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.




Court of Appeals of Indiana | Memorandum Decision 45A03-1508-CR-1199 | April 27, 2016            Page 1 of 11
[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.

      Court of Appeals of Indiana | Memorandum Decision 45A03-1508-CR-1199 | April 27, 2016            Page 2 of 11
      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

      Court of Appeals of Indiana | Memorandum Decision 45A03-1508-CR-1199 | April 27, 2016   Page 3 of 11
      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.

      Court of Appeals of Indiana | Memorandum Decision 45A03-1508-CR-1199 | April 27, 2016               Page 4 of 11
      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

      Court of Appeals of Indiana | Memorandum Decision 45A03-1508-CR-1199 | April 27, 2016   Page 5 of 11
      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


      Court of Appeals of Indiana | Memorandum Decision 45A03-1508-CR-1199 | April 27, 2016   Page 6 of 11
       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.

       Court of Appeals of Indiana | Memorandum Decision 45A03-1508-CR-1199 | April 27, 2016                Page 7 of 11
       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


       Court of Appeals of Indiana | Memorandum Decision 45A03-1508-CR-1199 | April 27, 2016   Page 8 of 11
       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


       Court of Appeals of Indiana | Memorandum Decision 45A03-1508-CR-1199 | April 27, 2016   Page 9 of 11
       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.




       Court of Appeals of Indiana | Memorandum Decision 45A03-1508-CR-1199 | April 27, 2016   Page 10 of 11
[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.

       Court of Appeals of Indiana | Memorandum Decision 45A03-1508-CR-1199 | April 27, 2016            Page 11 of 11
