Pursuant to Ind.Appellate Rule 65(D),                                         Sep 30 2013, 5:30 am
this Memorandum Decision shall not be
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:

MATTHEW D. BARRETT                              GREGORY F. ZOELLER
Matthew D. Barrett, P.C.                        Attorney General of Indiana
Logansport, Indiana
                                                GEORGE P. SHERMAN
                                                Deputy Attorney General
                                                Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

MARK BURKETT,                                   )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )        No. 09A04-1305-CR-262
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                      APPEAL FROM THE CASS SUPERIOR COURT
                        The Honorable Richard A. Maughmer, Judge
                              Cause No. 09D02-0708-FB-27



                                    September 30, 2013


                MEMORANDUM DECISION - NOT FOR PUBLICATION


BROWN, Judge
      Mark Burkett appeals his sentence for criminal confinement as a class B felony.

Burkett raises two issues which we revise and restate as:

      I.     Whether the trial court abused its discretion in sentencing Burkett;
             and

      II.    Whether Burkett’s sentence is inappropriate in light of the nature of
             the offense and the character of the offender.

The State raises as an issue whether Burkett waived his arguments by the terms of his

plea agreement. We affirm.

                       FACTS AND PROCEDURAL HISTORY

      On August 13, 2007, Burkett had been living with Diana Lynn DeWeese for a

short period. Burkett was involved in an altercation with DeWeese and at some point

confined her to his residence by not letting her leave while he was armed with a billy

club. As a result of the altercation, DeWeese suffered a laceration of the head, a broken

hand, and a collapsed lung.

      On August 16, 2007, the State charged Burkett with Count I, criminal confinement

as a class B felony; Count II, criminal confinement as a class B felony; Count III,

aggravated battery as a class B felony; Count IV, battery by means of a deadly weapon as

a class C felony; Count V, battery resulting in serious bodily injury as a class C felony;

and Count VI, domestic battery as a class A misdemeanor. On August 22, 2007, the State

charged Burkett with Count VII alleging that Burkett was an habitual offender.

      On May 31, 2011, Burkett entered a plea agreement with the State in which he

agreed to plead guilty to Count I, criminal confinement as a class B felony, and the State

agreed to dismiss the remaining counts.         Burkett signed the plea agreement, and

                                            2
acknowledged that he waived certain rights including appealing his sentence. At the

guilty plea hearing, the court reviewed the plea agreement and informed Burkett that he

was waiving his right to appeal his sentence.

       At the sentencing hearing, the court found Burkett’s guilty plea as a mitigating

circumstance but observed that it was offset by the benefit of the bargain. The court also

found Burkett’s “poor medical condition” as a mitigator, as well as the fact that his minor

child has some basis of expectation of support as a result of Burkett’s receipt of disability

payments. Sentencing Transcript at 19. The court found Burkett’s criminal history as an

aggravating circumstance. The court also stated:

       The fact that this criminal confinement conviction also was accompanied
       by a pretty substantial thumping, a beating I guess for the Court of Appeals
       record here. This victim is now on disability. She didn’t suffer from any
       kind of a disability before. She is now legally blind as a result of the
       beating that she took. And I find that those are aggravating circumstances
       or cause me to consider this particular offense to be one which would cause
       an appropriate sentence to be one at the higher end of the spectrum.

Id. at 20. The court sentenced Burkett to twenty years, and then advised Burkett that he

was entitled to take an appeal.

                                      DISCUSSION

       We first address whether Burkett waived his right to appeal his sentence. The

State contends that Burkett waived his right to appeal his sentence based upon the terms

of the plea agreement. The State argues that, while the plea agreement allows Burkett to

appeal any “illegal sentence,” Burkett makes no argument on appeal that the sentence

imposed by the trial court was illegal or that the sentence exceeded the maximum

punishment allowed by statute for his crime.

                                             3
       In his reply brief, Burkett argues that he did not knowingly, voluntarily, and

intelligently waive his right to appeal the discretionary sentence imposed by the trial

court. He points to the following exchange which occurred at the sentencing hearing

after the court had sentenced him:

       THE COURT:             Now I need to ask you if you wish to – if you know
                              whether or not you wish to file an appeal or a motion
                              to correct error?

                                               *****

       DEFENDANT:             I’ll waive it.

       THE COURT:             You’ll wait to decide? Okay. Do you understand that
                              you have thirty days . . . .

       [Burkett’s Counsel]:           I believe he said he’ll waive it. But he can
                                      consider it.

       THE COURT:             Okay.

       [Burkett’s Counsel]:           At this moment I don’t believe there is an
                                      appealable issue but I’ll advise him.

Sentencing Transcript at 22. Burkett appears to rely on the foregoing exchange for his

argument that he “could not have knowingly, voluntarily, and intelligently agreed to

waive his appellate rights because his counsel’s comments indicate that an appeal of the

sentence would still be possible and it had not yet been discussed with [him].”

Appellant’s Reply Brief at 3.         Without citation to the record, Burkett argues that

“[a]lthough there are provisions in the Plea Agreement that discuss waiver of appellate

rights, it is clear [his] counsel failed to explain the waiver provisions to [him].” Id. at 3.

Without citation to authority, Burkett argues that the State waived its right to object

because it stood silent when the trial court discussed Burkett’s right to appeal the
                                         4
sentence and when Burkett’s counsel made the foregoing comments. Burkett also argues

that the plea agreement is ambiguous because “conflicting language exists as to whether

[he] was giving up his right to challenge his sentence as inappropriate (or illegal) under

Rule 7(B).” Id. at 4.

         The Indiana Supreme Court has held that “a defendant may waive the right to

appellate review of his sentence as part of a written plea agreement.” Creech v. State,

887 N.E.2d 73, 75 (Ind. 2008). In Creech, the Court adopted the view of the Seventh

Circuit which declared “that defendants ‘may waive their right to appeal as part of a

written plea agreement . . . as long as the record clearly demonstrates that it was made

knowingly and voluntarily.’” Id. (quoting United States v. Williams, 184 F.3d 666, 668

(7th Cir. 1999)). The Court also indicated that a trial court’s statements that led a

defendant to believe that he retained the right to appeal at the sentencing hearing were not

grounds to circumvent the terms of the plea agreement. Id. at 76. Specifically, the Court

held that by the time the trial court erroneously advised the defendant of the possibility of

appeal, the defendant had already pled guilty and received the benefit of his bargain. Id.

at 77.

         Here, the plea agreement states:

                Defendant after consulting with counsel, hereby knowingly and
         voluntarily waives the following rights guaranteed to me by the
         Constitution of the United States and Indiana. Defendant acknowledges
         that he/she:

                                            *****

               (2)      has been informed that by his plea he/she waives his/her
                        rights to:

                                              5
                                        *****

                    (e)    . . . . Because the Defendant is pleading guilty, he/she
                           understands that there will be no appellate review of
                           the sentence. The Defendant acknowledges that he/she
                           has discussed this matter with counsel, and hereby
                           makes a knowing and voluntary waiver of appellate
                           review of the sentence imposed by the trial court.
                           Defendant may still appeal any illegal sentence which
                           may be imposed.

             (9)    hereby waives any right to challenge the trial court’s finding
                    on sentencing, including the balancing of mitigating and
                    aggravating factors and further waives his right to have the
                    Indiana Court of Appeals review his sentence under Indiana
                    Appellate Rule 7(B).

Appellant’s Appendix at 47-48.

      The following exchange between the court and Burkett occurred at the guilty plea

hearing:

      Q      I have before me, Mark, what purports to be a plea agreement with
             your signature on it, did you read and sign this?

      A      Yes.

      Q      Did you discuss it with [your counsel]?

      A      Yes, I did.

      Q      It says you are going to plead guilty to Count 1, the State is going to
             dismiss the remaining counts and the habitual offender allegation.
             The sentence will imposed [sic] by the court I suppose at a
             sentencing hearing which could be six to twenty years in prison as I
             just explained to you and a fine of nothing up to ten thousand
             dollars. Does this also have a provision on it that he waives the right
             to challenge the court’s findings on sentencing? Yeah, you waive
             the right to appeal. You are giving me a discretion to impose the
             sentence on you, Mark, but you are also waiving the right to
             question my discretions. So if I give you twenty years you can’t
             appeal that decision that’s the worst case scenario, do you
             understand?
                                            6
       A      Yes.

       Q      That is what your plea agreement provides for?

       A      Yes.

       Q      Okay, counsel is that the agreement that you’ve entered into?

       [Burkett’s Counsel]:          It is, your honor.

       [Prosecutor]:          Yes.

Guilty Plea Transcript at 8-9.

       We observe that under Creech the fact that the trial court made a statement at the

sentencing hearing, after imposing a sentence, informing Burkett that he was entitled to

take an appeal does not invalidate Burkett’s plea in which he received the benefit of his

bargain or invalidate his waiver of his right to appeal. To the extent that the plea

agreement stated that Burkett “may still appeal any illegal sentence which may be

imposed,” we observe that “illegal” sentences are generally viewed as sentences that

exceed statutory authority. See Hull v. State, 799 N.E.2d 1178, 1181 (Ind. Ct. App.

2003) (“Although we typically review a sentence for an abuse of discretion, an illegal

sentence is in the nature of a ‘void’ judgment and can be attacked directly or collaterally

at any time.”); Williams v. State, 759 N.E.2d 661, 665 (Ind. Ct. App. 2001) (“The effect

of the trial court’s failure to give Williams credit for pre-sentence jail time is that

Williams’ sentence exceeds the statutory maximum and is an illegal sentence.”). We

cannot say that the provision addressing an “illegal sentence” in the plea agreement

creates an ambiguity or allows Burkett to raise the issues of whether the trial court abused


                                               7
its discretion regarding aggravators and mitigators or whether his sentence is

inappropriate.

       Based upon the express language in the plea agreement and the trial court’s

advisement at the guilty plea hearing, we conclude that Burkett waived his right to appeal

his sentence with respect to whether the court abused its discretion regarding aggravators

and mitigators and whether his sentence is inappropriate. See Creech, 887 N.E.2d at 75

(holding that a defendant may waive the right to appellate review of his sentence as part

of a written plea agreement); Brattain v. State, 891 N.E.2d 1055, 1057 (Ind. Ct. App.

2008) (nothing that the defendant waived his right to appeal his sentence where the plea

agreement provided in part that the defendant waived the right under Ind. Appellate Rule

7 to review of the sentence imposed); cf. Bonilla v. State, 907 N.E.2d 586, 590 (Ind. Ct.

App. 2009) (concluding that the defendant did not waive the right to appeal his sentence

where the trial court advised the defendant that he may have waived the right to appeal

but then promptly advised him of the right to appeal and noting that the advisement

occurred at the guilty plea hearing before the defendant received the benefit of his

bargain and then occurred again at the sentencing hearing), trans. denied; Ricci v. State,

894 N.E.2d 1089, 1094 (Ind. Ct. App. 2008) (holding that the defendant had not waived

the right to appeal his sentence under Creech because, unlike in Creech, the trial court

“clearly and unambiguously stated at the plea hearing that it read the plea agreement and

that, according to its reading of the agreement, [the defendant] had not surrendered the

right to appeal his sentence”), trans. denied.



                                                 8
       Even if we were to conclude that Burkett did not waive the right to appeal his

sentence, Burkett would not prevail. With respect to Burkett’s argument that the trial

court improperly considered aggravators and mitigators, we review the sentence for an

abuse of discretion. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified 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

reasonable, probable, and actual deductions to be drawn therefrom.” Id.

       A trial court abuses its discretion if it: (1) fails “to enter a sentencing statement at

all;” (2) enters “a sentencing statement that explains reasons for imposing a sentence –

including a finding of aggravating and mitigating factors if any – but the record does not

support the reasons;” (3) enters a sentencing statement that “omits reasons that are clearly

supported by the record and advanced for consideration;” or (4) considers reasons that

“are improper as a matter of law.” Id. at 490-491. If the trial court has abused its

discretion, we will remand for resentencing “if we cannot say with confidence that the

trial court would have imposed the same sentence had it properly considered reasons that

enjoy support in the record.” Id. at 491. The relative weight or value assignable to

reasons properly found, or those which should have been found, is not subject to review

for abuse of discretion. Id.

       Burkett argues that the trial court abused its discretion by improperly assessing the

weight to be assigned to his criminal history, guilty plea, health problems, and minor

child’s receipt of child support based on his disability status. These arguments are, in

essence, a request for this court to reweigh those factors, which we may not do. See id.

                                              9
(holding that the relative weight or value assignable to reasons properly found or those

which should have been found is not subject to review for abuse).

       Burkett also argues that DeWeese’s bodily injuries was an improper aggravator.

To the extent that he suggests that the court improperly considered an element of a

dismissed charge, we cannot say that the court abused its discretion. See Bethea v. State,

983 N.E.2d 1134, 1145 (Ind. 2013) (holding that the trial court did not err by giving

significant weight to the facts presented to it relating to dismissed charges because the

State’s obligations under the plea agreement were fulfilled upon dismissal of the

remaining counts and it owed the defendant no further duty to omit these facts from the

aggravating circumstances consideration).

       Burkett further contends that the “use of a billy club and other physical force

during the commission of the crime are improper aggravators as a matter of law because

these actions were material parts of the underlying offense of criminal confinement.”

Appellant’s Brief at 8. A material element of a crime may not be used as an aggravating

factor to support an enhanced sentence. McElroy v. State, 865 N.E.2d 584, 589 (Ind.

2007). However, when evaluating the nature of the offense, the trial court may properly

consider the particularized circumstances of the factual elements as aggravating factors.

Id. The trial court must then detail why the defendant deserves an enhanced sentence

under the particular circumstances. Id.

       We conclude that the court considered the beating and injuries not as material

elements of the crime but as the nature and circumstances of the offense. Consequently,

the trial court did not abuse its discretion by considering the nature and circumstances as

                                            10
an aggravating factor. See Sipple v. State, 788 N.E.2d 473, 482 (Ind. Ct. App. 2003)

(holding that the trial court’s explanation was significantly more than the mere recitation

of the elements of the offense, and adequately supported the finding of the aggravating

circumstance), trans. denied; Armstrong v. State, 742 N.E.2d 972, 981 (Ind. Ct. App.

2001) (holding that the trial court’s sentencing statement “makes clear that it was not the

pointing or shooting of the handgun that was the aggravating circumstance but the

manner in which those offenses were committed” and “[t]his was a proper use of the

nature and circumstances of the crimes committed as an aggravating factor”).

       Lastly, Burkett argues that the trial court failed to consider his remorse when he

apologized to DeWeese at the sentencing hearing and his agreement to pay for

DeWeese’s medical expenses. “The finding of mitigating factors is not mandatory and

rests within the discretion of the trial court.” Ellis v. State, 736 N.E.2d 731, 736 (Ind.

2000). The trial court is not obligated to accept the defendant’s arguments as to what

constitutes a mitigating factor. Gross v. State, 769 N.E.2d 1136, 1140 (Ind. 2002). “Nor

is the court required to give the same weight to proffered mitigating factors as the

defendant does.” Id. Further, the trial court is not 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).

       With respect to Burkett’s argument regarding his remorse, a trial court’s

determination of a defendant’s remorse is similar to a determination of credibility.

Pickens v. State, 767 N.E.2d 530, 534-535 (Ind. 2002). Without evidence of some

impermissible consideration by the court, we accept its determination of credibility. Id.



                                             11
The trial court is in the best position to judge the sincerity of a defendant’s remorseful

statements. Stout v. State, 834 N.E.2d 707, 711 (Ind. Ct. App. 2005), trans. denied.

       The record reveals that Burkett’s trial counsel asked Burkett if he wanted to

apologize to DeWeese at the sentencing hearing, and the following exchange occurred:

       A      Well, her and I met and were together briefly. We were both chronic
              alcohol users. . . .

       THE COURT:            He asked you if you’d like to apologize to her.

       A      Yes, I do. I’m approaching that. Trying to get up to that. And after
              a few weeks I realized the situation was volatile . . .

                                           *****

       A      I don’t clearly remember what happened that day. We were both
              very drunk. By looking at the – what was submitted in the
              deposition or whatever it was – the disclosure it looked bad and I
              was probably responsible for them injuries. I’m very sorry. I wish
              the day would have never happened.

Sentencing Transcript at 12. Burkett also stated: “The only way I can do anything to help

– to rectify this is to at least pay some of the bills off that I’m responsible for.” Id. at 14.

Upon questioning by the court, Burkett stated that he had not paid anything yet. The trial

court was able to consider Burkett’s statements, and based upon our review of the

sentencing transcript and record we cannot say that the trial court abused its discretion by

not finding Burkett’s alleged remorse or willingness to pay DeWeese’s medical expenses

to be mitigating circumstances.

       With respect to Burkett’s argument that his sentence is inappropriate, Ind.

Appellate Rule 7(B) provides that we “may revise a sentence authorized by statute if,

after due consideration of the trial court’s decision, [we find] that the sentence is

                                              12
inappropriate in light of the nature of the offense and the character of the offender.”

Under this rule, the burden is on the defendant to persuade the appellate court that his or

her sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).

       Our review of the nature of the offense reveals that Burkett had been living with

DeWeese for a short period of time when he was involved in an altercation with her. He

confined DeWeese to his residence by not letting her leave while he was armed with a

billy club. As a result of the altercation, DeWeese suffered a laceration of the head, a

broken hand, and a collapsed lung. At the sentencing hearing, DeWeese testified that she

suffered extensive loss of her eyesight because of the incident, became legally blind, had

medical bills totaling over $36,000, is still undergoing treatment by a neurologist because

of brain damage, and is no longer able to work.

       Our review of the character of the offender reveals that Burkett pled guilty to

criminal confinement and the court dismissed Count II, criminal confinement as a class B

felony; Count III, aggravated battery as a class B felony; Count IV, battery by means of a

deadly weapon as a class C felony; Count V, battery resulting in serious bodily injury as

a class C felony; Count VI, domestic battery as a class A misdemeanor; and Count VII

alleging that Burkett was an habitual offender.

       Burkett has convictions for operating a vehicle with an excess of .10% blood

alcohol in 1992, battery against a two-year-old child resulting in bodily injury in 1995,

and conversion in 2003. He was charged with domestic battery as a class A misdemeanor

on August 18, 1999, which was dismissed.1 In 2003, the State charged Burkett with


       1
           The presentence investigation report indicates that Burkett was charged with battery resulting in
                                                     13
conspiracy to commit dealing in cocaine and theft, but these charges were also dismissed.

In 2004, he was charged with invasion of privacy, and this charge was dismissed. At the

time of the presentence investigation report, Burkett had a pending charge of public

intoxication.   He violated home detention by consuming alcohol in 1996, violated

probation in 2001 by testing positive for cocaine, and violated probation in 2006. Burkett

failed to report to the Cass County Probation Department on May 11, 2011 for an update

interview. He admitted to the “illegal use of cocaine, inhalants, downers, hallucinogens,

and intravenous drug use.” Appellant’s Appendix at 32. He has been court-ordered to

complete treatment for substance abuse in the past. The probation officer recommended

a maximum sentence of twenty years. Waiver notwithstanding, we conclude after due

consideration that the sentence imposed by the trial court is not inappropriate.

       For the foregoing reasons, we affirm Burkett’s sentence.

       Affirmed.

NAJAM, J., and MATHIAS, J., concur.




bodily injury on August 18, 1999, but his counsel indicated at the sentencing hearing that Burkett
reported that the August 18, 1999 charge was domestic battery as a class A misdemeanor.
                                               14
