MEMORANDUM DECISION
                                                                        FILED
Pursuant to Ind. Appellate Rule 65(D),                             Mar 17 2016, 9:11 am

this Memorandum Decision shall not be                                   CLERK
                                                                    Indiana Supreme Court
regarded as precedent or cited before any                              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                                     Gregory F. Zoeller
Columbus, Indiana                                        Attorney General


                                                         Paula J. Beller
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Steven Richards,                                         March 17, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         03A05-1507-CR-948
        v.                                               Appeal from the Bartholomew
                                                         Superior Court
State of Indiana,                                        The Honorable James D. Worton,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         03C01-1501-F6-126



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 03A05-1507-CR-948 | March 17, 2016        Page 1 of 6
                                          Case Summary
      Steven Richards pled guilty to battering his girlfriend, and the trial court

      sentenced him to two and a half years in the county jail with six months

      suspended to probation. He contends that the trial court abused its discretion in

      not recognizing his guilty plea and remorse as mitigators. Because Richards

      has failed to prove that his guilty plea and remorse were significant mitigators,

      we affirm his sentence.



                            Facts and Procedural History
[1]   Nine days after being released from work release for a receiving-stolen-property

      conviction, Richards—who was thirty-two years old and had at least twelve

      criminal convictions—head-butted his live-in girlfriend, resulting in a knot to

      her forehead. Later that same day, Richards choked his girlfriend, causing her

      to briefly lose consciousness. The girlfriend’s eight-year-old daughter witnessed

      Richards choking her mother.

[2]   The State charged Richards with Count 1: Level 6 felony strangulation and

      Count 2: Level 6 felony domestic battery. Richards and the State entered into a

      plea agreement in which Richards agreed to plead guilty to Amended Count 1:

      Level 6 felony battery with moderate bodily injury. In exchange, the State

      agreed to dismiss Count 2. The trial court accepted the plea agreement.

[3]   Richards testified at the sentencing hearing. He opened by saying he “wanted

      to apologize to both our families for all the trouble I’ve put us all through.” Tr.

      Court of Appeals of Indiana | Memorandum Decision 03A05-1507-CR-948 | March 17, 2016   Page 2 of 6
      p. 8. Richards explained that the incident occurred because he was using

      alcohol and methamphetamine, was stressed, and was “hanging out with the

      wrong people.” Id. at 25.


[4]   The trial court found five aggravators, including Richards’ numerous

      convictions (which included convictions for both battery and domestic battery),

      the numerous chances he had been given to turn his life around, as well as the

      fact that he committed this offense in the presence of the victim’s eight-year-old

      daughter. Appellant’s Br. p. 6 (Sentencing Order). The court found no

      mitigators. Id. Although the court was “encouraged” that Richards had taken

      AA, Celebrate Recovery, and GED classes in jail, the court said that “in [its]

      mind [that did] not mitigate anything in this offense.” Tr. p. 55. In addition,

      the court acknowledged that Richards pled guilty; however, it found that

      Richards’ guilty plea did not amount to a mitigator because he “received a deal

      from the plea bargain.” Id. The court sentenced Richards to two and a half

      years in the Bartholomew County Jail with six months suspended to probation.

[5]   Richards now appeals his sentence.



                                Discussion and Decision
[6]   Richards contends that the trial court erred by not recognizing two mitigators:

      his guilty plea and remorse. Sentencing decisions rest within the sound

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

      discretion. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g,


      Court of Appeals of Indiana | Memorandum Decision 03A05-1507-CR-948 | March 17, 2016   Page 3 of 6
      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. at 490-91.


[7]   One way that a trial court may abuse its discretion is by not recognizing

      mitigators that are clearly supported by the record and advanced for

      consideration. Id.; see also McElfresh v. State, No. 32S01-1511-CR-667 (Ind.

      March 3, 2016), slip op. at 12. The defendant bears the burden of

      demonstrating that the trial court failed to find or identify a mitigating factor by

      establishing that the mitigating evidence is both significant and clearly

      supported by the record. McElfresh, slip op. at 12.


[8]   Richards first argues that the trial court abused its discretion by not recognizing

      his guilty plea as a mitigator. A defendant who pleads guilty deserves to have

      “some” mitigating weight given to his plea in return. Anglemyer, 875 N.E.2d at

      220. A guilty plea’s significance, however, varies from case to case. Id. at 221.

      For example, 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. A guilty plea also may

      not be significantly mitigating when the plea was more likely the result of

      pragmatism than acceptance of responsibility and remorse. Id.


[9]   Here, the record shows that Richards’ decision to plead guilty was fueled by

      pragmatism. The State had three witnesses to Richards’ crime: Richards’


      Court of Appeals of Indiana | Memorandum Decision 03A05-1507-CR-948 | March 17, 2016   Page 4 of 6
       girlfriend, the girlfriend’s daughter, and a neighbor. Richards also received a

       substantial benefit: the State dismissed a Level 6 felony domestic-battery

       charge, which carried a domestic-violence determination. See Ind. Code § 35-

       38-1-7.7. Richards has therefore failed to prove that his guilty plea was a

       significant mitigator.

[10]   Richards next argues that the trial court abused its discretion by not recognizing

       his remorse as a mitigator. He claims that his in-court apology and the fact that

       he took classes in jail show that he “has genuine remorse” and “has learned his

       lesson.” Appellant’s Br. p. 4.

[11]   A trial court’s determination of a defendant’s remorse is similar to a

       determination of credibility. Stout v. State, 834 N.E.2d 707, 711 (Ind. Ct. App.

       2005), trans. denied. Although Richards testified at the sentencing hearing that

       he “wanted to apologize to both our families for all the trouble I’ve put us all

       through,” Tr. p. 8, he did not apologize for his actions. In addition, Richards

       attempted to minimize his conduct by claiming that the battery was caused by

       drugs and alcohol, stress, and his association with others. The trial court was in

       the best position to gauge the sincerity of Richards’ remorse and did not find it

       mitigating. Accordingly, Richards has failed to prove that his remorse was a

       significant mitigator.


[12]   Although Richards does not directly argue that the trial court should have

       considered the classes he took in jail as a mitigator, he testified about the classes

       at his sentencing hearing, and the trial court found that the classes were not


       Court of Appeals of Indiana | Memorandum Decision 03A05-1507-CR-948 | March 17, 2016   Page 5 of 6
       entitled to any mitigating weight. The Indiana Supreme Court recently held

       that a trial court abused its discretion by not affording any mitigating weight to

       the programs the defendant was enrolled in while in jail because the programs

       did not make the defendant eligible for reduced time. McElfresh, slip op. at 13.

       Nevertheless, our Supreme Court found that the error was harmless given the

       defendant’s criminal history. Id. Likewise here, even assuming that the trial

       court should have afforded some mitigating weight to the classes that Richards

       took in jail, we find that any error was harmless given Richards’ significant

       criminal history, which included other battery convictions. We therefore affirm

       Richards’ sentence.


[13]   Affirmed.

       Bailey, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 03A05-1507-CR-948 | March 17, 2016   Page 6 of 6
