MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                              FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                      May 19 2017, 9:56 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
P. Jeffrey Schlesinger                                  Curtis T. Hill, Jr.
Office of the Public Defender                           Attorney General of Indiana
Crown Point, Indiana
                                                        Jesse R. Drum
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Javonta Pointer,                                        May 19, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        45A03-1612-CR-2831
        v.                                              Appeal from the Lake Superior
                                                        Court
State of Indiana,                                       The Honorable Diane Ross
Appellee-Plaintiff.                                     Boswell
                                                        Trial Court Cause No.
                                                        45G03-1301-MR-1



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 45A03-1612-CR-2831 | May 19, 2017     Page 1 of 9
                                          Case Summary
[1]   Javonta Pointer (“Pointer”) appeals the twenty-five-year sentence imposed

      following his plea of guilty to Burglary, as a Class A felony.1 We affirm.



                                                   Issues
[2]   Pointer presents three issues for review:


                 I.       Whether the trial court abused its discretion by excluding a
                          character witness;


                 II.      Whether the trial court abused its sentencing discretion in
                          the finding of mitigating and aggravating circumstances;
                          and


                 III.     Whether the twenty-five-year sentence is inappropriate.


                                   Facts and Procedural History
[3]   On October 19, 2012, Jerry Hood (“Hood”) and Mark Scott (“Scott”) went to

      Hood’s home in Gary to take a lunch break. From outside, Hood and Scott

      noticed that there was a broken window. A man dressed in black and wearing

      a ski mask was looking down on them from an upstairs window. Scott called 9-

      1-1 and went to the front door. Hood went to the back door.




      1
          Ind. Code § 35-43-2-1.


      Court of Appeals of Indiana | Memorandum Decision 45A03-1612-CR-2831 | May 19, 2017   Page 2 of 9
[4]   Scott met Pointer at the front door and, pretending to have a gun, told Pointer

      to put his hands up. Pointer complied. Scott heard gunshots and ran around to

      the back door. There, he discovered that Pointer’s accomplice had fatally shot

      Hood. Pointer’s accomplice pointed a handgun at Scott, and Scott ran around

      the house to await police.


[5]   Pointer and his accomplice fled. Pointer was later arrested in Indianapolis and

      asked for protection because he had heard there was a plot to kill him so that he

      could not identify Hood’s shooter.


[6]   Pointer was initially charged with Felony Murder. He was later charged with

      Burglary and Attempted Burglary. On September 2, 2016, Pointer pled guilty

      to Burglary, as a Class A felony. Pursuant to Pointer’s plea bargain with the

      State, his sentence was to be capped at twenty-five years. On November 14,

      2016, the trial court conducted a sentencing hearing. Pointer was sentenced to

      twenty-five years of imprisonment. He now appeals.



                                Discussion and Decision
                             Exclusion of Character Witness
[7]   At the sentencing hearing, the State read a letter from Hood’s orphaned

      daughter and called Hood’s niece to testify. Pointer called his aunt and his

      girlfriend’s mother to testify; each testified as to Pointer’s positive character

      traits. Although Pointer sought to call a third character witness, the trial court

      excluded that witness, on grounds that the State had only two and Pointer

      Court of Appeals of Indiana | Memorandum Decision 45A03-1612-CR-2831 | May 19, 2017   Page 3 of 9
      should have only two. However, Pointer was permitted to make an offer of

      proof, that is, the witness would have testified that Pointer was a good kid not

      involved in drugs.


[8]   Pointer makes a cursory argument that “the trial court’s imposition of a

      limitation is contrary to the sentencing statute and his rights under the Fifth and

      Fourteenth Amendments to the United States Constitution and Article 1 § 12 of

      the Indiana Constitution.” Appellant’s Brief at 10. He does not develop a

      specific argument on either statutory or constitutional grounds, but directs our

      attention to Wilson v. State, 865 N.E.2d 1024, 1029 (Ind. Ct. App. 2007) for the

      proposition that “refusal to admit evidence presented on a defendant’s behalf

      through the testimony of others at a sentencing hearing has been determined to

      violate the Indiana sentencing statute and the defendant’s federal due process

      rights.” Appellant’s Brief at 10.


[9]   In Wilson, the trial court denied the convicted person the opportunity to present

      personal information such as family history, employment history, and mental

      health history, because he had not cooperated with a probation officer in the

      compilation of a presentence investigation report. 865 N.E.2d at 1028.

      Wilson’s counsel objected that the exclusion amounted to a denial of due

      process rights. On appeal, Wilson argued that he had been deprived of due

      process and that the trial court had violated Indiana Code Section 35-38-1-3,

      which stated in relevant part: “The [convicted] person is entitled to subpoena

      and call witnesses and to present information in his own behalf.” This Court

      found a violation of Wilson’s statutory and due process rights, conducted a

      Court of Appeals of Indiana | Memorandum Decision 45A03-1612-CR-2831 | May 19, 2017   Page 4 of 9
       harmless error analysis and concluded that the error was not harmless, vacated

       the sentence, and remanded for a sentencing hearing at which Wilson could call

       witnesses on his own behalf. Id. at 1029-30.


[10]   There, Wilson had been unable to call any witness to offer testimony as to the

       entire category of his personal information. Thus, he was prevented from

       offering evidence on his own behalf relative to his character, a crucial

       sentencing consideration. Here, by contrast, Pointer was permitted to elicit

       testimony from his character witnesses. He was simply not permitted to call a

       third witness to offer cumulative testimony that Pointer is a person of good

       character. Although it may have been a better practice to allow the third

       witness, we are not persuaded that Pointer’s substantial rights were affected.

       See Ind. Trial Rule 61 (error is harmless and not grounds for vacating a judgment

       or order unless the refusal to take such action appears inconsistent with

       substantial justice).


             Abuse of Discretion – Aggravators and Mitigators
[11]   Indiana Code Section 35-50-2-4 provides that a person convicted of a Class A

       felony faces a sentencing range of twenty to fifty years, with the advisory

       sentence being thirty years. Pointer received a sentence of five years less than

       the advisory sentence. In imposing this sentence, the trial court found no

       mitigators and found as aggravators Pointer’s criminal history and drug use.


[12]   Sentencing decisions are 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

       Court of Appeals of Indiana | Memorandum Decision 45A03-1612-CR-2831 | May 19, 2017   Page 5 of 9
       218. However, a trial court may be found to have abused its sentencing

       discretion in a number of ways, including: (1) failing to enter a sentencing

       statement at all; (2) entering a sentencing statement that explains reasons for

       imposing a sentence where the record does not support the reasons; (3) entering

       a sentencing statement that omits reasons that are clearly supported by the

       record and advanced for consideration; and (4) entering a sentencing statement

       in which the reasons given are improper as a matter of law. Id. at 490-91. The

       reasons or omissions of reasons given for choosing a sentence are reviewable on

       appeal for an abuse of discretion. Id. at 491. The weight given to those reasons,

       i.e., to particular aggravators or mitigators, is not subject to appellate review.

       Id.


[13]   Pointer complains that the trial court found no mitigating circumstances

       although he pled guilty and expressed remorse, he had no adult criminal history

       and he was only eighteen years old. We do not remand for reconsideration of

       alleged mitigating factors that have debatable nature, weight, and significance.

       Primmer v. State, 857 N.E.2d 11, 16 (Ind. Ct. App. 2006), trans. denied.


[14]   Pointer pled guilty. A guilty plea saves significant court resources, and when

       the State reaps a substantial benefit from the defendant’s guilty plea, the

       defendant deserves to have a substantial benefit returned. Sensback v. State, 720

       N.E.2d 1160, 1165 (Ind. 1999). However, a trial court does not abuse its

       discretion by not finding a guilty plea as a mitigating factor when a defendant

       receives substantial benefits for pleading guilty. Id. Here, in exchange for

       Pointer’s plea, the State moved to dismiss a charge of murder. Also, Pointer’s

       Court of Appeals of Indiana | Memorandum Decision 45A03-1612-CR-2831 | May 19, 2017   Page 6 of 9
       sentence was capped at twenty-five years, which is five years less than the

       advisory sentence for a Class A felony. As such, Pointer received a substantial

       benefit for pleading guilty. Together with accepting responsibility by pleading

       guilty, remorse can be a significant mitigating factor. See Hope v. State, 834

       N.E.2d 713, 718 (Ind. Ct. App. 2005). Here, however, Pointer did not argue to

       the trial court that his remorse was a mitigating factor.


[15]   As for Pointer’s lack of an adult criminal history, he had just turned eighteen

       and he had juvenile adjudications. The trial court was not required to find that

       Pointer had led a law-abiding life. Nor was the trial court obliged to find that

       his youthfulness was a mitigating factor. See Monegan v. State, 756 N.E.2d 499,

       504 (Ind. 2001) (age is neither a statutory nor or a per se mitigating factor).


[16]   To the extent that Pointer argues that the aggravating circumstances are

       improper because they lack evidentiary support, we disagree. Pointer had a

       history of juvenile adjudications and he admitted in the presentence

       investigation process that he had used marijuana daily and did so until his

       arrest. Pointer has shown no abuse of the trial court’s sentencing discretion.



                                        Inappropriateness
[17]   Under Indiana Appellate Rule 7(B), this “Court may revise a sentence

       authorized by statute if, after due consideration of the trial court’s decision, the

       Court finds that the sentence is inappropriate in light of the nature of the offense

       and the character of the offender.” In performing our review, we assess “the


       Court of Appeals of Indiana | Memorandum Decision 45A03-1612-CR-2831 | May 19, 2017   Page 7 of 9
       culpability of the defendant, the severity of the crime, the damage done to

       others, and myriad other factors that come to light in a given case.” Cardwell v.

       State, 895 N.E.2d 1219, 1224 (Ind. 2008). The principal role of such review is

       to attempt to leaven the outliers. Id. at 1225.


[18]   When considering whether a sentence is inappropriate, we need not be

       “extremely” deferential to a trial court’s sentencing decision, but we accord due

       consideration to that decision, recognizing the unique perspective of the trial

       court. Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007).

       Accordingly, a defendant ‘“must persuade the appellate court that his or her

       sentence has met th[e] inappropriateness standard of review.”’ Anglemyer, 868

       N.E.2d at 494 (quoting Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006)).


[19]   As for the nature of the offense, Pointer and an accomplice burglarized Hood’s

       home and Hood was shot dead. As to the character of the offender, Pointer

       pled guilty, something which reflects favorably upon his character. Although

       Pointer ultimately identified his accomplice, he did not do so until after his

       arrest and his self-reported fear of a death threat. He had been adjudicated

       delinquent for operating a vehicle without a license and possessing marijuana.


[20]   Having reviewed the matter, we conclude that the trial court did not impose an

       inappropriate sentence under Appellate Rule 7(B).




       Court of Appeals of Indiana | Memorandum Decision 45A03-1612-CR-2831 | May 19, 2017   Page 8 of 9
                                               Conclusion
[21]   Pointer has not shown an abuse of the trial court’s sentencing discretion.

       Pointer’s twenty-five-year sentence is not inappropriate.


[22]   Affirmed.


       Vaidik, C.J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 45A03-1612-CR-2831 | May 19, 2017   Page 9 of 9
