MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                              Sep 30 2015, 8:35 am
this Memorandum Decision shall not be
regarded as precedent or cited before any
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
Benjamin Loheide                                         Gregory F. Zoeller
Columbus, Indiana                                        Attorney General of Indiana

                                                         Christina D. Pace
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Wenston Watson,                                          September 30, 2015
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         03A01-1501-CR-15
        v.                                               Appeal from the Bartholomew
                                                         Superior Court
State of Indiana,                                        The Honorable James D. Worton,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         03D01-1307-FC-4042
                                                         03D01-1301-FC-2230
                                                         03D01-1403-FD-1132
                                                         03D01-1404-FD-1688
                                                         03D01-1104-CM-3445



Vaidik, Chief Judge.



Court of Appeals of Indiana | Memorandum Decision 03A01-1501-CR-15 | September 30, 2015   Page 1 of 5
                                          Case Summary
[1]   While on probation for two prior offenses, Wenston Watson was charged with

      four felonies and a misdemeanor under three new cause numbers, resulting in a

      petition to revoke his probation. Watson and the State entered a plea

      agreement that disposed of all five causes. Watson now appeals his sentence,

      arguing the trial court abused its discretion by not finding two mitigating

      factors: his guilty plea and undue hardship to his dependent children. Finding

      the record reflects that Watson pled guilty as part of a plea agreement which

      provided adequate benefits to him, and that the record does not reflect an undue

      burden on his dependent children, we affirm the trial court’s sentence.



                            Facts and Procedural History
[2]   While Watson was on probation for cause numbers 03D01-1404-FD-1688

      (“FD-1688”), and 03D01-1106-CM-3445 (“CM-3445”), he was charged with

      five crimes, four of them felonies, in three separate cause numbers, 03D01-

      1304-FC-2230 (“FC-2230”), 03D01-1307-FC-4042 (“FC-4042”), and 03D01-

      1403-FD-1132 (“FD-1132”). Based on the new charges, the State petitioned to

      revoke Watson’s probation. Watson and the State entered a plea agreement

      that provided Watson would plead guilty to Class A misdemeanor domestic

      battery and Class D felony attempted criminal confinement to be entered as a

      Class A misdemeanor under cause number FC-4042; Class D felony failure to

      appear under cause number FD-1132; and admit violating his probation in

      cause numbers FD-1688 and CM-3445. In exchange, the State agreed to

      Court of Appeals of Indiana | Memorandum Decision 03A01-1501-CR-15 | September 30, 2015   Page 2 of 5
      dismiss cause number FC-2230, which contained two felony counts. According

      to the plea agreement sentencing was left to the discretion of the trial court.

[3]   At the sentencing hearing, the trial court found two aggravating factors—

      Watson’s history of criminal and delinquent behavior and that he violated the

      terms and conditions of his probation—and no mitigating factors. Tr. p. 90-91.

      Although the trial court acknowledged that Watson pled guilty, it found that he

      received a benefit from the plea agreement and, therefore, did not consider the

      plea to be a mitigating factor. The trial court sentenced Watson as follows:

      under cause number FC-4042, to two one-year terms in Bartholomew County

      Jail, both suspended to probation; under cause number FD-1132, to two-and-

      one-half years at the Indiana Department of Correction, with one of those years

      as a direct commitment to Community Corrections to be served consecutively

      to the sentence in FC-4042; and to time served for the two probation violations.

[4]   Watson now appeals his sentence.



                                 Discussion and Decision
[5]   On appeal, Watson contends the trial court abused its discretion by not finding

      his guilty plea and the undue hardship on his dependent children to be

      mitigating factors.

[6]   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), decision clarified on reh’g, 875 N.E.2d 218 (Ind.

      Court of Appeals of Indiana | Memorandum Decision 03A01-1501-CR-15 | September 30, 2015   Page 3 of 5
      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. A trial court may

      abuse its discretion in a number of ways, including entering a sentencing

      statement that omits mitigating factors that are clearly supported by the record.

      Id. at 490-91. Watson bears the burden of establishing “that the mitigating

      evidence is both significant and clearly supported by the record.” Id. at 493

      (citing Carter v. State, 711 N.E.2d 835, 838 (Ind. 1999)).


[7]   We find that Watson has not proven that his proffered mitigating circumstances

      are significant and clearly supported by the record. First, Watson points out

      that by pleading guilty he “is taking accountability for his actions,” and he

      removed five cases from the court’s docket, saving the State considerable time

      and resources. Appellant’s Br. p. 4. “A guilty plea is not automatically a

      significant mitigating factor,” particularly where the defendant receives

      adequate benefits. Cuyler v. State, 798 N.E.2d 243, 247 (Ind. Ct. App. 2003),

      trans. denied. Here, the State significantly reduced Watson’s exposure at

      sentencing by agreeing to dismiss two felony charges under cause number FC-

      2230, and by reducing the charges under cause number FC-4042 from Class C

      felony attempted criminal confinement to Class D felony attempted criminal

      confinement to be entered as a Class A misdemeanor. Appellee’s Br. p. 7.

      Therefore, it was not an abuse of discretion for the trial court to conclude

      Watson received adequate benefits from the plea agreement and to reject his

      guilty plea as a mitigating factor.


      Court of Appeals of Indiana | Memorandum Decision 03A01-1501-CR-15 | September 30, 2015   Page 4 of 5
[8]    Second, the record does not support Watson’s claim that incarceration would

       cause undue hardship for his dependent children. “Many persons convicted of

       serious crimes have one or more children and, absent special circumstances,

       trial courts are not required to find that imprisonment will result in an undue

       hardship.” Dowdell v. State, 720 N.E.2d 1146, 1154 (Ind. 1999). Watson’s

       circumstances, as presented in the record, do not rise to the level of undue

       hardship. He has four children, all of whom live with their mothers. None of

       the three mothers testified at sentencing that Watson’s incarceration would

       create any hardship. There are support orders for three of the children totaling

       $200 per week. Tr. p. 43-45. However, Watson was already $16,000 behind in

       support payments at the time of sentencing. Id. at 49-50. In short, Watson

       failed to establish that the hardship to his dependents is undue. His case is not

       distinguishable from the “[m]any persons convicted of serious crimes [who]

       have one or more children” and is not a “special circumstance” meriting

       additional consideration. See Dowdell, 720 N.E.2d at 1154.


[9]    Finding that Watson has failed to prove that the mitigators are both significant

       and clearly supported by the record, we conclude that the trial court did not

       abuse its discretion in sentencing Watson.

[10]   Affirmed.

[11]   Robb, J., and Pyle, J., concur.




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