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, 490 (Ind. 2007), clarified on 

reh’g, 875 N.E.2d 218 (Ind. 2007). The statement must include a reasonably 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 must 

identify all significant mitigating and aggravating circumstances and explain why each 

circumstance has been determined to be mitigating or aggravating. Id. Sentencing decisions

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 therefrom.” 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 aggravating and mitigating 

factors if any, but the record does not support the reasons, or the sentencing statement omits 
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reasons that are clearly supported by the record and advanced for consideration, 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” such 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 under the Constitution of the State of Indiana.” Ind. Code § 35-38-1-7.1(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 sentencing 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 from 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 accept 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 the 
5

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

mitigating circumstances. 

B. Inappropriate Sentence

Breedlove also contends that his eighteen-year sentence for his Class B felony 

conviction is inappropriate in light of the nature of the offense and the character of the 

offender. The sentencing range 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 §35-50-2-5. Appellate courts may revise a sentence after careful review of the 

trial court’s decision 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 appellate 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 is not 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 was not substantial. 

However, he told the confidential informant to call him if he wanted to purchase more. 

Furthermore, Breedlove was on parole for a prior felony methamphetamine conviction at the 

time he committed this offense. Indiana Code section 35-38-1-7.1 allows the trial court to 
6

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. Atwood 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 advantage 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 his 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.