MEMORANDUM DECISION
                                                                                      FILED
Pursuant to Ind. Appellate Rule 65(D),                                           Dec 05 2017, 9:07 am
this Memorandum Decision shall not be
                                                                                      CLERK
regarded as precedent or cited before any                                         Indiana Supreme Court
                                                                                     Court of Appeals
court except for the purpose of establishing                                           and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Christopher L. Clerc                                    Curtis T. Hill, Jr.
Columbus, Indiana                                       Attorney General of Indiana

                                                        Michael Gene Worden
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Todd Barlow,                                            December 5, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        03A04-1707-CR-1554
        v.                                              Appeal from the Bartholomew
                                                        Circuit Court
State of Indiana,                                       The Honorable Kelly S. Benjamin,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause Nos.
                                                        03C01-1703-F6-1388
                                                        03C01-1703-F6-1874



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 03A04-1707-CR-1554 | December 5, 2017         Page 1 of 8
                                          Statement of the Case
[1]   Todd Barlow appeals his sentence following his guilty plea to three Level 6

      felonies and the trial court’s revocation of the suspended portion of that

      sentence following Barlow’s violation of the conditions of his probation.1

      Barlow raises two issues for our review, which we restate as the following three

      issues:


                1.      Whether the trial court abused its discretion when it
                        sentenced Barlow on the underlying convictions without
                        finding Barlow’s guilty plea to be a significant
                        mitigating circumstance.


                2.      Whether Barlow’s sentence on his underlying convictions
                        was inappropriate in light of the nature of the offenses and
                        his character.


                2.      Whether the trial court abused its discretion when it
                        sentenced Barlow after it had revoked his probation.


[2]   We affirm.


                                   Facts and Procedural History
[3]   On April 28, 2017, Barlow pleaded guilty, pursuant to a written plea agreement,

      to theft and the unlawful possession of a syringe, each as a Level 6 felony, in




      1
        Given the rapidity with which Barlow violated the conditions of his probation after the trial court had
      originally sentenced him on the three Level 6 felonies, Barlow’s notice of appeal timely captures both
      judgments.

      Court of Appeals of Indiana | Memorandum Decision 03A04-1707-CR-1554 | December 5, 2017            Page 2 of 8
      cause number 03C01-1703-F6-1388 (“F6-1388”). In that same agreement,

      Barlow pleaded guilty to possession of methamphetamine, as a Level 6 felony,

      in cause number 03C01-1703-F6-1874 (“F6-1874”). In exchange for his plea,

      the State dismissed an additional Level 6 felony allegation, a Class A

      misdemeanor allegation, and two Class B misdemeanor allegations. The plea

      agreement left sentencing to the discretion of the trial court. The court accepted

      Barlow’s plea agreement.


[4]   On June 8, the court held a sentencing hearing. At the conclusion of that

      hearing, the court ordered Barlow to serve two-and-one-half years on each of

      the three Level 6 felony offenses, with the two sentences in cause number F6-

      1388 to run concurrently with each other and the sentences in the two cause

      numbers to run consecutive to each other. The court then suspended the

      entirety of Barlow’s remaining aggregate sentence to probation. Among other

      conditions of his probation, the court prohibited Barlow from using controlled

      substances and required him to submit to drug screens.


[5]   Six days later, while released on probation, Barlow refused to submit to an oral

      drug screen. Accordingly, the State filed its notice of a probation violation in

      both cause numbers. And, at the ensuing hearing on June 19, Barlow admitted

      that he had refused to submit to the oral drug screen as alleged.


[6]   On July 6, the court held a dispositional hearing on Barlow’s probation

      violation. Following that hearing, the court ordered Barlow to serve the

      entirety of his previously suspended sentence. This appeal ensued.


      Court of Appeals of Indiana | Memorandum Decision 03A04-1707-CR-1554 | December 5, 2017   Page 3 of 8
                                       Discussion and Decision
                    Issue One: Whether the Trial Court Abused Its Discretion
                           When It Imposed Barlow’s Original Sentence

[7]   Barlow first asserts on appeal that the trial court abused its discretion when it

      originally sentenced him. As our Supreme Court has stated:


               Sentencing is left to the discretion of the trial court, and abuse of
               that discretion arises by the court: (1) failing to enter a
               sentencing statement at all; (2) entering a sentencing statement in
               which the aggravating and mitigating factors are not supported
               by the record; (3) entering a sentencing statement that does not
               include reasons that are clearly supported by the record and
               advanced for consideration; or (4) entering a sentencing
               statement in which the reasons provided in the statement are
               improper as a matter of law.


      Ackerman v. State, 51 N.E.3d 171, 193 (Ind. 2016) (quotation marks omitted).


[8]   Barlow’s only argument on this issue is that the trial court failed to take his

      guilty plea into account when it sentenced him.2 It is well established that “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, 238 (Ind. 2004).

      However, it is just as well established that “the significance of a guilty plea as a

      mitigating factor varies from case to case,” and “a guilty plea may not be



      2
        Barlow also states that the trial court “should have . . . taken [his] remorse and requests for treatment as
      mitigating factors,” but this statement appears in the context of why Barlow asserts that his guilty plea is
      significant. Appellant’s Br. at 14-15. Insofar as Barlow intended his remorse and requests for treatment to be
      independent bases for appellate review of the sentence imposed, Barlow has not demonstrated that those
      requests were significant mitigating circumstances. See Anglemyer v. State, 875 N.E.2d 218, 221 (Ind. 2007).

      Court of Appeals of Indiana | Memorandum Decision 03A04-1707-CR-1554 | December 5, 2017            Page 4 of 8
       significantly mitigating when . . . the defendant receives a substantial benefit in

       return for the plea.” Anglemyer v. State, 875 N.E.2d 218, 221 (Ind. 2007).

       Similarly, a guilty plea is not necessarily a mitigating factor “where evidence

       against the defendant is so strong that the decision to plead guilty is merely

       pragmatic.” Amalfitano v. State, 956 N.E.2d 208, 212 (Ind. Ct. App. 2011),

       trans. denied.


[9]    We agree with the State that Barlow received a substantial benefit in exchange

       for his plea when the State agreed to dismiss four additional charges that were

       pending against him. Those four charges, cumulatively, could have resulted in

       an additional four-and-one-half years to his sentence, which would have nearly

       doubled the five-year aggregate term that the trial court imposed. We also

       agree with the State that its evidence against Barlow was strong—police officers

       discovered evidence underlying Barlow’s convictions on his person, and a video

       recording system recorded him committing theft. Accordingly, we conclude

       that Barlow has not met his burden on appeal to show that his guilty plea was a

       significant mitigating circumstance, and we cannot say that the trial court

       abused its discretion when it did not identify it as such.


                     Issue Two: Whether Barlow’s Sentence is Inappropriate

[10]   Barlow next contends that his five-year, suspended sentence is inappropriate in

       light of the nature of the offenses and his character. As we have explained:


               Indiana Appellate Rule 7(B) permits an Indiana appellate court
               to “revise a sentence authorized by statute if, after due
               consideration of the trial court’s decision, the Court finds that the

       Court of Appeals of Indiana | Memorandum Decision 03A04-1707-CR-1554 | December 5, 2017   Page 5 of 8
               sentence is inappropriate in light of the nature of the offense and
               the character of the offender.” We assess the trial court’s
               recognition or nonrecognition of aggravators and mitigators as an
               initial guide to determining whether the sentence imposed was
               inappropriate. Gibson v. State, 856 N.E.2d 142, 147 (Ind. Ct.
               App. 2006). The principal role of appellate review is to “leaven
               the outliers.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.
               2008). A defendant must persuade the appellate court that his or
               her sentence has met the inappropriateness standard of review.
               Roush v. State, 875 N.E.2d 801, 812 (Ind. Ct. App. 2007).


       Robinson v. State, 61 N.E.3d 1226, 1228 (Ind. Ct. App. 2016).


[11]   The sentencing range for a Level 6 felony is between six months and two-and-

       one-half years, with an advisory term of one year imprisonment. Ind. Code §

       35-50-2-7(b) (2017). The trial court here ordered Barlow to serve two-and-one-

       half years for each of his three Level 6 offenses, but the court ordered two of the

       sentences to run concurrently, and the court then suspended the balance of

       Barlow’s aggregate sentence.


[12]   On appeal, Barlow asserts that the facts underlying his convictions “do not

       differ significantly from a ‘typical’ offense . . . .” Appellant’s Br. at 16. He also

       asserts that his guilty plea shows his acceptance of responsibility and his

       remorse, which, in turn, evince his good character.


[13]   We cannot say that Barlow’s sentence is inappropriate. Barlow received no

       term of imprisonment aside from time served during the pendency of the

       proceedings. And Barlow has twenty prior convictions (as an adult) as well as

       numerous failed attempts at probation and similar placements. The trial court’s

       Court of Appeals of Indiana | Memorandum Decision 03A04-1707-CR-1554 | December 5, 2017   Page 6 of 8
       sentence of five years suspended is not inappropriate in light of the nature of the

       offenses and Barlow’s character.


                    Issue Three: Imposition of Previously Suspended Sentence

[14]   Last, Barlow asserts that the trial court abused its discretion when it ordered

       him to serve the balance of his previously suspended sentence. As our Supreme

       Court has explained:


               “Probation is a matter of grace left to trial court discretion, not a
               right to which a criminal defendant is entitled.” Prewitt v. State,
               878 N.E.2d 184, 188 (Ind. 2007) (explaining that: “Once a trial
               court has exercised its grace by ordering probation rather than
               incarceration, the judge should have considerable leeway in
               deciding how to proceed. If this discretion were not afforded to
               trial courts and sentences were scrutinized too severely on
               appeal, trial judges might be less inclined to order probation to
               future defendants.”). A probation hearing is civil in nature, and
               the State must prove an alleged probation violation by a
               preponderance of the evidence. Braxton v. State, 651 N.E.2d 268,
               270 (Ind. 1995); see Ind. Code § 35-38-2-3(f) (2012). When the
               sufficiency of evidence is at issue, we consider only the evidence
               most favorable to the judgment—without regard to weight or
               credibility—and will affirm if “there is substantial evidence of
               probative value to support the trial court’s conclusion that a
               probationer has violated any condition of probation.” Braxton,
               651 N.E.2d at 270.


       Murdock v. State, 10 N.E.3d 1265, 1267 (Ind. 2014).


[15]   On appeal, Barlow asserts that, when it ordered him to serve the balance of his

       previously suspended sentence, the trial court failed to assign mitigating weight

       to the fact that Barlow had admitted to the alleged probation violations.

       Court of Appeals of Indiana | Memorandum Decision 03A04-1707-CR-1554 | December 5, 2017   Page 7 of 8
       Barlow further asserts that his “efforts to rehabilitate himself while in

       Community Corrections” was entitled to “some mitigating weight.”

       Appellant’s Br. at 18.


[16]   We reject Barlow’s arguments. In essence, Barlow asks this court to reweigh

       the evidence that was before the trial court, which is contrary to our standard of

       review in appeals from civil probation revocation proceedings. Murdock, 10

       N.E.3d at 1267. Moreover, we conclude that the trial court did not abuse its

       discretion when it revoked the entirety of Barlow’s previously suspended

       sentence. Barlow was out on probation for just six days before he refused to

       submit to an oral drug screen. That fact, along with Barlow’s history of

       probation violations in other causes, demonstrated that Barlow was unlikely to

       comply with the terms and conditions of his probation. We cannot say that the

       trial court abused its discretion on this issue.


                                                   Conclusion

[17]   In sum, we affirm Barlow’s original sentence as well as the trial court’s

       revocation of the previously suspended portion of that sentence.


[18]   Affirmed.


       Mathias, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 03A04-1707-CR-1554 | December 5, 2017   Page 8 of 8
