MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                            FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                              Jul 16 2019, 10:13 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
Kimberly A. Jackson                                       Curtis T. Hill, Jr.
Indianapolis, Indiana                                     Attorney General of Indiana
                                                          Josiah Swinney
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Trevor O’Neal,                                            July 16, 2019
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          18A-CR-1190
        v.                                                Appeal from the
                                                          Franklin Circuit Court
State of Indiana,                                         The Honorable
Appellee-Plaintiff                                        Clay M. Kellerman, Judge
                                                          Trial Court Cause No.
                                                          24C02-1510-F5-1218



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1190 | July 16, 2019                   Page 1 of 8
                                           Case Summary
[1]   After a crime spree in Franklin County, Trevor O’Neal pled guilty to two Level

      4 felony burglaries, seven Level 5 felony burglaries, two Level 5 felony

      attempted burglaries, and seven Level 6 felony thefts, and the trial court

      sentenced him to an aggregate term of twenty-five years with eight years

      suspended to probation. O’Neal now appeals, arguing that the trial court

      abused its discretion in sentencing him and that his sentence is inappropriate in

      light of the nature of the offenses and his character. We affirm.



                            Facts and Procedural History
[2]   In November 2013, O’Neal pled guilty to three Class D felonies (criminal

      confinement, receiving stolen property, and theft) and was sentenced to a term

      of imprisonment to be followed by two years of probation. In late 2015, while

      still on probation for those offenses, O’Neal went on a crime spree in Franklin

      County. On August 10, 2015, O’Neal burglarized Whitetail Acres and stole a

      safe containing checks and cash. On August 12, he attempted to break into

      Parkside Plaza. On August 13, he burglarized Morgan’s Canoe Rental. On

      August 26, O’Neal broke into Vonderheide’s Garage and Ye Olde Shack and

      stole various items. On August 28, he burglarized two homes and stole

      medication, electronics, and cash. On September 9, he broke into New Trenton

      Deli and stole a cash register and cigarettes. On September 21, O’Neal

      burglarized Lakeshore Resort and stole a safe and other items. On October 5,



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1190 | July 16, 2019   Page 2 of 8
      he broke into an Arby’s restaurant and stole a safe and attempted to break into

      Gillman’s Do It Best.


[3]   The State charged O’Neal with two Level 4 felony burglaries (for the homes),

      seven Level 5 felony burglaries, two Level 5 felony attempted burglaries, seven

      Level 6 felony thefts, and two counts of Class B misdemeanor criminal

      mischief. In early 2018, O’Neal agreed to plead guilty to all charges in

      exchange for the State agreeing to recommend a sentence of fifteen years with

      three years suspended to probation and to not object to Purposeful

      Incarceration.1 The State and O’Neal did not have a written plea agreement.

      At the guilty-plea hearing, the State dismissed the misdemeanor criminal-

      mischief charges, and O’Neal pled guilty to the felony charges.


[4]   At the sentencing hearing, the trial court identified three aggravators: (1)

      O’Neal’s “lengthy” criminal history, including a Level 2 felony conspiracy to

      commit burglary with a deadly weapon that was committed during the same

      period as the crimes here; (2) O’Neal’s “previous violations of probation”; and

      (3) his high risk to reoffend. Appellant’s App. Vol. II p. 184. The trial court

      then rejected the State’s sentencing recommendation and sentenced O’Neal to




      1
        At the guilty-plea hearing, the defense attorney reminded the trial court that the parties and the court had a
      “meeting” in February 2018 and that the “intention” was that O’Neal would plead guilty as charged, the
      State would recommend fifteen years with three years suspended, and the sentence imposed by the court
      “would be between the State’s recommendation of 15 with three years suspended and then [O’Neal’s]
      recommendation[.]” Supp. Tr. pp. 5-6. This language would suggest that the parties agreed to a fifteen-year
      cap on the sentence, but O’Neal does not make such a claim on appeal.



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1190 | July 16, 2019                        Page 3 of 8
      an aggregate term of twenty-five years with eight years suspended to probation

      and made him “eligible for purposeful incarceration.” Supp. Tr. p. 62.


[5]   O’Neal now appeals.



                                 Discussion and Decision
[6]   O’Neal raises two issues on appeal. First, he contends that the trial court

      abused its discretion by recognizing an improper aggravator and failing to

      recognize a mitigator. Second, he contends that his sentence is inappropriate.


                               I. Aggravators and Mitigators
[7]   O’Neal first challenges the trial court’s findings of aggravators and mitigators.

      Sentencing decisions and the reasons or omission of reasons given for choosing

      a sentence rest within the sound discretion of the trial court and are reviewed on

      appeal for an abuse of discretion. Anglemyer v. State, 868 N.E.2d 482, 490-491

      (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007).


[8]   First, O’Neal argues that the trial court erred by stating that he had “previous

      violations of probation” in its written sentencing order when in fact he had only

      one probation violation at the time. Appellant’s App. Vol. II p. 184. The State

      agrees that O’Neal had only one probation violation but claims that the court

      incorrectly wrote “violations” in its written sentencing order. We examine both

      written and oral statements together in discerning the findings of the trial court.

      McElroy v. State, 865 N.E.2d 584, 589 (Ind. 2007). At the sentencing hearing,

      O’Neal testified that he had admitted violating his probation in the November
      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1190 | July 16, 2019   Page 4 of 8
       2013 case for committing the crimes in this case. Supp. Tr. p. 52. And in

       pronouncing sentence, the trial court stated that O’Neal had violated his

       “probation.” Id. at 59. Accordingly, it is clear that the parties and the court

       understood that O’Neal had only one probation violation. “This Court has the

       option of crediting the statement that accurately pronounces the sentence or

       remanding for resentencing.” McElroy, 865 N.E.2d at 589. Thus, we credit the

       oral statement as the statement that accurately described O’Neal’s probation

       violation.


[9]    Next, O’Neal argues that the trial court erred by not finding his guilty plea as a

       mitigating factor. We agree. “[A] defendant who pleads guilty deserves to

       have some mitigating weight extended to the guilty plea in return.” Cotto v.

       State, 829 N.E.2d 520, 525 (Ind. 2005) (citations omitted). Here, O’Neal pled

       guilty to all charges. Although the State agreed to recommend a sentence of

       fifteen years with three years suspended to probation and not object to

       Purposeful Incarceration, the trial court still had full discretion in sentencing

       him. Thus, O’Neal received little benefit. In addition, the State even argued at

       the sentencing hearing that “one mitigating factor is that [O’Neal] . . . has

       accepted accountability [by pleading guilty] for this.” Supp. Tr. p. 26.


[10]   While we agree with O’Neal that the trial court abused its discretion in not

       finding his guilty plea as a mitigating factor, we will remand for resentencing “if

       we cannot say with confidence that the trial court would have imposed the

       same sentence if it considered the proper aggravating and mitigating

       circumstances.” McCann v. State, 749 N.E.2d 1116, 1121 (Ind. 2013). Here, the

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1190 | July 16, 2019   Page 5 of 8
       trial court found multiple aggravators, including O’Neal’s conviction for Level

       2 felony conspiracy to commit burglary with a deadly weapon, that he violated

       his probation in the November 2013 case, and that he was at a high risk to

       reoffend. Therefore, even though the trial court abused its discretion by not

       recognizing O’Neal’s guilty plea as a mitigating factor, we can say with

       confidence that the trial court would have imposed the same sentence if it

       considered his guilty plea as a mitigating factor.


                                   II. Inappropriate Sentence
[11]   O’Neal contends that his sentence is inappropriate and asks us to reduce it to

       fifteen years with three years suspended to probation pursuant to Indiana

       Appellate Rule 7(B), which provides that an appellate 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.” “Whether a sentence is

       inappropriate ultimately turns on the culpability of the defendant, the severity

       of the crime, the damage done to others, and a myriad of other factors that

       come to light in a given case.” Thompson v. State, 5 N.E.3d 383, 391 (Ind. Ct.

       App. 2014) (citing Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008)).

       Because we generally defer to the judgment of trial courts in sentencing matters,

       defendants have the burden of persuading us that their sentences are

       inappropriate. Schaaf v. State, 54 N.E.3d 1041, 1044-45 (Ind. Ct. App. 2016).




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1190 | July 16, 2019   Page 6 of 8
[12]   The State asserts that O’Neal was facing a maximum sentence of fifty-two

       years, and O’Neal does not dispute this. He received a sentence of twenty-five

       years with eight years suspended to probation, which is significantly lower than

       what the trial court could have imposed.


[13]   With regard to the nature of the offenses, O’Neal burglarized or attempted to

       burglarize nine businesses and two homes all within a three-month period and

       in the same county. That said, there was nothing particularly egregious about

       any one burglary or attempted burglary that O’Neal committed during his crime

       spree.


[14]   Nevertheless, O’Neal’s criminal history by itself supports his sentence.

       According to the pre-sentence investigation report, the twenty-three-year-old

       O’Neal had been convicted of four felonies, including a Level 2 felony

       conspiracy to commit burglary with a deadly weapon, had one pending

       misdemeanor, and had one juvenile informal adjustment. Appellant’s App.

       Vol. II. pp. 141-143. As O’Neal himself admitted, he has been incarcerated for

       four or five years of his adult life. Supp. Tr. p. 46. He also violated his

       probation and confessed to using methamphetamine while on bond for this

       case. Most important, O’Neal received less than half of the maximum

       sentence. Therefore, given O’Neal’s criminal history and the fact that he

       received less than half of the maximum sentence, we cannot say that O’Neal’s

       sentence of twenty-five years with eight years suspended to probation is

       inappropriate.



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1190 | July 16, 2019   Page 7 of 8
[15]   Affirmed.


       Kirsch, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1190 | July 16, 2019   Page 8 of 8
