MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be Apr 27 2016, 7:42 am
regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
P. Jeffrey Schlesinger Gregory F. Zoeller
Office of the Lake County Attorney General of Indiana
Public Defender
Ellen H. Meilaender
Appellate Division Deputy Attorney General
Crown Point, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jariel Patterson, April 27, 2016
Appellant-Defendant, Court of Appeals Case No.
45A03-1508-CR-1199
v. Appeal from the
Lake Superior Court
State of Indiana, The Honorable
Appellee-Plaintiff. Salvador Vasquez, Judge
Trial Court Cause No.
45G01-1410-F3-13
Kirsch, Judge.
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[1] Following his guilty plea to rape1 as a Level 3 felony, Jariel Patterson
(“Patterson”) appeals his ten-year sentence, raising the following restated
issues:
I. Whether the trial court abused its discretion when imposing
Patterson’s sentence; and
II. Whether Patterson’s ten-year sentence is inappropriate in light
of the nature of the offense and the character of the offender.
[2] We affirm.
Facts and Procedural History
[3] Patterson lived down the street from S.L. in Gary, Lake County, Indiana.2 On
August 20, 2014, S.L. was at home asleep in her bed. Because S.L. had
consumed alcoholic beverages that same night, she was in a very deep sleep.
Patterson, who was eighteen years old at the time, entered S.L.’s house, went
into her bedroom, pulled off S.L.’s underwear, and “put his penis into her
vagina” while S.L. was asleep. Appellant’s App. at 19. Upon waking up and
finding Patterson on top of her, S.L. pushed at his arms. Patterson then stood
up, pulled up his pants, and before leaving, told S.L., “[Y]our shit is good.” Id.
A sexual assault examination found Patterson’s DNA on S.L. Further,
1
See Ind. Code § 35-42-4-1(a).
2
As part of his plea agreement, Patterson signed a “Stipulated Factual Basis.” Appellant’s App. at 19. That
document is the source of most of the facts set forth in this decision.
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Patterson admitted that he “knowingly and intentionally [had] sexual
intercourse with [S.L.] when she was unaware that sexual intercourse was
occurring, thereby committing the offense of Rape, a Level 3 felony.” Id. On
October 10, 2014, the State charged Patterson with one count of Level 3 felony
rape and one count of Level 4 felony burglary.
[4] Approximately one month after committing the rape, but prior to being charged
with the present offense, Patterson was charged with Level 3 felony armed
robbery, Level 5 felony intimidation, Level 6 felony intimidation, and Class B
misdemeanor battery under Cause Number 45G01-1410-F3-10 (“Cause F3-
10”). Id. at 16. On April 22, 2015, pursuant to a written plea agreement,
Patterson agreed to plead guilty to the rape count, and in exchange, the State
agreed to dismiss the burglary count as well as all of the counts alleged in Cause
F3-10. Both parties agreed that they were free to argue their respective
positions regarding the sentence, but that the maximum sentence would be
capped at twelve years executed. The trial court accepted Patterson’s guilty
plea, ordered a presentence report, and set a sentencing hearing for May 20,
2015.
[5] At the sentencing hearing, the trial court recognized the following aggravating
and mitigating factors. In aggravation, the court noted Patterson’s juvenile
adjudications, the nature of the offense, and that prior attempts at leniency by
the juvenile court had had no deterrent effect on his criminal behavior. Id. at
23-24. In mitigation, the trial court recognized that Patterson had pleaded
guilty and admitted responsibility. Following the hearing, the trial court
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ordered Patterson committed to the Indiana Department of Correction
(“DOC”) for a term of ten years executed. Patterson now appeals that
sentence.3
Discussion and Decision
I. Abuse of Discretion
[6] Patterson contends that the trial court abused its discretion in sentencing.
Generally speaking, sentencing decisions are left to the sound discretion of the
trial court, and we review the trial court’s decision only for an abuse of that
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 trial court. Id. A
trial court may abuse its discretion by: (1) failing to enter a sentencing
statement at all; (2) relying on aggravating or mitigating factors that are not
supported by the record; (3) failing to find factors that are clearly supported by
the record and were advanced for consideration; or (4) relying on reasons that
are improper as a matter of law. Singh v. State, 40 N.E.3d 981, 987 (Ind. Ct.
App. 2015) (citing Kimbrough v. State, 979 N.E.2d 625, 628 (Ind. 2012)), trans.
denied. The trial court, however, has no obligation to “weigh” aggravating and
mitigating factors against each other when imposing a sentence and “thus a trial
court can not now be said to have abused its discretion in failing to properly
3
Patterson petitioned for and was granted the right to file a belated appeal. Patterson’s belated notice of
appeal was filed with our court on August 20, 2015.
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weigh such factors.” Kimbrough, 979 N.E.2d at 628 (quoting Anglemyer, 868
N.E.2d at 491) (internal quotation marks omitted).
A. Aggravating Factors
[7] Patterson challenges the trial court’s use of the following aggravating factors in
sentencing: (1) Patterson’s juvenile record; and (2) prior attempts at leniency by
the juvenile court had had no deterrent effect on Patterson’s criminal behavior.
As to the first claim, it is important to note that Patterson does not argue that
his juvenile record is an invalid aggravator, nor could he. It is well-established
that prior juvenile adjudications validly may be considered as an aggravating
factor. Ind. Code § 35-38-1-7.1 (person’s criminal history or delinquent
behavior is valid aggravating factor to be used in determining what sentence to
impose); see Sexton v. State, 968 N.E.2d 837, 841 (Ind. Ct. App. 2012) (“The
Supreme Court has upheld the use of prior juvenile adjudications to enhance a
sentence on multiple occasions.”), trans. denied. Nor does he argue that the trial
court erred in finding that he had a juvenile record comprised of a 2009
adjudication for burglary and a 2013 adjudication for possession of marijuana,
both of which would have been felonies if committed by an adult. Instead,
Patterson claims that the trial court gave his juvenile record too much weight
because his prior adjudications were allegedly not serious and too distant in
time. Appellant’s Br. at 5. Where, as here, the aggravator is valid and the record
supports evidence of the existence of the aggravator, a claim that a trial court
abused its discretion in sentencing must fail. “[T]he trial court no longer has
any obligation to ‘weigh’ aggravating and mitigating factors against each other
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when imposing a sentence, unlike the pre-Blakely statutory regime, 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. The trial court did not abuse its
discretion in considering Patterson’s juvenile record in sentencing.
[8] The same reasoning applies to Patterson’s challenge of the trial court’s use of
prior leniency by the juvenile courts as an aggravating factor. Patterson claims
he was not given lenient treatment; in support, Patterson cites to the fact that
the juvenile court placed him with the DOC. Appellant’s Br. at 5. While it is
true that the juvenile court ultimately placed Patterson with the DOC,
Patterson glosses over the more lenient placements he was granted, and the
number of times he failed in those placements. Those attempts included “in-
house detention, stayed commitment to the Lake County Juvenile Center,
formal probation, home-based counseling, in-house arrest, placements at
Willowglen Academy and at Campagna Academy, stayed commitment to the
DOC, and intensive probation.” Appellee’s Br. at 11 (citing Appellant’s App. at
52). None of those attempts succeeded in altering Patterson’s behavior, which
eventually left the juvenile court with no option but a DOC commitment. The
fact that the court ultimately had to impose such a commitment, however, does
not mean that the court did not first try more lenient measures. Patterson does
not contend that leniency is an invalid aggravator, nor does he deny that he
“did have violations of conditions imposed by the juvenile court.” Appellant’s
Br. at 5. Again, Patterson’s claim relates to the weight that the trial court
accorded this aggravator. Because a trial court cannot now be said to have
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abused its discretion in failing to properly weigh such factors, we again find that
the trial court did not abuse its discretion.4
B. Mitigating Factors
[9] Patterson next contends that the trial court abused its discretion when it failed
to find the following were mitigating factors: (1) Patterson’s youthful age; and
(2) his remorse. Because the trial court’s recitation of its reasons for imposing
Patterson’s sentence included a finding of mitigating circumstances, “the trial
court was required to identify all significant mitigating circumstances.”
Anglemyer, 868 N.E.2d at 492-93. “An allegation that the trial court failed to
identify or find a mitigating factor requires the defendant to establish that the
mitigating evidence is both significant and clearly supported by the record.” Id.
at 493. “However, ‘If the trial court does not find the existence of a mitigating
factor after it has been argued by counsel, the trial court is not obligated to
explain why it has found that the factor does not exist.’” Id. (quoting Fugate v.
State, 608 N.E.2d 1370, 1374 (Ind. 1993)).
[10] Patterson is incorrect in his assertion that the trial court overlooked his age or
remorse as a mitigating factor. As to the first claim, the trial court was
4
Patterson also contends that the trial court should not have considered as an aggravating factor that his
sister “smirked and giggled” during her testimony. Appellant’s Br. at 5. The trial court did, indeed, comment
on what it deemed to be the inappropriate demeanor of Patterson’s sister during her testimony. Record of
Sentencing Tr. at 35. He also stated that she was treating the proceedings like it was “a big joke,” but that “the
joke’s on her because now her brother goes to prison.” Id. While it was imprudent for the trial court to make
the latter comment, we find no evidence that the trial court used Patterson’s sister’s demeanor as an
aggravating factor.
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reminded during defense counsel’s closing remarks that Patterson turned
nineteen years old while in prison. During its sentencing statement, the court
commented on Patterson’s age as follows: (1) stating that it gave the court “no
pleasure” to “put an 18, 19-year old in prison for a period of time”; (2) noting
that this crime was “a big deal for an 18 year old, now 19, who aged up as a
full-blown adult” because of it; and (3) giving consideration to Patterson’s guilty
plea “because [he was] a young man”—despite the significant benefit Patterson
received from the plea. Record of Sentencing Tr. at 32, 34, 36. Patterson’s age
was brought to the attention of the trial court, and the trial court considered it;
even so, the trial court chose not find age was a mitigating factor. Because the
trial court was under no obligation to explain its reasoning, the trial court did
not abuse its discretion in finding that Patterson’s young age was not a
mitigating factor. Anglemyer, 868 N.E.2d at 493; Fugate, 608 N.E.2d at 1374.
[11] Patterson also asserts that his remorse was a mitigating factor. Regarding
remorse, “[W]e give substantial deference to the trial court’s evaluation because
it may observe the defendant and is therefore in the best position to determine
whether the remorse is genuine.” Webb v. State, 941 N.E.2d 1082, 1089 (Ind.
Ct. App. 2011), trans. denied. Patterson’s sole expression of remorse came at the
sentencing hearing, when he stated, “I want to apologize to the victim for the--
for the wrongdoing I have did [sic]. I want to apologize to my family and
friends for all the suffering I have put them through.” Record of Sentencing Tr. at
30. The trial court had the opportunity to view Patterson’s demeanor to assess
how genuine he appeared when he spoke these words. Moreover, Patterson’s
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brief statement of apology must be measured against his total lack of remorse at
the time of his crime when, after raping the victim and before leaving, he told
her “your shit is good.” Appellant’s App. at 19. Again, the trial court was under
no obligation to explain its reasoning. The trial court was well within its
discretion in determine that Patterson’s demeanor and words did constitute the
degree of remorse that could rise to the level of being a mitigating factor. The
trial court did not abuse its discretion in sentencing Patterson.
II. Appellate Rule 7(B) Analysis
[12] Patterson requests that this court revise his ten-year executed sentence. Under
Indiana Appellate Rule 7(B), “such relief is available 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.’” Helsley v.
State, 43 N.E.3d 225, 227 (Ind. 2015) (quoting Ind. Appellate Rule 7(B)).
Although “‘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.’” Delao v. State, 940 N.E.2d 849, 853 (Ind. Ct. App. 2011) (quoting
Patterson v. State, 909 N.E.2d 1058, 1062-63 (Ind. Ct. App. 2009)), trans. denied.
We understand and recognize the unique perspective a trial court brings to its
sentencing decisions. Id.
[13] The principal role of appellate review is to “leaven the outliers”; it is not to
achieve a perceived “correct” result. Kunberger v. State, 46 N.E.3d 966, 973
(Ind. Ct. App. 2015). Thus, the “question under Appellate Rule 7(B) is not
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whether another sentence is more appropriate; rather, the question is whether
the sentence imposed is inappropriate.” Helsley, 43 N.E.3d at 227 (emphasis in
original) (citation omitted). The defendant bears the burden of persuading this
court that his or her sentence is inappropriate. Kunberger, 46 N.E.3d at 972.
[14] As to the nature of the offense, the advisory sentence is the starting point the
legislature has selected as an appropriate sentence for the crime committed. Id.
at 973. Here, Patterson pleaded guilty to rape, a Level 3 felony. The
sentencing range for a Level 3 felony is between three and sixteen years, with
the advisory sentence being nine years. Ind. Code § 35-50-2-5(b). The trial
court sentenced Patterson to a term of ten years executed. Patterson maintains
that his sentence is inappropriate in light of the nature of the offense because he
did not compel S.L. by force or imminent threat of force, there was no evidence
that he caused serious pain or permanent injury, and there was no evidence that
S.L. was so incapacitated that she was unable to consent. Appellant’s Br. at 8.
We disagree with Patterson’s characterization of the nature of the crime.
Patterson broke into S.L.’s home in the middle of the night while she was
sleeping. S.L., who had been drinking earlier in the evening, was in a deep
sleep while Patterson entered her bedroom, removed her underwear, and raped
her. When S.L. awoke, she found Patterson on top of her. S.L. pushed
Patterson’s arms, at which time Patterson got up and put his pants on. We
cannot say that Patterson’s sentence for a term of ten years is inappropriate in
light of the nature of the offense.
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[15] Patterson cites to his young age, his plea of guilty, and his expression of
remorse as evidence of his good character. We are not persuaded. As we
stated above, the trial court was presented with evidence of Patterson’s young
age and of his statements of “remorse,” but was unpersuaded that these were
significant factors to consider in sentencing. Further, Patterson’s decision to
enter into a guilty plea appears to have been a pragmatic one.5 Patterson’s
character is more clearly reflected in his juvenile record, which reveals an
adjudication for burglary in 2009 and one for possession of marijuana in 2013,
both of which would have been felonies if committed by an adult. From 2009
through 2013, Patterson failed at programs involving in-home detention, formal
probation, and intensive probation, among others. At the time of sentencing,
Patterson’s pending charges of robbery by force, intimidation, and battery were
dismissed. In the present case, Patterson was sentenced to a term that was one
year longer than the advisory sentence and two years less than the agreed-upon
sentence cap. We cannot say that Patterson’s sentence is inappropriate in light
of the nature of the offense or the character of the offender.
[16] Affirmed.
[17] Riley, J., and Pyle, J., concur.
5
Patterson initially entered a plea of not guilty in October 2014. The State filed a motion for buccal swab in
November 2014, but at Patterson’s request, the hearing on that motion was reset to December 2014. On
April 14, 2015, the State filed supplemental discovery notifying Patterson that the State intended to add as a
witness a DNA analyst from the Indiana State Police Laboratory. Appellant’s App. at 13. One week later,
Patterson entered into the plea agreement.
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