MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                         FILED
regarded as precedent or cited before any                                Dec 20 2019, 9:10 am
court except for the purpose of establishing                                  CLERK
the defense of res judicata, collateral                                   Indiana Supreme Court
                                                                             Court of Appeals
estoppel, or the law of the case.                                              and Tax Court




ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Michael P. Dearmitt                                     Curtis T. Hill, Jr.
Columbus, Indiana                                       Attorney General of Indiana
                                                        Ellen H. Meilaender
                                                        Samantha M. Sumcad
                                                        Deputy Attorneys General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Charles R. Barr, Jr.,                                   December 20, 2019
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        19A-CR-1760
        v.                                              Appeal from the Bartholomew
                                                        Circuit Court
State of Indiana,                                       The Honorable Kelly S. Benjamin,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        03C01-1902-F3-853



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1760 | December 20, 2019                 Page 1 of 7
                                STATEMENT OF THE CASE
[1]   Appellant-Defendant, Charles Barr Jr. (Barr), appeals his sentence following his

      open guilty plea for battery by means of a deadly weapon, a Level 5 felony, Ind.

      Code § 35-42-2-1(g)(2).


[2]   We affirm.


                                                   ISSUE
[3]   Barr presents this court with one issue on appeal, which we restate as: Whether

      the trial court abused its discretion at sentencing.


                      FACTS AND PROCEDURAL HISTORY
[4]   In 2017, Barr and Chanel Vincent (Vincent) were in a relationship marked by

      domestic violence and substance abuse. Sometime that year, Barr battered

      Vincent on two occasions, which led to a protective order against Barr. On

      February 10, 2019, Barr and Vincent were residing in an abandoned house in

      Columbus, Indiana. Barr accused Vincent of cheating on him. Over the course

      of several hours, Barr repeatedly punched and kicked Vincent. Barr beat

      Vincent with a shovel, a hammer, and a metal rod. Additionally, Barr choked

      Vincent into unconsciousness, and he told her that “she wasn’t going to leave

      the house alive.” (Appellant’s App. Vol. II, p. 11). Vincent eventually escaped

      and called her mother who transported her to the hospital. Vincent suffered

      severe bruising and swelling all over her body, had multiple facial fractures, and

      had cigarette burns on her arms and stomach. Due to the severity of the

      assault, Vincent’s kidneys failed, and she had to be transferred to another
      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1760 | December 20, 2019   Page 2 of 7
      hospital. When the police visited the abandoned home that Barr and Vincent

      had been living, they found the hammer, metal rod, and shovel, some of which

      had traces of blood on them. There were also blood splatters “sprayed all over

      the walls.” (Transcript. Vol. II, p. 51).


[5]   On February 12, 2019, the State filed an Information, charging Barr with Count

      I, Level 3 felony aggravated battery; Count II, Level 5 felony battery with a

      deadly weapon; and Count III, Level 6 felony strangulation. Pursuant to an

      open plea agreement, Barr pleaded guilty to Level 5 felony battery with a

      deadly weapon, and the State agreed to dismiss the other two charges. On May

      16, 2019, the trial court conducted Barr’s guilty plea hearing, and Barr admitted

      the factual basis for his plea.


[6]   On July 1, 2019, the trial court held Barr’s sentencing hearing. The only

      mitigating factor the trial court recognized was Barr’s great family support. As

      for aggravators, the trial court found that Barr had a lengthy criminal history,

      probation violations, and had failed to address his substance abuse in the past.

      At the close of the evidence, the trial court sentenced Barr to an executed six-

      year term in the Department of Correction (DOC).


[7]   Barr now appeals. Additional facts will be provided as necessary.


                              DISCUSSION AND DECSION
[8]   Barr argues that the trial court abused its discretion when sentencing him

      because it overlooked two potential mitigating factors: his guilty plea and his

      mental health issues.
      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1760 | December 20, 2019   Page 3 of 7
[9]    To show that a trial court failed to identify or find a mitigating factor, the

       defendant must establish that the mitigating evidence is both significant and

       clearly supported by the record. Anglemyer v. State, 868 N.E.2d 482, 493 (Ind.

       2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007). While a failure to find

       mitigating circumstances clearly supported by the record may imply that the

       sentencing court improperly overlooked them, the court is obligated neither to

       credit mitigating circumstances in the same manner as would the defendant,

       nor to explain why it has chosen not to find mitigating circumstances. Roush v.

       State, 875 N.E.2d 801, 811 (Ind. Ct. App. 2007). Our supreme court has noted

       that “[i]f the trial court does not find the existence of a mitigating factor after it

       has been argued by counsel, the trial court is not obligated to explain why it has

       found that the factor does not exist.” Smith v. State, 770 N.E.2d 818, 822-23

       (Ind. 2002).


[10]   Turning to Barr’s first claim, while Barr admits that he received some benefit

       from his guilty plea, he states that in doing so, he saved the court time, and

       Vincent the “trauma of having to testify in court.” (Appellant’s Br. p. 7).

       Although a guilty plea may be a mitigating circumstance, it “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.” Barker v. State, 994 N.E.2d 306, 312

       (Ind. Ct. App. 2013). In the present case, the trial court expressly determined

       that Barr’s guilty plea did not favor mitigation, stating,




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1760 | December 20, 2019   Page 4 of 7
               You have a benefit of being allowed to plead into this Level 5
               and not higher. The [c]ourt recognizes that is a benefit to you.
               The [c]ourt recognizes that you pled guilty but at the time[,] two
               days later, you not once asked how [Vincent] was doing. You
               were looking for someone else who did this and you darn well
               knew you did. That’s not someone who feels remorse at the
               time. So[,] you come here today and say how sorry you feel but
               you certainly did not during that time. So, although I recognize
               that you pled[,] I do not find that a mitigating circumstance
               under the facts. And I notice the benefit you did receive.


       (Tr. Vol. II, pp. 56-57). Thus, it is clear that the trial court did consider Barr’s

       guilty plea, recognized the benefit he was receiving of the State agreement to

       dismiss his other two charges, but it ultimately made the specific choice not to

       construe it as a mitigating circumstance. Accordingly, we find no abuse of

       discretion.


[11]   Turning to his second claim, Barr states that without recognizing his mental

       illness as a mitigating factor at sentencing, the trial court ordered him to serve a

       six-year sentence in the DOC so that he could address his “mental health and

       substance abuse” issues. (Appellant’s Br. p. 9).


[12]   Our supreme court has held that there is “the need for a high level of

       discernment when assessing a claim that mental illness warrants mitigating

       weight.” Covington v. State, 842 N.E.2d 345, 349 (Ind. 2006). The supreme

       court identified several factors to consider in weighing the mitigating force of a

       mental health issue, including “the extent of the inability to control behavior,




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1760 | December 20, 2019   Page 5 of 7
       the overall limit on function, the duration of the illness, and the nexus between

       the illness and the crime.” Id.


[13]   At sentencing, Barr’s father stated that as a teenager, Barr had been diagnosed

       with bipolar, obsessive compulsive disorder, depression, and anger issues.

       Barr’s father stated that Barr had to take his medication to manage his

       disorders. He added that Barr’s substance abuse interfered with his treatment.

       At his guilty plea hearing, Barr stated that he did not suffer from any past or

       present mental illness. However, at his sentencing hearing, Barr acknowledged

       the various disorders he was diagnosed with as a teenager, but stated that, for

       years, he has not taken any medication for his disorders. The State, in turn,

       averred that Barr had “been given multiple opportunities for [] his psychiatric

       issues, his anger aggression issues, [] and those [] have not worked.” (Tr. Vol.

       II, p. 53).


[14]   The only mitigating factor that the trial court recognized at sentencing was

       Barr’s great family support. While the trial court did not specifically identify

       Barr’s mental health as a circumstance warranting a mitigated sentence,

       however, the trial court cannot be said to have disregarded the factor entirely.

       At sentencing, the trial court noted,


               [t]he [c]ourt does recognize that you have to deal with mental
               health before you can address substance use because if your brain
               is not working the way it ought to be, the substance abuse
               treatment will be less effective.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1760 | December 20, 2019   Page 6 of 7
       (Tr. Vol. II, p. 57). It is evident that the trial court acknowledged the impact of

       Barr’s mental health in formulating Barr’s sentence, but it declined to find that

       Barr’s mental health was a significant mitigating factor. Moreover, Barr failed

       to present any evidence concerning the extent of his inability to control his

       behavior, the overall limit on his ability to function based on his disorders, or

       the nexus between his mental health and his battery offense. See Covington, 842

       N.E.2d at 349. Given the lack of evidence on these factors, Barr has not shown

       that his mental health was significant or clearly supported by the record. Thus,

       we hold that the trial court did not abuse its discretion when it did not

       recognize Barr’s mental health as a significant mitigating circumstance.


                                             CONCLUSION
[15]   Based on the foregoing, we conclude that the trial court did not abuse its

       discretion when sentencing Barr.


[16]   Affirmed.


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




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1760 | December 20, 2019   Page 7 of 7
