MEMORANDUM DECISION
                                                                                   FILED
Pursuant to Ind. Appellate Rule 65(D),                                        Jan 23 2018, 9:02 am

this Memorandum Decision shall not be                                              CLERK
regarded as precedent or cited before any                                      Indiana Supreme Court
                                                                                  Court of Appeals
                                                                                    and Tax Court
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
Christopher L. Clerc                                     Curtis T. Hill, Jr.
Columbus, Indiana                                        Attorney General of Indiana
                                                         Lee M. Stoy, Jr.
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Steven R. Burton,                                        January 23, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         03A05-1707-CR-1591
        v.                                               Appeal from the Bartholomew
                                                         Superior Court
State of Indiana,                                        The Honorable James D. Worton,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         03D01-1612-F6-6829 & 03D01-
                                                         1311-FD-5985



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 03A05-1707-CR-1591 | January 23, 2018            Page 1 of 9
                                STATEMENT OF THE CASE
[1]   Appellant-Defendant, Steven R. Burton (Burton), appeals the sentence imposed

      by the trial court in two separate causes.


[2]   We affirm.


                                                   ISSUES
[3]   Burton presents us with two issues on appeal, which we restate as:


      (1) Whether the trial court abused its discretion by failing to identify Burton’s

      guilty plea and admission to a probation violation as significant mitigating

      factors in its sentencing decision; and


      (2) Whether the trial court abused its discretion by revoking Burton’s probation

      and ordering him to serve the remainder of his previously suspended sentence

      in the Department of Correction.


                      FACTS AND PROCEDURAL HISTORY
[4]   On November 7, 2013, the State filed an Information, charging Burton with

      resisting law enforcement, as a Class D felony; invasion of privacy, as a Class D

      felony; and criminal recklessness, as a Class A misdemeanor, in Cause number

      03D01-1311-FD-5985 (FD-5985). Pursuant to a plea agreement, Burton pled

      guilty to resisting law enforcement, as a Class D felony; and invasion of

      privacy, as a Class D felony, in exchange for the State’s dismissal of the other

      charge. After accepting the plea agreement, the trial court sentenced Burton to

      consecutive terms of 2.5 years on each Count to be served in community

      Court of Appeals of Indiana | Memorandum Decision 03A05-1707-CR-1591 | January 23, 2018   Page 2 of 9
      corrections, with two years of each sentence suspended. On December 14,

      2015, the State filed a petition to revoke Burton’s probation, and after Burton

      admitted to the allegations in the State’s petition, the trial court ordered him to

      return to supervised probation. On June 2, 2016, the State filed a second

      petition to revoke Burton’s probation for failing to attend two appointments

      with his probation officer and for failing to comply with counseling

      recommended by probation.


[5]   On December 19, 2016, Officer Frank Dickman of the Columbus Police

      Department (Officer Dickman) observed a black Chevrolet Cavalier, driven by

      Burton, drive aggressively on Saddle Drive, in Columbus, Indiana. After

      noticing Burton make a right turn without using his turn signal, Officer

      Dickman attempted to initiate a traffic stop and activated his emergency lights.

      However, Burton refused to stop and instead tried to avoid capture by driving

      through a church parking lot. Officer Dickman pursued Burton, who weaved in

      and out of traffic. At a certain point during the pursuit, Burton started driving

      on the wrong side of the road. In an attempt to cross back to the correct side of

      the road, Burton drove over a raised median, causing his car to lose its right

      front tire. The vehicle eventually came to a stop and Burton fled on foot.

      Police officers detained Burton.


[6]   On December 20, 2016, the State filed an Information, charging Burton with

      resisting law enforcement, as a Level 6 felony; resisting law enforcement, as a

      Class A misdemeanor; driving while suspended, as a Class A misdemeanor;

      and criminal recklessness, as a Class B misdemeanor, under Cause number

      Court of Appeals of Indiana | Memorandum Decision 03A05-1707-CR-1591 | January 23, 2018   Page 3 of 9
      03D01-1612-F6-6829 (F6-6829). As a result of these charges, the State

      amended its second petition for revocation of Burton’s probation in FD-5985 to

      include these new charges as a possible ground for revocation.


[7]   On May 22, 2017, Burton entered into a plea agreement with the State in F6-

      6829, in which he agreed to plead guilty to resisting law enforcement, as a Level

      6 felony, as well as to admit to the allegations of the State’s second amended

      petition to revoke probation in FD-5985. In exchange, the State would dismiss

      the remaining Counts in F6-6829 and agreed that the total sentence in F6-6829

      should not exceed one year.


[8]   On June 14, 2017, the trial court conducted a sentencing hearing in both Cause

      numbers. During the hearing, Burton testified that he does not do well on

      “general probation” and prefers to be in a program with “some kind of

      structure.” (Transcript p. 13). Burton’s probation officer confirmed that Burton

      does “well for a while,” but “then he just kind of disappears.” (Tr. p. 17).

      Therefore, the probation officer recommended terminating Burton’s probation

      in FD-5985. In sentencing Burton in F6-6829, the trial court found his “history

      of criminal delinquent behavior, including five convictions for resisting in a

      vehicle,” as a “significant, significant aggravator in this case.” (Tr. p. 21). As a

      second aggravator, the trial court noted that Burton “has been placed on

      [p]robation multiple times in the past and has had multiple [p]etitions to

      [r]evoke [p]robation.” (Tr. p. 21). “He’s had an opportunity for treatment

      outside the penal facility, nothing has been successful.” (Tr. p. 21). Turning to

      mitigating factors, the trial court noted that Burton “has made efforts to

      Court of Appeals of Indiana | Memorandum Decision 03A05-1707-CR-1591 | January 23, 2018   Page 4 of 9
       improve himself by participating in programs while he has been incarcerated.”

       (Tr. p. 21). Burton was subsequently sentenced to 352 days in the Bartholomew

       County Jail for F6-6829. With regard to Burton’s probation revocation in FD-

       5985, the trial court observed:


               I am looking through all of these in your criminal history, all of
               these probation, I just can’t see, I don’t even see one here that
               you have been on [p]robation where you haven’t had a [p]etition
               to [r]evoke, at least one filed. So the State argues, the State’s
               statement that this is your second chance on this case, [] but all of
               these other cases, you’ve had chance after chance and you just
               keep violating. So the [c]ourt is going to accept the Probation
               Department’s recommendation and order that [Burton] execute
               the balance of his sentence in the Indiana Department of
               Correction.


       (Tr. p. 21).


[9]    Burton now appeals. Additional facts will be provided if necessary.


                               DISCUSSION AND DECISION

                                     I. Finding of Mitigators in F6-6829


[10]   Burton contends that the trial court abused its discretion by failing to find

       certain mitigators in F6-6829. Specifically, Burton posits that his guilty plea

       and his admission to the probation violation in FD-5985 should have been

       considered when calculating his sentence. Sentencing decisions are a matter of

       trial court discretion and are reviewed on appeal only for an abuse of that

       discretion. Anglemyer v. State, 868 N.E.2d 482, 490, clarified on reh’g, 875 N.E.2d

       Court of Appeals of Indiana | Memorandum Decision 03A05-1707-CR-1591 | January 23, 2018   Page 5 of 9
       218 (Ind. 2007). A trial court abuses its discretion if its 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.

       (quoting K.S. v. State, 849 N.E.2d 538, 544 (Ind. 2006)). A trial court “may

       impose any sentence within the statutory range without regard to the existence

       of aggravating or mitigating factors.” Id. at 489. If the trial court “‘finds’ the

       existence of ‘aggravating circumstances or mitigating circumstances’ then the

       trial court is required to give ‘a statement of the court’s reasons for selecting the

       sentence that it imposes.’” Id. at 490 (quoting I.C. § 35-38-1-3(3)).


[11]   On appeal, a trial court may be found to have abused its discretion by failing to

       enter a sentencing statement at all; entering a sentencing statement that explains

       its reasons for imposing a sentence where such reasons are not supported by the

       record or are improper as a matter of law; or entering a sentencing statement

       that omits reasons which are clearly supported by the record and advanced for

       consideration. Id. at 490-91. A trial court does not abuse its discretion by

       failing to properly weigh aggravating and mitigating factors. Id. at 491. If we

       find that the trial court has abused its sentencing discretion, our court will

       remand for resentencing only “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.


[12]   In Anglemyer, our supreme court clarified on rehearing that “a defendant who

       pleads guilty deserves ‘some’ mitigating weight to be given to the plea in

       return.” Anglemyer, 875 N.E.2d at 220 (citing McElroy v. State, 865 N.E.2d 584,

       Court of Appeals of Indiana | Memorandum Decision 03A05-1707-CR-1591 | January 23, 2018   Page 6 of 9
       591 (Ind. 2007)). Nevertheless, the court qualified its statement by noting that

       its significance as a mitigating factor varies from case to case. Id. at 221. As

       such, when the evidence of guilt is “overwhelming,” the plea may be merely

       pragmatic, thereby diminishing its effect as a mitigating circumstance during

       sentencing. Id.


[13]   Here, Burton’s guilty plea in F6-6829 and his admission to the probation

       revocation appear to be nothing but pragmatic as there was overwhelming

       evidence of his guilt. In F6-6829, Officer Dickman pursued Burton when he

       refused to stop after the officer initiated a traffic stop. During the pursuit,

       Burton’s vehicle became disabled and Burton continued to flee on foot in an

       effort to resist apprehension by law enforcement. After entering into a plea

       agreement in F6-6829, Burton was no longer in any position to dispute the

       allegations in the second amended petition to revoke probation, which included

       the charges of F6-6829. Accordingly, his admission became purely pragmatic.

       Therefore, based on the directives in Anglemyer, the trial court could properly

       decide not to award the guilty plea and admission any mitigating weight.


                                   II. Revocation of Probation in FD-5985


[14]   Next, Burton contends that the trial court abused its discretion by ordering him

       to serve his entire previously suspended sentence following his probation

       revocation in FD-5985.


[15]   Indiana Code section 35-38-2-3(h) sets forth a trial court’s sentencing options if

       the court finds a probation violation and provides:

       Court of Appeals of Indiana | Memorandum Decision 03A05-1707-CR-1591 | January 23, 2018   Page 7 of 9
               If the court finds that the person has violated a condition at any
               time before termination of the period, and the petition to revoke
               is filed within the probationary period, the court may impose one
               (1) or more of the following sanctions:


               (1) Continue the person on probation, with or without modifying
                   or enlarging the conditions.


               (2) Extend the person’s probationary period for not more than
                   one (1) year beyond the original probationary period.


               (3) Order execution of all or part of the sentence that was
                   suspended at the time of initial sentencing.


[16]   The Indiana Supreme Court has held that a trial court’s sentencing decisions for

       probation violations are reviewable using the abuse of discretion standard.

       Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007). “Once a trial court has

       exercised its grace by ordering probation rather than incarceration, the judge

       should have considerable leeway in deciding how to proceed.” Id. “If this

       discretion were not afforded to trial courts and sentences were scrutinized too

       severely on appeal, trial judges might be less inclined to order probation to

       future defendants.” Id. An abuse of discretion occurs where the decision is

       clearly against the logic and effect of the facts and circumstances. Id.


[17]   The record reveals that Burton has had nineteen petitions to revoke his

       probation filed against him, which have resulted in his probation being

       extended seven times and his probation being unsuccessfully terminated three

       times. This trend continued in FD-5985 as this was also the second petition for


       Court of Appeals of Indiana | Memorandum Decision 03A05-1707-CR-1591 | January 23, 2018   Page 8 of 9
       probation revocation in that cause. Moreover, Burton admitted to not doing

       well on general probation, preferring a more structured environment and

       Burton’s probation officer advised against continuing him on probation. Based

       on these circumstances, we cannot conclude that the trial court abused its

       discretion in reinstating Burton’s previously suspended sentence.


                                             CONCLUSION
[18]   Based on the foregoing, we affirm the trial court’s sentencing decisions in F6-

       6829 and FD-5985.


[19]   Affirmed.


[20]   Baker, J. and Brown, J. concur




       Court of Appeals of Indiana | Memorandum Decision 03A05-1707-CR-1591 | January 23, 2018   Page 9 of 9
