MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                        FILED
this Memorandum Decision shall not be                                    Jan 10 2019, 6:07 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.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Jennifer L. Koethe                                       Curtis T. Hill, Jr.
La Porte, Indiana                                        Attorney General of Indiana
                                                         Lyubov Gore
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Dallas Preston,                                          January 10, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-581
        v.                                               Appeal from the La Porte Circuit
                                                         Court
State of Indiana,                                        The Honorable Thomas Alevizos,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         46C01-1706-F3-512



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-581 | January 10, 2019                   Page 1 of 4
[1]   Dallas Preston appeals the sentence imposed by the trial court after he pleaded

      guilty to Level 3 felony aggravated battery. Preston argues that the trial court

      erred by failing to find two proffered mitigating factors. Finding no error, we

      affirm.


                                                     Facts
[2]   On June 4, 2017, Preston and some friends went out after work. They drank

      heavily and used cocaine. They met Maurice Edmond at a bar and took him

      with them to another party. Preston, Edmond, and Dusty Buren left the party

      together in Preston’s vehicle. Preston blacked out and crashed the vehicle into

      a guardrail. At that point, Preston and Buren exited the vehicle and, in a blind

      rage, beat Edmond. Preston hit, struck, stomped, and kicked Edmond in the

      head. He injured Edmond’s face, caused significant head trauma, and fractured

      Edmond’s left eye socket, resulting in ocular nerve damage with full or partial

      loss of eyesight in the left eye. Preston and Buren then fled the scene, leaving

      Edmond on the ground.


[3]   On June 7, 2017, Preston was charged with Level 3 felony aggravated battery.

      On December 1, 2017, Preston pleaded guilty as charged pursuant to a written

      plea agreement. At the February 2, 2018, sentencing hearing, Preston asked

      that the trial court find his history of substance abuse and mental illness as

      mitigating factors. The trial court declined, finding Preston’s criminal history

      as an aggravator and his guilty plea as a mitigator. The trial court imposed an

      eleven-year sentence on Preston, who now appeals.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-581 | January 10, 2019   Page 2 of 4
                                      Discussion and Decision
[4]   Preston’s sole argument on appeal is that the trial court should have found his

      history of substance abuse and mental illness to be mitigating factors.1 Preston

      has the burden of demonstrating that the mitigating evidence is both significant

      and clearly supported by the record. McElfresh v. State, 51 N.E.3d 103, 112 (Ind.

      2016). Even if we find error, we will affirm if we are persuaded that the trial

      court would have imposed the same sentence had it considered the proffered

      mitigators. Id.


[5]   The record does, indeed, show that Preston has a long and serious history of

      substance abuse. He has been addicted to alcohol since the age of eight, has

      regularly used marijuana since the age of thirteen, has been a cocaine addict

      since he was nineteen, and has been addicted to methamphetamine since the

      age of twenty-four. He has also abused prescription medication. Preston has

      previously been ordered to complete an alcohol treatment program, but there is

      no indication that he has, in fact, sought out or completed any treatment. He is

      well aware of his serious substance abuse issues but has not taken any steps to

      treat those issues. Under these circumstances, the trial court did not err by




      1
        Preston cites to Indiana Appellate Rule 7(B) but does not make an argument that the sentence is
      inappropriate in light of the nature of the offense and his character. We note that even if he had made a Rule
      7(B) argument, we would have affirmed the sentence, given the particularly brutal nature of the offense and
      Preston’s lengthy criminal history, which includes multiple prior battery convictions.
      He also argues that the trial court did not afford enough weight to his guilty plea as a mitigator, but we do not
      review the weight given to aggravators and mitigators by the trial court. See Anglemyer v. State, 868 N.E.2d
      482, 491 (Ind. 2007), clarified on reh’g. at 875 N.E.2d 218.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-581 | January 10, 2019                      Page 3 of 4
      declining to find this to be a mitigating factor. See Caraway v. State, 959 N.E.2d

      847, 851 (Ind. Ct. App. 2011) (finding that when a defendant is aware of a

      substance abuse problem but has not taken steps to treat it, the trial court may

      find that the addiction is an aggravator).


[6]   As for Preston’s purported mental health issues, there is no evidence supporting

      his claim that he has been diagnosed with a myriad of issues aside from his own

      self-serving testimony. And even that testimony is contradicted by Preston’s

      statements in the presentence investigation report, when he reported that he was

      in “fair mental health,” and by his testimony that he was not being treated for

      or suffering from any mental illnesses or diseases. Appellant’s Conf. App. Vol.

      III p. 12; Tr. Vol. II p. 3-4. In addition to a dearth of medical evidence

      supporting his claims of mental illness, Preston did not present any evidence

      showing that his purported mental health issues rendered him unable to control

      his behavior, limited his functioning, or had a nexus to the crime at issue.

      Therefore, the trial court did not err by declining to find this to be a mitigating

      factor.


[7]   The judgment of the trial court is affirmed.


      May, J., and Tavitas, J, concur.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-581 | January 10, 2019   Page 4 of 4
