MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                             FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                                  May 22 2020, 10:31 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                                  ATTORNEY FOR APPELLEE
Megan K. Bolt                                           Myriam Serrano
Gibson Law Office                                       Deputy Attorney General
Lafayette, Indiana                                      Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Kevin Sweat,                                            May 22, 2020
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        19A-CR-3077
        v.                                              Appeal from the Tippecanoe
                                                        Superior Court
State of Indiana,                                       The Honorable Steven P. Meyer,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause Nos.
                                                        79D02-1803-F1-2
                                                        79D02-1811-F4-41



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-3077 | May 22, 2020                           Page 1 of 11
                                       Statement of the Case
[1]   Kevin Sweat appeals the trial court’s denial of his motion to withdraw his guilty

      plea and the sentence imposed by the court pursuant to his plea agreement.

      Sweat raises the following three issues for our review:


              1.      Whether the trial court abused its discretion when it
                      denied his motion to withdraw his guilty plea.


              2.      Whether the trial court abused its discretion when it
                      sentenced him.


              3.      Whether his sentence is inappropriate in light of the nature
                      of the offenses and Sweat’s character.


[2]   We affirm.


                                 Facts and Procedural History
[3]   In 2018, under two cause numbers, the State charged Sweat with thirteen felony

      offenses relating to his alleged molestations of his minor daughter, C.S., and

      another minor child, R.S. In September of 2019, Sweat entered into a plea

      agreement with the State. Pursuant to that agreement, Sweat agreed to plead

      guilty in the two cause numbers to child molesting, as a Class A felony; child

      molesting, as a Class C felony; sexual misconduct with a minor, as a Level 4

      felony; child seduction, as a Level 5 felony; and incest, as a Class B felony. The

      State agreed to dismiss the remaining charges. The agreement further provided

      that, while the sentences in the two different cause numbers would run



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-3077 | May 22, 2020   Page 2 of 11
      consecutively, the aggregate total sentence imposed by the court “shall be forty

      to seventy (40-70) years.” Appellant’s App. Vol. 2 at 52.


[4]   Prior to establishing a factual basis for his guilty plea at his ensuing change-of-

      plea hearing, Sweat and his attorney engaged in the following conversation:


              [Attorney]: The State (inaudible) and so (inaudible) is not going
              to be day for day because it’s credit restricted. (Inaudible) but
              because (inaudible) it’s a mistake on my part that I had failed to
              tell you (inaudible).


              [Sweat]: So what’s that mean?


              [Attorney]: So, what that means, is we talked about how the A
              felony you’ll get, you would get credit for day for day. It won’t
              be day for day. It’s gonna be at a slower rate because it’s a Credit
              Restricted Felony because of the statute. And so, it’s not gonna
              be the day for day, it’s gonna be at a slower rate. I still think we
              go forward with it but—


              [Sweat]: Is that gonna be a longer time?


              [Attorney]: No, I mean the length . . . everything else will stay
              the same, the Plea Agreement will stay the same, it’s just, you
              remember me talking about credit time, and you earn credit time?
              The time (inaudible) in which you earn credit time, in that, on
              that A Felony, will be slower than day for day, and not day for
              day. Do you understand what I’m saying?


              [Sweat]: I think so. It sounds like I’ll get more time.


              [Attorney]: (Inaudible) right and so that the time with it which
              you earn credit time will be at a slower rate than day for day.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-3077 | May 22, 2020   Page 3 of 11
              [Sweat]: Okay.


              [Attorney]: Okay. Do you still want to go forward?


              [Sweat]: Yeah.


              [Attorney]: Okay.


      Tr. at 16-17. Sweat then established a factual basis for his guilty plea. The

      court found that Sweat had entered into the plea agreement knowingly,

      “freely[,] and voluntarily”; accepted the plea agreement; entered its judgment of

      conviction; and set the matter for a sentencing hearing. Id. at 22-23.


[5]   More than two months later, Sweat filed a motion to withdraw his guilty plea.

      In that motion, he asserted in relevant part as follows:


              5. Immediately prior to entering the guilty plea and establishing
              a factual basis, [Sweat’s attorney at the hearing] advised [Sweat]
              that credit time [for the Class A felony] would be “slower” than
              day for day. [Sweat] was still not advised specifically what credit
              time would be earned.


              6. [Sweat] accepted the Plea Agreement because he relied on [his
              attorney’s] representation that he could become eligible for
              release in ten (10) years.


              7. [Sweat’s] belief that he would earn one day of credit for each
              day served was material to his decision to accept the Plea
              Agreement. [Sweat] would not have accepted the Plea
              Agreement if he had been properly advised that he would be
              credit restricted.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-3077 | May 22, 2020   Page 4 of 11
      Appellant’s App. Vol. 2 at 54-55.


[6]   The court held a hearing on Sweat’s motion to withdraw his guilty plea, after

      which the court denied Sweat’s motion. In reaching that decision, the court

      stated that credit time is not “a material element in determining . . . whether a

      person should plead because credit time is never guaranteed” but, rather, “is

      really an administrative issue” with the Department of Correction. Tr. at 35-36.

      The court also stated that Sweat’s attorney at the change-of-plea hearing

      corrected his initial advice to Sweat on credit time prior to Sweat agreeing that

      he wanted to continue to proceed with the plea agreement.


[7]   After an ensuing sentencing hearing, the court sentenced Sweat to an aggregate

      term of forty-seven years, with eight years suspended to probation. In

      determining that sentence, the court found the following aggravating and

      mitigating circumstances:


              The Court finds as aggravating factors: the harm, injury, loss, or
              damage suffered by the victims is significant and greater than the
              elements necessary to prove the commission of the crime[s]; the
              impact the crimes ha[ve] had on the families of the victims; the
              defendant committed the crime of violence and knowingly
              committed the offense in the presence or within hearing of an
              individual who was less than 18 years of age; the overall
              seriousness of the offense[s]; the defendant was in a position of
              care, custody, and control of the victims; the defendant’s lack of
              empathy for his victims; the victim felt threat[en]ed to engage in
              the acts or that she couldn’t tell anyone about the offense.


              The Court finds as mitigating factors: the defendant has no
              criminal history; the defendant plead[ed] guilty (diminished by

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-3077 | May 22, 2020   Page 5 of 11
              the benefit he received from the plea agreement); the defendant
              has strong support from family and friends; the defendant’s good
              work history; the defendant is willing to make restitution.


              The Court further finds that the aggravating factors outweigh the
              mitigating factors.


      Appellant’s App. Vol. 2 at 64-65. This appeal ensued.


                                     Discussion and Decision
                            Issue One: Motion to Withdraw Guilty Plea

[8]   On appeal, Sweat first asserts that the trial court abused its discretion when it

      denied his motion to withdraw his guilty plea. As the Indiana Supreme Court

      has explained:


              Indiana Code § 35-35-1-4(b) governs motions to withdraw guilty
              pleas. After a defendant pleads guilty but before a sentence is
              imposed, a defendant may motion to withdraw a plea of guilty.
              Id. The court must allow a defendant to withdraw a guilty plea if
              “necessary to correct a manifest injustice.” Id.


              By contrast, the court must deny the motion if withdrawal of the
              plea would “substantially prejudice[]” the State. Id. In all other
              cases, the court may grant the defendant’s motion to withdraw a
              guilty plea “for any fair and just reason.” Id.


              A trial court’s ruling on a motion to withdraw a guilty plea
              “arrives in this Court with a presumption in favor of the ruling.”
              Coomer v. State, 652 N.E.2d 60, 62 (Ind. 1995). We will reverse
              the trial court only for an abuse of discretion. Id. In determining
              whether a trial court has abused its discretion in denying a
              motion to withdraw a guilty plea, we examine the statements
      Court of Appeals of Indiana | Memorandum Decision 19A-CR-3077 | May 22, 2020   Page 6 of 11
                made by the defendant at his guilty plea hearing to decide
                whether his plea was offered “freely and knowingly.” Id.


       Brightman v. State, 758 N.E.2d 41, 44 (Ind. 2001) (footnotes omitted; alteration

       original to Brightman).


[9]    Sweat asserts that he did not enter into his guilty plea knowingly because he

       was unaware of the precise contours of the credit time, if any, he might accrue

       against his sentence. The record from the change-of-plea hearing makes clear

       that Sweat’s counsel at that hearing had initially misinformed Sweat regarding

       credit time, telling Sweat that he would earn day-for-day credit against his

       sentence. However, prior to proceeding with the plea agreement, this mistake

       was corrected—Sweat’s counsel informed Sweat that he would not earn day-

       for-day credit but would instead earn credit time at a “slower” rate as a credit-

       restricted felon. Tr. at 16-17. Sweat acknowledged that he understood that he

       would have to actually serve “more time” as a result of his attorney’s

       clarification on credit time. Id. Nonetheless, when asked if he still wanted to

       proceed on the plea agreement with the corrected understanding on credit time,

       Sweat stated that he did.


[10]   We are not persuaded that, had Sweat known the precise credit restriction, i.e.,

       six days served for one day of credit, 1 that that would have mattered to his




       1
         As relevant to the Class A felony conviction on which Sweat’s status as a credit-restricted felon is based,
       “[a] person who is a credit restricted felon and who is imprisoned for a crime or imprisoned awaiting trial or
       sentencing is initially assigned to Class IV,” and a person assigned to Class IV “earns one (1) day of credit


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-3077 | May 22, 2020                       Page 7 of 11
       decision to plead guilty. Sweat pleaded guilty knowing that his credit time was

       going to be some measure slower than one-for-one, and he was not so

       concerned about the precise rate of accrual that he wanted to inquire further

       before continuing with his plea agreement. Indeed, as the trial court noted

       when it denied Sweat’s motion to withdraw his guilty plea, there is no

       guarantee that any credit time will actually accrue against a defendant’s

       sentence once he begins his incarceration. In other words, Sweat received the

       full benefit of his bargain. Accordingly, we cannot say that the trial court

       abused its discretion when it denied Sweat’s motion to withdraw his guilty plea.


                                   Issue Two: Whether the Trial Court
                                 Abused its Discretion in Sentencing Sweat

[11]   Sweat next asserts that the trial court found and considered improper

       aggravators when it sentenced him. Sentencing decisions lie within the sound

       discretion of the trial court. Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind.

       2008). 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.” Gross v. State, 22

       N.E.3d 863, 869 (Ind. Ct. App. 2014) (citation omitted), trans. denied.


[12]   A trial court abuses its discretion in sentencing if it does any of the following:




       time for every six (6) days the person is imprisoned for a crime or confined awaiting trial or sentencing.” I.C.
       §§ 35-50-6-3(d), -4(b) (Version a 2013)

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-3077 | May 22, 2020                       Page 8 of 11
               (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. (quoting Anglemyer v. State, 868 N.E.2d 482, 490-91 (Ind.), clarified on reh’g on

       other grounds, 875 N.E.2d 218 (Ind. 2007)).


[13]   According to Sweat, the trial court first abused its discretion when it found

       Sweat’s “lack of empathy” to be an aggravator. Appellant’s Br. at 14. Sweat

       asserts that he demonstrated proper remorse at the sentencing hearing. But we

       conclude that Sweat’s argument on this factor is merely a request for this court

       to reweigh the evidence and reassess his credibility, which we will not do.


[14]   Sweat next asserts that the court erred when it found that one of the offenses

       was committed in the presence of another minor and that one of the victims felt

       threatened during the commission of one or more of the offenses. But those

       findings are readily supported by the State’s exhibits at sentencing, namely, the

       police reports from the two victims. The trial court was not required “to turn a

       blind eye to the facts” that brought Sweat before it as demonstrated by those

       exhibits. Bethea v. State, 983 N.E.2d 1134, 1145 (Ind. 2013).


[15]   Last, Sweat asserts that the trial court erred when it found his position of trust

       over C.S. to be an aggravating factor because his status as her father was a

       necessary element to his conviction for incest. But Sweat is not correct. His

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-3077 | May 22, 2020   Page 9 of 11
       position of trust was not a biological condition, and we have rejected this

       argument before. See Grimes v. State, 84 N.E.3d 635, 644 (Ind. Ct. App. 2017),

       trans. denied. The trial court did not abuse its discretion when it sentenced

       Sweat.


                               Issue Three: Indiana Appellate Rule 7(B)

[16]   Sweat’s final argument on appeal is that his forty-seven-year sentence, with

       eight years suspended to probation, for five felony convictions relating to child

       molesting is inappropriate in light of the nature of the offenses and his

       character. But Sweat’s argument on this issue is premised on his belief that the

       sentence imposed is erroneous “in light of the improper aggravators” he

       identified in Issue Two. Appellant’s Br. at 17. As he summarizes his one-

       paragraph argument on this issue, “[h]ad the court not found and considered

       multiple improper aggravators with significant weight,” Sweat may have

       received a different sentence. Id. at 18.


[17]   An argument under Indiana Appellate Rule 7(B) requires the appellant to show

       that the sentence imposed is inappropriate in light of the nature of offenses and

       his character. E.g., Sorenson v. State, 133 N.E.3d 717, 729 (Ind. Ct. App. 2019),

       trans. denied. Sweat makes no such argument under Appellate Rule 7(B).

       Accordingly, his argument on this issue is waived. See Ind. Appellate Rule

       46(A)(8)(a).


[18]   Moreover, as we reject Sweat’s assertion that the trial court found improper

       aggravators, as explained in Issue Two, we reject his argument that his sentence

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-3077 | May 22, 2020   Page 10 of 11
       is inappropriate in light of those aggravators. And Sweat’s remaining assertions

       on this issue are not sufficient to carry his burden of demonstrating appellate

       relief under Appellate Rule 7(B). Sweat pleaded guilty to five felonies relating

       to the molestation of his daughter and another minor, established a clear factual

       basis for those offenses, agreed to be sentenced within a range of forty to

       seventy years, and actually received a sentence of forty-seven years with eight

       years suspended. We affirm his sentence.


[19]   Affirmed.


       Kirsch, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-3077 | May 22, 2020   Page 11 of 11
