MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                            FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any
                                                             Mar 30 2017, 7:50 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
Kay A. Beehler                                           Curtis T. Hill, Jr.
Terre Haute, Indiana                                     Attorney General of Indiana
                                                         Ellen H. Meilaender
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Jhontay L. Whitesides,                                   March 30, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         84A01-1610-CR-2424
        v.                                               Appeal from the Vigo Superior
                                                         Court
State of Indiana,                                        The Honorable John T. Roach,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause Nos.
                                                         84D01-1508-F3-2017
                                                         84D01-1307-FD-2084



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 84A01-1610-CR-2424 | March 30, 2017   Page 1 of 9
                                       Statement of the Case
[1]   Jhontay L. Whitesides (“Whitesides”) appeals his sentence, which he received

      after pleading guilty to Level 3 felony armed robbery.1 He argues that the trial

      court abused its discretion when sentencing him because it failed to identify

      several mitigating factors. Because we conclude that the trial court did not

      abuse its discretion in identifying mitigating factors, we affirm the trial court’s

      decision.


[2]   We affirm.


                                                     Issue
            Whether the trial court abused its discretion when it sentenced Whitesides.


                                                     Facts
[3]   On August 26, 2015, the State charged Whitesides with Level 3 felony armed

      robbery and Level 3 felony criminal confinement. On September 27, 2016,

      Whitesides pled guilty, pursuant to a plea agreement, to the Level 3 felony

      armed robbery charge and to violating his probation in another cause. In

      exchange for his guilty plea, the State dismissed his criminal confinement

      charge and agreed to a sentence cap of ten years for his armed robbery

      conviction, to be served in Community Corrections.




      1
          IND. CODE § 35-42-5-1(1).


      Court of Appeals of Indiana | Memorandum Decision 84A01-1610-CR-2424 | March 30, 2017   Page 2 of 9
[4]   At his guilty plea hearing, Whitesides admitted to the facts alleged in his

      charging information as the factual basis for his conviction. Specifically, he

      admitted that:

              [o]n or about June [23,] 2015[,] in Vigo County, State of Indiana,
              [he] did knowingly take property, to wit: U.S. Currency from
              another person or the presence of another person, to wit:
              Michael Bridges or Jessica Stoelting, by using force or
              threatening to use a force, said act being committed with a
              deadly weapon, to wit: a gun[.]

      (Tr. 24).


[5]   After Whitesides pled guilty, the court accepted the plea and proceeded to

      consider sentencing. During this portion of the hearing, twenty-three-year-old

      Whitesides testified that he had a longterm problem with marijuana abuse and

      had been using marijuana daily since he was eighteen. Whitesides testified that

      he had once received treatment for his substance abuse through an alcohol and

      drug program, but he also said that he had never received an “intense”

      treatment. (Tr. 27). Also at the hearing, Whitesides noted that he had a history

      of employment and contended that he would be able to return to that

      employment if placed on Community Corrections. Whitesides had been in jail

      for the previous year, and he testified that he had not had any write-ups or

      problems while incarcerated.


[6]   Whitesides’ pre-sentence investigation report, which the State introduced at the

      hearing, revealed that Whitesides had a criminal history. His adult history

      consisted of a Class D felony possession of marijuana conviction, for which he

      had been on probation when he committed the instant offense. He also had a
      Court of Appeals of Indiana | Memorandum Decision 84A01-1610-CR-2424 | March 30, 2017   Page 3 of 9
      juvenile history spanning three years that included adjudications for offenses

      that would be the equivalents of Class D felony theft; Class B felony aggravated

      battery; Class A felony burglary resulting in bodily injury; Class D felony

      criminal recklessness; and Class A misdemeanor possession of marijuana, if

      committed by an adult.


[7]   The State asked for the trial court to impose the full ten-year (10) sentence

      allowed by Whitesides’ plea agreement but recommended that the trial court

      order six (6) of those ten (10) years to be executed in Community Corrections

      on work release. The State said it would be open to modifying the balance of

      Whitesides’ sentence to in-home detention if he did well on work release. In

      response, Whitesides’ counsel said “I don’t have much argument with what the

      State is recommending.” (Tr. 30). Still, Whitesides counsel noted that

      Whitesides’ “criminal attitudes and behavior patterns domain level” was “low.”

      (Tr. 30). He also noted that Whitesides had confessed to his offense and that he

      had strong family support at home.


[8]   At the conclusion of the hearing, the trial court sentenced Whitesides to ten (10)

      years, with six (6) years executed in Community Corrections on work release

      and four (4) years suspended to probation. The trial court also ordered

      Whitesides to undergo all substance abuse counseling available. The court told

      Whitesides that if he completed substance abuse counseling with a good record,

      was not “dropping dirty screens,” was not violating the rules, was earning credit

      time, and was doing “all the right things,” the court would consider modifying

      his sentence to in-home detention. (Tr. 33). As a basis for this sentence, the

      Court of Appeals of Indiana | Memorandum Decision 84A01-1610-CR-2424 | March 30, 2017   Page 4 of 9
       trial court found the fact that Whitesides was on probation when he committed

       the instant offense and that he had a criminal history were aggravating factors.

       The trial court did not find any mitigating factors. Whitesides now appeals.


                                                   Decision
[9]    On appeal, Whitesides argues that the trial court abused its discretion when it

       sentenced him because it overlooked “numerous” mitigating factors that were

       supported by the record. (Whitesides’ Br. 7). Specifically, he contends that the

       trial court should have found the following as mitigating factors: (1) the fact

       that he took responsibility for his conduct; (2) his young age; (3) his

       “exemplary” behavior as an inmate during his incarceration; (4) the fact that his

       criminal history was “relatively minor, with no prior offenses involving any

       violence[;]” and (5) that his “criminal attitudes and behaviors” were rated

       favorably low. (Whitesides’ Br. 9).


[10]   Previously, trial courts were required to properly weigh mitigating and

       aggravating factors during sentencing. Anglemyer v. State, 868 N.E.2d 482, 490

       (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007). Now, trial courts no

       longer have such an obligation. Id. at 491. Instead, “once the trial court has

       entered a sentencing statement, which may or may not include the existence of

       aggravating and mitigating factors, it may then ‘impose any sentence that is . . .

       authorized by statute; and . . . permissible under the Constitution of the State of

       Indiana.’” Id. (quoting I.C. § 35-38-1-7.1(d)). So long as the sentence is within

       the statutory range, it is subject to review only for an abuse of discretion. Id.


       Court of Appeals of Indiana | Memorandum Decision 84A01-1610-CR-2424 | March 30, 2017   Page 5 of 9
       We will find an abuse of discretion where 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 may abuse its discretion in a number of ways, including: (1) failing to

       enter a sentencing statement at all; (2) entering a sentencing statement that

       includes aggravating and mitigating factors that are unsupported by the record;

       (3) entering a sentencing statement that omits reasons that are clearly supported

       by the record; or (4) entering a sentencing statement that includes reasons that

       are improper as a matter of law. Id. at 490-91.


[11]   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).

       Although a failure to find mitigating circumstances clearly supported by the

       record may imply that the trial court improperly overlooked them, a trial court

       is “not obligated to explain why it has chosen not to find mitigating

       circumstances. Likewise, the court is not obligated to accept the defendant’s

       argument as to what constitutes a mitigating factor.” Roger v. State, 958 N.E.2d

       4, 9 (Ind. Ct. App. 2011).


[12]   First, Whitesides argues that the trial court should have found the fact that he

       took responsibility for his actions by cooperating with the police and pleading

       guilty constituted a mitigating factor. However, it is clear that the trial court

       considered this factor and did not find it significant. The trial court stated, “I

       know that you did cooperate and you admitted your involvement in the crime .

       Court of Appeals of Indiana | Memorandum Decision 84A01-1610-CR-2424 | March 30, 2017   Page 6 of 9
       . . . [The fact that] there were others that perhaps took a more significant role,

       doesn’t diminish, doesn’t diminish your criminal liability in this.” (Tr. 32).

       This statement demonstrates that the trial court considered the fact that

       Whitesides had accepted responsibility and nevertheless found that his

       acceptance did not diminish his “criminal liability.” (Tr. 32).


[13]   Further, a guilty plea is not always a significant mitigating circumstance.

       Caraway v. State, 959 N.E.2d 847, 853 (Ind. Ct. App. 2011), trans. denied. A

       plea’s significance is reduced if it is made on the eve of trial, if the

       circumstances indicate the defendant is not taking responsibility for his actions,

       or if substantial evidence exists against the defendant. Id. Also, a plea may not

       be significant “when the defendant receives a substantial benefit in return for

       the plea.” Anglemyer v. State, 875 N.E.2d 218, 221 (Ind. 2007), decision on reh’g.

       Here, Whitesides received a substantial benefit in return for his plea—the

       dismissal of his Level 3 felony criminal confinement charge. Accordingly, we

       cannot conclude that the trial court abused its discretion by choosing not to

       consider Whitesides’ plea a mitigating factor.


[14]   Next, we do not find Whitesides’ age, twenty-three, to be a significant

       mitigating factor. Our supreme court has previously noted that “[f]ocusing on

       chronological age is a common shorthand for measuring culpability, but for

       people in their teens and early twenties it is frequently not the end of the

       inquiry. There are both relatively old offenders who seem clueless and

       relatively young ones who seem hardened and purposeful.” Ellis v. State, 736



       Court of Appeals of Indiana | Memorandum Decision 84A01-1610-CR-2424 | March 30, 2017   Page 7 of 9
       N.E.2d 731, 736 (Ind. 2000). Whitesides has not provided any evidence to

       indicate that his age reduced his culpability.


[15]   As for Whitesides’ good behavior while incarcerated, we commend his

       behavior but do not find it to be a mitigating circumstance. As we noted in

       Davis v. State, 835 N.E.2d 1102, 1116 (Ind. Ct. App. 2005), a defendant is

       already rewarded for good behavior while in jail through good time credit. See

       id.


[16]   Next, we do not find that the trial court abused its discretion in considering

       Whitesides’ criminal history an aggravating rather than mitigating factor.

       Whitesides notes that the trial court stated that Whitesides’ history was “not

       that bad.” (Tr. 31). However, the trial court also pointed out that Whitesides’

       history was escalating and included a prior felony. Specifically, the trial court

       noted that Whitesides was going “from a Level D felony to a Level 3 armed

       robbery because of the people [he hung] out with.” (Tr. 32). The pre-sentence

       investigation report also revealed that Whitesides had a significant juvenile

       history, which included multiple adjudications for offenses that would have

       been considered felonies if committed by an adult. Contrary to Whitesides’

       assertion that he had not committed any violent crimes, two of these offenses

       would have been considered Class B felony aggravated battery and Class A

       felony burglary resulting in bodily injury if committed by an adult.


[17]   Finally, we do not find that the trial court abused its discretion by failing to

       consider that Whitesides’ “criminal attitudes and behavior patterns domain


       Court of Appeals of Indiana | Memorandum Decision 84A01-1610-CR-2424 | March 30, 2017   Page 8 of 9
       level” was “low.” (Tr. 30). Our supreme court has held that offender

       assessment instruments “are not intended to serve as aggravating or mitigating

       circumstances nor to determine the gross length of sentence[.]” Malenchik v.

       State, 928 N.E.2d 564, 575 (Ind. 2010). Rather, “a trial court may employ such

       results in formulating the manner in which a sentence is to be served.” Id.


[18]   In sum, the trial court did not fail to consider or omit any significant mitigating

       factors. Accordingly, we conclude that the trial court did not abuse its

       discretion, and we affirm its decision.2


[19]   Affirmed.


       May, J., and Brown, J., concur.




       2
         To the extent that Whitesides argues that the trial court did not properly “weigh” the aggravating and
       mitigating factors, we note that the trial court is no longer required to weigh aggravating and mitigating
       factors. Anglemyer, 868 N.E.2d at 491.

       Court of Appeals of Indiana | Memorandum Decision 84A01-1610-CR-2424 | March 30, 2017                Page 9 of 9
