MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                         FILED
regarded as precedent or cited before any                                Apr 20 2020, 10:25 am
court except for the purpose of establishing
                                                                              CLERK
the defense of res judicata, collateral                                   Indiana Supreme Court
                                                                             Court of Appeals
estoppel, or the law of the case.                                              and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Ruth A. Johnson                                           Curtis T. Hill, Jr.
Indianapolis, Indiana                                     Attorney General of Indiana
                                                          Evan Matthew Comer
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Anthony Epeards,                                          April 20, 2020
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          19A-CR-2593
        v.                                                Appeal from the Greene Circuit
                                                          Court
State of Indiana,                                         The Honorable Erik C. Allen,
Appellee-Plaintiff.                                       Judge
                                                          Trial Court Cause No.
                                                          28C01-1901-F4-1



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2593 | April 20, 2020                    Page 1 of 6
                                           Case Summary
[1]   Anthony Epeards (“Epeards”) pleaded guilty to Sexual Misconduct with a

      Minor, as a Level 4 felony,1 and received a nine-year sentence. He now

      appeals, arguing that the trial court abused its sentencing discretion by omitting

      mitigating factors. We affirm.



                                Facts and Procedural History
[2]   In January 2019, the State charged Epeards with two counts of Level 4 felony

      Sexual Misconduct with a Minor and one count of Level 5 felony Child

      Solicitation.2 A jury trial was scheduled for August 6, 2019, prior to which the

      count of Child Solicitation was dismissed. On the day of the scheduled jury

      trial, Epeards and the State reached a plea agreement under which Epeards

      would plead guilty to one count of Sexual Misconduct with a Minor in

      exchange for dismissal of the remaining count, with sentencing left to the

      discretion of the court. The court then held a change-of-plea hearing at which

      Epeards admitted that, when he was twenty-nine years old, he performed or

      submitted to sexual intercourse or other sexual conduct with fourteen-year-old

      H.G. The trial court accepted the plea and entered a judgment of conviction.




      1
          Ind. Code § 35-42-4-9(a).
      2
          I.C. § 35-42-4-6.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2593 | April 20, 2020   Page 2 of 6
[3]   A sentencing hearing was held in October 2019. At the hearing, there was

      evidence that H.G. struggled with depression and confided in Epeards, who

      was a neighbor of her family member. Epeards and H.G. communicated

      through an online messaging program. In the messages, Epeards called H.G.

      his “one and only,” Ex. at 22, and his “sexy baby,” id. at 129. He said that he

      loved her and missed her. At one point, Epeards told H.G., “I really plan on

      giving you a way better life as soon as you’re able to leave.” Id. at 22. He told

      her they would “be able to travel around” and “see stuff and do stuff.” Id. In

      another message, Epeards said, “I really hope your feelings for me never change

      as you get older.” Id. at 25. He assured H.G. that he was “here forever.” Id.


[4]   Epeards called several witnesses, and elicited testimony that Epeards had been

      consistently employed and that he was a hard worker and a valued employee.


[5]   The court identified two aggravating factors—(1) that Epeards has a criminal

      history and (2) that he “groomed and took advantage of [H.G.] while she was

      in a very vulnerable position.” App. Vol. II at 18. The trial court assigned

      “substantial aggravating weight” to the latter aggravating factor. Id. The court

      also identified one mitigating factor—that Epeards chose to plead guilty. The

      court assigned this mitigating factor minimal weight, noting that Epeards

      waited to plead guilty until the day of the scheduled trial. Determining that the

      aggravating factors outweighed the mitigating factor, the court imposed a nine-

      year sentence, with six years executed and three years suspended to probation.


[6]   Epeards now appeals.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2593 | April 20, 2020   Page 3 of 6
                                 Discussion and Decision
[7]   Sentencing is principally a discretionary function, and we give “considerable

      deference” to the court’s decision. Cardwell v. State, 895 N.E.2d 1219, 1222

      (Ind. 2008). We review its decision for an abuse of discretion, which “occurs if

      the decision is clearly against the logic and effect of the facts and circumstances

      before the court.” Bethea v. State, 983 N.E.2d 1134, 1139 (Ind. 2013).


[8]   In accordance with Indiana Code Section 35-38-1-3, “[b]efore sentencing a

      person for a felony, the court must conduct a hearing to consider the facts and

      circumstances relevant to sentencing.” If the court identifies aggravating or

      mitigating circumstances, then the court must enter a “statement of the court’s

      reasons for selecting the sentence that it imposes.” I.C. § 35-38-1-3. A court

      abuses its sentencing discretion by omitting a mitigating circumstance that is

      “clearly supported by the record and advanced for consideration.” Anglemyer v.

      State, 868 N.E.2d 482, 490-91 (Ind. 2007), clarified on reh’g. A court need not

      identify every mitigating circumstance, but it must “identify all significant

      mitigating circumstances.” Id. at 492-93 (emphasis added). Moreover, a court

      is not obligated to explain why it did not find a circumstance to be significantly

      mitigating. Id. at 493. Furthermore, “[a]n allegation that the trial court failed

      to identify or find a mitigating factor requires the defendant to establish that the

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


[9]   Here, the court identified two aggravating factors and one mitigating factor. It

      imposed an aggravated sentence of nine years, which is within the statutory


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2593 | April 20, 2020   Page 4 of 6
       range for a Level 4 felony. See I.C. § 35-50-2-5.5 (setting forth a sentencing

       range of two years to twelve years with an advisory sentence of six years).


[10]   Epeards briefly suggests—for the first time in his Reply Brief—that the court

       abused its discretion by failing to consider evidence that Epeards has a helping

       nature and is a caring friend. Epeards has waived this argument by raising it for

       the first time in his Reply Brief. See Bowman v. State, 51 N.E.3d 1174, 1179-80

       (Ind. 2016). Waiver notwithstanding, the circumstances of the offense are that

       Epeards took advantage of a child who confided in him. Thus, we cannot say

       the trial court abused its discretion in its treatment of this character evidence.


[11]   Epeards chiefly argues that the trial court should have identified an additional

       mitigating factor—i.e., that Epeards has an “outstanding work ethic” with a

       “steady record as a productive member of society.” Br. of Appellant at 7.


[12]   Notably, a court “does not abuse its discretion by declining to find alleged

       mitigating factors that are ‘highly disputable in nature, weight or significance.’”

       Jackson v. State, 973 N.E.2d 1123, 1130-31 (Ind. Ct. App. 2012) (quoting Rawson

       v. State, 865 N.E.2d 1049, 1056 (Ind. Ct. App. 2007), trans. denied), trans. denied.

       Moreover, as this Court has previously observed, “[m]any people are gainfully

       employed such that this would not require the trial court to note it as a

       mitigating factor.” Newsome v. State, 797 N.E.2d 293, 301 (Ind. Ct. App. 2003).




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2593 | April 20, 2020   Page 5 of 6
[13]   Ultimately, the court acted well within its discretion in rejecting the proposed

       employment-related mitigating factor. We discern no abuse of discretion here.3


[14]   Affirmed.


       Crone, J., and Altice, J., concur.




       3
         To the extent Epeards suggests that the court improperly weighed the aggravating circumstances and the
       mitigating circumstances, we note that “[t]he relative weight or value assignable to reasons properly found or
       those which should have been found is not subject to review for abuse.” Anglemyer, 868 N.E.2d at 491.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2593 | April 20, 2020                     Page 6 of 6
