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. Apr 19 2013, 8:56 am
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
CHRISTOPHER A. CAGE GREGORY F. ZOELLER
Anderson, Indiana Attorney General of Indiana
BRIAN REITZ
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
EDDIE HARGROW, )
)
Appellant-Defendant, )
)
vs. ) No. 48A02-1208-CR-697
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MADISON CIRCUIT COURT
The Honorable Thomas Newman Jr., Judge
Cause No. 48C03-1202-MR-264
April 19, 2013
MEMORANDUM DECISION – NOT FOR PUBLICATION
MATHIAS, Judge
Eddie Hargrow (“Hargrow”) pleaded guilty to murder. He was sentenced to the
maximum sentence of sixty-five years executed in the Indiana Department of Correction.
Hargrow argues that the trial court abused its discretion in sentencing and imposed an
inappropriate sentence in light of the nature of the offense and his character.
We affirm.
Facts and Procedural History
On February 4, 2012, Hargrow went to Beverly Burnett’s (“Burnett”) apartment in
Anderson, Indiana. He used cocaine with her and then paid her $100 to perform oral sex
on him. Afterward, because Hargrow thought Burnett was trying to take more money
from his wallet, he grabbed a kitchen knife and stabbed her. The knife blade broke off in
Burnett’s back, but he continued to stab her with the broken knife. Burnett’s neighbor,
Cheryl Hester (“Hester”) heard a loud commotion and heard Burnett scream “get him off
of me,” “He’s gonna kill me[,]” and “Help me[.]” Tr. p. 11. When Hester approached the
apartment, the door was locked so she went to a neighbor’s door to seek help. However,
Burnett’s door then opened, and Hester saw an “older black male[,]” whom she later
identified as Hargrow, run past her with “a severe limp[.]” Tr. p. 12. Hester observed
Burnett bleeding heavily on the floor, and, shortly thereafter, police and medics arrived
on the scene. Burnett was pronounced dead upon her arrival at the hospital.
After leaving Burnett’s apartment, Hargrow fled to his neighbor’s house, Amy
Calhoun (“Calhoun”), with blood on his clothes. Calhoun gave him a change of clothes
and disposed of his clothes in the White River. When Hargrow’s wife, Carol Hargrow
(“Mrs. Hargrow”) arrived home, she found Hargrow hiding beside the bed. He indicated
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that he had possibly killed someone and that he wanted to turn himself in to the police the
following day. Mrs. Hargrow convinced him to turn himself him that day. At the police
department, Hester identified Hargrow as the person that had fled Burnett’s apartment.
On February 9, 2012, the State charged Hargrow with murder and filed a notice of
intent to file a habitual offender sentence enhancement against Hargrow. Five months
later, on July 19, 2012, Hargrow pleaded guilty without the benefit of a plea bargain, and
the State agreed not to file the habitual offender enhancement. Tr. p. 16.
The trial court found as aggravating circumstances Hargrow’s “extensive criminal
history[,]” the fact that many of his past criminal offenses “used the weapon of a knife,
which was the weapon that was used in this case[,]” and the fact that Hargrow had
inflicted several wounds upon the victim and the knife was embedded in the victim’s
body. Tr. pp. 64-65. The trial court considered Hargrow’s guilty plea a mitigating
circumstance but found it was “de minimus” since the State agreed to drop the habitual
offender enhancement and had already largely prepared for trial. Tr. p. 65. The trial
court did not find Hargrow’s medical condition a mitigating circumstance because the
trial court found “if he did have these medical conditions . . . abusing his body by the use
of these drugs was by his own choice and . . . probably contributed to the deterioration of
his physical condition.” Id. The trial court then concluded that the aggravating
circumstances outweighed the mitigating circumstances and sentenced Hargrow to the
maximum term of sixty-five years in the Indiana Department of Correction. Hargrow
now appeals.
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I. Abuse of Discretion
Hargrow argues that the trial court abused its discretion in its sentencing decision
by failing to consider mitigating circumstances. We review sentencing decisions “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. “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 “by (1)
issuing an inadequate sentencing statement, (2) finding aggravating or mitigating factors
that are not supported by the record, (3) omitting factors that are clearly supported by the
record and advanced for consideration, or (4) by finding factors that are improper as a
matter of law.” Phelps v. State, 969 N.E.2d 1009, 1019 (Ind. Ct. App. 2012), trans.
denied. If a defendant alleges that trial court failed to identify or find a mitigating factor,
the defendant must establish that “the mitigating evidence is both significant and clearly
supported by the record.” Anglemyer, 868 N.E.2d at 493.
Hargrow argues that the trial court abused its discretion by failing to adequately
consider his guilty plea and his acceptance of responsibility as a mitigating factor. “[A]
defendant who pleads guilty deserves ‘some’ mitigating weight be given to the plea in
return.” Anglemyer v. State, 875 N.E.2d 218, 220 (Ind. 2007) (quoting McElroy v. State,
865 N.E.2d 584, 591 (Ind. 2007)). However, a trial court is not obligated “to ‘weigh’
aggravating and mitigating factors against each other when imposing a sentence[;]”
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therefore, “a trial court can not now be said to have abused its discretion in failing to
‘properly weigh’ such factors.” Anglemyer, 868 N.E.2d at 491.
Here, the trial court did find Hargrow’s guilty plea a mitigating circumstance but
found it was “de minimu[s,]” since the State agreed to drop the habitual offender
enhancement1 and had already largely prepared for trial. Tr. p. 65. Thus, the trial court
did afford the mitigating circumstance some weight, albeit minimal weight, and
Hargrow’s argument is asking us to review the weight given to this factor, which we will
not do on appeal. See Anglemyer v. State, 868 N.E.2d at 491; see also Deloney v. State,
938 N.E.2d 724, 732 (Ind. Ct. App. 2010) (“While we review the aggravating and
mitigating factors considered by the trial court for abuse of discretion, we do not review
the relative weight or value assigned to each factor.”)
Hargrow also argues that the trial court failed to consider his medical condition as
a mitigator.2 The trial court found that Hargrow’s medical condition was not a mitigating
factor because “[t]he defendant, if he did have these medical conditions, with his kidneys,
his prostate, and his heart” used drugs which “probably contributed to the deterioration of
his physical condition.” Tr. p. 65. Thus, the trial court considered his medical condition
but found it was not a mitigator. While the trial court may “not ignore facts in the record
1
Hargrow argues on appeal that the trial court erred by concluding he derived a benefit from the State
agreeing not to file the habitual offender enhancement because the trial court’s omnibus date was April 9,
2012 and under Indiana Code section 35-34-1-5(e), “An amendment of an indictment or information to
include a habitual offender charge . . . must be made not later than ten (10) days after the omnibus date.”
2
Hargrow argues the trial court’s sentence was inappropriate because it failed to consider his medical
condition as a mitigator. However, the case he cites in support of this argument, Moyer v. State, 796
N.E.2d 309 (Ind. Ct. App. 2003), addresses whether the trial court abused it discretion in failing to
address a mitigating circumstance. Thus, we rephrase Hargrow’s argument as whether the trial court
abused its discretion in failing to consider his medical condition as a mitigating circumstance.
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that would mitigate an offense,” the trial court is not required “to accept the defendant’s
arguments as to what constitutes a mitigating factor.” Storey v. State, 875 N.E.2d 243,
252 (Ind. Ct. App. 2007) (citing Gross v. State, 769 N.E.2d 1136, 1140 (Ind. 2002)).
Moreover, “[a]n allegation that the trial court failed to identify or find a mitigating
factor requires the defendant to show that the mitigating evidence is both significant and
clearly supported by the record.” Storey, 875 N.E.2d at 252 (citing Carter v. State, 711
N.E.2d 835, 838 (Ind. 1999)). Hargrow argues that his medical condition is a significant
mitigating circumstance that the trial court failed to consider, and he relies on Moyer v.
State, 796 N.E.2d 309 (Ind. Ct. App. 2003), for the proposition that “where the record
demonstrates that the defendant is seriously ill and requires constant medical attention,
the trial court should consider the defendant’s illness as a significant mitigating
circumstance.” Appellant’s Br. at 9. However, in Moyer, our supreme court held that the
defendant’s illness was a significant mitigating circumstance because he “testified at
length about the medical hardships that he would endure if incarcerated.” 796 N.E.2d at
314 (emphasis added). The record in Moyer reflected that the defendant’s illness
required “constant medical attention” and “frequent tracheal cleanings and sterile
catheters, which the jail [could not] provide regularly.” Id. Thus, Moyer is
distinguishable from the case at hand, because at the sentencing hearing, Hargrow
presented evidence regarding his medical conditions but failed to present any evidence at
regarding how incarceration would cause him a medical hardship.3
3
Hargrow argues on appeal that the Department of Correction “is ill equipped to address serious day to
day and long term medical needs and conditions such as are present here.” Appellant’s Br. at 9.
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The trial court was in the best position to assess Hargrow’s medical condition, and
we cannot say the trial court abused its discretion in not finding his medical condition as
a mitigating circumstance. Moreover, Hargrow failed on appeal to show that the
mitigating evidence is significant and clearly supported by the record. Therefore, we
conclude the trial court did not abuse its discretion by failing to consider his medical
condition as a mitigating circumstance.
II. Inappropriate Sentence
Hargrow also contends that the sentence of sixty-five years executed in the Indiana
Department of Correction imposed by the trial court is inappropriate in light of the nature
of his offense and of his character. Under Indiana Appellate Rule 7(B), we may “revise a
sentence authorized by statute 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.” Although we may review and revise a sentence, “[t]he
principal role of appellate review should be to attempt to leaven the outliers, and identify
some guiding principles for trial courts and those charged with improvement of the
sentencing statutes, but not to achieve a perceived ‘correct’ result in each case.”
Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). We must give “deference to a trial
court’s sentencing decision, both because Rule 7(B) requires us to give due consideration
to that decision and because we understand and recognize the unique perspective a trial
court brings to its sentencing decisions.” Trainor v. State, 950 N.E.2d 352, 355-56 (Ind.
However, this issue was not raised at the sentencing hearing, and there was no evidence in the record that
the Department of Correction could not address Hargrow’s medical condition.
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Ct. App. 2011), trans. denied (quoting Stewart v. State, 866 N.E.2d 858, 866 (Ind. Ct.
App. 2007)) (internal quotation marks omitted).
When we review the appropriateness of a sentence, we consider “the culpability of
the defendant, the severity of the crime, the damage done to others, and myriad other
factors that come to light in a given case.” Cardwell, 895 N.E.2d at 1224. The defendant
has the “burden to persuade us that the sentence imposed by the trial court is
inappropriate.” Shell v. State, 927 N.E.2d 413, 422 (Ind. Ct. App. 2010). In addition, in
Buchanan v. State, our supreme court clarified the rule regarding the imposition of
maximum sentences as follows:
We have also observed that the maximum possible sentences are generally
most appropriate for the worst offenders. This is not, however, a guideline
to determine whether a worse offender could be imagined. Despite the
nature of any particular offense and offender, it will always be possible to
identify or hypothesize a significantly more despicable scenario. Although
maximum sentences are ordinarily appropriate for the worst offenders, we
refer generally to the class of offenses and offenders that warrant the
maximum punishment. But such class encompasses a considerable variety
of offenses and offenders.
767 N.E.2d 967, 973 (Ind. 2002) (internal quotation marks and citations omitted).
Hargrow argues that the maximum sentence was inappropriate in light of the
nature of the offense and his character. As to the nature of the offense, we note that the
nature of the offense was particularly heinous in this case. Hargrow stabbed Burnett in
the back with a kitchen knife, because he thought she was trying to take money from him.
The blade of the knife broke off and became embedded in Burnett’s body, but Hargrow
continued to stab Burnett with the broken knife. Tr. p. 14.
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As to Hargrow’s character, the fact that Hargrow pleaded guilty does, to some
extent, reflect well on his character, as does the testimony of his family and friends.
However, his extensive and violent criminal history is far from helpful to him in this
regard. Hargrow’s criminal history dates back over forty years. “[T]he significance of a
criminal history varies based on the gravity, nature and number of prior offenses as they
relate to the current offense.” Gleason v. State, 965 N.E.2d 702, 712 (Ind. Ct. App. 2012)
(citing Wooley v. State, 716 N.E.2d 919, 929 (Ind.1999)). Among other criminal
offenses, Hargrow was convicted of trespass, assault and battery in 1972; Class B felony
involuntary manslaughter in 1990 after he stabbed a man approximately ten times; Class
A misdemeanor resisting law enforcement and Class C felony battery in 1995 after he
stabbed a female with a knife and caused lacerations to her head, body, leg, and hand;
Class D felony residential entry and Class A misdemeanor domestic battery in 2003
during which he grabbed a knife and held it above his wife’s head while he threatened
her; and Class B misdemeanor false informing in 2005.
This lengthy and serious criminal history depicts a consistent inability to lead a
law-abiding life, and it reflects very poorly on Hargrow’s character, as it clearly displays
his violent tendency to inflict harm upon others. Furthermore, we find particularly
troubling that many of these crimes were closely related to the offense at hand in that
several of the prior offenses also involved using a knife as a weapon. This evidence of
Hargrow’s actions put him in the class of worst possible offenses and offenders.
While reasonable minds may differ as to whether the maximum sentence was
appropriate under the circumstances, we give considerable deference to the trial court’s
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judgment because we “recognize the unique perspective a trial court brings to its
sentencing decisions.” Gleason, 965 N.E.2d at 712 (citing Stewart v. State, 866 N.E.2d
858, 866 (Ind. Ct. App.2007)). Here, prior to imposing the maximum sentence, the trial
court noted that Hargrow’s “prior criminal history crimes have used the weapon of a
knife, which was the weapon that was used in this case” and that “[t]here were several
wounds upon [Burnett’s] body by the knife and in fact the one picture relates the picture
of the knife broken off in the lady’s body.” Tr. pp. 63-64. In light of the heinous nature
of the offense in this case and Hargrow’s serious and lengthy criminal history, we defer
to the trial court’s judgment and conclude the sentence imposed by the trial court was not
inappropriate.
Conclusion
We conclude the trial court did not abuse its discretion in sentencing Hargrow and
that the sentence was not inappropriate in light of the nature of his offense and character.
Affirmed.
BAKER, J., and MAY, J., concur.
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