MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                         Apr 09 2020, 9:14 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
William T. Myers                                          Curtis T. Hill, Jr.
Whitehurst & Myers Law                                    Attorney General of Indiana
Marion, Indiana
                                                          Steven Hosler
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Zachary G. Fellers,                                       April 9, 2020
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          19A-CR-1916
        v.                                                Appeal from the Huntington
                                                          Superior Court
State of Indiana,                                         The Honorable Jennifer E.
Appellee-Plaintiff                                        Newton, Judge
                                                          Trial Court Cause No.
                                                          35D01-1906-F6-168



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1916 | April 9, 2020             Page 1 of 6
[1]   Zachary G. Fellers appeals his two-year sentence for Level 6 felony escape. 1

      Fellers argues the trial court abused its discretion when it failed to identify his

      guilty plea and the hardship incarceration would have on his family as

      mitigators when sentencing him. We affirm.



                               Facts and Procedural History                                  2




[2]   In April 2019, Fellers plead guilty to Level 6 felony possession of a hypodermic

      needle. The trial court placed Fellers on probation and required him to wear an

      electronic ankle bracelet. On June 14, 2019, Fellers tested positive for

      methamphetamine and the State filed a petition to revoke his community

      corrections placement. On June 16, 2019, Fellers cut off his electronic

      monitoring bracelet and fled from his home. When police arrived at his home,

      they found Fellers’ electronic monitoring bracelet. Fellers’ wife told the police

      that Fellers had left and that she did not know where he had gone. (App. Vol.

      II at 11.) On June 18, 2019, the State charged Fellers with Level 6 felony

      escape. On July 10, 2019, Fellers was arrested. Fellers plead guilty to Level 6

      felony escape, and the trial court sentenced him to three years in prison with

      one year suspended to probation.




      1
          Ind. Code 35-44.2-3-4(b) (2014).
      2
        The Appellant’s Statement of Facts was a compilation of quotes from the transcript and the appendix. We
      remind counsel of the requirements of Indiana Appellate Rule 46, which states, in relevant part, the
      statement of facts “shall describe the facts relevant to the issues presented for review” and “[t]he statement
      shall be in narrative form and shall not be a witness by witness summary of the testimony.”

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1916 | April 9, 2020                       Page 2 of 6
                                 Discussion and Decision
[3]   Sentencing decisions rest within the sound discretion of the trial court, and we

      review such decisions only for an abuse of discretion. Morrell v. State, 118

      N.E.3d 793, 796 (Ind. Ct. App. 2019), clarified on reh’g on other grounds, 121

      N.E.3d 577 (Ind. Ct. App. 2019), trans. denied. “An abuse of discretion occurs if

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

      circumstances.” Allen v. State, 875 N.E.2d 783, 788 (Ind. Ct. App. 2007).


[4]   When a trial court imposes a felony sentence, it is required to issue a sentencing

      statement “that includes a reasonably detailed recitation of the trial court’s

      reasons for the sentence imposed.” Anglemyer v. State, 868 N.E.2d 482, 484-85

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

      court finds aggravating or mitigating circumstances, “the statement must

      identify all significant mitigating and aggravating circumstances and explain

      why each circumstance has been determined to be mitigating or aggravating.”

      Id. at 490. A trial court may abuse its discretion in imposing a sentence by

      failing to enter a sentencing statement, identifying aggravating and mitigating

      factors the record does not support, omitting reasons clearly supported in the

      record and advanced for consideration, or stating reasons for a sentence that are

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


[5]   The sentence for a Level 6 felony is a fixed term between six months and three

      years, with the advisory sentence being one and one-half years. Fellers was

      sentenced to three years; thus, he received the maximum sentence. The trial


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1916 | April 9, 2020   Page 3 of 6
      court found Fellers’ adult and juvenile criminal history and his recent violation

      of probation as aggravating factors. The trial court found no mitigators.


[6]   First, Fellers argues the trial court should have considered his guilty plea as a

      mitigator. “A guilty plea demonstrates a defendant’s acceptance of

      responsibility for the crime and extends a benefit to the State and to the victim

      or the victim’s family by avoiding a full-blown trial. Thus, a defendant who

      pleads guilty deserves to have mitigating weight extended to the guilty plea in

      return.” Francis v. State, 817 N.E.2d 235, 237-238 (Ind. 2004). Therefore, the

      trial court should have identified Fellers’ guilty plea as a mitigating factor.


[7]   However, the court’s error was harmless. Harmless error is “an error that does

      not affect the substantial rights of a party.” Rosales v. State, 3 N.E.3d 1014, 1019

      (Ind. Ct. App. 2014) (quoting Lander v. State, 762 N.E.2d 1208, 1213 (Ind.

      2002)). No error in anything omitted by the trial court “is ground for granting

      relief or reversal on appeal where its probable impact, in light of all the evidence

      in the case, is sufficiently minor so as not to affect the substantial rights of the

      parties.” Ind. App. R. 66.


              “A guilty plea is not automatically a significant mitigating
              factor.” Sensback v. State, 720 N.E.2d 1160, 1164-1165 (Ind.
              1999). “A guilty plea does not rise to the level of significant
              mitigation where the defendant has received a substantial benefit
              from the plea or where the evidence against him is such that the
              decision to plead guilty is merely a pragmatic one.”


      Wells v. State, 836 N.E.2d 475, 479 (Ind. Ct. App. 2005), trans. denied.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1916 | April 9, 2020   Page 4 of 6
[8]   Fellers faced substantial evidence against him. To prove escape, the State need

      only show that a person “knowingly or intentionally remove[d] an electronic

      monitoring device or GPS tracking device.” Ind. Code § 35-44.1-3-4(b). Police

      found the cut off electronic monitoring bracelet in Fellers’ home. Further, his

      wife told police he had left home and she did not know where he had gone.

      Because the evidence clearly demonstrated Fellers’ had committed escape, it

      was pragmatic for Fellers to plead guilty. As a result his guilty plea would not

      have been a significant mitigator, and we feel certain, based on the record, it is

      unlikely the trial court would have imposed a lesser sentence had it properly

      acknowledged the guilty plea as a mitigator.


[9]   Next, Fellers argues the trial court abused its discretion when it did not find

      hardship on Fellers’ family. “Jail is always a hardship on dependents.” Vazquez

      v. State, 839 N.E.2d 1229, 1234 (Ind. Ct. App. 2005), trans. denied. Fellers fails

      to explain how his enhanced sentence would be more burdensome on his family

      than a lesser sentence. Unfortunately, the dependents of incarcerated

      individuals often suffer financial and emotional hardship, but Fellers’ situation

      is not unique. See Hunter v. State, 72 N.E.3d 928, 936 (Ind. Ct. App. 2017)

      (defendant’s enhanced sentence did not place an unusual hardship on his

      dependents), trans. denied. “The trial court is not obligated to accept the

      defendant’s arguments as to what constitutes a mitigating factor. Nor is the

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

      defendant does.” Comer v. State, 839 N.E.2d 721, 728 (Ind. Ct. App. 2005)

      (internal citation and quotation marks omitted), trans. denied. Even though


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1916 | April 9, 2020   Page 5 of 6
       Feller believes he should receive a lesser sentence, the trial court did not

       commit reversible error.



                                               Conclusion
[10]   The trial court abused its discretion when it failed to identify Fellers’ guilty plea

       as a mitigator. However, the error was harmless because Fellers’ decision to

       enter into a plea agreement was logical based on the substantial amount of

       evidence against him. Additionally, the hardship on his family was not

       substantial or more burdensome than other families with incarcerated loved

       ones; thus, the trial court did not abuse by not considering it as a mitigator.

       Accordingly, we affirm.


[11]   Affirmed.


       Crone, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1916 | April 9, 2020   Page 6 of 6
