MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
Aug 17 2018, 10:01 am
regarded as precedent or cited before any
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
Andrew B. Arnett Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Henry A. Flores, Jr.
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Tiawana M. Hughes, August 17, 2018
Appellant-Defendant, Court of Appeals Case No.
18A-CR-397
v. Appeal from the Johnson Superior
Court
State of Indiana, The Honorable Peter D. Nugent,
Appellee-Plaintiff. Judge
Trial Court Cause No.
41D02-1707-F3-32
Najam, Judge.
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Statement of the Case
[1] Tiawana M. Hughes appeals her sentence following her conviction for child
molesting, as a Level 3 felony, pursuant to a guilty plea. Hughes raises a single
issue for our review, which we restate as whether the trial court abused its
discretion in its identification and weight of aggravators and mitigators used in
sentencing Hughes.1 We affirm.
Facts and Procedural History
[2] On November 1 and December 31, 2015, Hughes was living with her best
friend’s grandparents and twelve-year-old foster daughter, A.S. On those dates
Hughes performed oral sex on A.S. Hughes also had A.S. perform oral sex on
her. About six months later, A.S. informed her foster mother of the
molestations, and her foster mother informed the police.
[3] The State charged Hughes with child molesting, as a Level 3 felony. Hughes
agreed to plead guilty pursuant to a plea agreement on the condition that she
not serve more than five years executed in the Department of Correction. The
1
Hughes styles her argument on appeal as a challenge to the appropriateness of her sentence under Indiana
Appellate Rule 7(B). In response, the State argues that Hughes has waived her argument under Rule 7(B)
because she makes no substantive argument that her sentence is inappropriate in light of the nature of the
offense and her character. We agree with the State that the substance of Hughes’ argument in her brief is not
a Rule 7(B) argument. Rather, the substance of her argument is that the trial court improperly identified an
aggravator, failed to properly identify a purported mitigator, and improperly weighed the aggravators and
mitigators. We address the substance of Hughes’ actual argument accordingly.
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trial court accepted Hughes’ plea agreement. And, at the conclusion of the
ensuing sentencing hearing, the court stated as follows:
I think the only real aggravator is that you were in a position of
trust with this twelve year old and you violated that position of
trust. I think the mitigating circumstances are substantial. You
have no criminal history, you ple[aded] guilty, or you owned it,
which is big in this Court, you’re remorseful for what’s
happening. You have the support system that cares about you
and is ready to help. My problem is that[,] under the nature and
circumstance[s] of the case, it’s still a child molesting. A twelve
year old child. And . . . it’s going to effect this young person for
a long, long time . . . . I believe that you can benefit from
counseling. . . . But . . . you cannot overlook the fact that there’s
a child molesting. And so under the circumstances, what I’m
going to do is find that the aggravators and mitigators cancel
each other out. The stated term for a level 3 is nine years. It will
be a nine year sentence[. O]f that nine, three will be executed at
the Department of Correction[;] six will be suspended.
Tr. Vol. 2 at 22-23. This appeal ensued.
Discussion and Decision
[4] Hughes asserts that the trial court abused its discretion when it sentenced her.
Sentencing decisions lie within the sound discretion of the trial court. Cardwell
v. State, 895 N.E.2d 1219, 1222 (Ind. 2008). 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.” Gross v. State, 22 N.E.3d 863, 869 (Ind. Ct. App. 2014) (citation
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omitted), trans. denied. A trial court abuses its discretion in sentencing if it does
any of the following:
(1) fails “to enter a sentencing statement at all;” (2) enters “a
sentencing statement that explains reasons for imposing a
sentence—including a finding of aggravating and mitigating
factors if any—but the record does not support the reasons;” (3)
enters a sentencing statement that “omits reasons that are clearly
supported by the record and advanced for consideration;” or (4)
considers reasons that “are improper as a matter of law.”
Id. (quoting Anglemyer v. State, 868 N.E.2d 482, 490-91 (Ind. 2007), clarified on
reh’g, 875 N.E.2d 218 (Ind. 2007)). However, the relative weight or value
assignable to reasons properly found, or those which should have been found, is
not subject to review for abuse of discretion, id., and a 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.
[5] Hughes asserts that the trial court abused its discretion for each of the following
reasons: (1) “there was no evidence on the record . . . that Hughes had put
herself in a position of trust with A.S.”; (2) the trial court’s identified mitigators
“should have been given significant weight”; and (3) “the trial court failed to
recognize another mitigating factor,” namely, “that Hughes would respond
affirmatively to probation or short-term imprisonment.” Appellant’s Br. at 9.
[6] We cannot agree with Hughes’ assessment. First, “[a] position of trust exists
where a defendant has ‘more than a casual relationship with the victim and has
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abused the trust resulting from that relationship.’” Amalfitano v. State, 956
N.E.2d 208, 211 (Ind. Ct. App. 2011) (quoting Rodriguez v. State, 868 N.E.2d
551, 555 (Ind. Ct. App. 2007)), trans. denied. “Generally, cohabitation
arrangements of nearly any character . . . do in fact, and should, establish a
position of trust between the adults and minors living or staying together.” Id.
(quotation marks omitted). The record is clear that Hughes was twenty-eight
years old when she was living with A.S., her best friend’s twelve-year-old foster
daughter. The record thus supports the trial court’s finding that Hughes was in
a position of trust over A.S.
[7] Hughes’ second argument—that the trial court failed to give appropriate or
significant weight to the mitigators—is not properly before this court, and we
do not consider it. E.g., Gross, 22 N.E.3d at 869 (citing Anglemyer, 868 N.E.2d
at 490-91). And Hughes’ third argument—that the trial court failed to identify
as a mitigator that she would respond affirmatively to probation or short-term
imprisonment—does not explain how that proposed mitigator “is both
significant and clearly supported by the record.” Anglemyer, 868 N.E.2d at 493.
The trial court “is not obliged to explain why it has found that the factor does
not exist.” Id. Moreover, Hughes’s sentence consists of an executed term of
three years, even though the plea agreement allowed the court to impose an
executed term of five years. Hughes does not explain how an executed term
less than that she had agreed to in her plea agreement was an abuse of the
court’s discretion.
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[8] In sum, we cannot say that the trial court abused its discretion when it
sentenced Hughes, and we affirm her sentence.
[9] Affirmed.
Crone, J., and Pyle, J., concur.
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