Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be                                           Oct 08 2013, 5:36 am

regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT:                           ATTORNEYS FOR APPELLEE:

MARK EVERETT WATSON                               GREGORY F. ZOELLER
Watson Law Office                                 Attorney General of Indiana
Terre Haute, Indiana
                                                  BRIAN REITZ
                                                  Deputy Attorney General
                                                  Indianapolis, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

PHILLIP A. EVANS,                                 )
                                                  )
       Appellant-Defendant,                       )
                                                  )
              vs.                                 )       No. 84A01-1303-CR-105
                                                  )
STATE OF INDIANA,                                 )
                                                  )
       Appellee-Plaintiff.                        )


                      APPEAL FROM THE VIGO SUPERIOR COURT
                          The Honorable John T. Roach, Judge
                            Cause No. 84D01-1209-FD-2965



                                        October 8, 2013


                MEMORANDUM DECISION - NOT FOR PUBLICATION


NAJAM, Judge
                                STATEMENT OF THE CASE

          Phillip Evans appeals his conviction and sentence for intimidation, as a Class D

felony, pursuant to a guilty plea. Evans presents three issues for our review:

          1.      Whether he knowingly, intelligently, and voluntarily waived his
                  right to counsel.

          2.      Whether the trial court abused its discretion when it sentenced him.

          3.      Whether his sentence is inappropriate in light of the nature of the
                  offense and his character.

          We affirm.

                          FACTS AND PROCEDURAL HISTORY

          On September 10, 2012, the State charged Evans with intimidation, as a Class D

felony.        In particular, the State alleged that Evans had threatened to shoot a law

enforcement officer as the officer was attempting to place Evans under arrest. A public

defender filed an appearance in the matter on September 11. But on December 14, Evans

wrote a letter to the trial court asking that it remove his public defender from the case and

permit Evans to proceed pro se. Evans simultaneously filed an appearance indicating that

he would proceed pro se. The trial court set Evans’ pro se request for a hearing for

December 28. Following that hearing, the trial court granted Evans’ motion to proceed

pro se.

          On January 15, 2013, Evans submitted a plea agreement whereby he pleaded

guilty as charged, but his sentence was capped at two years. Following a hearing, the

trial court accepted the plea agreement and sentenced Evans to two years executed. This

appeal ensued.


                                                2
                             DISCUSSION AND DECISION

                               Issue One: Right to Counsel

       Evans contends that the trial court “erred by failing to advise him of the risks of

proceeding pro se.” Brief of Appellant at 8. The right to be represented by counsel is

protected by both the federal and Indiana constitutions. U.S. Const. amend. VI; Ind.

Const. art. 1, § 13. The right to counsel can be waived only by a knowing, voluntary, and

intelligent waiver. Jones v. State, 783 N.E.2d 1132, 1138 n.2 (Ind. 2003). Waiver of

assistance of counsel may be established based upon the particular facts and

circumstances surrounding the case, including the background, experience, and conduct

of the accused. Id. at 1138. We review de novo a trial court’s finding that the defendant

waived the right to counsel. Miller v. State, 789 N.E.2d 32, 37 (Ind. Ct. App. 2003),

aff’d on reh’g, 795 N.E.2d 468.

       Evans maintains that the trial court did not satisfy the four prongs set out by our

supreme court in Poynter v. State, 749 N.E.2d 1122, 1127-28 (Ind. 2001), to determine

whether a defendant’s waiver of counsel is knowing and intelligent, namely: (1) the

extent of the court’s inquiry into the defendant’s decision; (2) other evidence in the

record that establishes whether the defendant understood the dangers and disadvantages

of self-representation; (3) the background and experience of the defendant; and (4) the

context of the defendant’s decision to proceed pro se. But, contrary to Evans’ assertion

on appeal, our review of the hearing on Evans’ motion to proceed pro se shows that the

trial court clearly met all four prongs in Poynter.




                                              3
       The following colloquy between the trial court and Evans occurred at the pro se

hearing:

       COURT:        You know you have a jury trial set January 24th?
       EVANS:        Yes I do, Your Honor.
       COURT:        You understand what charges you’re facing?
       EVANS:        Absolutely Your Honor, yes I do.
       COURT:        You know to represent yourself you have to give up your
                     right to have a lawyer represent you, is that right?
       EVANS:        Yes, sir.
       COURT:        Okay. I’m only going to allow you to do that if I’m
                     convinced you understand what you’re asking for and what
                     you’re giving up. Do you understand that as well?
       EVANS:        Yes, Your Honor.

Transcript of December 28 Hearing at 3. The trial court then questioned Evans regarding

the nature of the charge against him, the sentencing range, the significance of aggravating

and mitigating factors, and the training the public defender had undergone to become a

criminal defense attorney. Evans demonstrated that he understood each of the trial

court’s questions, and Evans told the court that he understood that the range of his

sentence was six months to three years. The colloquy continued:

       COURT:        And you’re asking to discharge [your public defender], is that
                     right?
       EVANS:        Yes, Your Honor, I don’t feel that it’s in the best interest of
                     the public defender office to be burdened with having to deal
                     with the situation[.] I have the comprehension and the desire
                     to go ahead and proceed on my own.
       COURT:        Well, that’s not a reason to discharge your attorney, because
                     that’s why the public defender exists. It is not a burden to
                     them, it is their job, you understand that, right? You’re not
                     saving them anything, because they’re going to go on to the
                     next case, and in fact, they’ll probably get quite a few more
                     cases assigned, even to this attorney specifically on today’s
                     date. So, you’re not burdening them, you’re not taking
                     anything away from them, they have other cases that they do,
                     do you understand that?
       EVANS:        Yes, Your Honor, I do.
                                            4
COURT:   And you feel that you have the ability to comprehend what it
         takes to get prepared for trial?
EVANS:   Yes, I do Your Honor.
COURT:   Investigating and interrogating witnesses?
EVANS:   Yes, sir.
COURT:   Understand the discovery that has been provided in this case?
EVANS:   Yes, I do, I have a copy.
COURT:   Do you feel like you can cross -examine witnesses that the
         State puts on?
EVANS:   Absolutely.
COURT:   Do you feel like you can put your own witnesses on?
EVANS:   Absolutely, Your Honor.
COURT:   Do you think you have enough of an understanding of the
         rules of evidence that you’ll be able to put the evidence in
         front of the court in the way that is necessary to present any
         defenses you might have?
EVANS:   Yes I do, Your Honor.
COURT:   What level of education do you have?
EVANS:   I have completion of the GED in the State of Indiana, and I
         was [inaudible] advocate in prison for six years, as well as a
         law clerk in the law library at IYC in the Plainfield, Indiana
         facility for the same amount of time. I also took some pre-
         college classes in legal research and discovery.
COURT:   Okay, you understand that by discharging your attorney that’s
         not a basis for appeal?
EVANS:   Absolutely.
COURT:   And you understand that this record today is going to be any
         part of that appeal so that the appellate court can make sure
         that I asked you the right questions and got the right answers
         in terms of your ability to appreciate what you’re doing
         today?
EVANS:   Yes, I understand it completely, Your Honor.
COURT:   And you’re willing to give up this attorney’s specific skills
         and training and education in gathering together evidence and
         cross-examining witnesses and presenting a defense at trial in
         front of a jury?
EVANS:   Yes I am, Your Honor.
COURT:   Do you understand that if I allow you to waive your right to
         counsel and proceed pro se, that I’m not going to give you
         any special treatment, I have to, by law, treat you just like an
         attorney.
EVANS:   Yes I do, Your Honor.
COURT:   Hold you to the same rules, the same time limits, the same
         rules of evidence, the same rules of procedure.
                                 5
      EVANS:        Yeah, I understand that sir.
      COURT:        Well, we’ve kind of covered any specific exposure to
                    criminal law that you’ve had, it sounds like quite a lot, is that
                    right?
      EVANS:        Yes sir.
      COURT:        Okay. Have you been promised anything by doing this by
                    anyone?
      EVANS:        No sir.
                                          ***
      COURT:        I am strongly advising you not to do this, do you understand
                    that?
      EVANS:        I understand, Your Honor.
      COURT:        And you still wish to proceed without [counsel]?
      EVANS:        Yes I do, Your Honor.

Id. at 4-8 (emphasis added).

      Evans maintains that the trial court’s “admonishment about the dangers of

proceeding pro se were perfunctory and failed to assess in any way whether Evans’

waiver was knowing or intelligent.”     Brief of Appellant at 10.      But the trial court

thoroughly questioned Evans regarding his knowledge of criminal law generally, and his

case in particular, and the court made clear that Evans would be expected to do

everything a lawyer would be expected to do at trial. Evans consistently expressed to the

court that he was confident that he could handle both the pre-trial and trial demands. And

the trial court “strongly advis[ed]” Evans not to proceed pro se. Id. Given Evans’

responses to the trial court’s questions and his extensive experience, approximately

twelve years total, as a legal advocate in prison and as a law clerk at a correctional

facility, as well as his classwork in legal research and discovery, we cannot say that his

waiver of counsel was not knowing and intelligent.




                                            6
                      Issue Two: Abuse of Discretion in Sentencing

       Evans contends that the trial court abused its discretion when it sentenced him.

Sentencing decisions rest within the sound discretion of the trial court and are reviewed

on appeal only for an abuse of discretion. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind.

2007), clarified on other grounds on reh’g, 875 N.E.2d 218 (Ind. 2007). 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. Id.

       One way in which a trial court may abuse its discretion is failing to enter a
       sentencing statement at all. Other examples include entering 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, or the sentencing statement omits reasons that are
       clearly supported by the record and advanced for consideration, or the
       reasons given are improper as a matter of law . . . .

              [However, b]ecause the trial court no longer has any obligation to
       “weigh” aggravating and mitigating factors against each other when
       imposing a sentence, . . . a trial court can not now be said to have abused its
       discretion in failing to “properly weigh” such factors.

Id. at 490-91.

       Evans first contends that the trial court abused its discretion when it identified as

an aggravator that prior attempts at rehabilitation had failed.        In particular, Evans

maintains that that aggravator was duplicative of his criminal history aggravator. In

support of that contention, Evans cites McCann v. State, 749 N.E.2d 1116, 1119 (Ind.

2001), where our supreme court held that the trial court’s sentencing statement was

unclear and that the “prior attempts” aggravator was merely cumulative of the criminal

history aggravator.
                                             7
       But here the trial court supported the aggravator by acknowledging that Evans had

previously failed to successfully complete “multiple opportunities for Alcohol & Drug

[treatment] and counseling, and probation[.]” Sentencing Transcript at 12. Thus, the

aggravator was not merely cumulative of Evans’ criminal history, but reflected his

inability to take advantage of alternative sentencing and rehabilitative measures. The

trial court did not abuse its discretion when it identified as aggravating that Evans’ prior

attempts at rehabilitation had failed.

       Evans next contends that the trial court abused its discretion when it did not

identify as mitigating his guilty plea. But our supreme court has determined that a guilty

plea does not automatically amount to a significant mitigating factor. Sensback v.

State, 720 N.E.2d 1160, 1165 (Ind. 1999). For instance, a guilty plea does not rise to the

level of significant mitigation where the defendant has received a substantial benefit from

the plea or where the evidence against him is such that the decision to plead guilty is

merely a pragmatic one. Id. Here, as the State correctly points out, Evans received a

benefit by his plea in that his sentence was capped at two years, and given his substantial

criminal history he might have been subject to the maximum three-year sentence.

Moreover, given that multiple law enforcement officers witnessed Evans’ crime in this

case, his decision to plead guilty was a pragmatic one. The trial court did not abuse its

discretion when it did not identify his guilty plea as a mitigating circumstance.

                          Issue Three: Inappropriate Sentence

       Finally, Evans contends that his sentence is inappropriate in light of the nature of

the offense and his character. Although a trial court may have acted within its lawful


                                             8
discretion in determining a sentence, Article VII, Sections 4 and 6 of the Indiana

Constitution “authorize[] independent appellate review and revision of a sentence

imposed by the trial court.” Roush v. State, 875 N.E.2d 801, 812 (Ind. Ct. App. 2007)

(alteration original). This appellate authority is implemented through Indiana Appellate

Rule 7(B). Id. Revision of a sentence under Appellate Rule 7(B) requires the appellant

to demonstrate that his sentence is inappropriate in light of the nature of his offenses and

his character. See App. R. 7(B); Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App.

2007). We assess the trial court’s recognition or non-recognition of aggravators and

mitigators as an initial guide to determining whether the sentence imposed was

inappropriate. Gibson v. State, 856 N.E.2d 142, 147 (Ind. Ct. App. 2006). However, “a

defendant must persuade the appellate court that his or her sentence has met th[e]

inappropriateness standard of review.” Roush, 875 N.E.2d at 812 (alteration original).

       And our supreme court has stated that “sentencing is principally a discretionary

function in which the trial court’s judgment should receive considerable deference.”

Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008). Indiana’s flexible sentencing

scheme allows trial courts to tailor an appropriate sentence to the circumstances

presented. See id. at 1224. The principal role of appellate review is to attempt to “leaven

the outliers.” Id. at 1225. Whether we regard a sentence as inappropriate at the end of

the day turns on “our sense of the culpability of the defendant, the severity of the crime,

the damage done to others, and myriad other facts that come to light in a given case.” Id.

at 1224.




                                             9
       Evans first contends that his sentence is inappropriate in light of the nature of the

offense. He maintains that there was “no evidence that any violent conduct by Evans

against Officer Spears resulted in any injuries” and that “there were no facts alleged or

proven by the State to show the commission of this crime occurred in any worse manner

than similar crimes at this level.” Brief of Appellant at 22. But Evans, who police

suspected had stabbed someone when they responded to the scene, threatened to kill any

of the responding officers if they attempted to enter his apartment, and he threw beer

bottles at them while yelling, “Grenade!” Appellant’s App. at 50. We cannot say that

Evans’ two-year sentence, only six months more than the advisory sentence, is

inappropriate in light of the nature of the offense.

       Evans also contends that his sentence is inappropriate in light of his character.

Evans acknowledges his criminal history, but he urges us to consider his “significant

history of mental health issues and substance abuse problems.” Brief of Appellant at 22.

Evans also asks that we consider his acceptance of responsibility for this crime. But

Evans’ criminal history is extensive, consisting of fourteen prior convictions. Evans is a

registered sex offender, and he was on probation at the time of the instant offense. We

cannot say that Evans’ two-year sentence is inappropriate in light of the nature of his

character.

       Affirmed.

MATHIAS, J., and BROWN, J., concur.




                                              10
