MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                        Mar 30 2015, 9:20 am
Memorandum Decision shall not be 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
Anthony C. Lawrence                                      Gregory F. Zoeller
Anderson, Indiana                                        Attorney General of Indiana
                                                         Richard C. Webster
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Taylor Baughn,                                           March 30, 2015

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         33A01-1408-CR-368
        v.                                               Appeal from the Henry Circuit Court
                                                         The Honorable Kit C. Dean Crane,
State of Indiana,                                        Judge
                                                         Cause No. 33C02-1303-MR-1
Appellee-Plaintiff.




Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 33A01-1408-CR-368 | March 30, 2015      Page 1 of 11
[1]   Taylor Baughn appeals his sentence for aggravated battery, a class B felony.

      Baughn raises one issue which we revise and restate as:


        I.    Whether the trial court abused its discretion in sentencing him; and

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

      We affirm.

                                      Facts and Procedural History

[2]   In February 2013, Baughn was incarcerated at the New Castle Correctional

      Facility in Henry County. On February 14, 2013, Baughn planned to attack

      another inmate, Jeremiah Taylor. When he encountered Jeremiah, Baughn

      walked up beside him and hit him once, causing Jeremiah to fall to the ground.

      Baughn then hit Jeremiah “at least two (2) more times, maybe three (3) more

      times while he was on the ground.” Transcript at 22. Jeremiah suffered skull

      fractures from the attack which ultimately resulted in his death.


[3]   On March 20, 2013, the State charged Baughn with murder. On June 13, 2014,

      Baughn and the State entered into a plea agreement whereby Baughn agreed to

      plead guilty to an amended charge of aggravated battery, a class B felony, and

      the State agreed “to ‘cap’ its argument at fifteen (15) years” at sentencing and

      that the court would be free to impose any sentence within the range of

      possibilities up to the agreed cap. Appellant’s Appendix at 67. The State also

      agreed to dismiss the murder charge.




      Court of Appeals of Indiana | Memorandum Decision 33A01-1408-CR-368 | March 30, 2015   Page 2 of 11
[4]   On July 31, 2014, the State filed a motion to amend information to add Count

      II, aggravated battery, and the court granted the State’s motion. That same

      day, the court held a hearing at which Baughn pled guilty pursuant to the plea

      agreement. Following Baughn’s guilty plea, Jeremiah’s father, Kent Taylor,

      gave a victim’s statement to the court in which he stated that he and the rest of

      Jeremiah’s family “don’t understand why Mr. Baughn is no longer being

      charged with Murder” and “are frustrated that he is now facing a lesser

      sentence for killing our son.” Transcript at 27. Afterward, the prosecutor told

      the court that he had spoken with Jeremiah’s family and “explained my reasons

      for . . . offering this plea agreement,” and he believed “that the evidence as it

      exists, as I know it . . . I believe that Aggravated Battery to be the appropriate

      and fair resolution in this case and I would ask the Court to accept it.” Id. at

      29. The prosecutor stated that he also discussed with the Taylors “Involuntary

      Manslaughter . . . which I believe to be an inherent and lesser included if not

      factually lesser included offense,” that he “explained the different penalties of

      those as well and then explained the elements of Aggravated Battery and how

      that would work and the penalties in that situation as well” and that “[a]ll of

      those went into [his] mind in offering this plea agreement.” Id. at 30.


[5]   Baughn apologized to Jeremiah’s “parents and loved ones” and stated that “I

      need you to know and understand that your son was not supposed to die.” Id.

      at 33. He stated that he understood if they did not forgive him and that he

      wanted them “to know that [he was] sorry and that” he was “suffering from the

      guilt and the fact that [he] took someone’s life and it kills [him] every second of


      Court of Appeals of Indiana | Memorandum Decision 33A01-1408-CR-368 | March 30, 2015   Page 3 of 11
      the day.” Id. He stated that he had “nightmares about that night,” had seen

      Jeremiah in his dreams, and had “stayed awake countless nights praying and

      talking to Jeremiah as if [they] were friends.” Id.


[6]   The State asked the court to sentence Baughn to fifteen years executed in the

      Department of Correction (“DOC”). The court accepted Baughn’s guilty plea

      and dismissed Count I, murder. The court identified in aggravation Baughn’s

      history of criminal and delinquent activity and the harm, injury, loss or

      damage, which was significant and greater than the element to the offense of

      aggravated battery. The court noted in mitigation that it appreciated “when a

      defendant accepts responsibility,” but that he had “the benefit of a plea

      agreement and the benefit of a capped sentence.” Id. at 38. The court also

      noted that although Baughn pled guilty, his plea “was pursuant to a plea

      agreement. . . . on an amended charge and it did come with a cap for the Court,

      so I don’t find that as a mitigating circumstance.” Id. at 39. The court found

      that the aggravators outweighed “any other factors” and sentenced Baughn to

      fifteen years, including thirteen years executed in the DOC and two years

      suspended to probation. Id. The court also ordered restitution in the amount of

      $1,995 to pay Jeremiah’s family for funeral expenses.


                                                  Discussion

                                                        I.


[7]   The first issue is whether the trial court abused its discretion in sentencing

      Baughn. We review the sentence for an abuse of discretion. Anglemyer v. State,

      Court of Appeals of Indiana | Memorandum Decision 33A01-1408-CR-368 | March 30, 2015   Page 4 of 11
      868 N.E.2d 482, 490 (Ind. 2007), clarified 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. A trial court

      abuses its discretion if it: (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. at 490-491. If the trial court has abused its discretion, we will remand for

      resentencing “if we cannot say with confidence that the trial court would have

      imposed the same sentence had it properly considered reasons that enjoy

      support in the record.” Id. at 491. 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.


[8]   Baughn first argues that the court abused its discretion by improperly assessing

      the weight to be assigned to his criminal history. He specifically argues that the

      court abused its discretion by assigning “substantial weight to his criminal

      history or delinquent behavior” where he “had one juvenile adjudication and

      one adult conviction for child molest for which he received a four (4) year

      sentence.” Appellant’s Brief at 9. This argument is, in essence, a request for

      this court to reweigh the aggravator, which we may not do. See Anglemyer, 868


      Court of Appeals of Indiana | Memorandum Decision 33A01-1408-CR-368 | March 30, 2015   Page 5 of 11
      N.E.2d at 491 (holding that 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).


[9]   Baughn also argues that the court abused its discretion when it identified the

      harm, injury, loss, or damage which was greater than the elements of the

      offense as an aggravator. He argues that although, under Bethea v. State, 983

      N.E.2d 1134, 1142 (Ind. 2013), the “State owed [him] no further duty to omit

      facts relating to remaining charges from consideration as aggravating

      circumstances if they were not set forth in the plea agreement,” it is “slightly

      questionable for the State to acknowledge on the record that the amended

      charge it agreed for [him] to plead to be fair and appropriate then complain that

      the harm, injury, loss or damage was significant and greater than the elements

      of the offense for which it just bargained.” Appellant’s Brief at 14. We disagree

      with the logic of Baughn’s argument, for although the State may have indicated

      at the hearing that obtaining a murder conviction could have been difficult

      based on the evidence against Baughn, that does not change the fact that

      Baughn’s actions caused the death of Jeremiah, which is a greater harm, injury,

      or loss than is required to prove the crime of aggravated battery. 1 We cannot

      say the court abused its discretion when it found as an aggravator that the

      harm, injury, loss or damage was significant and greater than the elements of



      1
       At the time of the offense, Ind. Code § 35-42-2-1.5 provided in relevant part that “[a] person who knowingly
      or intentionally inflicts injury on a person that creates a substantial risk of death . . . commits aggravated
      battery, a Class B felony.”

      Court of Appeals of Indiana | Memorandum Decision 33A01-1408-CR-368 | March 30, 2015             Page 6 of 11
       the offense of aggravated battery. See Bethea, 983 N.E.2d at 1145 (holding that

       the trial court did not err by giving significant weight to the facts presented to it

       relating to dismissed charges because the State’s obligations under the plea

       agreement were fulfilled upon dismissal of the remaining counts and it owed

       the defendant no further duty to omit these facts from the aggravating

       circumstances consideration).


[10]   Baughn next argues that the court abused its discretion when it declined to find

       his guilty plea as a mitigator. He argues that “the State received a substantial

       benefit” because it “indicated the real possibility of a jury finding that a lesser

       included offense of Involuntary Manslaughter or Reckless Homicide was the

       appropriate charge.” Appellant’s Brief at 10.


[11]   The Indiana Supreme Court has held that “a defendant who pleads guilty

       deserves ‘some’ mitigating weight be given to the plea in return.” Anglemyer

       Rehearing, 875 N.E.2d at 220 (quoting McElroy v. State, 865 N.E.2d 584, 591

       (Ind. 2007)). However, “an allegation that the trial court failed to identify or

       find a mitigating factor requires the defendant to establish that the mitigating

       evidence is not only supported by the record but also that the mitigating

       evidence is significant.” Id. at 220-221. The significance of a guilty plea as a

       mitigating factor varies from case to case. Id. at 221. We have previously

       explained that 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



       Court of Appeals of Indiana | Memorandum Decision 33A01-1408-CR-368 | March 30, 2015   Page 7 of 11
       pragmatic one. Wells v. State, 836 N.E.2d 475, 479 (Ind. Ct. App. 2005), trans.

       denied.


[12]   The trial court at sentencing considered Baughn’s guilty plea in mitigation but

       declined to find it as a mitigator, noting specifically that he pled guilty “on an

       amended charge and it did come with a cap for the Court . . . .” Transcript at

       39. We agree with the trial court’s reasoning that Baughn received a substantial

       benefit from pleading guilty and that Baughn’s decision to plead guilty was a

       pragmatic one. Instead of facing a sentence of forty-five to sixty-five years for

       murder, he faced a maximum sentence of fifteen years under the plea

       agreement and was ultimately sentenced to fifteen years with two years

       suspended. The State acknowledged at the hearing that it had some degree of

       doubt regarding the intent evidence against Baughn at a murder trial; however,

       there is no dispute regarding whether Baughn inflicted the injuries causing

       Jeremiah’s death inside the New Castle Correctional Facility. Thus, although

       we cannot say with certainty that a jury would have convicted Baughn of

       murder, he was certainly faced with the possibility. We conclude that the court

       did not abuse its discretion in sentencing Baughn.


                                                         II.


[13]   The next issue is whether Baughn’s sentence is inappropriate in light of the

       nature of the offense and the character of the offender. Ind. Appellate Rule

       7(B) provides that we “may revise a sentence authorized by statute if, after due

       consideration of the trial court’s decision, [we find] that the sentence is


       Court of Appeals of Indiana | Memorandum Decision 33A01-1408-CR-368 | March 30, 2015   Page 8 of 11
       inappropriate in light of the nature of the offense and the character of the

       offender.” Under this rule, the burden is on the defendant to persuade the

       appellate court that his or her sentence is inappropriate. Childress v. State, 848

       N.E.2d 1073, 1080 (Ind. 2006).


[14]   Regarding the nature of the offense, Baughn argues that while he intended “to

       batter the victim and did so at least once and maybe three times, he did not

       intend to kill the victim, and thus while the result of the offense is tragic,” had

       Jeremiah not died the issue “could have been a misdemeanor battery handled

       administratively within the IDOC.” Appellant’s Brief at 16. Regarding his

       character, Baughn argues that he “was twenty-two (22) years old, had one adult

       conviction, and one juvenile adjudication” and “was clearly remorseful and

       expressed remorse in a heartfelt statement.” Id. He further argues that he

       “ultimately cooperated with law enforcement, agreed to pay restitution and

       plead guilty.” Id. The State argues that Baughn “sucker-punched” Jeremiah,

       fracturing his skull “in three places and result[ing] in his death.” Appellee’s

       Brief at 8. The State notes that, despite Baughn’s young age, he has both a

       juvenile adjudication and a conviction for child molesting, and further that he

       was in the DOC when he committed the instant offense.


[15]   Our review of the nature of the offense reveals that Baughn planned to attack

       Jeremiah at the New Castle Correctional Facility, and, upon encountering him,

       walked up beside him and hit him once, causing Jeremiah to fall to the ground.

       Baughn then hit Jeremiah “at least two (2) more times, maybe three (3) more



       Court of Appeals of Indiana | Memorandum Decision 33A01-1408-CR-368 | March 30, 2015   Page 9 of 11
       times while he was on the ground.” Transcript at 22. Jeremiah suffered skull

       fractures from the attack which ultimately resulted in his death.


[16]   Our review of the character of the offender reveals that Baughn was twenty-two

       years old at the time of the offense. He was originally charged with murdering

       Jeremiah and ultimately pled guilty to aggravated battery as a class B felony.

       At sentencing, he expressed remorse to the family of the victim and the court,

       stating specifically that he wanted them “to know that [he was] sorry and that”

       he was “suffering from the guilt and the fact that [he] took someone’s life and it

       kills [him] every second of the day.” Id. at 33. Baughn’s presentence

       investigation report (“PSI”) reveals that in 2006, at the age of fifteen, he was

       arrested for conduct which would be child molesting as a class C felony if

       committed by an adult. In March 2007, he was made a ward of the State and

       placed at the Kokomo Academy in the Sexual Perpetrators Program, and he

       was released from that program on September 17, 2007. On October 21, 2008,

       the State filed a motion to modify, and on October 24, 2008, he was made a

       ward of the DOC and placed at the Indiana Boy’s School. He was released on

       January 14, 2011.


[17]   About seven months later, on August 23, 2011, the State charged Baughn with

       child molesting as a class C felony. He was convicted of that offense on

       January 23, 2012, was sentenced to four years executed in the DOC and

       ordered to register as a sex offender. Baughn was serving this sentence when he

       committed the criminal act against Jeremiah. The PSI also notes that the

       Indiana Risk Assessment System scored Baughn’s overall risk to reoffend as

       Court of Appeals of Indiana | Memorandum Decision 33A01-1408-CR-368 | March 30, 2015   Page 10 of 11
       high and noted that he admitted “to drinking prison made alcohol while

       incarcerated.” Appellant’s Appendix at 119.


[18]   After due consideration of the trial court’s decision, we cannot say that the

       sentence within the parameters of the negotiated plea agreement of thirteen

       years in the DOC, followed by two years of probation, is inappropriate in light

       of the nature of the offense and Baughn’s character.


                                                   Conclusion

[19]   For the foregoing reasons, we affirm Baughn’s sentence.


[20]   Affirmed.


       Crone, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 33A01-1408-CR-368 | March 30, 2015   Page 11 of 11
