Opinion
23A-CR-319
08-28-2023
Wayne L. Weaver, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff.
ATTORNEY FOR APPELLANT Jay A. Rigdon Rockhill Pinnick LLP Warsaw, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Kathy Bradley Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or the law of the case.
Appeal from the Koskiusko Circuit Court The Honorable Michael W. Reed, Judge Trial Court Cause No. 43C01-1909-F3-794
ATTORNEY FOR APPELLANT
Jay A. Rigdon
Rockhill Pinnick LLP
Warsaw, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita
Attorney General of Indiana
Kathy Bradley
Deputy Attorney General
Indianapolis, Indiana
MEMORANDUM DECISION
Pyle, Judge.
Statement of the Case
[¶1] Wayne L. Weaver ("Weaver") appeals, following a guilty plea, his sentence for Level 3 felony dealing in methamphetamine and Level 5 felony possession of methamphetamine. Weaver argues that the trial court abused its discretion when it failed to consider his disability as a mitigating circumstance.
I.C. § 35-48-4-6.1.
Concluding that the trial court did not abuse its discretion, we affirm the trial court's sentence.
Weaver, who had already missed the standard thirty-day window to appeal under Indiana Appellate Rule 9, filed a petition with the trial court to file a belated notice of appeal. The trial court granted Weaver's petition. Even so, Weaver missed the deadline to timely file his appeal by a week. The State argues that Weaver's appeal should be dismissed because he had failed to file it before the deadline. The State made this argument to our motions panel, and the motions panel denied the motion to dismiss. We agree with the decision of our motions panel. See Smith v. McPheron, 120 N.E.3d 226, 229 n.1 (Ind.Ct.App. 2019).
Issue
Whether the trial court abused its discretion when it failed to consider Weaver's disability as a mitigating circumstance.
Facts
[¶3] In September 2019, the State charged Weaver with Level 3 felony dealing in methamphetamine and Level 5 felony possession of methamphetamine. In March 2021, Weaver pleaded guilty to both charges. The trial court set a sentencing hearing for April 2021, but Weaver did not appear at the hearing. Consequently, the trial court issued a warrant for Weaver's arrest. In September 2022, a bail bondsman took custody of Weaver, and the trial court set his sentencing hearing for later that month.
[¶4] At the sentencing hearing, Weaver asked the trial court to consider his "severe problems with his hips" as a substantial mitigating factor. (Tr. Vol. 2 at 7). Weaver, who appeared in a wheelchair, explained that he could not stand, walk, or work. Weaver further explained that he could not use a bathroom without assistance. Weaver never discussed the Indiana Department of Correction's ("the DOC") ability to accommodate his disability. The trial court told Weaver that it "wish[ed]" that Weaver had appeared at his April 2021 sentencing hearing. (Tr. Vol. 2 at 8). The trial court continued by telling Weaver that it could not "reward [him] for not coming to court and hiding out for a year and a half." (Tr. Vol. 2 at 8). The trial court sentenced Weaver to nine (9) years for his Level 3 felony dealing in methamphetamine conviction and three (3) years for his Level 5 felony possession of methamphetamine conviction. The trial court ordered Weaver to serve his time at the DOC and ordered his sentences to be served concurrently. The trial court also told Weaver that it would recommend him to participate in the DOC's purposeful incarceration program. The trial court told Weaver that if he fully complied with this program, had no conduct problems at the DOC, and refrained from drug use, it would consider modifying his sentence after three years.
[¶5] Weaver now appeals.
Decision
[¶6] Weaver argues that the trial court abused its discretion when it did not consider his disability to be a mitigating circumstance. Sentencing decisions are within the sound discretion of the trial court and are reviewed on appeal only for an abuse of discretion. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007). A trial court abuses its discretion when it fails to enter a sentencing statement at all, its stated reasons for imposing the sentence are not supported by the record, its sentencing statement omits reasons that are clearly supported by the record and advanced for consideration, or its reasons for imposing the sentence are improper as a matter of law. Id. at 490-91.
[¶7] The determination of mitigating circumstances is within the trial court's discretion, and the trial court is under no obligation to explain why a proposed mitigator does not exist or why the court found it to be insignificant. Sandleben v. State, 22 N.E.3d 782, 796 (Ind.Ct.App. 2014), trans. denied. Additionally, a trial court is not obligated to accept the defendant's argument as to what constitutes a mitigating factor, and the court is not required to give the same weight to proffered mitigating factors as does a defendant. Rogers v. State, 878 N.E.2d 269, 272 (Ind.Ct.App. 2007), trans. denied. So long as a sentence is within the statutory range, the trial court may impose it without regard to the existence of aggravating or mitigating factors. Anglemyer, 868 N.E.2d at 489; see also IND. CODE § 35-38-1-1.3 (providing that a trial court "shall issue a statement of the court's reasons for selecting the sentence that it imposes unless the court imposes the advisory sentence"). We do note that when a trial court imposes a sentence other than the advisory sentence, a trial court may abuse its discretion when it does not consider a serious illness as a mitigating factor where the record clearly demonstrates that the defendant is seriously ill and requires constant medical attention. Moyer v. State, 796 N.E.2d 309, 314 (Ind.Ct.App. 2003) (holding that the trial court abused its discretion when it did not consider defendant's lymphoma, malignancy of the larynx, recurring tumors, and pulmonary disease as a significant mitigating factor at sentencing where the record clearly demonstrated that the jail could not accommodate the serious illness).
[¶8] Here, Weaver attempts to argue that his hip problems, which require him to use a wheelchair, necessitate accommodations that "will not be present at the [DOC]" like they would be if Weaver served his time on probation or community corrections. (Weaver's Br. 10). However, our review of the record reveals that Weaver did not present any evidence demonstrating that the DOC facilities could not accommodate his wheelchair. Additionally, the trial court sentenced Weaver to the advisory sentence. In doing so, the trial court was not required to provide any statement providing reasons for the sentence it imposed. We also note that the trial court is under no obligation to explain why a proposed mitigator does not exist. See Sandleben, 22 N.E.3d at 796. Therefore, we hold that the trial court did not abuse its discretion when it did not consider Weaver's disability as a mitigating circumstance. Accordingly, we affirm the sentence imposed.
The entirety of Weaver's argument is listed under a heading challenging the "presumptive sentence" imposed by the trial court. (Weaver's Br. 9). However, Indiana has used the "advisory sentence" language since 2005. See Robertson v. State, 871 N.E.2d 280, 283 (Ind. 2007). We note that Weaver did not provide a standard of review for any of his arguments as required by Indiana Appellate Rule 46(A)(8)(b). Additionally, Weaver briefly notes in his conclusion section that the appellate courts have the authority to "review the reasonableness of a sentence" under Indiana Appellate Rule 7(B). (Weaver's Br. 11). However, Weaver provides no cogent argument pointing to any cases or authorities that support a challenge to the appropriateness of his sentence. Thus, he has waived the argument on appeal. See Ind. Appellate Rule 46(A)(8).
Vaidik, J., and Mathias, J., concur.