Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
                                                        Dec 08 2014, 9:35 am
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:

CARLOS I. CARRILLO                              GREGORY F. ZOELLER
Lafayette, Indiana                              Attorney General of Indiana

                                                CYNTHIA L. PLOUGHE
                                                Deputy Attorney General
                                                Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

CLAY MICHAEL HOWARD,                            )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )       No. 79A02-1403-CR-202
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                    APPEAL FROM THE TIPPECANOE SUPERIOR COURT
                           The Honorable Randy Williams, Judge
                              Cause No. 79D01-0105-CF-51



                                     December 8, 2014

               MEMORANDUM DECISION – NOT FOR PUBLICATION

BAKER, Judge
       Clay Howard appeals the trial court’s denial of his motion to withdraw a guilty

plea. He also appeals the sentence imposed by the trial court, arguing that the trial court

erred by failing to consider his mental illness as a mitigator, by considering the

sentencing recommendations of the victim’s parents as an aggravator, by imposing a

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

by imposing one year of home detention following the executed portion of the term. The

State concedes, and we agree, that it was erroneous to impose one year of home detention

in excess of the executed portion of the term because it contravened the terms of the plea

agreement reached between Howard and the State. We find no other error. Therefore,

we affirm in part, reverse in part, and remand for revision of Howard’s sentence

consistent with this decision.

                                          FACTS

       Howard has been diagnosed with schizophrenia, psychotic disorder, and

polysubstance abuse dependence. He has received mental health treatment for years and

has been prescribed multiple psychotropic medications to manage his mental illness.

       On April 3, 2001, Howard broke into a residence with the intent to commit theft

inside. On April 25, 2001, Howard fired a shotgun at a passing vehicle. Howard later

admitted that he intended to kill David Lee Daughterty, Jr., who was inside the vehicle,

because he had refused to pay Howard fifty dollars that he owed pursuant to a prior drug

transaction.



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       On May 4, 2001, the State charged Howard with class A felony attempted murder,

and on September 5, 2002, the State added a charge of class B felony burglary. On May

18, 2001, the State served a discovery notice, indicating that statements had been given to

police by three witnesses. The notice included the witnesses’ names and addresses. On

September 4, 2002, the prosecutor received the recordings of the witnesses’ statements.

       On September 5, 2002, Howard pleaded guilty but mentally ill to both charges. In

exchange for his guilty plea, the State agreed to dismiss all charges in four other pending

cases and agreed not to file a probation violation in two other cases. The guilty plea

agreement provided that sentencing would be left to the trial court’s discretion except that

the executed portion of the sentence was not to exceed thirty-two years. The agreement

also allowed the victims to make sentencing recommendations.

       On January 9, 2003, Howard moved to withdraw his guilty plea because he had

not yet seen the transcripts of the statements provided by the three witnesses. Howard’s

attorney testified at the hearing on the motion that she had given police reports, which

contained the substance of the statements, to Howard on multiple occasions before he

pleaded guilty. No transcripts had been prepared initially because Howard pleaded guilty

the day after the prosecutor’s office received the statements. The trial court denied the

motion to withdraw the guilty plea.

       A sentencing hearing took place on February 28, 2003. At the hearing, evidence

was presented regarding Howard’s mental illness, including a psychologist’s report that

concluded that the attempted murder was not the product of mental illness. The trial

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court imposed a forty-year sentence for attempted murder and a fifteen-year sentence for

burglary, to be served concurrently. The trial court suspended eight years to probation,

with the first year of probation to be served on house arrest. Howard now appeals.1

                               DISCUSSION AND DECISION

                                 I. Withdrawal of Guilty Plea

       Howard first argues that the trial court erroneously denied his request to withdraw

his guilty plea. A ruling on a motion to withdraw a guilty plea is within the discretion of

the trial court, and arrives in this court with a presumption in favor of the ruling. Jeffries

v. State, 966 N.E.2d 773, 777 (Ind. Ct. App. 2012). Generally, after a defendant pleads

guilty but before a sentence is imposed, a defendant may move to withdraw the plea. Ind.

Code § 35-35-1-4(b). The trial court must permit a defendant to withdraw the guilty plea

if it is necessary to correct a manifest injustice, and may permit the withdrawal of the

plea for any fair and just reason. Id.

       Howard argues that the fact that he did not have the transcripts of the witnesses’

statements to police at the time he pleaded guilty obligated the trial court to permit him to

withdraw his guilty plea. We cannot agree. At the time Howard pleaded guilty, he was

aware of the existence of the statements, and had been for over a year. He had also been

aware, for over a year, of the names and addresses of the witnesses. He had read the

police reports, which contained the substance, albeit not transcribed word-for-word, of



1
 Howard was given permission by the trial court to file a belated appeal. It appears that he may not
have been apprised of all of his appellate rights at the sentencing hearing.
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what the witnesses reported to police. Yet he decided to plead guilty anyway, the day

after the prosecutor’s office received the statements, meaning that there had been no time

to transcribe those statements. Howard has made no assertion herein that anything in the

transcripts, which he has since read, is exculpatory or would somehow have altered his

decision to plead guilty. Under these circumstances, we find that the trial court did not

err by denying the motion to withdraw the guilty plea.

                                        II. Sentence

                             A. Mental Illness as a Mitigator

       Howard next turns to the sentence imposed by the trial court, contending that the

trial court erred by declining to consider his mental illness to be a mitigating factor. The

finding of mitigating circumstances is within the trial court’s discretion. Abel v. State,

773 N.E.2d 276, 280 (Ind. 2002).

       There are four factors that bear on the weight to be given to mental illness at

sentencing: (1) the extent of the defendant’s ability to control his behavior due to the

disorder; (2) the overall limitations on functioning; (3) the duration of the mental illness;

and (4) the nexus between the disorder and the commission of the crime. Bryant v. State,

984 N.E.2d 240, 252 (Ind. Ct. App. 2013), trans. denied.

       In this case, a psychologist who evaluated Howard concluded that Howard’s

actions in this case “were not the product of a mental disorder that rendered him unable to

distinguish right from wrong.” Appellant’s App. p. 83. Furthermore, the psychologist

noted that the clinical interviews and psychological testing of Howard “are also

                                             5
suggestive of an exaggeration or feigning of psychiatric symptoms.” Id. The trial court

clearly acknowledged Howard’s mental illness, as it was referred to repeatedly by the

trial court during the sentencing hearing. But given the evidence of a lack of nexus

between Howard’s mental illness and the commission of the crimes herein, we do not

find that the trial court abused its discretion by declining to consider Howard’s mental

illness to be a mitigator.

                    B. Victims’ Parents Sentencing Recommendations

       The parents of the victims of Howard’s attempted murder and burglary

convictions provided statements at the time of sentencing, and at least one set of parents

recommended an aggravated sentence. The trial court considered the fact that the “victim

recommends aggravation of the sentence” as an aggravating factor. Appellant’s App. p.

29.   Howard argues that this was an improper aggravator.            As with mitigating

circumstances, the finding of aggravating factors is within the trial court’s discretion.

Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218

(Ind. 2007).

       Initially, we note that the plea agreement provided that the victims would be

permitted to testify regarding their sentencing recommendations. Furthermore, Indiana

Code section 35-35-3-5 gives victims the right to speak at sentencing hearings. Although

“victim” is not defined within that statute, the portion of the Indiana Code relating to

Presentence Investigation Reports defines “victim” as “a person who has suffered harm

as a result of a crime.” Ind. Code § 35-31.5-2-348(a).

                                            6
       Howard argues that the parents of the victims are not actual victims within the

purview of the plea agreement or the Indiana Code. We cannot agree. Parents of crime

victims certainly suffer harm as a result of the crime. Indeed, all too frequently, the

families of crime victims suffer right alongside the one who was directly harmed.

Therefore, we find that this aggravator was supported by the record and that the trial

court did not abuse its discretion in this regard.

                                     C. Appropriateness

       Howard next contends that the thirty-two-year 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 ‘correct’ sentence . . . .” Knapp v. State, 9 N.E.2d 1274,

1292 (Ind. 2014) (quoting Chambers v. State, 989 N.E.2d 1257, 1259 (Ind. 2013))

(internal citations omitted). Our Supreme Court has cautioned that “[a] defendant’s

conscious choice to enter a plea agreement that limits the trial court’s discretion to a

sentence less than the statutory maximum should usually be understood as strong and

persuasive evidence of sentence reasonableness and appropriateness,” and that following

such an agreement, we should grant relief “only in the most rare, exceptional cases.”

Childress v. State, 848 N.E.2d 1073, 1081 (Ind. 2006) (Dickson, J., concurring).

                                               7
       Here, Howard pleaded guilty to a class A felony and a class B felony. A class A

felony is eligible for a sentence between twenty and fifty years, with an advisory term of

thirty years. Ind. Code § 35-50-2-4. A class B felony is eligible for a sentence of six to

twenty years, with an advisory sentence of ten years. I.C. § 35-50-2-5. The maximum

term faced by Howard absent a plea agreement, therefore, would have been seventy

years. The plea agreement capped the executed portion of Howard’s term at thirty-two

years, less than half of the maximum he would have otherwise faced. This is strong and

persuasive evidence of the reasonableness and appropriateness of the sentence imposed

by the trial court.

       As to the nature of the offenses, Howard burglarized someone’s residence. He

also shot a shotgun at a moving vehicle, intending to kill someone inside that vehicle.

The reason he took that drastic, would-be fatal action was because of fifty dollars owed to

him from a prior drug deal. We do not find that the nature of the offenses renders the

sentence inappropriate.

       As to Howard’s character, we note that he was eighteen at the time he committed

the instant offenses. Even at such a young age, he had been adjudicated a delinquent on

four separate occasions. He was waived to adult court in 2000 and continued to commit

offenses such as theft, auto theft, and burglary. He was admittedly involved in drug

dealing. At the time he pleaded guilty to the instant offenses, there were four other open

criminal cases and two potential probation violations pending against him. Even when

his young age and mental illness are taken into consideration, we do not find that

                                            8
Howard’s character renders the sentence imposed by the trial court inappropriate.

Therefore, this argument is unavailing.

                                   D. Home Detention

        Finally, the trial court imposed an aggregate forty-year sentence, with thirty-two

years to be executed and eight years to be suspended to probation. The trial court ordered

the first year of the suspended term to be served on home detention. The parties’ plea

agreement capped the executed portion of the sentence at thirty-two years.

        As the State concedes, our Supreme Court recently held that a one-year term in

work release as a condition of probation, following the maximum executed term allowed

under a plea agreement, exceeded the court’s authority once it accepted the parties’

agreement. Berry v. State, 10 N.E.3d 1243, 1244 (Ind. 2014). Given the ruling in Berry,

we are compelled to reverse the sentence to the extent of the one-year home detention

portion and remand for resentencing. In all other respects, we affirm the judgment of the

trial court.

        The judgment of the trial court is affirmed in part, reversed in part, and remanded

with instructions to resentence Howard consistent with Berry v. State.

ROBB, J., concurs, and KIRSCH, J., concurs in result.




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