MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                         FILED
regarded as precedent or cited before any                           Mar 28 2018, 7:02 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
Jennifer L. Koethe                                       Curtis T. Hill, Jr.
La Porte, Indiana                                        Attorney General of Indiana
                                                         Henry A. Flores, Jr.
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

David J. Baysinger,                                      March 28, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         46A04-1710-CR-2433
        v.                                               Appeal from the La Porte Superior
                                                         Court
State of Indiana,                                        The Honorable Greta S. Friedman,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         46D04-1509-F6-774



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 46A04-1710-CR-2433 | March 28, 2018        Page 1 of 9
                                          Statement of the Case
[1]   David J. Baysinger (“Baysinger”) appeals his sentence imposed following his

      guilty plea to Level 6 felony possession of child pornography.1 Baysinger

      contends that the trial court abused its discretion by failing to consider certain

      mitigating circumstances. Concluding that the trial court did not abuse its

      discretion when sentencing Baysinger, we affirm his sentence.


[2]   We affirm.


                                                         Issue
             Whether the trial court abused its discretion when sentencing Baysinger.


                                                        Facts2
[3]   In August 2014, Baysinger pawned his laptop computer at a pawn shop in

      Michigan City. After Baysinger failed to make payments to the pawn shop to

      get his computer back, an employee turned on the computer to wipe clean the

      computer’s hard drive before reselling it. When the computer was turned on,

      an image of a naked girl, who appeared to be around seven years old, appeared

      on the screen. The pawn shop employee immediately contacted the police,

      who then conducted a forensic examination of the computer and discovered

      1,000 images of child pornography and thirty videos containing child




      1
          IND. CODE § 35-42-4-4.
      2
        The facts surrounding Baysinger’s offense were included in a written, stipulated factual basis that was
      incorporated into his guilty plea.

      Court of Appeals of Indiana | Memorandum Decision 46A04-1710-CR-2433 | March 28, 2018               Page 2 of 9
      pornography. Thereafter, in September 2015, the State charged Baysinger with

      Level 6 felony possession of child pornography.


[4]   In February 2017, Baysinger entered into a written plea agreement with the

      State. At the time of his guilty plea, Baysinger had two other pending charges,

      including: (1) public intoxication in cause number 46D04-1602-CM-376; and

      (2) criminal trespass in cause number 46D04-1607-CM-1722. Baysinger agreed

      to plead guilty to the Level 6 felony possession of child pornography charge in

      this cause in exchange for the dismissal of his public intoxication and criminal

      trespass charges in his other two causes. The parties agreed that sentencing

      would be open to the trial court’s discretion. Additionally, the parties entered a

      stipulated factual basis that was incorporated into his guilty plea. The trial

      court held a guilty plea hearing, during which Baysinger pleaded guilty to Level

      6 felony possession of child pornography.


[5]   The trial court held sentencing hearings on August 1 and September 1, 2017.

      The presentence investigation report (“PSI”) reveals that Baysinger, who was

      almost fifty-seven years old at the time of sentencing, has a criminal history

      dating back to when he was twenty years old. His criminal history includes

      felony convictions for theft and burglary in 1981 and misdemeanor convictions

      relating to the use of alcohol. Specifically, he has three convictions for

      operating while intoxicated (2000, 2006, and 2007) and four convictions for

      public intoxication (three separate causes in 2002 and one in 2015).

      Additionally, the PSI and attachments thereto showed that Baysinger was given

      two sex offender risk assessments, including the Indiana Risk Assessment

      Court of Appeals of Indiana | Memorandum Decision 46A04-1710-CR-2433 | March 28, 2018   Page 3 of 9
      System (“IRAS”) that the probation department administered in May 2017 and

      the McGrath Cummings Sex Offender Needs and Progress Scale (“SONPS

      assessment”) that the behavioral management provider administered in June

      2017. The IRAS indicated that Baysinger had a moderate risk of reoffending.

      The SONPS assessment indicated that he had a high-risk of reoffending, and

      the behavioral management provider recommended that Baysinger be placed in

      a sex offender treatment program and be “placed on the maximum amount of

      probation time allowed.” (App. Vol. 3 at 26).3


[6]   During the hearing, Baysinger acknowledged that he has a long history of

      substance abuse and admitted that he has drunk alcohol to the point of needing

      to be hospitalized. He also testified that he suffered from seizures and had been

      diagnosed with a disability due to his diagnoses of bipolar disorder, depression,

      and schizoaffective disorder, and he stated that he received treatment for these

      conditions. Baysinger testified that he was in an alcohol treatment program,

      which he had already attended on two occasions in the past, and stated that he

      was currently sober. He also presented testimony from two people who knew

      him from his alcohol treatment group. Baysinger suggested that most of his

      criminal history was related to his problems with alcohol. Baysinger admitted




      3
        Pursuant to Indiana Administrative Rule 9(G)(2)(b) and INDIANA CODE § 35-38-1-13, the PSI must be
      excluded from public access. However, in this case, the information contained in an attachment to
      the PSI is “essential to the resolution” of Baysinger’s claim. Admin. Rule 9(G)(7)(a)(ii)(c).
      Accordingly, we have included confidential information in this decision only to the extent necessary to
      resolve the appeal.


      Court of Appeals of Indiana | Memorandum Decision 46A04-1710-CR-2433 | March 28, 2018        Page 4 of 9
      that his computer had child pornography on it but suggested that he did not

      remember it, blaming it on his drinking. Baysinger also denied that he needed

      to be put into a sex offender treatment program.


[7]   Baysinger’s counsel acknowledged that Baysinger had “been a broken down

      drunk” for the past thirty-five to forty years, and counsel argued that

      Baysinger’s current sobriety should be considered as a mitigating factor. (Tr.

      Vol. 1 at 40). Counsel discussed the SONPS assessment and argued that it

      would be more reliable if a second assessment were done in another six months.

      Baysinger’s counsel also addressed Baysinger’s SONPS assessment results that

      indicated that he had a high risk of reoffending and suggested that Baysinger

      was at a high risk and was a danger to the community only when he was

      drinking. Baysinger’s counsel asked the trial court to sentence Baysinger to a

      two-year suspended sentence and to give him another risk assessment in six

      months.


[8]   When sentencing Baysinger, the trial court stated, in part, as follows:


              Alright, in looking at the mitigators and aggravators[,] the Court
              found [Baysinger] has in fact sought out treatment, and though
              he has some criminal activity in his past[,] it’s not extensive.
              While the number of images found on the computer is not an
              aggravator[,] it is certainly something the Court has taken into
              consideration. The Court finds this is not a case of curiosity or
              experimentation[.] Mr. Baysinger had the computer since 2012,
              and he stipulated to the fact that he had [a] thousand images of
              child pornography as well as thirty child pornography videos on
              the computer. What he has not shown the Court is any remorse.
              Not only did he not say he was sorry, he showed that he felt in

      Court of Appeals of Indiana | Memorandum Decision 46A04-1710-CR-2433 | March 28, 2018   Page 5 of 9
        no way truly responsible for being any part of this disturbing and
        dangerous culture which exploits children.

                                             *****

        Mr. Baysinger as well as several well[-]meaning members of the
        recovery community testified to the progress that you have made
        and while that’s good for your health it does nothing to address
        the issues for your preference for child pornography nor does it in
        anyway indicate that there’s any remorse for your actions, but
        the fact that no live children were in your presence in no way
        lessons [sic] the importance or the seriousness of this particular
        crime. These victims were somewhere in someone’s presence[,]
        and they are in fact real victims whose childhood at best has been
        stolen.

                                             *****

        So I believe you were probable [sic] sorry for your actions, I don’t
        know that you understand the ripple effect of what your actions
        have done. The State mentioned in their closing that abuse of
        alcohol does not equate [to being] a sex offender and drinking
        does not bring about an attraction for children. Therefore, the
        Court is not convinced that your sobriety or lack of drinking will
        eliminate the concern about you returning to this behavior. It
        was not a passing fancy . . . you [had] a thousand pictures and
        thirty videos of children doing things that no child should have to
        do. It was collected over a period of it appears to be two years
        and your statements that you do not remember acquiring this
        material seems to the Court rather implausible. The Court
        believes you kn[e]w what you were doing and you’re sorry you
        got caught.

(Tr. Vol. 3 at 8-10). The trial court imposed a two and one-half (2½) year

sentence to be served at the LaPorte County Jail. The trial court also directed

Baysinger to register as a sex offender and recommended that he participate in


Court of Appeals of Indiana | Memorandum Decision 46A04-1710-CR-2433 | March 28, 2018   Page 6 of 9
       appropriate treatment programs while in jail. Baysinger now appeals after

       being granted permission to file a belated notice of appeal.


                                                   Decision
[9]    Baysinger argues that the trial court abused its discretion by failing to consider

       his guilty plea as a mitigating circumstance and by failing to give mitigating

       “weight” to the recommendation of the provider that administered the SONPS

       assessment. (Baysinger’s Br. at 8).


[10]   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 reh’g, 875 N.E.2d 218 (Ind. 2007). One

       way in which a court may abuse its discretion is by entering a sentencing

       statement that omits mitigating circumstances that are clearly supported by the

       record and advanced for consideration. Id. at 490-91. However, a trial court is

       not obligated to accept a defendant’s claim as to what constitutes a mitigating

       circumstance. Rascoe v. State, 736 N.E.2d 246, 249 (Ind. 2000). A claim that

       the trial court failed to find a mitigating circumstance requires the defendant to

       establish that the mitigating evidence is both significant and clearly supported

       by the record. Anglemyer, 868 N.E.2d at 493.


[11]   We first address Baysinger’s argument regarding the trial court’s failure to

       consider his guilty plea as a mitigating circumstance. An allegation that the

       trial court abused its discretion by not identifying a defendant’s guilty plea as

       a mitigator “requires the defendant to establish that the mitigating evidence is

       Court of Appeals of Indiana | Memorandum Decision 46A04-1710-CR-2433 | March 28, 2018   Page 7 of 9
       not only supported by the record but also that the mitigating evidence is

       significant.” Anglemyer v. State, 875 N.E.2d 218, 220-21 (Ind. 2007).

       “[A] guilty plea may not be significantly mitigating when it does not

       demonstrate the defendant’s acceptance of responsibility . . . or when the

       defendant receives a substantial benefit in return for the plea. Id. at 221 (citing

       Francis v. State, 817 N.E.2d 235, 238 n.3 (Ind. 2004) and Sensback v. State, 720

       N.E.2d 1160, 1165 (Ind. 1999)). Additionally, “[a] guilty plea is not necessarily

       a mitigating factor where the . . . evidence against the defendant is so strong

       that the decision to plead guilty is merely pragmatic.” Amalfitano v. State, 956

       N.E.2d 208, 212 (Ind. Ct. App. 2011), trans. denied.


[12]   Here, Baysinger received a substantial benefit from his guilty plea because the

       State agreed to dismiss Baysinger’s public intoxication and criminal trespass

       charges from two separate causes. The record indicates that these offenses were

       committed after Baysinger had been released on bond in this cause, which

       would have required any resulting sentence to be served consecutively to his

       possession of child pornography conviction in this cause. See IND. CODE § 35-

       50-1-2. Additionally, the trial court’s statements at sentencing reveal that

       Baysinger did not have any remorse and that his guilty plea did not demonstrate

       an acceptance of responsibility. Moreover, the evidence against Baysinger was

       strong, making his decision to plead guilty merely a pragmatic decision.

       Accordingly, we conclude that the trial court did not abuse its discretion when

       it did not identify Baysinger’s guilty plea as a mitigating circumstance. See, e.g.,




       Court of Appeals of Indiana | Memorandum Decision 46A04-1710-CR-2433 | March 28, 2018   Page 8 of 9
       Amalfitano, 956 N.E.2d at 212 (holding that the trial court did not abuse its

       discretion by failing to find the defendant’s guilty plea as a mitigating factor).


[13]   Lastly, we turn to Baysinger’s argument that the trial court abused its discretion

       by failing to follow the recommendation of the SONPS assessment provider,

       who recommended that Baysinger be placed on probation and in a treatment

       program, and by failing to give the recommendation mitigating weight. First,

       the trial court was under no obligation to follow the recommendation of the

       assessment provider. Additionally, our Indiana Supreme Court has explained

       that the “relative weight or value assignable to reasons properly found[,] or [to]

       those which should have been found[,] is not subject to review” for an abuse of

       discretion. Anglemyer, 868 N.E.2d at 491. Thus, the trial court did not abuse its

       discretion when sentencing Baysinger.


[14]   Affirmed.4


       Vaidik, C.J., and Barnes, J., concur.




       4
        Baysinger makes a passing reference to Appellate Rule 7(B) but makes no separate argument, let alone a
       cogent argument, that his sentence was inappropriate in light of the nature of his offense and his character.
       Therefore, he has waived any inappropriate sentence argument. See Ind. App. R. 46(A)(8)(a) (requiring that
       an appellant’s argument be supported by cogent argument and citations to relevant authority).

       Court of Appeals of Indiana | Memorandum Decision 46A04-1710-CR-2433 | March 28, 2018              Page 9 of 9
