MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                              Sep 12 2019, 8:39 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
Jennifer Koethe                                          Curtis T. Hill, Jr.
LaPorte County Public Defender’s                         Attorney General of Indiana
Office
Navarre, Florida                                         Josiah Swinney
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Robert Lewis, Jr.,                                       September 12, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-60
        v.                                               Appeal from the LaPorte Superior
                                                         Court
State of Indiana,                                        The Honorable Michael S.
Appellee-Plaintiff.                                      Bergerson, Judge
                                                         Trial Court Cause No.
                                                         46D01-1807-F3-786



Darden, Senior Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-60 | September 12, 2019                Page 1 of 11
                                          Statement of the Case
[1]   Robert Lewis, Jr. appeals the sentence he received for his conviction of criminal
                                             1
      confinement, a Level 5 felony. We affirm.


                                                    Issues
[2]   The issues Lewis presents for appeal are:


                  I. Whether the trial court erred in sentencing him.


                 II. Whether his sentence is inappropriate.


                                   Facts and Procedural History
[3]   On July 22, 2018, after drinking alcohol and using cocaine, Lewis forced his

      way into the residence of M.L., with whom Lewis was acquainted. Once

      inside, Lewis confined M.L. against her will for several hours after forcing her

      into her bedroom and locking the door. At some point, M.L. was able to

      escape and run from the residence, but Lewis caught her and slammed her head

      against the pavement, causing M.L. to suffer a severe headache and dizziness.

      Lewis then dragged M.L. back into the house, where he continued to assault

      her while armed with a box cutter knife and a metal baton. A third party was

      finally able to separate Lewis from M.L., whereupon M.L. ran out of the house

      and called police.




      1
          Ind. Code § 35-42-3-3 (2014).


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-60 | September 12, 2019   Page 2 of 11
[4]   Based upon this incident, Lewis was charged with criminal confinement, a
                            2                                                 3
      Level 3 felony; criminal confinement, a Level 5 felony; domestic battery, a
                            4                                                            5
      Level 6 felony; and invasion of privacy, a Class A misdemeanor. Pursuant to

      a plea agreement, Lewis pleaded guilty to the Level 5 criminal confinement,

      and the State dismissed all remaining counts as well as the charges contained in

      another criminal case. The parties also agreed that no portion of Lewis’

      executed sentence would exceed two years but otherwise left sentencing to the

      court’s discretion. The court sentenced Lewis to an aggregate sentence of six

      years with two years executed and four years suspended to probation. Lewis

      now appeals that sentence.


                                       Discussion and Decision
                                            I. Sentencing Discretion
[5]   Lewis first contends that the trial court erred when it sentenced him.

      Specifically, he argues that the trial court gave too little weight to the mitigating

      factor that he pleaded guilty and that it also failed to consider or overlooked his

      remorse, history of substance abuse, and mental illness as mitigating factors.




      2
          Id.
      3
          Id.
      4
          Ind. Code § 35-42-2-1.3 (2016).
      5
          Ind. Code § 35-46-1-15.1 (2018).


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-60 | September 12, 2019       Page 3 of 11
[6]   Sentencing decisions rest within the sound discretion of the trial court.

      Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d

      218. 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 drawn therefrom. Id.


[7]   The finding of mitigating circumstances is not mandatory but is within the

      discretion of the trial court. Page v. State, 878 N.E.2d 404, 408 (Ind. Ct. App.

      2007), trans. denied. Further, the court is neither obligated to accept the

      defendant’s arguments as to what constitutes a mitigating factor nor required to

      give the same weight to a proffered mitigating factor as does the defendant. Id.

      An allegation that the trial court failed to identify or find a mitigating factor

      requires the defendant on appeal to establish that the mitigating evidence is

      both significant and clearly supported by the record. Id.


[8]   We note that the trial court found Lewis’ guilty plea to be a mitigating factor.

      However, to the extent that he claims the trial court abused its discretion in

      failing to accord more weight to this mitigator, his claim is not available for

      appellate review. See Anglemyer, 868 N.E.2d at 491 (holding that relative weight

      or value assignable to mitigating circumstances found by trial court is not

      subject to review).


[9]   As to Lewis’ remorse, he stated at sentencing, “I’m just sorry for the victim, for

      my actions, you know, remorseful for what happened. And today is my son’s

      birthday, I’d like to, you know, go to see him.” Tr. Vol. II, p. 4. A trial court’s


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-60 | September 12, 2019   Page 4 of 11
       determination of a defendant’s remorse is similar to its determination of

       credibility: without evidence of some impermissible consideration by the trial

       court, we accept its determination. Pickens v. State, 767 N.E.2d 530, 535 (Ind.

       2002). Lewis’ expression of remorse tends to demonstrate that he did not fully

       comprehend the severity of his actions and to indicate that he was merely

       attempting to gain immediate release to go see his son rather than expressing

       true regret for his actions and the harm he caused. Substantial deference must

       be given to a trial court’s evaluation of remorse. Corralez v. State, 815 N.E.2d

       1023, 1025 (Ind. Ct. App. 2004). The trial court, having the ability to observe

       the defendant and listen to the tenor of his voice, is in the best position to judge

       the sincerity of a defendant’s remorseful statements. Id. Given Lewis’

       testimony and absent any evidence of impermissible considerations by the trial

       court, we conclude the trial court did not abuse its discretion in failing to accept

       Lewis’ alleged remorse as a mitigating circumstance.


[10]   Lewis also claims the trial court abused its discretion by failing to recognize his

       substance abuse as a mitigating circumstance. Although we have recognized

       that a history of substance abuse may be a mitigating circumstance, we have

       held that when a defendant is aware of a substance abuse problem but has not

       taken appropriate steps to treat it, the trial court does not abuse its discretion by

       rejecting the addiction as a mitigating factor. Hape v. State, 903 N.E.2d 977,

       1002 (Ind. Ct. App. 2009), trans. denied. Lewis testified at his sentencing

       hearing that he was drunk and high on cocaine at the time he committed this

       offense and that drugs and alcohol are an ongoing problem. Yet, in the


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-60 | September 12, 2019   Page 5 of 11
       preparation of his pre-sentence report, Lewis told the probation officer that he

       had not consumed alcohol in at least two years, that he had never used cocaine,

       and that he does not believe he has a problem with alcohol or drugs. In

       addition, although he testified at sentencing that he had never received any

       treatment for substance abuse, he reported to the probation officer that he had

       attended substance abuse treatment and AA meetings. Moreover, he has

       several drug and alcohol related charges and convictions. It is apparent from

       the record that Lewis has known for some time that he has a substance abuse

       problem and has failed to be honest with himself about it or done much to treat

       it. Accordingly, the trial court did not abuse its discretion in failing to accept

       Lewis’ substance abuse as a mitigating circumstance.


[11]   Finally, Lewis asserts that the trial court should have found that his mental

       health issues are a mitigating factor because he has “previously been
                                                                                           6
       hospitalized” and has been “placed on the medications Seroquel and
                      7
       Tegretol.” Appellant’s Br. p. 9. However, Lewis offers no indication that his

       mental health issues were responsible for his decision-making process on the

       day of this offense. See Corralez, 815 N.E.2d at 1026 (stating that there must be

       nexus between defendant’s mental health and crime in question in order for




       6
           Seroquel is a brand name for quetiapine, a medication used to treat schizophrenia. NATIONAL ALLIANCE
       ON MENTAL ILLNESS, https://www.nami.org/Learn-More/Treatment/Mental-Health-
       Medications/quetiapine-(Seroquel) (last visited Sept. 5, 2019).
       7
        Tegretol is a brand name for carbamazepine, a mood stabilizer medication. NATIONAL ALLIANCE ON
       MENTAL ILLNESS, https://www.nami.org/Learn-More/Treatment/Mental-Health-Medications/Types-of-
       Medication/Carbamazepine-(Tegretol) (last visited Sept. 5, 2019).

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-60 | September 12, 2019             Page 6 of 11
       mental history to be considered mitigating factor). The trial court did not abuse

       its discretion by failing to find Lewis’ mental health issues a mitigating

       circumstance.


                                     II. Inappropriate Sentence
[12]   Although Lewis mentions in his brief the standard for determining whether a

       sentence is inappropriate, he does not put forth argument on the issue.

       Nonetheless, we will review his sentence under the inappropriateness standard.

       See Thacker v. Wentzel, 797 N.E.2d 342, 345 (Ind. Ct. App. 2003) (noting Court’s

       preference for deciding cases on their merits).


[13]   Although a trial court may have acted within its lawful discretion in imposing a

       sentence, article VII, sections 4 and 6 of the Indiana Constitution authorize

       independent appellate review and revision of sentences through Indiana

       Appellate Rule 7(B), which provides that we may revise a sentence authorized

       by statute if, after due consideration of the trial court’s decision, we determine

       that the sentence is inappropriate in light of the nature of the offense and the

       character of the offender. Thompson v. State, 5 N.E.3d 383, 391 (Ind. Ct. App.

       2014). However, “we must and should exercise deference to a trial court’s

       sentencing decision, both because Rule 7(B) requires us to give ‘due

       consideration’ to that decision and because we understand and recognize the

       unique perspective a trial court brings to its sentencing decisions.” Stewart v.

       State, 866 N.E.2d 858, 866 (Ind. Ct. App. 2007). Such deference to the trial

       court’s judgment should prevail unless overcome by compelling evidence


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-60 | September 12, 2019   Page 7 of 11
       portraying in a positive light the nature of the offense (such as accompanied by

       restraint, regard, and lack of brutality) and the defendant’s character (such as

       substantial virtuous traits or persistent examples of good character). Stephenson

       v. State, 29 N.E.3d 111, 122 (Ind. 2015). Thus, the question under Appellate

       Rule 7(B) is not whether another sentence is more appropriate; rather, the

       question is whether the sentence imposed is inappropriate. King v. State, 894

       N.E.2d 265, 268 (Ind. Ct. App. 2008). The defendant bears the burden of

       persuading the appellate court that his or her sentence is inappropriate.

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


[14]   A plea agreement that does not provide for an open plea but nevertheless

       affords the trial court some discretion in sentencing is subject to review under

       Rule 7(B). Rivera v. State, 851 N.E.2d 299, 301-02 (Ind. 2006). Such is the case

       here where the trial court had the discretion to determine the aggregate

       sentence, but the plea agreement provided that the executed portion of the

       sentence was not to exceed two years. Thus, the only question for us on appeal

       is whether the trial court’s order of an aggregate sentence of six years is

       inappropriate.


[15]   To assess whether a sentence is inappropriate, we look first to the statutory

       range established for the class of the offense. Here, Lewis was convicted of a

       Level 5 felony, for which the advisory sentence is three years, with a minimum

       sentence of one year and a maximum of six. Ind. Code § 35-50-2-6 (2014). The

       court sentenced Lewis to the maximum of six years but with only two years

       executed, in accordance with the plea agreement.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-60 | September 12, 2019   Page 8 of 11
[16]   Next, we look to the nature of the offense. Lewis pleaded guilty to the criminal

       confinement of M.L., whom we gather from the record was probably his

       girlfriend. Lewis carried out his extremely violent episode just hours after being

       served with a protective order. He confined M.L. for several hours until she

       managed to escape. Rather than allowing the incident to end there, Lewis

       chased M.L., caught her, and “slammed” her head into the pavement, causing

       her to suffer extreme pain and dizziness. Appellant’s App. Vol. 2, p. 11. From

       there, Lewis “dragged” M.L. back into the house to continue his assault and

       “beat on her all night” while armed with a box cutter knife and a metal baton.

       Id. at 12.


[17]   With regard to the character of the offender, we observe that although the trial

       court ultimately found Lewis’ guilty plea to be a mitigating factor, the court was

       initially hesitant to accept the plea and stated to Lewis, “convince me why I

       should accept this agreement given your lengthy criminal history, your track

       record is horrendous.” Tr. Vol. II, pp. 3-4. Moreover, Lewis’ plea is tempered

       somewhat by the benefit he received in return. The State agreed to an executed

       sentence of one year below the advisory for a Level 5 felony and dismissed the

       remaining two felonies—one of which was a Level 3, which carries an advisory

       sentence of nine years—and one misdemeanor in this cause as well as an

       additional domestic battery charge in another criminal case in exchange for

       Lewis’ plea. In light of this substantial benefit to Lewis, his guilty plea is not a

       significant indicator of positive character traits. See Fields v. State, 852 N.E.2d

       1030, 1034 (Ind. Ct. App. 2006) (noting that defendant received significant


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-60 | September 12, 2019   Page 9 of 11
       benefit from plea such that fact he pleaded guilty did not reflect as favorably

       upon his character as it otherwise might), trans. denied.


[18]   Indeed, the trial court found Lewis’ criminal history to be an aggravating factor

       and classified it as “atrocious.” Tr. Vol. II, p. 9. Even a minor criminal history

       is a poor reflection of a defendant’s character. Moss v. State, 13 N.E.3d 440, 448

       (Ind. Ct. App. 2014), trans. denied. Yet, Lewis’ criminal history is far from

       being considered minor—in total, Lewis has five felony convictions and five

       misdemeanors, which include alcohol-related convictions, reckless homicide,

       burglary, theft, and escape. This history caused the trial court to proclaim, “I

       think you’re one of the worst of the worst.” Tr. Vol. II, p. 9.


[19]   More specifically, Lewis’ criminal history discloses that he has been placed on

       probation at least six times, and every time he has violated his probation rules.

       He also has had rule violations every time he has been permitted to serve a

       sentence on work release. It is this tarnished record that led the court to note

       Lewis’ “failure to be[ ] able to abide by any terms of probation in the past.” Id.

       at 10. Even given this history, the trial court charitably allowed Lewis to serve

       four years of his sentence on probation.


[20]   Moreover, Lewis was not truthful with the trial court. At sentencing, he

       indicated to the court that this was his first guilty plea to an offense against

       another person. However, his criminal history reveals that he pleaded guilty to

       reckless homicide as a C felony and was sentenced to the DOC in 2006. In

       addition, as we discussed in Issue I., Lewis testified at sentencing that he had


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-60 | September 12, 2019   Page 10 of 11
       never received any treatment for substance abuse, yet he reported to the

       probation officer that he had attended substance abuse treatment and AA

       meetings.


[21]   Finally, although it appears that Lewis squandered some opportunities he was

       given in the past to deal with his substance abuse, the trial court agreed to

       recommend therapeutic community counseling so that Lewis would be given

       yet another chance to treat his substance abuse issues. Moreover, the court

       generously ordered that, upon successful completion of a clinically appropriate

       substance abuse treatment program, it would consider a modification to Lewis’

       sentence.


[22]   Lewis has not met his burden of presenting compelling evidence portraying in a

       positive light the nature of the offense and his character in order to overcome

       the trial court’s sentencing decision.


                                                Conclusion
[23]   For the reasons stated, we conclude that the trial court did not abuse its

       discretion in sentencing Lewis and that his sentence is not inappropriate given

       the nature of the offense and his character.


[24]   Affirmed.


       Kirsch, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-60 | September 12, 2019   Page 11 of 11
