MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                                 FILED
regarded as precedent or cited before any                                  Apr 04 2018, 10:58 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                                    ATTORNEYS FOR APPELLEE
Kimberly A. Jackson                                       Curtis T. Hill, Jr.
Indianapolis, Indiana                                     Attorney General of Indiana

                                                          Caroline G. Templeton
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Joshua T. Trammell,                                       April 4, 2018
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          24A01-1705-CR-1103
        v.                                                Appeal from the Franklin Circuit
                                                          Court
State of Indiana,                                         The Honorable Beth A. Butsch,
Appellee-Plaintiff                                        Special Judge
                                                          Trial Court Cause No.
                                                          24C01-1602-FD-128



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 24A01-1705-CR-1103 | April 4, 2018                 Page 1 of 13
[1]   Joshua T. Trammell appeals the trial court’s imposition of a three-year sentence

      following Trammell’s conviction of Class D felony theft. 1 Trammell asserts two

      issues: (1) the trial court abused its discretion when it failed to find four

      mitigators during sentencing; and (2) his sentence is inappropriate. We affirm.



                                Facts and Procedural History
[2]   On April 29, 2013, Trammell stole “fifty to seventy-five dollars” worth of scrap

      metal. (Tr. Vol. II at 47.) On February 11, 2016, the State charged him with

      Class D felony theft. On February 13, 2017, Trammell pled guilty without

      benefit of a plea agreement. However, the trial court noted “the State has

      agreed not to file the Habitual Offender count” in return for Trammell’s guilty

      plea. (Id. at 18.) The trial court asked Trammell if he had “received any

      promises to get you to enter this plea of guilty today other then [sic] the fact that

      the State is not going to file the Habitual Offender charge?” (Id. at 21.)

      Trammell indicated he had not, except “the dismissal of the Habitual[.]” (Id.)


[3]   Trammell testified at his sentencing hearing regarding his childhood, his

      substance abuse issues, his mental health issues, and his physical disability.

      After noting Trammell was “at a high risk for recidivism,” (id. at 47), and that

      he had “seven (7) felony convictions, nineteen (19) misdemeanor convictions,

      numerous probation violations, [and] several juvenile delinquence [sic]




      1
          Ind. Code § 35-43-4-2 (2009).


      Court of Appeals of Indiana | Memorandum Decision 24A01-1705-CR-1103 | April 4, 2018   Page 2 of 13
      adjudications[,]” (id.), along with the fact that Trammel was serving a sentence

      at that time, and also had “some pending cases involving drug possession,”

      (id.), the trial court stated:


              If I look at the statutory aggravators and mitigators that are
              found at I.C. 35-38-1-7.1 which I always do. Um, I don’t find
              any mitigators. I do find several aggraators [sic], that being your
              criminal history which I have recited. I agree that, uh, though . .
              . I agree with [Defense Counsel] that your repetitive
              incarceration has not seemed to do anything as far as keeping
              you from re-offending. It has kept you out of society where you
              can’t commit crimes while you are incarcerated, but it doesn’t
              seem to have rehabilitated you in any fashion. I do disagree with
              [Defense Counsel] that probation would be appropriate.
              Probation has been an abject failure. You have been on
              probation many, many times and have violated probation many,
              many times. So I don’t believe that probation would be helpful
              in your case, what I am willing to do is, uh, I’m going to sentence
              you to the maximum sentence of three (3) years, but . . . and it’s .
              . . it’s a big . . . it’s a big difference. I’m going to sentence you to
              three (3) years at the Indiana Department of Corrections [sic].
              I’m going to sentence you consecutive to Cause No. 24C02-1306-
              FD-596. I’m going to give you credit for the actual . . . days that
              you have served. . . . I”m [sic] sentencing you to Purposeful
              Incarceration at the Indiana Department of Corrections [sic].


      (Id. at 47-48.)


[4]   The trial court told Trammell that “Purposeful Incarceration is a program at the

      Indiana Department of Corrections [sic] that . . . is a useful, productive,

      rehabilitating program[.]” (Id. at 49.) The trial court thought it “obvious . . .

      that [Trammell] need[s] some intensive drug treatment.” (Id. at 49-50.) The


      Court of Appeals of Indiana | Memorandum Decision 24A01-1705-CR-1103 | April 4, 2018   Page 3 of 13
      trial court also stated Trammell needed mental health treatment while

      incarcerated.



                                 Discussion and Decision
                                         Abuse of Discretion
[5]   Trammell argues the trial court abused its discretion by failing to consider four

      mitigating circumstances. Sentencing decisions are within the sound discretion

      of the trial court, and we review them on appeal only for an abuse of discretion.

      Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g 875 N.E.2d

      218 (Ind. 2007). One way a court abuses its discretion is by failing to address

      mitigating circumstances that are advanced for consideration and clearly

      supported by the record. Id. at 490-491. A trial court is not, however, required

      to accept a defendant’s claim as to the existence of a mitigating circumstances.

      Harman v. State, 4 N.E.3d 209, 218 (Ind. Ct. App. 2014), trans. denied. Rather,

      the defendant must “establish that the mitigating evidence is both significant

      and clearly supported by the record.” Id. The trial court is not obligated to

      explain why it did not find a circumstance to be mitigating. Anglemyer, 868

      N.E.2d at 493.


[6]   Trammell argues the trial court abused its discretion by failing to find a

      mitigator in the facts that: 1) he pled guilty without benefit of a plea agreement;

      2) he had a difficult childhood; 3) he has substance abuse and mental health

      issues; and 4) he has a physical disability.


      Court of Appeals of Indiana | Memorandum Decision 24A01-1705-CR-1103 | April 4, 2018   Page 4 of 13
                                                  Guilty Plea

[7]   Pertinent to Trammell’s guilty plea, the trial court told counsel it had been

      “advised that Mr. Trammell wishes to enter a plea of guilty to the Class D

      Felony charge with open sentencing to the Court, and that the Habitual

      Offender charge would be dismissed.” (Tr. Vol. II at 12.) Trammell’s counsel

      agreed with that statement. The State clarified it had not filed the Habitual

      Offender charge but that it agreed to forego filing it. The trial court noted the

      plea was an open plea without a written agreement. It asked Trammell, “[Y]ou

      also understand that the State has agreed not to file the Habitual Offender

      count?” (Id. at 18.) Trammell indicated he understood that. The trial court

      then asked Trammell if he had “received any promises to get you to enter this

      plea of guilty today other then [sic] the fact that the State is not going to file the

      Habitual Offender charge?” (Id. at 21.) Trammell answered, “Nothing other

      then [sic] the dismissal of the Habitual[.]” (Id.)


[8]   Trammell argues that no plea agreement was in place; thus, he received no

      significant benefit from pleading guilty. Trammell correctly notes that a plea

      agreement for a felony charge must be submitted in writing. See Ind. Code § 35-

      35-3-3(a)(1); see also Hunter v. State, 477 N.E.2d 317, 320 (Ind. Ct. App. 1985)

      (when plea agreement was not in writing, it was unenforceable), reh’g denied.

      However, the requirement for a writing pertains mainly to the enforceability of

      such an agreement rather than to show whether a defendant received a benefit

      of the bargain made with the State. See, e.g., Bowers v. State, 500 N.E.2d 203,

      204 (Ind. 1986) (enforceability of unwritten plea hinged on the requirement of

      Court of Appeals of Indiana | Memorandum Decision 24A01-1705-CR-1103 | April 4, 2018   Page 5 of 13
       State to uphold its “pledge of public faith” and not file charges it had promised

       to drop in exchange for information); see also Gil v. State, 988 N.E.2d 1231, 1234

       n.2 (Ind. Ct. App. 2013) (noting the “purpose behind [Indiana Code § 35-35-3-

       3] is to insure that a defendant does not base his guilty plea upon certain

       promises made by the prosecutor where the judge has in fact not accepted the

       [S]tate’s recommendation”) (quoting Davis v. State, 418 N.E.2d 256, 260 (Ind.

       Ct. App. 1992)). Additionally, an oral plea agreement must be enforced if the

       “State has materially benefitted from the terms of the agreement or if the

       defendant has relied on the terms of the agreement to his substantial

       detriment.” Shepperson v. State, 800 N.E.2d 658, 659 (Ind. Ct. App. 2003),

       (quoting Badger v. State, 637 N.E.2d 800, 804 (Ind. 1994)).


[9]    Here, Trammell is not arguing the State did not uphold its portion of the

       unwritten agreement. Rather, Trammell argues that benefit cannot be used to

       offset the possible mitigation of his guilty plea because the agreement was not in

       writing. We disagree. Trammell and his counsel agreed they understood the

       State was withholding filing the Habitual Offender charge in exchange for

       Trammell’s guilty plea. The State withheld filing the charge. The question

       before us is whether the trial court abused its discretion when it did not include

       the plea as a mitigating factor.


[10]   “A guilty plea is not necessarily a mitigating factor where the defendant

       receives a substantial benefit from the plea or where evidence against the

       defendant is so strong that the decision to plead guilty is merely pragmatic.”

       Amalfitano v. State, 956 N.E.2d 208, 212 (Ind. Ct. App. 2011), trans. denied. If

       Court of Appeals of Indiana | Memorandum Decision 24A01-1705-CR-1103 | April 4, 2018   Page 6 of 13
       the State had filed the Habitual Offender charge, Trammell faced the possibility

       of four-and-a-half years added to his sentence. See Ind. Code § 35-50-2-8 (2005)

       (“The court shall sentence a person found to be a habitual offender to an

       additional fixed term that is not less than the advisory sentence to the

       underlying offense nor more than three (3) times the advisory sentence for the

       underlying offense.”). Based on the fact the State withheld filing the Habitual

       Offender charge in exchange for Trammell’s guilty plea, we conclude

       Trammell’s plea was pragmatic. See, e.g., Wells v. State, 836 N.E.2d 475, 480

       (Ind. Ct. App. 2005) (“guilty plea does not rise to the level of significant

       mitigation where the defendant has received a substantial benefit), trans. denied.

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

       consider Trammell’s guilty plea as a mitigating factor when sentencing him.


                                                    Childhood

[11]   “[E]vidence of a difficult childhood is entitled to little, if any, mitigating

       weight.” Bethea v. State, 983 N.E.2d 1134, 1141 (Ind. 2013). Although

       Trammell states his childhood was difficult and he was not taught “boundaries

       or . . . coping skills[,]” (Appellant’s Br. at 13), he is a forty year old man who

       has had numerous opportunities to rehabilitate himself through his frequent

       interactions with the judicial system. He gives no reason for his inability to

       learn those boundaries and coping skills as an adult except to note he is “sorry

       for the system that has failed [him].” (App. Vol. II at 105.) We cannot

       conclude the trial court abused its discretion when it did not consider

       Trammell’s childhood as a mitigating factor when sentencing him.

       Court of Appeals of Indiana | Memorandum Decision 24A01-1705-CR-1103 | April 4, 2018   Page 7 of 13
                                     Substance Abuse/Mental Illness

[12]   A trial court is not required to consider substance abuse a mitigating

       circumstance, James v. State, 643 N.E.2d 321, 323 (Ind. 1994), and in fact may

       find it to be an aggravator. Iddings v. State, 772 N.E.2d 1006, 1018 (Ind. Ct.

       App. 2002), trans. denied. Trammell argues his substance abuse is tied to his

       difficult childhood. As noted above, however, he offers little explanation why

       he remains unable to cope after being offered multiple rehabilitative

       opportunities. We cannot conclude the trial court abused its discretion when it

       did not consider Trammell’s substance abuse as a mitigating factor when

       sentencing him. See Rose v. State, 810 N.E.2d 361, 366-67 (Ind. Ct. App. 2004)

       (finding no abuse of discretion in trial court’s failure to find mitigator in

       addiction when defendant had failed to take advantage of prior opportunities to

       receive drug treatment).


[13]   “[M]ental illness, especially if it has some connection to the crime involved,

       must be given some, and occasionally considerable, weight in mitigation.”

       Ousley v. State, 807 N.E.2d 758, 762 (Ind. Ct. App. 2004). However, in cases

       wherein mental illness warrants significant mitigating weight, the evidence of

       the mental illness must be “so pervasive throughout the proceedings that the

       defendant was found to be guilty but mentally ill.” Id. Contrary to his claims

       of mental illness, Trammell presented no evidence he has been diagnosed with

       a mental illness. He acknowledged this fact in both the pre-sentence

       investigation and in the sentencing hearing when the trial court questioned him

       about it. We find no abuse of discretion when the trial court did not consider

       Court of Appeals of Indiana | Memorandum Decision 24A01-1705-CR-1103 | April 4, 2018   Page 8 of 13
       mental illness as a mitigating factor when sentencing Trammell. See id.

       (“mental illness is a mitigating factor to be used in certain circumstances, such

       as when the evidence demonstrates longstanding mental health issues or when

       the jury finds that a defendant is mentally ill”).


                                              Physical Disability

[14]   Trammell relies on Moyer v. State, 796 N.E.2d 309 (Ind. Ct. App. 2003), to

       support his claim that his physical disability warranted treatment as a mitigating

       circumstance during sentencing. In Moyer, we held the constant medical

       attention Moyer required was beyond the jail’s ability and, thus, Moyer’s

       condition should have been given weight as a mitigating circumstance during

       sentencing. Id. at 314. Moyer suffered from “lymphoma, malignancy of the

       larynx, and recurring tumors. He also ha[d] pulmonary disease and relie[d] on

       a breathing apparatus. [He] require[d] frequent tracheal cleaning and sterile

       catheters, which the jail [could not] provide regularly.” Id.


[15]   Trammell fell while working and injured his ankle, foot, and knee. He requires

       pain medication for his injury. He presented no evidence the Department of

       Correction cannot provide the medical attention he requires. We find no abuse

       of discretion when the trial court did not consider Trammell’s physical

       disability as a mitigating factor during sentencing. See Henderson v. State, 848

       N.E.2d 341, 345 (Ind. Ct. App. 2006) (no error when defendant did not present

       evidence medical conditions were untreatable while incarcerated).




       Court of Appeals of Indiana | Memorandum Decision 24A01-1705-CR-1103 | April 4, 2018   Page 9 of 13
                                        Inappropriate Sentence
[16]   Trammell asserts his sentence is inappropriate. He argues the “offense was

       minor and caused no harm other than pecuniary loss.” (Appellant’s Br. at 18.)

       Additionally, he argues that, although he has “a large number of convictions . .

       . approximately 2/3 of them were misdemeanors and most were related to his

       substance abuse issues. ten of the convictions were entered at least at decade

       ago.” (Id. at 19) (errors in orginal).


[17]   Under Ind. Appellate Rule 7(B), we may revise a sentence if, after due

       consideration of the trial court’s decision, we find the sentence inappropriate in

       light of the nature of the offense and the character of the offender. Anglemyer,

       868 N.E.2d at 491. We consider not only the aggravators and mitigators found

       by the trial court, but also any other factors appearing in the record. Johnson v.

       State, 986 N.E.2d 852, 856 (Ind. Ct. App. 2013). We defer to the trial court’s

       decision, and our goal is to determine whether the defendant’s sentence is

       inappropriate, not whether some other sentence would be more appropriate.

       Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012), reh’g denied. Trammell, as the

       appellant, bears the burden of demonstrating his sentence is inappropriate. See

       Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).


[18]   When considering the nature of the offense, the advisory sentence is the starting

       point for determining the appropriateness of a sentence. Anglemyer, 868 N.E.2d

       at 494. The sentencing range for a Class D felony committed prior to July 1,

       2013, was “a fixed term of between six (6) months and three (3) years, with the


       Court of Appeals of Indiana | Memorandum Decision 24A01-1705-CR-1103 | April 4, 2018   Page 10 of 13
       advisory sentence being one and one-half (1 ½ ) years.” Ind. Code § 35-50-2-7

       (April 1, 2013). The trial court sentenced Trammell to three years. Thus,

       Trammel received the maximum sentence for his offense.


[19]   Very little information regarding the offense is in the record. Trammell stole

       scrap metal worth “in the nature of fifty to seventy five dollars[.]” (Tr. Vol. II

       at 47.) We see nothing more egregious about Trammell’s crime than the

       standard theft offense.


[20]   When considering the character of the offender, one relevant fact is the

       defendant’s criminal history. Johnson, 986 N.E.2d at 857. The significance of

       criminal history varies based on the gravity, nature, and number of prior

       offenses in relation to the current offense. Id. Trammell acknowledges the

       “large number of convictions” he has amassed. (Appellant’s Br. at 19.)

       However, he argues that “2/3 of [the convictions] were misdemeanors and

       most were related to his substance abuse issues.” (Id.) He is not incorrect.

       However, that does not negate the fact that he has nineteen misdemeanor

       convictions, seven felony convictions, seven probation violations, and a

       pending case involving drug possession.


[21]   Trammell has participated in multiple treatment programs but still fails to

       conform to societal and legal norms. He has been offered multiple

       opportunities to serve sentences on probation but has violated the terms of

       probations. His behavior indicates a failure to take responsibility for his

       actions. See Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct. App. 2007)


       Court of Appeals of Indiana | Memorandum Decision 24A01-1705-CR-1103 | April 4, 2018   Page 11 of 13
       (continuing to commit crimes after frequent contacts with the judicial system is

       a poor reflection on one’s character); see also Connor v. State, 58 N.E.3d 215, 221

       (Ind. Ct. App. 2016) (continued crimes indicate a failure to take full

       responsibility for one’s actions).


[22]   While Trammell attempts to argue his statements during the pre-sentence

       investigation merely demonstrate his frustration, we note Trammell wrote: “I

       am not sorry for the things that I’ve done, I am sorry for who I am and have

       become. I [sic] sorry for the system that has failed me.” (App. Vol. II at 105.)

       Beyond his lengthy criminal history, these statements document his lack of

       remorse. Such a lack of remorse, together with the extensive criminal history

       reflects poorly on Trammell’s character and does nothing to persuade us to see

       as inappropriate the trial court’s order that Trammell serve the maximum

       sentence of three years. See Perry v. State, 78 N.E.3d 1, 13 (Ind. 2017) (sentence

       appropriate when offender had an extensive criminal history and expressed

       veiled remorse for his crimes).



                                               Conclusion
[23]   The trial court did not abuse its discretion when it did not consider certain

       factors to be mitigators when sentencing Trammell. Similarly, Trammell has

       not demonstrated his three-year sentence is inappropriate in light of his

       character and his offense. Accordingly, we affirm.


[24]   Affirmed.


       Court of Appeals of Indiana | Memorandum Decision 24A01-1705-CR-1103 | April 4, 2018   Page 12 of 13
Vaidik, C.J., and Altice, J., concur.




Court of Appeals of Indiana | Memorandum Decision 24A01-1705-CR-1103 | April 4, 2018   Page 13 of 13
