MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                                             FILED
court except for the purpose of establishing                                      Aug 12 2020, 8:14 am
the defense of res judicata, collateral                                               CLERK
estoppel, or the law of the case.                                                 Indiana Supreme Court
                                                                                     Court of Appeals
                                                                                       and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Alice B. Blevins                                         Curtis T. Hill, Jr.
Bartanen Law Office, LLC                                 Attorney General of Indiana
Salem, Indiana
                                                         Tina L. Mann
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

James McMahan,                                           August 12, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-2917
        v.                                               Appeal from the Washington
                                                         Circuit Court
State of Indiana,                                        The Honorable Larry W. Medlock,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         88C01-1705-F5-364



Bradford, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2917 | August 12, 2020             Page 1 of 9
                                          Case Summary
[1]   James McMahan pled guilty but mentally ill to Level 5 felony stalking. In

      exchange for his guilty plea, the State agreed to dismiss four other charges. The

      trial court accepted McMahan’s guilty plea and sentenced him to a term of six

      years with one year suspended to probation. On appeal, McMahan contends

      that the trial court abused its discretion in sentencing him. We affirm.



                            Facts and Procedural History
[2]   On March 14, 2017, a protective order was issued that prohibited McMahan

      from having any contact with C.M., his ex-wife, and C.M.’s children. On

      March 24 and 25, 2017, McMahan sent several messages to C.M. via Facebook

      messenger in violation of the protective order. McMahan was charged with

      invasion of privacy for these acts under cause number 88C01-1703-CM-222.

      McMahan also violated the protective order on May 2 and 3, 2017, by calling

      C.M. on her phone several times. He was charged with invasion of privacy for

      these acts under cause number 88C01-1705-CM-312.


[3]   McMahan continued to text and call C.M., using aggressive and threatening

      language. The phone calls and texts made C.M. feel threatened and

      intimidated. On May 30, 2017, as a result of his constant contact with C.M.,

      McMahan was charged with one count of Level 5 felony stalking.


[4]   While in jail, McMahan underwent a court-ordered psychiatric evaluation and

      was deemed incompetent to stand trial. He was subsequently committed to a

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2917 | August 12, 2020   Page 2 of 9
      Department of Mental Health facility for treatment. On November 16, 2018,

      the trial court was notified that McMahan had regained competency to stand

      trial.


[5]   After regaining competency, McMahan pled guilty but mentally ill to the Level

      5 felony stalking charge. In exchange for his guilty plea, the State agreed to

      dismiss the invasion of privacy charges and two other unrelated charges. The

      trial court accepted McMahan’s guilty plea and sentenced him to a term of six

      years, with one year suspended to probation.



                                   Discussion and Decision
[6]   McMahan contends that the trial court abused its discretion in sentencing him.1

      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), modified on other grounds on reh’g, 875 N.E.2d 218

      (Ind. 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




      1
         Despite including an appropriateness challenge in his statement of the issues presented for appeal,
      McMahan does not develop the appropriateness claim. In fact, he has failed to provide any argument or
      citation to the record or relevant authority in support thereof. McMahan’s failure to present a cogent
      argument relating to his appropriateness claim results in waiver of the claim on appeal. See Martin v. Hunt,
      130 N.E.3d 135, 137 (Ind. Ct. App. 2019) (“Failure to present a cogent argument results in waiver of the
      issue on appeal.”); Ind. Appellate Rule 8(A)(8)(a) (“The argument must contain the contentions of the
      appellant on the issues presented, supported by cogent reasoning. Each contention must be supported by
      citations to the authorities, statutes, and the Appendix or parts of the Record of Appeal relied on.”).

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2917 | August 12, 2020                    Page 3 of 9
      reasonable, probable, and actual deductions to be drawn therefrom.” Id.

      (quotation omitted).


              We review for an abuse of discretion the court’s finding of
              aggravators and mitigators to justify a sentence, but we cannot
              review the relative weight assigned to those factors. Anglemyer,
              868 N.E.2d at 490–91. When reviewing the aggravating and
              mitigating circumstances identified by the trial court in its
              sentencing statement, we will remand only if “the record does
              not support the reasons, or the sentencing statement omits
              reasons that are clearly supported by the record, and advanced
              for consideration, or the reasons given are improper as a matter
              of law.” Id.


      Baumholser v. State, 62 N.E.3d 411, 416 (Ind. Ct. App. 2016). A single

      aggravating circumstance may be sufficient to enhance a sentence. Id. at 417.


[7]   In sentencing McMahan, the trial court found McMahan’s prior criminal

      history, his history of substance abuse, and the fact that he had violated a

      protective order when committing the underlying offense to be aggravating

      factors. McMahan does not challenge any of these aggravating factors. He

      merely claims that the trial court abused its discretion by failing to find his poor

      mental health to be a mitigating factor.


                                A. McMahan’s Mental Health
[8]   Although a sentencing court must consider all evidence of mitigating factors

      offered by a defendant, the finding of mitigating factors rests within the court’s

      discretion. Henderson v. State, 769 N.E.2d 172, 179 (Ind. 2002). A trial court is

      neither required to find the presence of mitigating factors, Fugate v. State, 608

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2917 | August 12, 2020   Page 4 of 9
       N.E.2d 1370, 1374 (Ind. 1993), nor obligated to explain why it did not find a

       factor to be significantly mitigating. Sherwood v. State, 749 N.E.2d 36, 38 (Ind.

       2001). “A court does not err in failing to find mitigation when a mitigation

       claim is highly disputable in nature, weight, or significance.” Henderson, 769

       N.E.2d at 179 (internal quotations omitted).


[9]    While Indiana law “mandates that the trial judge not ignore facts in the record

       that would mitigate an offense, and a failure to find mitigating circumstances

       that are clearly supported by the record may imply that the trial court failed to

       properly consider them,” Sherwood, 749 N.E.2d at 38, an allegation that the trial

       court failed to find a mitigating factor requires the defendant to establish that

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

       Carter v. State, 711 N.E.2d 835, 838 (Ind. 1999). Furthermore, “the trial court is

       not required to weigh or credit the mitigating evidence the way appellant

       suggests it should be credited or weighed.” Fugate, 608 N.E.2d at 1374.


[10]   McMahan asserts that the trial court abused its discretion by failing to find his

       poor mental health to be a significant mitigating factor. “[W]henever a

       defendant is found guilty but mentally ill at the time of the crime or enters a

       plea to that effect that is accepted by the court, the court shall sentence the

       defendant in the same manner as a defendant found guilty of the offense.” Ind.

       Code § 35-36-2-5(a). Thus, a defendant who has pled guilty but mentally ill “‘is

       not automatically entitled to any particular credit or deduction from his

       otherwise aggravated sentence’ simply by virtue of being mentally ill.” Weeks v.



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2917 | August 12, 2020   Page 5 of 9
       State, 697 N.E.2d 28, 30 (Ind. 1998) (quoting Archer v. State, 689 N.E.2d 678,

       684 (Ind. 1997).


[11]   Nonetheless, in sentencing a defendant who has pled guilty but mentally ill, a

       trial court “should at a minimum carefully consider on the record what

       mitigating weight, if any, to accord to any evidence of mental illness, even

       though there is no obligation to give the evidence the same weight the

       defendant does.” Id. The Indiana Supreme Court has outlined several

       considerations that bear on the weight, if any, that should be given to mental

       illness in sentencing. Id. “These factors include: (1) the extent of the

       defendant’s inability to control his or her behavior due to the disorder or

       impairment; (2) overall limitations on functioning; (3) the duration of the

       mental illness; and (4) the extent of any nexus between the disorder or

       impairment and the commission of the crime.” Id. (citing Archer, 689 N.E.2d at

       685).


[12]   The record reveals that the trial court considered evidence relating to each of

       the factors set forth in Archer and Weeks. In determining that McMahan was

       competent to stand trial on the underlying stalking charge, Dr. Stephanie

       Callaway opined that


               Mr. McMahan had the ability to appreciate the wrongfulness of
               his actions during both Invasion of Privacy cases and his Stalking
               case. He expressed awareness that there was a protective order
               in place and he was not legally allowed to contact his ex-wife, but
               he cited reasons for doing so, including her contacting him and
               his ongoing concern for their children. However, he knew

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2917 | August 12, 2020   Page 6 of 9
               contacting her was illegal, which indicates he had the ability to
               appreciate that his actions were wrong. His psychiatric
               symptoms might have affected his behavior, but did not limit his
               ability to appreciate the wrongfulness.


       Appellant’s App. Vol. II p. 76. In a second competency evaluation, McMahan

       reported to Dr. Daniel Hackman that he had “no history of mental illness prior

       to undergoing divorce proceedings.” Appellant’s App. Vol. II p. 55. Neither

       Dr. Callaway nor Dr. Hackman opined that McMahan’s ability to function was

       limited by mental illness at the time he committed the act of stalking or that a

       strong nexus existed between McMahan’s mental illness and the commission of

       the offense.


[13]   In addition, there was nothing in McMahan’s background to suggest that he

       had ever been unable to control his behavior due to a mental impairment.

       McMahan reported that his grades had been “pretty good” before he dropped

       out of high school after completing the eleventh grade to attend trade school.

       Appellant’s App. Vol. II p. 54. He was never enrolled in special education and

       had never been expelled. McMahan managed to maintain consistent

       employment, working his entire adult life as a certified pipe welder. McMahan

       indicated that he had worked in river transportation, which enabled him to

       travel “a lot for his job across the country.” Appellant’s App. Vol. II p. 55.

       McMahan has never received disability income.


[14]   Further, at sentencing, the trial court heard evidence relating to McMahan’s

       history of mental illness and how it related to ability to control his behavior and


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2917 | August 12, 2020   Page 7 of 9
       function in society. When asked if McMahan had a history of mental illness his

       brother responded that


               back in the day when he was young, he had a little problem but it
               was fixed and over with and ah, as far as I, you know everything
               was good. He ended up with a great job making good money
               and ended up with a son ah, everything seemed fine for a long
               time.


       Tr. Vol. II p. 6. McMahan’s brother further explained that the “little problem”

       occurred when he was in high school, testifying that McMahan “smoked weed

       and drank a little and [was] just young and kind of wild I guess.” Tr. Vol. II p.

       7. In addition, Dr. Myriam McCray testified that during an examination, she

       found McMahan to be friendly and polite and that he seemed to “put forth his

       best effort.” Tr. Vol. II p. 13. McMahan “was able to recognize his

       responsibility and what happened” and expressed “regrets,” noting things “that

       he wishes he had done differently.” Tr. Vol. II p. 14.


[15]   The evidence relating to the factors set forth in Archer and Weeks does not

       demonstrate that McMahan’s poor mental health warranted significant

       mitigating weight. Further, the record clearly establishes that the trial court did

       not ignore McMahan’s mental health in sentencing him. The trial court

       specifically discussed McMahan’s mental health, stating:


               I seriously considered as a mitigating factor, mental health issues.
               But it wasn’t recommended by the probation department and
               listening to the testimony of his brother, he didn’t seem to think
               there’s been a history of mental health issues and that he was
               fixed. I’m not totally convinced of that, but I suspect he’s in a

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2917 | August 12, 2020   Page 8 of 9
               better position to determine whether he’s had a history of mental
               health issues or not and since he didn’t seem to think that’s a
               factor, I’m not going to consider it as a mitigating factor.


       Tr. Vol. II p. 40. The trial court acted within its discretion in determining that

       McMahan’s mental health did not warrant significant mitigating weight.


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


       Najam, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2917 | August 12, 2020   Page 9 of 9
