MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                         FILED
this Memorandum Decision shall not be                                      Jul 11 2019, 9:02 am

regarded as precedent or cited before any                                      CLERK
court except for the purpose of establishing                               Indiana Supreme Court
                                                                              Court of Appeals
                                                                                and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Jane Ann Noblitt                                          Curtis T. Hill, Jr.
Columbus, Indiana                                         Attorney General of Indiana

                                                          Lauren A. Jacobsen
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Kenneth Wayne Wentworth, Jr.,                             July 11, 2019
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          19A-CR-270
        v.                                                Appeal from the Bartholomew
                                                          Superior Court
State of Indiana,                                         The Honorable James D. Worton,
Appellee-Plaintiff                                        Judge
                                                          Trial Court Cause No.
                                                          03D01-1801-F2-94



Altice, Judge.


                                          Case Summary



Court of Appeals of Indiana | Memorandum Decision 19A-CR-270 | July 11, 2019                       Page 1 of 8
[1]   Kenneth Wentworth, Jr. pled guilty to Level 3 felony attempted robbery

      resulting in bodily injury and Class A misdemeanor battery resulting in bodily

      injury and was sentenced to an aggregate term of twelve years. On appeal,

      Wentworth challenges the sentence imposed.


[2]   We affirm.


                                       Facts & Procedural History


[3]   On January 1, 2018, twenty-eight-year-old Wentworth went to the emergency

      room at Columbus Regional Hospital (the Hospital) because he believed he was

      having a heart attack and he was hearing voices. Wentworth had used

      methamphetamine two days earlier. The voices in Wentworth’s head were

      telling him “they were going [to] bulldoze [his] house down and kill [his]

      family.” Transcript Vol. II at 26. Hospital staff wanted Wentworth to go to the

      stress center, but Wentworth “wigged out” and walked out of the Hospital to

      find a way home. Id. at 27.


[4]   Lorrie Crouch and her grandson, Clayton Harris, were outside the Hospital

      moving Crouch’s eighty-nine-year-old mother from Crouch’s van to a

      wheelchair. Wentworth ran up and jumped in the front seat of Crouch’s van

      and told her he was going to take it. All of the doors of the van remained open

      and Crouch jumped in the van through the front passenger door to try to stop

      Wentworth from stealing her vehicle. Wentworth slapped Crouch in the face

      and then drove in reverse, hitting Crouch’s mother with the passenger door.



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-270 | July 11, 2019   Page 2 of 8
      Wentworth then shifted the car into drive and hit three parked cars. Crouch

      was thrown from the van.


[5]   After hitting the parked cars, Wentworth jumped out of the van and took off

      running. Harris gave chase and caught up with Wentworth after he crossed the

      street. Wentworth kicked Harris in the stomach, but Harris still managed to

      tackle him. Wentworth continued to fight as Harris held him to the ground

      until an officer arrived and took Wentworth into custody. When questioned by

      police, Wentworth initially stated that after walking out of the Hospital, he had

      “blacked out” and could not remember anything about the incident. Appellant’s

      Appendix Vol. 2 at 22. However, upon further questioning, Wentworth was

      capable of recalling the details of what had transpired.


[6]   As a result of being thrown from the van, Crouch suffered a serious head injury,

      along with other injuries. Hospital staff tended to Crouch’s injuries, but they

      were so severe that she had to be airlifted to IU Methodist Hospital in

      Indianapolis. Crouch survived but incurred over $200,000 in medical bills.


[7]   On January 8, 2018, the State charged Wentworth with Count I, attempted

      robbery resulting in serious bodily injury as a Level 2 felony; Count II,

      attempted auto theft as a Level 6 felony; Count III, failure to remain at the

      scene of an accident with serious bodily injury as a Level 6 felony; Count IV,

      failure to remain at the scene of an accident with bodily injury as a Class A

      misdemeanor; and Count V, battery resulting in bodily injury as a Class A

      misdemeanor. After Wentworth filed a notice of insanity defense, the trial


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-270 | July 11, 2019   Page 3 of 8
      court appointed two doctors to examine him for the purpose of determining his

      competence to stand trial. One doctor submitted his report to the court, stating

      that he believed Wentworth appreciated the wrongfulness of his conduct. He

      also stated that any mental deficiencies Wentworth may have had at the time of

      the offense were a “manifestation of methamphetamine intoxication.” Id. at

      70. The second doctor disagreed and found that Wentworth did not appreciate

      the wrongfulness of his conduct at the time of the offense. Both doctors,

      however, found Wentworth competent to stand trial.


[8]   Thereafter, on November 28, 2018, Wentworth pled guilty pursuant to a plea

      agreement to a lesser included offense under Count I (attempted robbery

      resulting in serious bodily injury as a Level 3 felony) and Count V, and the

      State agreed to dismiss the remaining charges. The trial court held a sentencing

      hearing on January 8, 2019. After considering the evidence presented and

      arguments of counsel, the trial court sentenced Wentworth to twelve years for

      the Level 3 felony conviction and one year for his Class A misdemeanor

      conviction. The court ordered the sentences to be served concurrently for an

      aggregate sentence of twelve years. Wentworth now appeals. Additional facts

      will be provided as necessary.


                                          Discussion & Decision


[9]   Wentworth couches his sentencing challenge as “[w]hether [his] sentence is

      inappropriate in light of the nature of the offense and the character of the

      offender.” Appellant’s Brief at 4. Aside from providing the standard of review


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-270 | July 11, 2019   Page 4 of 8
       for such a challenge, he provides no authority or analysis on how the nature of

       the offense and his character render his sentence inappropriate. Wentworth has

       therefore waived review of his sentence pursuant to Ind. Appellate Rule 7(B).

       See Sanders v. State, 71 N.E.3d 839, 843-44 (Ind. Ct. App. 2017) (finding

       appellate review waived where defendant failed to present any authority or

       analysis on the issue of nature of the offense), trans. denied.


[10]   The substance of Wentworth’s argument on appeal is that the trial court abused

       its discretion in sentencing him. 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 to be drawn

       therefrom.’” Id. (quoting K.S. v. State, 849 N.E.2d 538, 544 (Ind. 2006)). A

       trial court may abuse its sentencing 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]   Initially, Wentworth asserts that the trial court did not afford sufficient

       mitigating weight to his mental health. However, because trial courts are no

       longer obligated to weigh aggravating and mitigating factors when imposing a



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-270 | July 11, 2019   Page 5 of 8
       sentence, a trial court cannot be said to have abused its discretion in failing to

       properly weigh such factors. Id. at 491.


[12]   In any event, we note that with regard to Wentworth’s mental health, the trial

       court stated:


                I do find as a mitigator, the defendant’s mental health, but I want
                to make a couple of notes there. And number one, and this is
                why I am finding this as a slight mitigator, instead of a significant
                mitigator. It’s . . . because the defendant . . . chose to use illegal
                substances, in choosing methamphetamine and heroin . . . which
                can exacerbate those mental health symptoms and was not
                complying with the treatment recommendations of, what they
                had already given him, at the time. But I will, nonetheless he did
                try and obtain some help, for mental health, I will find that as a
                slight mitigator.


       Transcript Vol. II at 40. We will not second guess the trial court in its assessment

       of Wentworth’s mental health.


[13]   Wentworth also argues that the trial court abused its discretion in failing to

       recognize that he accepted responsibility for his actions by pleading guilty. 1

       Even though he did not raise his guilty plea as a mitigating factor before the

       sentencing court, this does not prevent him from raising the issue for the first

       time on appeal. Anglemyer v. State, 875 N.E.2d 218, 220 (Ind. 2007), opinion on



       1
         In a similar vein, Wentworth argues that the trial court abused its discretion in failing to find his expression
       of remorse to be a significant mitigating factor. Wentworth, however, did not advance his remorse as a
       mitigating factor to the trial court, and a defendant who fails to propose mitigating circumstances at the trial
       level is precluded from advancing them on appeal. See Pennington v. State, 821 N.E.2d 899, 905 (Ind. Ct.
       App. 2005).

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-270 | July 11, 2019                           Page 6 of 8
       reh’g. A guilty plea is deserving of some mitigating weight; however, the

       significance of a guilty plea varies from case to case. Id. A guilty plea is not

       significantly mitigating where, for example, it fails to evince acceptance of

       responsibility or where the defendant receives a substantial benefit, including

       dismissal of other charges, in return for the plea. Id. at 221. A plea fails to

       demonstrate acceptance of responsibility where the decision to plead was “more

       likely the result of pragmatism than acceptance of responsibility and remorse.”

       Id.


[14]   Here, Wentworth’s plea was nothing more than a pragmatic decision based on

       the overwhelming evidence of his guilt. His plea was for a Level 3 felony as a

       lesser included offense of the Level 2 felony initially charged and the State

       agreed to dismiss three charges, two of which were felonies. Wentworth has

       not established that the trial court abused its discretion in not identifying his

       guilty plea as a significant mitigating factor.


[15]   Finally, Wentworth notes in his brief, without any argument, that this was his

       first felony conviction and that, although he was ultimately convicted of two

       Class B misdemeanors in other causes, those convictions were entered after the

       date of the current offense. In this regard, the trial court stated:


               The defendant does have a history of criminal delinquent
               behavior, even though the, the convictions might not have been
               logged in at the time, he did have pending charges and I don’t
               find that as a significant aggravator, but I do find that as
               somewhat of an aggravator, that he does have a history of
               criminal delinquent behavior.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-270 | July 11, 2019   Page 7 of 8
Transcript Vol. II at 40. We will not second guess the trial court’s assessment of

Wentworth’s criminal history.


Judgment affirmed.


Kirsch, J. and Vaidik, C.J., concur.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-270 | July 11, 2019   Page 8 of 8
