MEMORANDUM DECISION                                                    FILED
                                                                  May 24 2016, 9:15 am
Pursuant to Ind. Appellate Rule 65(D),                                 CLERK
this Memorandum Decision shall not be                              Indiana Supreme Court
                                                                      Court of Appeals
regarded as precedent or cited before any                               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
Jerry T. Drook                                          Gregory F. Zoeller
Marion, Indiana                                         Attorney General of Indiana

                                                        Tyler G. Banks
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Ryan Sizemore,                                          May 24, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        27A02-1511-CR-1918
        v.                                              Appeal from the Grant Superior
                                                        Court
State of Indiana,                                       The Honorable Dana J.
Appellee-Plaintiff.                                     Kenworthy, Judge
                                                        Trial Court Cause No.
                                                        27D02-1505-F6-193



Bradford, Judge.



                                    Case Summary

Court of Appeals of Indiana | Memorandum Decision 27A02-1511-CR-1918 | May 24, 2016        Page 1 of 12
[1]   In May of 2015, Appellant-Defendant Ryan Sizemore engaged in a series of

      verbal and physical disputes with his then-girlfriend. As a result of Sizemore’s

      actions during these disputes, Appellee-Plaintiff the State of Indiana (the

      “State”) subsequently charged Sizemore with Level 4 felony possession of a

      firearm by a serious violent felon, Level 6 felony residential entry, Level 6

      felony domestic battery in the presence of a child, Level 6 felony neglect of a

      dependent, and two counts of Class A misdemeanor invasion of privacy.


[2]   On August 18, 2015, the morning that his trial was scheduled to begin,

      Sizemore pled guilty as charged. In exchange for Sizemore’s guilty plea, the

      State agreed that it would not request consecutive sentences. The trial court

      subsequently accepted Sizemore’s guilty plea and sentenced him to an

      aggregate term of twelve years. Sizemore contends on appeal that the trial

      court abused its discretion in sentencing him. Concluding otherwise, we affirm.



                            Facts and Procedural History
[3]   On May 22, 2015, Jeff Hartman, his girlfriend Kimberly Troy, and Carolyn

      Duncil went to Duncil’s apartment so that Duncil could tend to her dog.

      Hartman and Troy waited outside while Duncil went into the apartment.

      While Duncil was inside the apartment, Sizemore—who was Duncil’s

      boyfriend—ran into the apartment. After Sizemore had entered the apartment,

      Hartman and Troy heard screaming coming from inside the apartment.

      Hartman went to the door to investigate. He was met at the door by Sizemore



      Court of Appeals of Indiana | Memorandum Decision 27A02-1511-CR-1918 | May 24, 2016   Page 2 of 12
      who repeatedly stated that Duncil was not leaving. Hartman and Troy

      implored Sizemore to let Duncil leave.


[4]   After more arguing between Sizemore and Duncil and repeated requests from

      Hartman and Troy for Sizemore to let Duncil leave, Duncil and Sizemore came

      to the door. Sizemore again reiterated that Duncil was not leaving. When

      Troy threatened to call the police if Sizemore did not allow Duncil to leave the

      apartment, Sizemore pulled up his shirt to show that he had a pistol in his

      waistband and said, “If I go I’m taking everyone with me.” Tr. p. 23. About

      ten minutes later, Sizemore relented and allowed Duncil to leave the apartment.


[5]   Duncil, Hartman, and Troy left in Hartman’s truck and began to make their

      way to Troy’s residence. While in route to Troy’s residence, Duncil became

      sick and Hartman had to pull the truck to the side of the road to allow Duncil to

      vomit. The trio “took off” after they noticed Sizemore approaching Hartman’s

      truck on a bicycle. Tr. p. 24. As they continued towards Troy’s residence, the

      trio stopped and purchased a blanket for Duncil from a local store. Upon

      arriving at Troy’s residence, Hartman stayed at the residence and Duncil and

      Troy left in Hartman’s truck.


[6]   Soon thereafter, Hartman saw Sizemore approaching the residence on a bicycle.

      While standing on the sidewalk in front of Troy’s residence, Sizemore told

      Hartman that he was “waiting” on Duncil and Troy. Tr. p. 24. Sizemore was

      still waiting when Troy and Duncil returned. Troy parked Hartman’s truck in

      her driveway and she and Duncil ran in the back door of her residence.


      Court of Appeals of Indiana | Memorandum Decision 27A02-1511-CR-1918 | May 24, 2016   Page 3 of 12
      However, before Hartman could close the door behind them, Sizemore “put his

      foot between the door and the doorjamb” so that Hartman could not close it

      completely. Tr. p. 25.


[7]   Sizemore yelled that he wanted to talk to Duncil. Duncil initially refused, but

      after about fifteen minutes of continued yelling and arguing, Duncil met

      Sizemore on Troy’s front porch. Before long, Duncil and Sizemore were

      yelling at each other. Hartman came to the front porch and instructed

      Sizemore to leave. Sizemore responded by getting “nose to nose” with

      Hartman, asking him “Do you know who you’re … f-ing with?” Tr. p. 25.

      Duncil escorted Sizemore off the porch to the sidewalk. Sizemore then pulled

      out a “blue, anodized” pistol, pointed it at Hartman, and again asked Hartman

      “Do you know who you’re f-ing with?” Tr. p. 25. Hartman, who had seen

      Sizemore with that particular pistol on multiple occasions, then called 911.

      Sizemore then fled to a local restaurant. Later that evening, the responding

      officer made contact with Sizemore and told him “to stay away for the night.”

      Tr. p. 28.


[8]   The next day, Hartman, Troy, Duncil, and others—including Duncil’s and

      Sizemore’s three-year-old daughter, Tazra, and Hartman’s one-and-a-half-year-

      old son, Kyden—were at Troy’s residence preparing to go to a picnic. Sizemore

      approached the residence, again on a bicycle; walked into the residence, and

      talked to Duncil. Sizemore demanded that Duncil leave with him. Duncil

      refused and ran out the back door of the residence. Once outside, Duncil

      picked up Tazra. Sizemore came out of the residence and attempted to

      Court of Appeals of Indiana | Memorandum Decision 27A02-1511-CR-1918 | May 24, 2016   Page 4 of 12
       “forcefully grab” Duncil to make her come with him. Tr. p. 30. When Shawna

       Bryant, another person who happened to be at Troy’s residence, protested,

       Sizemore “forcefully pushed her against the trunk” of Hartman’s vehicle. Tr. p.

       30. Sizemore then grabbed Duncil, who was still holding Tazra, and pulled her

       down the street.


[9]    “[A]bout three-quarters of the way down the block,” Sizemore began hitting

       Duncil, who again was still holding Tazra, with a closed fist. Tr. p. 30.

       Hartman again called 911. Hartman and some of the other people at Troy’s

       residence then pursued Sizemore, who had stopped striking Duncil and had fled

       down an alley. Duncil later found Sizemore’s pistol in a burn barrel in the

       alley. Hartman and another man retrieved the pistol from the barrel and gave it

       to Duncil. Duncil subsequently gave the pistol to Sizemore’s mother.

       Sizemore was later arrested and a no-contact order relating to Duncil was put in

       place.


[10]   On May 27, 2015, the State charged Sizemore with Level 6 felony residential

       entry, Level 6 felony domestic battery in the presence of a child, and Level 6

       felony neglect of a dependent. On June 29, 2015, the State amended the

       charging information to include a charge of Level 4 felony unlawful possession

       of a firearm by a serious violent felon. The State subsequently amended the

       charging information a second time on August 5, 2015, to include two counts of

       Class A misdemeanor invasion of privacy. Sizemore remained in custody while

       awaiting trial.



       Court of Appeals of Indiana | Memorandum Decision 27A02-1511-CR-1918 | May 24, 2016   Page 5 of 12
[11]   While in custody, Sizemore made 726 calls to Duncil in violation of the no-

       contact order. During the relatively few calls in which he successfully made

       contact with Duncil, Sizemore instructed her not to appear at his trial, told her

       that she would not get in trouble if she did not appear, indicated that she should

       contact the prosecutor and recant her statement, and indicated that she should

       convince Hartman and Troy to recant their statements regarding the events in

       question. Sizemore also told Duncil that she should tell the Department of

       Child Services that his conduct was not as serious as the witnesses said it was.


[12]   On the morning of August 18, 2015, the date Sizemore’s trial was scheduled to

       begin, Sizemore pled guilty to each of the charged offenses. In exchange for

       Sizemore’s guilty plea, the State agreed that it would not request consecutive

       sentences. The trial court subsequently sentenced Sizemore to an aggregate

       term of twelve years. This appeal follows.



                                 Discussion and Decision
[13]   On appeal, Sizemore contends that the trial court abused its discretion in

       sentencing him. Sentencing decisions rest within the sound discretion of the

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

       Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), modified on other grounds 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. (quotation omitted).

       Court of Appeals of Indiana | Memorandum Decision 27A02-1511-CR-1918 | May 24, 2016   Page 6 of 12
               One way in which a trial court may abuse its discretion is failing
               to enter a sentencing statement at all. Other examples include
               entering 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, or the sentencing statement omits reasons that are
               clearly supported by the record and advanced for consideration,
               or the reasons given are improper as a matter of law. Under
               those circumstances, remand for resentencing may be the
               appropriate remedy 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 490-91.


[14]   In challenging the trial court’s sentencing order, Sizemore claims that the trial

       court abused its discretion by failing to consider certain proffered mitigating

       factors. The finding of mitigating factors is discretionary with the trial court.

       Fugate v. State, 608 N.E.2d 1370, 1374 (Ind. 1993) (citing Graham v. State, 535

       N.E.2d 1152, 1155 (Ind. 1989)). The trial court is not required to find the

       presence of mitigating factors. Id. (citing Graham, 535 N.E.2d at 1155).

       Further, the trial court is not required to weigh or credit the mitigating evidence

       the way appellant suggests it should be credited or weighed. Id. (citing

       Hammons v. State, 493 N.E.2d 1250, 1255 (Ind. 1986)). Likewise, if 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. Id. (citing Hammons, 493 N.E.2d at 1254-55).




       Court of Appeals of Indiana | Memorandum Decision 27A02-1511-CR-1918 | May 24, 2016   Page 7 of 12
                                  A. Sizemore’s Guilty Plea
[15]   Sizemore claims that the trial court abused its discretion by failing to find the

       fact that he pled guilty to be a mitigating factor at sentencing. “[A]lthough we

       have long held that a defendant who pleads guilty deserves ‘some’ mitigating

       weight to be given to the plea in return, a guilty plea may not be significantly

       mitigating when the defendant receives a substantial benefit in return or when

       the defendant does not show acceptance of responsibility.” McElroy v. State, 865

       N.E.2d 584, 591 (Ind. 2007) (citations omitted).


[16]   In the instant matter, Sizemore’s decision to plead guilty seems to represent a

       tactical decision rather than a sincere display of remorse. The trial court noted

       its belief that Sizemore did not plead guilty prior to the morning of trial because

       Sizemore was “banking on the victim and the witnesses not coming to court,

       because [Sizemore] directed them multiple times not to come to court.” Tr. p.

       92. Further, the trial court specifically stated that it did not find Sizemore to be

       remorseful. The trial court noted that Sizemore was not truly taking

       responsibility for his actions as he continued to blame Duncil for his actions.

       The trial court further noted that Sizemore continued to make threatening

       comments to Duncil, including telling her that it would be “[w]ay worse when

       [he] [got] out” if she did not follow his instruction to fail to appear at his trial.

       Tr. p. 93. The record also demonstrates that Sizemore benefitted from this

       tactical decision as the State agreed that it would not seek consecutive sentences

       in exchange for Sizemore’s guilty plea.



       Court of Appeals of Indiana | Memorandum Decision 27A02-1511-CR-1918 | May 24, 2016   Page 8 of 12
[17]   In addition, we recognize that the Indiana Supreme Court has held that a

       defendant generally deserves to benefit when his guilty plea spares the victim of

       the trauma of a trial and the State of the need to expend considerable time,

       resources, and effort to prepare for trial. See Sensback v. State, 720 N.E.2d 1160,

       1164 (Ind. 1999). Here, however, Sizemore did not enter into his guilty plea

       until the morning of trial. Thus, while spared of need to actually testify during

       trial, Duncil was not spared of the trauma associated with preparing for trial.

       Likewise, Sizemore’s decision to plead guilty did not spare the State of the need

       to expend the necessary time, resources, and effort to prepare for trial.


[18]   Review of the record indicates that, contrary to Sizemore’s claim on appeal, the

       trial court did consider Sizemore’s guilty plea in sentencing Sizemore. In light

       of the seemingly tactical nature of Sizemore’s decision to plead guilty coupled

       with the trial court’s determination that Sizemore lacked remorse and did not

       seem to truly accept responsibility for his actions, we conclude that Sizemore

       has failed to demonstrate that his guilty plea warranted significant mitigating

       weight.


              B. Potential Hardship on Sizemore’s Dependents
[19]   Sizemore also claims that the trial court abused its discretion by failing to

       consider his “expressed concern for being away from his young children for a

       lengthy incarceration” and the potential hardship a lengthy incarceration would

       have on his family. Appellant’s Br. p. 11. We have previously concluded that a

       trial court “is not obligated to find a circumstance to be mitigating merely


       Court of Appeals of Indiana | Memorandum Decision 27A02-1511-CR-1918 | May 24, 2016   Page 9 of 12
       because the defendant advances it.” Benefield v. State, 904 N.E.2d 239, 247 (Ind.

       Ct. App. 2009) (citing Felder v. State, 870 N.E.2d 554, 558 (Ind. Ct. App. 2007)).

       More specifically, as Sizemore acknowledges, a trial court is not required to

       find that a defendant’s incarceration would result in undue hardship on his

       dependents. Id. In reaching this conclusion, we observed that “[m]any persons

       convicted of crimes have dependents and, absent special circumstances showing

       that the hardship to them is ‘undue,’ a trial court does not abuse its discretion

       by not finding this to be a mitigating factor.” Id. In order for the hardship to

       the dependent to be “undue,” there must be special circumstances that make the

       burden on the dependent unusual. See generally, id. at 247-48.


[20]   Sizemore claims that the trial court abused its discretion by failing to even

       consider his claimed concern about the potential hardship that his incarceration

       would have on his children. The record reveals, however, that the trial court

       considered and rejected Sizemore’s expressed concern in sentencing Sizemore.

       The trial court noted that Sizemore committed some of the violent acts at issue

       in front of one of his children. The trial court also noted that Sizemore “felt

       free to use his mother and his children … to communicate with the victim after

       being served with the no-contact order.” Tr. p. 91. In expressing concern for

       Sizemore’s apparent willingness to use his mother and children in this way, the

       trial court stated the following:

               This tells me, sir, that you’re willing to put your mother in
               jeopardy of arrest, you’re willing to put your children in a very
               bad position, communicating things to their mother. And I note,
               in one of the jail calls, you talked to a little boy and you tell him,

       Court of Appeals of Indiana | Memorandum Decision 27A02-1511-CR-1918 | May 24, 2016   Page 10 of 12
               “Make sure mom doesn’t have any dudes around,” uh, tell him
               he’s the man of the house, and we’re talking about a little boy.
               So you’re putting responsibility to watch for mom’s boyfriends
               on a little child.


       Tr. p. 91. The trial court also noted the in threatening Duncil, Sizemore had

       indicated that his threat was “a promise on my kids.” Tr. p. 93. In mentioning

       this statement, the trial court explained: “And that tells me what you think of

       your children as well. You say that they mean the world to you here today, I

       see you using them as a threat to the victim.” Tr. p. 93. These statements

       indicate that the trial court considered Sizemore’s claimed concern for his

       family.


[21]   The record also reveals that both Sizemore’s mother and Duncil would be

       available to care for the children during Sizemore’s incarceration. The record

       further reveals that Sizemore was largely unemployed at the time of his arrest.

       Duncil, on the other hand, was employed and provided for the family.

       Sizemore fails to explain how his incarceration would impede Duncil’s ability

       to continue to care and provide for the children.


[22]   It is clear from the record that the trial court considered Sizemore’s claimed

       concern for the impact that his incarceration would have on his children, but

       that it simply did not afford Sizemore’s claim with the mitigating weight

       Sizemore believed it should have. Again, “[a] trial court is not obligated to

       weigh or credit the mitigating factors the way a defendant suggests they should

       be weighed or credited.” Jones v. State, 790 N.E.2d 536, 540 (Ind. Ct. App.


       Court of Appeals of Indiana | Memorandum Decision 27A02-1511-CR-1918 | May 24, 2016   Page 11 of 12
       2003) (citing Georgopulos v. State, 735 N.E.2d 1138, 1145 (Ind. 2000)). Sizemore

       has again failed to demonstrate that his claim is both significant and clearly

       supported by the record or that it warranted significant mitigating weight.



                                               Conclusion
[23]   In sum, Sizemore has failed to demonstrate that either of the above-discussed

       proffered mitigating factors were both (1) significant and clearly supported by

       the record or (2) warranted significant mitigating weight. As such, we conclude

       that the trial court did not abuse its discretion in sentencing Sizemore.


[24]   The judgment of the trial court is affirmed.


       Bailey, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 27A02-1511-CR-1918 | May 24, 2016   Page 12 of 12
