MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                      FILED
this Memorandum Decision shall not be                                 Nov 30 2018, 11:07 am
regarded as precedent or cited before any
                                                                            CLERK
court except for the purpose of establishing                            Indiana Supreme Court
                                                                           Court of Appeals
the defense of res judicata, collateral                                      and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Michael R. Auger                                        Curtis T. Hill, Jr.
Franklin, Indiana                                       Attorney General of Indiana
                                                        Evan Matthew Comer
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Joseph Evan Avart,                                      November 30, 2018
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        41A04-1712-CR-2968
        v.                                              Appeal from the Johnson Circuit
                                                        Court
State of Indiana,                                       The Honorable K. Mark Loyd,
Appellee-Plaintiff                                      Judge
                                                        Trial Court Cause No.
                                                        41C01-1612-MR-1



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 41A04-1712-CR-2968 | November 30, 2018        Page 1 of 8
[1]   Joseph Avart appeals the sentence imposed by the trial court after Avart

      pleaded guilty to Level 1 Felony Burglary1 and Level 2 Felony Manslaughter.2

      Avart argues that the trial court failed to consider certain mitigating factors and

      that the sentence is inappropriate in light of the nature of the offenses and his

      character. Finding no sentencing error and that the sentence is not

      inappropriate, we affirm.


                                                    Facts
[2]   In the months leading up to December 2016, Avart was involved in an on-

      again-off-again relationship with Mindy Tennenhouse. Tennenhouse had

      previously been in a committed relationship with Andrew Perry, but in July

      2016, she left Perry to live with Avart. By October 2016, Tennenhouse had

      reconciled with Perry and moved back in with him in November. During her

      separation from Avart, she maintained contact with him and repeatedly

      suggested that she wanted to leave Perry again.


[3]   By that time, Avart had begun stalking Perry. During November 2016, Avart

      drove by Perry’s home approximately five times. He asked his mother, who

      was an employee with the Illinois State Police, to run a criminal background

      check on Perry.




      1
          Ind. Code § 35-43-2-1.
      2
          Ind. Code § 35-42-1-3.


      Court of Appeals of Indiana | Memorandum Decision 41A04-1712-CR-2968 | November 30, 2018   Page 2 of 8
[4]   On November 29, 2016, Tennenhouse visited Avart at his home and the two

      engaged in sexual intercourse. The next day, Tennenhouse again told Avart

      that she loved him and wanted to be with him. Later that day, Avart went to

      the Indianapolis International Airport, where Perry was expected to arrive after

      being away from home for work. Avart located Perry’s car and followed Perry

      all the way to his home in Greenwood. Avart wanted Perry to “think

      somebody was over his shoulder[.]” Tr. Vol. II p. 26.


[5]   The next day, Avart went to a gun store, where he purchased two boxes of

      ammunition for the handgun that he kept inside the glove compartment in his

      car. He reached out to an acquaintance to ask whether the GPS location

      devices in his vehicle and cell phone could be used to track his whereabouts.


[6]   In the early morning hours of December 2, 2016, Avart drove to Perry’s house

      after Tennenhouse had left for work. Avart parked his car several blocks down

      from Perry’s house. Before exiting his car, he placed his handgun and a baggie

      of a cocaine lookalike substance in his pockets. Avart entered Perry’s house

      through an open garage door. After Perry discovered Avart inside his house,

      the two men became involved in a verbal altercation and Perry became very

      upset. Perry moved toward Avart, who tripped and fell backwards. Avart then

      pulled his gun out of his pocket and shot Perry in the head.


[7]   Believing Perry to be dead, Avart removed several items in the kitchen and

      threw them on the floor to make it appear as though a robbery had occurred.

      He left the cocaine lookalike substance near Perry and fled the scene. Perry’s


      Court of Appeals of Indiana | Memorandum Decision 41A04-1712-CR-2968 | November 30, 2018   Page 3 of 8
       mother later discovered her son several hours later. Police and paramedics

       arrived at the scene, and Perry was pronounced dead.


[8]    Avart initially admitted to following Perry to unsettle him but denied that he

       had been at Perry’s home on the morning of the incident. After police obtained

       the GPS data from Avart’s vehicle and Avart’s cell phone records, which

       showed him near Perry’s home at the time Perry was killed, Avart confessed to

       killing Perry.


[9]    On December 19, 2016, the State charged Avart with one count of murder, later

       amending the charging information to add charges of Level 2 felony voluntary

       manslaughter and Level 1 felony burglary. On November 13, 2017, Avart

       pleaded guilty to voluntary manslaughter and burglary in exchange for the

       dismissal of the murder charge. Following a sentencing hearing, the trial court

       sentenced Avart to concurrent terms of twenty-five years for voluntary

       manslaughter and thirty-five years for burglary. Avart now appeals.


                                    Discussion and Decision
[10]   Avart raises two arguments on appeal: (1) the trial court erroneously failed to

       consider relevant mitigating factors; and (2) the sentence is inappropriate in

       light of the nature of the offenses and his character.


[11]   With respect to mitigators not found by the trial court, Avart has the burden of

       demonstrating that the mitigating evidence is both significant and clearly

       supported by the record. McElfresh v. State, 51 N.E.3d 103, 112 (Ind. 2016).

       Even if we find error, we will affirm if we are persuaded that the trial court
       Court of Appeals of Indiana | Memorandum Decision 41A04-1712-CR-2968 | November 30, 2018   Page 4 of 8
       would have imposed the same sentence had it considered the proffered

       mitigators. Id.


[12]   First, Avart argues that the trial court should have considered the fact that he

       pleaded guilty to be a mitigating factor.3 A guilty plea need not be considered a

       significant mitigator where the defendant reaped a substantial benefit from the

       plea or where the evidence against the defendant is so overwhelming that the

       plea is merely a pragmatic decision. Wells v. State, 836 N.E.2d 475, 479 (Ind.

       Ct. App. 2005).


[13]   Here, Avart reaped a substantial benefit by pleading guilty. Had he been

       convicted of murder, he faced a sentence of forty-five to sixty-five years

       imprisonment. Ind. Code § 35-50-2-3. By pleading guilty instead to one Level

       1 and one Level 2 felony, he decreased his sentencing exposure—and indeed,

       his sentence here was an aggregate thirty-five-year term, which is ten years less

       than the minimum term he would have faced had he been convicted of murder.

       Moreover, the guilty plea was a pragmatic decision made at the eleventh

       hour—less than two weeks before his jury trial was to take place. See Barker v.

       State, 994 N.E.2d 306, 311-12 (Ind. Ct. App. 2013) (noting that a defendant

       who pleads guilty shortly before trial may not be entitled to any mitigating

       weight for such a decision). Additionally, the evidence against him—including




       3
         Avart did not argue that the trial court should consider his guilty plea or—later discussed herein—his
       remorse as mitigators. Instead, Avart advanced only two mitigators: his lack of a criminal history and the
       undue hardship that a lengthy incarceration would place on his family. Under these circumstances, we could
       easily conclude that he has waived this argument but will address it nonetheless.

       Court of Appeals of Indiana | Memorandum Decision 41A04-1712-CR-2968 | November 30, 2018       Page 5 of 8
       his own confession—was overwhelming. Under these circumstances, we find

       that the trial court did not err by not finding the guilty plea to be a mitigator.


[14]   Second, Avart argues that his remorse should have been a mitigating

       circumstance. The trial court did consider Avart’s show of remorse, but merely

       found it to be unconvincing:


               You generally have appeared very remorseful. That is the
               demeanor that you’ve presented to this Court. But your
               statements at the time of the arrest coupled with your written
               statement to me create confusion that doesn’t allow for an easy
               path, and certainly not a mitigated path.


       Tr. Vol. II p. 66-67. It is well established that the trial court, “which has the

       ability to correctly observe the defendant and listen to the tenor of his or her

       voice, is in the best position to determine whether the remorse is genuine.”

       Corralez v. State, 815 N.E.2d 1023, 1025 (Ind. Ct. App. 2004). Here, we see no

       reason to second-guess the trial court’s determination that Avart’s show of

       remorse was not sincere and, consequently, was not a mitigating factor.


[15]   Next, Avart contends that the sentence imposed by the trial court is

       inappropriate in light of the nature of the offenses and his character. Indiana

       Appellate Rule 7(B) provides that this Court may revise a sentence if it is

       inappropriate in light of the nature of the offense and the character of the

       offender. We must “conduct [this] review with substantial deference and give

       ‘due consideration’ to the trial court’s decision—since the ‘principal role of

       [our] review is to attempt to leaven the outliers,’ and not to achieve a perceived


       Court of Appeals of Indiana | Memorandum Decision 41A04-1712-CR-2968 | November 30, 2018   Page 6 of 8
       ‘correct’ sentence . . . .” Knapp v. State, 9 N.E.3d 1274, 1292 (Ind. 2014)

       (quoting Chambers v. State, 989 N.E.2d 1257, 1259 (Ind. 2013)) (internal

       citations omitted).


[16]   Avart was convicted of one Level 1 felony, for which he faced a term of twenty

       to fifty years imprisonment, with an advisory term of thirty years. I.C. § 35-50-

       2-4(a). The trial court imposed a thirty-five-year sentence, which is slightly

       above the advisory but far below the maximum possible term. He was also

       convicted of one Level 2 felony, for which he faced a term of ten to thirty years

       imprisonment, with an advisory term of seventeen and one-half years. I.C. §

       35-50-2-4.5. The trial court imposed a twenty-five-year sentence, which is again

       above the advisory but below the maximum possible term. Additionally, the

       trial court ordered that the sentences be served concurrently, meaning that his

       aggregate thirty-five-year sentence was far below the maximum possible term of

       eighty years imprisonment.


[17]   As for the nature of Avart’s offenses, he stalked Perry for weeks, repeatedly

       driving by his house and on one occasion, following him home from the airport

       to unsettle him. In the days leading up to the crimes, Avart purchased

       ammunition for his handgun, purchased a cocaine lookalike substance, and

       asked a friend whether the GPS in his phone and vehicle could be used to track

       his whereabouts. In other words, Avart carefully planned and prepared for

       these crimes. After killing Perry, Avart ransacked his home to make it appear

       as though Perry had died during a botched robbery, leaving Perry’s body for his

       mother to find. Avart then lied to the police repeatedly until finally being

       Court of Appeals of Indiana | Memorandum Decision 41A04-1712-CR-2968 | November 30, 2018   Page 7 of 8
       confronted with incontrovertible evidence that he had, in fact, been at Perry’s

       home on the morning of the incident. We do not find that the nature of the

       offenses aids Avart’s inappropriateness argument.


[18]   With respect to Avart’s character, it is true that he does not have a criminal

       history. But the trial court reasonably found that the premeditated, calculated

       nature of Avart’s crime is sufficient to overcome the lack of a prior criminal

       history. See Eversole v. State, 873 N.E.2d 1111, 1114 (Ind. Ct. App. 2007)

       (finding sentence not inappropriate where defendant had no criminal history

       but the violent nature of the crime, particularly the fact that defendant had

       killed a man, overcame the lack of prior criminal history). We also note that

       Avart’s dishonesty, including his attempt to cover up the crime, speaks ill of his

       character.


[19]   Under these circumstances, we find that the sentence imposed by the trial court

       is not inappropriate in light of the nature of the offenses and Avart’s character.


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


       May, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 41A04-1712-CR-2968 | November 30, 2018   Page 8 of 8
