MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Sep 01 2016, 5:57 am
regarded as precedent or cited before any CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Scott L. Barnhart Gregory F. Zoeller
Brooke Smith Attorney General of Indiana
Keffer Barnhart, LLP
Indianapolis, Indiana Tyler G. Banks
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jerald Clark, III, September 1, 2016
Appellant-Defendant, Court of Appeals Case No.
82A01-1602-CR-386
v. Appeal from the Vanderburgh
Circuit Court
State of Indiana, The Honorable Michael J. Cox,
Appellee-Plaintiff. Magistrate Judge
Trial Court Cause No.
82C01-1507-F5-3991
May, Judge.
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[1] Jerald Clark, III, appeals his eight and one-half year sentence for Level 6 felony
auto theft with habitual offender enhancement, 1 Level 6 felony resisting law
enforcement with habitual offender enhancement, 2 Level 6 felony operating a
vehicle while privileges are suspended, 3 Class A misdemeanor resisting law
enforcement, 4 and two counts of Class A misdemeanor leaving the scene of an
accident with bodily injury. 5 Additionally, Clark appeals the accuracy of the
sentencing order. The trial court did not abuse its discretion by declining to
find mitigators, but the sentencing order is inaccurate. Accordingly we affirm
and remand.
Facts and Procedural History
[2] On July 7, 2015, Clark stole a car, confined his ex-girlfriend in it, fled from
police, collided with two other vehicles, and then fled on foot before being
apprehended by police. On January 4, 2016, Clark entered a plea agreement
with the State regarding the seven crimes with which he was charged on July
10, 2015. The State dismissed a Level 5 felony criminal confinement charge,
1
Ind. Code § 35-43-4-2.5 (2014) and Ind. Code § 35-50-2-8 (2015).
2
Ind. Code § 35-44.1-3-1 (2014) and Ind. Code § 35-50-2-8 (2015).
3
Ind. Code § 9-30-10-16 (2015).
4
Ind. Code § 35-44.1-3-1 (2014).
5
Ind. Code § 9-26-1-1.1 (2015).
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together with its attendant habitual offender allegation, and Clark pled guilty to
the remaining six crimes.
[3] Clark requested mercy at the sentencing hearing due to his extensive history of
substance abuse. The trial court made a comprehensive sentencing statement
wherein it detailed Clark’s “exquisite” criminal history, (Tr. at 15), found the
injuries and damages to the victims were “significant,” (id. at 16), and did “not
find any mitigating factors.” (Id.) The trial court imposed a two and one-half
year sentence for auto theft (Count II), which it enhanced by six years for a
habitual offender finding; a two and one-half year sentence for felony resisting
law enforcement (Count III), which it enhanced by six years for a habitual
offender finding; two and one-half years for operating a vehicle after being a
habitual traffic offender (Count IV); and one year each for the misdemeanors
(Counts V, VI, & VII). The court noted the underlying offense sentence in
Count II and the habitual offender enhancement sentence “are to run
consecutively to one another.” (Id. at 16.) It ordered likewise for the Count III
sentence and then ordered “Counts II, III, IV, V, VI and VII shall run
concurrently with one another for a total period of incarceration of 8½ years.”
(Id. at 18.)
Discussion and Decision
Mitigating Circumstances
[4] Clark asserts the trial court abused its discretion when sentencing him because it
did not find any mitigating circumstances. He claims the court should have
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found his guilty plea, his extensive substance abuse problems, and his remorse
to be mitigating factors.
[5] When the trial court imposes a sentence within the statutory range, we review
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 (Ind. 2007). We may reverse a decision that 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 In re L.J.M ., 473 N.E.2d 637, 640 (Ind. Ct. App.
1985)). Our review of the trial court’s exercise of discretion in sentencing
includes an examination of its reasons for imposing the sentence. Id. “This
necessarily requires a statement of facts, in some detail, which are peculiar to
the particular defendant and the crime . . . [and] such facts must have support in
the record.” Id.
[6] The trial court is not required to find mitigating circumstances. Fugate v. State,
608 N.E.2d 1370, 1374 (Ind. 1993). When a defendant offers evidence of
mitigators, the trial court has the discretion to determine whether the factors are
mitigating, and it is not required to explain why it does not find the proffered
factors to be mitigating. Taylor v. State, 681 N.E.2d 1105, 1112 (Ind. 1997).
However, a court abuses its discretion if it does not consider significant
mitigators advanced by the defendant and clearly supported by the record.
Anglemyer, 868 N.E.2d at 490.
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[7] The court did not abuse its discretion by failing to declare Clark’s guilty plea a
mitigator, as he received significant benefit from the plea bargain. See Fields v.
State, 852 N.E.2d 1030, 1034 (Ind. Ct. App. 2006) (when defendant receives
significant benefit, plea “does not reflect as favorably upon [defendant’s]
character as it might otherwise”), trans. denied. In return for Clark’s guilty plea,
the State agreed to drop the most serious charge, Level 5 felony criminal
confinement. A conviction thereof could have increased Clark’s possible
underlying sentence from two and one-half years to six years. Compare Ind.
Code § 35-50-2-6(b) (Level 5 felony carries a maximum six years), with Ind.
Code § 35-50-2-7(b) (Level 6 felony carries a maximum two and one-half years).
In addition, if Clark had been convicted of the Level 5 felony, he would have
been qualified to be assigned only to “Class B” as a prisoner and could have
only “earn[ed] one (1) day of good time credit for every three (3) days” he was
imprisoned. See Ind. Code § 35-50-6-3.1(c) and Ind. Code § 35-50-6-4 (b). As
the State dismissed the Level 5 felony and Clark was convicted only of the
Level 6 felony, he qualifies to be assigned to “Class A” and can “earn[] one (1)
day of good time credit for each day” he is imprisoned. See Ind. Code § 35-50-
6-3.1(b) and Ind. Code § 35-50-6-4(a). As such, Clark received significant
benefit for his guilty plea.
[8] Clark’s assertion the court should have found his substance abuse issues to be a
mitigator is not supported by the record as he has not taken advantage of prior
court orders to complete substance abuse treatments. Clark was twice found in
contempt for failing to complete substance abuse counseling and treatment. As
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a youth, Clark did not complete the Youth Alcohol Program (YAP) and was
ordered to serve his sentence incarcerated instead. Although Clark has a
fourteen-year criminal history involving substance abuse, he has not resolved
his substance abuse issues. In such a circumstance, the court was not required
to find a mitigator. See Caraway v. State, 959 N.E.2d 847, 952 (Ind. Ct. App.
2011) (no error when trial court found as an aggravator that Caraway
recognized addiction but did not seek treatment), trans. denied.
[9] Finally, Clark’s assertions regarding his remorse are not supported by the
record. He did “ask for mercy of the Court . . . I need some kind of treatment .
. . for my, uh, addiction to come out to society and be a better person.” (Tr. at
4.) However, when the trial court was explaining the possible sentence, Clark
stated “since I signed the plea, I’d look more towards 2 [years] than 6 [years.]”
(Tr. at 12.) The trial court went to great lengths to be sure Clark understood the
habitual offender enhancement would increase his sentence. Still, instead of
expressing remorse for his actions, Clark said, “I didn’t think there was anyway
[sic] possible I could be facing anywhere remotely close to 8½ years on Level
6’s, you know.” (Id. at 13.) We find no error in the trial court not recognizing
Clark as remorseful. See Chambliss v. State, 746 N.E.2d 73, 78-79 (Ind. 2001)
(trial court did not abuse its discretion when it did not recognize remorse as a
mitigating circumstance, even though the defendant read a note to the family of
the victim and defendant’s attorney referred to his remorse during the hearing).
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Sentencing Order
[10] Clark asserts the sentencing order is not clear enough because it says all the
sentences should be served both consecutively and concurrently. As it is
impossible to serve the sentences both consecutively and concurrently, we agree
the order must be corrected. The State asserts the underlying felony sentences
and the habitual offender sentences should not be listed separately. We agree.
See Hendrix v. State, 759 N.E.2d 1045, 1048 (Ind. 2001) (“habitual offender
finding does not constitute a separate crime nor does it result in a separate
sentence”). Accordingly, we remand for the trial court to clarify and correct the
sentencing order.
Conclusion
[11] As the trial court did not abuse its discretion when it found no mitigating
factors, we affirm Clark’s sentence. However, we remand the sentencing order
for clarification and correction.
[12] Affirmed and remanded.
Kirsch, J., and Crone, J., concur.
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Jerald Clark, III v. State of Indiana (mem. dec.)
Combined Opinion