MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any
Mar 30 2017, 7:50 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Kay A. Beehler Curtis T. Hill, Jr.
Terre Haute, Indiana Attorney General of Indiana
Ellen H. Meilaender
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jhontay L. Whitesides, March 30, 2017
Appellant-Defendant, Court of Appeals Case No.
84A01-1610-CR-2424
v. Appeal from the Vigo Superior
Court
State of Indiana, The Honorable John T. Roach,
Appellee-Plaintiff. Judge
Trial Court Cause Nos.
84D01-1508-F3-2017
84D01-1307-FD-2084
Pyle, Judge.
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Statement of the Case
[1] Jhontay L. Whitesides (“Whitesides”) appeals his sentence, which he received
after pleading guilty to Level 3 felony armed robbery.1 He argues that the trial
court abused its discretion when sentencing him because it failed to identify
several mitigating factors. Because we conclude that the trial court did not
abuse its discretion in identifying mitigating factors, we affirm the trial court’s
decision.
[2] We affirm.
Issue
Whether the trial court abused its discretion when it sentenced Whitesides.
Facts
[3] On August 26, 2015, the State charged Whitesides with Level 3 felony armed
robbery and Level 3 felony criminal confinement. On September 27, 2016,
Whitesides pled guilty, pursuant to a plea agreement, to the Level 3 felony
armed robbery charge and to violating his probation in another cause. In
exchange for his guilty plea, the State dismissed his criminal confinement
charge and agreed to a sentence cap of ten years for his armed robbery
conviction, to be served in Community Corrections.
1
IND. CODE § 35-42-5-1(1).
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[4] At his guilty plea hearing, Whitesides admitted to the facts alleged in his
charging information as the factual basis for his conviction. Specifically, he
admitted that:
[o]n or about June [23,] 2015[,] in Vigo County, State of Indiana,
[he] did knowingly take property, to wit: U.S. Currency from
another person or the presence of another person, to wit:
Michael Bridges or Jessica Stoelting, by using force or
threatening to use a force, said act being committed with a
deadly weapon, to wit: a gun[.]
(Tr. 24).
[5] After Whitesides pled guilty, the court accepted the plea and proceeded to
consider sentencing. During this portion of the hearing, twenty-three-year-old
Whitesides testified that he had a longterm problem with marijuana abuse and
had been using marijuana daily since he was eighteen. Whitesides testified that
he had once received treatment for his substance abuse through an alcohol and
drug program, but he also said that he had never received an “intense”
treatment. (Tr. 27). Also at the hearing, Whitesides noted that he had a history
of employment and contended that he would be able to return to that
employment if placed on Community Corrections. Whitesides had been in jail
for the previous year, and he testified that he had not had any write-ups or
problems while incarcerated.
[6] Whitesides’ pre-sentence investigation report, which the State introduced at the
hearing, revealed that Whitesides had a criminal history. His adult history
consisted of a Class D felony possession of marijuana conviction, for which he
had been on probation when he committed the instant offense. He also had a
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juvenile history spanning three years that included adjudications for offenses
that would be the equivalents of Class D felony theft; Class B felony aggravated
battery; Class A felony burglary resulting in bodily injury; Class D felony
criminal recklessness; and Class A misdemeanor possession of marijuana, if
committed by an adult.
[7] The State asked for the trial court to impose the full ten-year (10) sentence
allowed by Whitesides’ plea agreement but recommended that the trial court
order six (6) of those ten (10) years to be executed in Community Corrections
on work release. The State said it would be open to modifying the balance of
Whitesides’ sentence to in-home detention if he did well on work release. In
response, Whitesides’ counsel said “I don’t have much argument with what the
State is recommending.” (Tr. 30). Still, Whitesides counsel noted that
Whitesides’ “criminal attitudes and behavior patterns domain level” was “low.”
(Tr. 30). He also noted that Whitesides had confessed to his offense and that he
had strong family support at home.
[8] At the conclusion of the hearing, the trial court sentenced Whitesides to ten (10)
years, with six (6) years executed in Community Corrections on work release
and four (4) years suspended to probation. The trial court also ordered
Whitesides to undergo all substance abuse counseling available. The court told
Whitesides that if he completed substance abuse counseling with a good record,
was not “dropping dirty screens,” was not violating the rules, was earning credit
time, and was doing “all the right things,” the court would consider modifying
his sentence to in-home detention. (Tr. 33). As a basis for this sentence, the
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trial court found the fact that Whitesides was on probation when he committed
the instant offense and that he had a criminal history were aggravating factors.
The trial court did not find any mitigating factors. Whitesides now appeals.
Decision
[9] On appeal, Whitesides argues that the trial court abused its discretion when it
sentenced him because it overlooked “numerous” mitigating factors that were
supported by the record. (Whitesides’ Br. 7). Specifically, he contends that the
trial court should have found the following as mitigating factors: (1) the fact
that he took responsibility for his conduct; (2) his young age; (3) his
“exemplary” behavior as an inmate during his incarceration; (4) the fact that his
criminal history was “relatively minor, with no prior offenses involving any
violence[;]” and (5) that his “criminal attitudes and behaviors” were rated
favorably low. (Whitesides’ Br. 9).
[10] Previously, trial courts were required to properly weigh mitigating and
aggravating factors during sentencing. Anglemyer v. State, 868 N.E.2d 482, 490
(Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007). Now, trial courts no
longer have such an obligation. Id. at 491. Instead, “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 . . . permissible under the Constitution of the State of
Indiana.’” Id. (quoting I.C. § 35-38-1-7.1(d)). So long as the sentence is within
the statutory range, it is subject to review only for an abuse of discretion. Id.
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We will find an abuse of discretion where 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. A trial
court may abuse its discretion in a number of ways, including: (1) failing to
enter a sentencing statement at all; (2) entering a sentencing statement that
includes aggravating and mitigating factors that are unsupported by the record;
(3) entering a sentencing statement that omits reasons that are clearly supported
by the record; or (4) entering a sentencing statement that includes reasons that
are improper as a matter of law. Id. at 490-91.
[11] An allegation that the trial court failed to find a mitigating factor requires the
defendant to establish that the mitigating evidence is both significant and clearly
supported by the record. Carter v. State, 711 N.E.2d 835, 838 (Ind. 1999).
Although a failure to find mitigating circumstances clearly supported by the
record may imply that the trial court improperly overlooked them, a trial court
is “not obligated to explain why it has chosen not to find mitigating
circumstances. Likewise, the court is not obligated to accept the defendant’s
argument as to what constitutes a mitigating factor.” Roger v. State, 958 N.E.2d
4, 9 (Ind. Ct. App. 2011).
[12] First, Whitesides argues that the trial court should have found the fact that he
took responsibility for his actions by cooperating with the police and pleading
guilty constituted a mitigating factor. However, it is clear that the trial court
considered this factor and did not find it significant. The trial court stated, “I
know that you did cooperate and you admitted your involvement in the crime .
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. . . [The fact that] there were others that perhaps took a more significant role,
doesn’t diminish, doesn’t diminish your criminal liability in this.” (Tr. 32).
This statement demonstrates that the trial court considered the fact that
Whitesides had accepted responsibility and nevertheless found that his
acceptance did not diminish his “criminal liability.” (Tr. 32).
[13] Further, a guilty plea is not always a significant mitigating circumstance.
Caraway v. State, 959 N.E.2d 847, 853 (Ind. Ct. App. 2011), trans. denied. A
plea’s significance is reduced if it is made on the eve of trial, if the
circumstances indicate the defendant is not taking responsibility for his actions,
or if substantial evidence exists against the defendant. Id. Also, a plea may not
be significant “when the defendant receives a substantial benefit in return for
the plea.” Anglemyer v. State, 875 N.E.2d 218, 221 (Ind. 2007), decision on reh’g.
Here, Whitesides received a substantial benefit in return for his plea—the
dismissal of his Level 3 felony criminal confinement charge. Accordingly, we
cannot conclude that the trial court abused its discretion by choosing not to
consider Whitesides’ plea a mitigating factor.
[14] Next, we do not find Whitesides’ age, twenty-three, to be a significant
mitigating factor. Our supreme court has previously noted that “[f]ocusing on
chronological age is a common shorthand for measuring culpability, but for
people in their teens and early twenties it is frequently not the end of the
inquiry. There are both relatively old offenders who seem clueless and
relatively young ones who seem hardened and purposeful.” Ellis v. State, 736
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N.E.2d 731, 736 (Ind. 2000). Whitesides has not provided any evidence to
indicate that his age reduced his culpability.
[15] As for Whitesides’ good behavior while incarcerated, we commend his
behavior but do not find it to be a mitigating circumstance. As we noted in
Davis v. State, 835 N.E.2d 1102, 1116 (Ind. Ct. App. 2005), a defendant is
already rewarded for good behavior while in jail through good time credit. See
id.
[16] Next, we do not find that the trial court abused its discretion in considering
Whitesides’ criminal history an aggravating rather than mitigating factor.
Whitesides notes that the trial court stated that Whitesides’ history was “not
that bad.” (Tr. 31). However, the trial court also pointed out that Whitesides’
history was escalating and included a prior felony. Specifically, the trial court
noted that Whitesides was going “from a Level D felony to a Level 3 armed
robbery because of the people [he hung] out with.” (Tr. 32). The pre-sentence
investigation report also revealed that Whitesides had a significant juvenile
history, which included multiple adjudications for offenses that would have
been considered felonies if committed by an adult. Contrary to Whitesides’
assertion that he had not committed any violent crimes, two of these offenses
would have been considered Class B felony aggravated battery and Class A
felony burglary resulting in bodily injury if committed by an adult.
[17] Finally, we do not find that the trial court abused its discretion by failing to
consider that Whitesides’ “criminal attitudes and behavior patterns domain
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level” was “low.” (Tr. 30). Our supreme court has held that offender
assessment instruments “are not intended to serve as aggravating or mitigating
circumstances nor to determine the gross length of sentence[.]” Malenchik v.
State, 928 N.E.2d 564, 575 (Ind. 2010). Rather, “a trial court may employ such
results in formulating the manner in which a sentence is to be served.” Id.
[18] In sum, the trial court did not fail to consider or omit any significant mitigating
factors. Accordingly, we conclude that the trial court did not abuse its
discretion, and we affirm its decision.2
[19] Affirmed.
May, J., and Brown, J., concur.
2
To the extent that Whitesides argues that the trial court did not properly “weigh” the aggravating and
mitigating factors, we note that the trial court is no longer required to weigh aggravating and mitigating
factors. Anglemyer, 868 N.E.2d at 491.
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