MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                              Dec 10 2019, 10:02 am
court except for the purpose of establishing                                CLERK
the defense of res judicata, collateral                                 Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Jennifer L. Koethe                                      Curtis T. Hill, Jr.
Navarre, Florida                                        Attorney General of Indiana
                                                        Samantha M. Sumcad
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Brandon Hill,                                           December 10, 2019
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        19A-CR-609
        v.                                              Appeal from the LaPorte Circuit
                                                        Court
State of Indiana,                                       The Honorable Thomas Alevizos,
Appellee-Plaintiff,                                     Judge
                                                        Trial Court Cause No.
                                                        46C01-1806-F5-623



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-609 | December 10, 2019                Page 1 of 7
                                Case Summary and Issue
[1]   Brandon Hill pleaded guilty to two counts of robbery, both Level 5 felonies, and

      was sentenced to an enhanced sentence of five years on each count to be served

      concurrently in the Indiana Department of Correction. Hill appeals his

      sentence, raising one issue for our review: whether the trial court abused its

      discretion in sentencing him. Concluding the trial court did not abuse its

      sentencing discretion, we affirm.



                            Facts and Procedural History
[2]   On March 19 and March 21, 2018, Hill stole money from two different

      individuals in LaPorte, Indiana. The State charged Hill with two counts of

      robbery by placing a person in fear, both Level 5 felonies.


[3]   Hill and the State entered into a written plea agreement pursuant to which Hill

      agreed to plead guilty to both counts of robbery as charged and sentencing was

      left to the trial court’s discretion. The trial court accepted the plea agreement

      and held a sentencing hearing on February 15, 2019. At the hearing, Hill stated

      in court:


              I want to apologize to the Court and to the State of Indiana for
              my actions. There is no excuse, you know. I came here with
              different intentions and different things pointed me in different
              routes. Like, I had a – I needed the support[.]


              Since I was 11-years-old I have been locked up, detained,
              incarcerated, held. . . . I did 10 years straight in the State of

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-609 | December 10, 2019   Page 2 of 7
              Illinois and . . . [the State of Illinois doesn’t] offer programs and
              rehabilitation.


      Transcript, Volume II at 17-18. The trial court considered Hill’s extensive

      criminal history, which includes prior convictions of robbery, and the closeness

      in time of his crimes as aggravating circumstances. As a mitigating

      circumstance, the trial court found the fact that Hill pleaded guilty. The trial

      court determined the aggravating circumstances outweighed the mitigating

      circumstance and sentenced Hill to an enhanced sentence of five years on each

      count to be served concurrently. Hill now appeals.



                                Discussion and Decision
[4]   Hill contends that the trial court abused its discretion in sentencing him.

      Sentencing decisions rest within the sound discretion of the trial court.

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

      218 (Ind. 2007). When a sentence is within the statutory range, it is subject to

      review only for abuse of discretion. Id. 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.


[5]   A trial court may abuse its sentencing discretion in a number of ways:


              (1) failing to enter a sentencing statement, (2) entering a
              sentencing statement that explains reasons for imposing the
              sentence but the record does not support the reasons, (3) the

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-609 | December 10, 2019   Page 3 of 7
              sentencing statement omits reasons that are clearly supported by
              the record and advanced for consideration, or (4) the reasons
              given in the sentencing statement are improper as a matter of
              law.


      Phelps v. State, 24 N.E.3d 525, 527 (Ind. Ct. App. 2015). Hill contends he

      expressed remorse and the trial court abused its discretion in omitting his

      remorse as a mitigating circumstance.


[6]   The finding of a mitigating circumstance is discretionary and therefore, the trial

      court has no obligation to accept the defendant’s argument as to what

      constitutes a mitigating circumstance or to give the weight to mitigating

      evidence that the defendant would. Hunter v. State, 72 N.E.3d 928, 935 (Ind. Ct.

      App. 2017), trans. denied. “An allegation that the trial court failed to identify or

      find a mitigating factor requires the defendant to establish that the mitigating

      evidence is both significant and clearly supported by the record.” Anglemyer, 868

      N.E.2d at 493.


[7]   Remorse has been recognized by our supreme court as a valid mitigating

      circumstance. Hape v. State, 903 N.E.2d 977, 1002 (Ind. Ct. App. 2009) (citing

      Cotto v. State, 829 N.E.2d 520, 526 (Ind. 2005)), trans. denied. But the trial court

      “possesses the ability to directly observe a defendant and can best determine

      whether a defendant’s remorse is genuine.” Phelps v. State, 969 N.E.2d 1009,

      1020 (Ind. Ct. App. 2012), trans. denied. A trial court’s assessment of a

      defendant’s proclaimed remorse is similar to a determination of credibility.

      Pickens v. State, 767 N.E.2d 530, 535 (Ind. 2002). “Without evidence of some


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-609 | December 10, 2019   Page 4 of 7
      impermissible consideration by the court, we accept its determination of

      credibility.” Id. Therefore, “[s]ubstantial deference must be given to the trial

      court’s evaluation of a defendant’s remorse.” Phelps, 969 N.E.2d at 1020.


[8]   Here, Hill robbed two people on two separate occasions. At his sentencing

      hearing, Hill apologized to the trial court and the State for his actions. There is,

      however, no indication that Hill expressed remorse to the victims for taking their

      property. In addition, the record shows, and the trial court and counsel

      discussed, that Hill committed a separate robbery within four weeks after he

      committed the robberies in this case. Hill’s expression of remorse tends to

      demonstrate that he was remorseful for getting arrested rather than being truly

      regretful for committing robberies and the harm he caused. The State argues,

      and we agree, that although Hill apologized, he blamed his previous contact

      with the justice system and the lack of institutional support as the cause of his

      actions instead of taking true responsibility. Indeed, it was the trial court that

      heard Hill’s apology and was in the best position to assess his credibility and

      proclaimed remorse. The trial court was well within its discretion to decide that

      Hill’s remorse was not a significant factor. See Haddock v. State, 800 N.E.2d 242,

      245 (Ind. Ct. App. 2003) (stating that a trial court has discretion to determine

      whether a circumstance is mitigating, and it is not required to explain why it

      does not find a circumstance to be mitigating). Giving deference to the trial

      court’s assessment, we hold that it did not abuse its discretion in omitting

      remorse as a mitigating circumstance. See Phelps, 969 N.E.2d at 1020.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-609 | December 10, 2019   Page 5 of 7
[9]    Even if the trial court erred by not considering Hill’s remorse to be a mitigating

       circumstance, the sentence may stand if we can “say with confidence that the

       trial court would have imposed the same sentence[.]” Anglemyer, 868 N.E.2d at

       491. Here, the trial court found Hill’s extensive criminal history and the

       closeness in time of his crimes warranted an enhanced sentence. Hill has not

       shown that the trial court would have imposed a different sentence had it

       considered his remorse. Therefore, our confidence in the sentence is not

       diminished.


[10]   Hill also briefly argues that the trial court abused its discretion by giving

       insufficient weight to the fact that he pleaded guilty, pointing out that he saved

       the State the time and expense of trial. See Appellant’s Brief at 9. We agree that

       Hill saved the State the time and expense of preparing for trial and we note he

       received no real benefit from the plea agreement. However, Hill cannot attack

       the weight the trial court assigned to a certain mitigating circumstance. See

       Anglemyer, 868 N.E.2d at 491 (noting that “a trial court cannot now be said to

       have abused its discretion in failing to ‘properly weigh’” mitigating

       circumstances). Therefore, the trial court did not abuse its discretion in the

       weight it assigned to Hill’s plea of guilty.1




       1
         Hill references Indiana Appellate Rule 7(B) in his brief, but he does not present a cogent argument
       supported by reasoning under that rule. See Ind. Appellate Rule 46(A)(8)(a). Accordingly, to the extent Hill
       intended to argue his sentence was inappropriate, he has waived this issue for review. See Foutch v. State, 53
       N.E.3d 577, 580 n.1 (Ind. Ct. App. 2016) (waiving a defendant’s abuse of discretion sentencing argument
       where he failed to present a separate cogent argument on that issue).

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-609 | December 10, 2019                     Page 6 of 7
                                              Conclusion
[11]   The trial court did not abuse its discretion in sentencing Hill. Accordingly, his

       sentence is affirmed.


[12]   Affirmed.


       Mathias, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-609 | December 10, 2019   Page 7 of 7
