MEMORANDUM DECISION
                                                                          FILED
Pursuant to Ind. Appellate Rule 65(D),
                                                                      Oct 12 2018, 6:48 am
this Memorandum Decision shall not be
regarded as precedent or cited before any                                 CLERK
                                                                      Indiana Supreme Court
court except for the purpose of establishing                             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
Holly L. Lyons                                           Curtis T. Hill, Jr.
Greenfield, Indiana                                      Attorney General of Indiana

                                                         Matthew B. Mackenzie
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Greg McCauley,                                           October 12, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-663
        v.                                               Appeal from the Hancock Circuit
                                                         Court
State of Indiana,                                        The Honorable R. Scott Sirk,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         30C01-1604-F4-588



Tavitas, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-663 | October 12, 2018               Page 1 of 13
                                          Statement of the Case

[1]   Greg McCauley appeals his four-year sentence for dealing in a narcotic drug, a

      Level 5 felony. We affirm.


                                                     Issues

[2]   McCauley raises two issues on appeal, which we restate as:


          I.      Whether the trial court abused its discretion in sentencing
                  McCauley.

          II.     Whether the sentence is inappropriate in light of the
                  nature of the offense and McCauley’s character.


                                                      Facts

[3]   On March 10, 2016, officers of the Greenfield Police Department arranged a

      controlled buy where a confidential informant and undercover officers would

      purchase heroin from McCauley’s son, Ryan McCauley (“Ryan”). When the

      officers arrived, McCauley, instead of Ryan, brought the powdery substance to

      the undercover officers and exchanged it for money. The substance tested

      positive for heroin. McCauley stated he was involved in the exchange because,

      after McCauley woke up and showered, Ryan handed him the substance and

      told McCauley to “run this out to the car” where the officers were waiting. Tr.

      Vol. II p. 17.


[4]   The State charged McCauley with dealing in a narcotic drug between one and

      five grams, a Level 4 felony (“Count I”), and possession of a narcotic drug, a

      Level 5 felony (“Count II”). McCauley pleaded guilty to an amended Count I,

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-663 | October 12, 2018   Page 2 of 13
      dealing in narcotic drug, a Level 5 felony, in an open plea on January 22, 2018.

      The State dismissed Count II.


[5]   At sentencing, McCauley asked the trial court to consider three mitigating

      factors: (1) the controlled buy was actually a deal orchestrated between the

      officers and Ryan—not McCauley himself; (2) McCauley’s incarceration

      would create an undue hardship on him and his family because McCauley has

      health issues and he supports his wife; and (3) McCauley’s crime did not

      actually cause serious harm to persons or property. McCauley asked the trial

      court to sentence him to home detention with strict compliance and probation

      after a term of home detention.


[6]   The court declined to find a mitigating factor. Instead, the trial court found the

      following aggravating factors: (1) the nature of the crime itself; and (2) that

      McCauley recently violated probation and had a new arrest while on pretrial

      release. The trial court sentenced McCauley to four years in the Indiana

      Department of Correction.


                                                     Analysis

                                                I.       Sentencing

[7]   Sentencing is a discretionary function of the trial court, and we afford

      considerable deference to the trial court’s judgment. See Stephenson v. State, 29

      N.E.3d 111,122 (Ind. 2015). Deference to the trial court “prevail[s] unless

      overcome by compelling evidence portraying in a positive light the nature of the

      offense (such as accompanied by restraint, regard, and lack of brutality) and the

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-663 | October 12, 2018   Page 3 of 13
      defendant’s character (such as substantial virtuous traits or persistent examples

      of good character).” Id. In sentencing a defendant, the trial court must enter a

      sentencing statement that includes “reasonably detailed reasons or

      circumstances for imposing a particular sentence.” Ackerman v. State, 51 N.E.3d

      171, 193 (Ind. 2016) (citing Anglemyer v. State, 868 N.E. 2d 482, 490 (Ind. 2007),

      clarified on reh’g, 875 N.E.2d 218). Indiana Code Section 35-38-1-7.1 provides a

      non-exhaustive list of potential aggravating or mitigating circumstances a court

      must consider.


[8]   When we encounter a trial court’s sentencing order that does not meet the

      requirements of law, we have several options. See Williams v. State, 997 N.E.2d

      1154 (Ind. Ct. App. 2013) (citing Windhorst v. State, 868 N.E.2d 504 (Ind.

      2007)). We may remand for clarification or a new sentencing determination;

      we may affirm the sentence, if the error is harmless; or we may exercise our

      authority to review and revise the sentence pursuant to Indiana Appellate Rule

      7(B). Brown v. State, 783 N.E.2d 1121, 1129 (Ind. 2003). “[E]ven if the trial

      court is found to have abused its discretion in the process it used to sentence the

      defendant, the error is harmless if the sentence imposed was not inappropriate.”

      See Williams, 997 N.E.2d at 1165 (citing Mendoza v. State, 869 N.E.2d 546, 556

      (Ind. Ct. App. 2007), trans. denied).


[9]   McCauley argues the sentence was an abuse of discretion for several reasons:

      (1) McCauley’s guilty plea was not considered a mitigating factor and

      McCauley did not otherwise receive a benefit from his guilty plea; (2) the trial

      court should not have found a nature of the offense aggravator in this case; (3)

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-663 | October 12, 2018   Page 4 of 13
       the trial court’s sentencing statement was not sufficient; and (4) the trial court

       erred in using the presentence investigation report (“PSI”) in determining the

       sentence without the detailed personal information included in the report.


                                                      A. Mitigators

[10]   First, McCauley contends that the trial court erred by failing to find his guilty

       plea to be considered a mitigating factor. The State argues that the trial court

       was not required to give a certain credit or weight to the guilty plea. While it is

       true that the extent to which a guilty plea is mitigating will vary from case to

       case, see Hope v. State, 834 N.E.2d 713, 718 (Ind. Ct. App. 2005), what weight

       should be given to the guilty plea as a mitigating factor is a different question

       than whether the guilty plea should be identified as a mitigating factor. See

       Anglemyer, 875 N.E.2d at 220-221, see also Cotto v. State, 829 N.E.2d 520, 526

       (Ind. 2005) (“[I]n this case the trial court did not identify Cotto’s plea as a

       mitigating factor at all. This was error. Cotto’s guilty plea is a mitigating factor

       entitled to some weight.”). In this case, the trial court declined to find any

       mitigating factors, despite McCauley’s guilty plea. This was error, and the trial

       court should have concluded that McCauley’s entry of a guilty plea was a

       mitigating factor. 1




       1
         We note that McCauley did not ask the trial court to consider his guilty plea as a mitigating factor, but
       instead identified three other factors that McCauley believed should have mitigated his sentence. Our courts
       have held “that trial courts should be ‘inherently aware of the fact that a guilty plea is a mitigating
       circumstance.’” Banks v. State, 841 N.E.2d 654, 658 (Ind. Ct. App. 2006) (quoting Francis v. State, 817 N.E.2d
       235, 237 n.2 (Ind. 2004)), trans. denied. Therefore, McCauley was not required to ask the trial court to
       consider his guilty plea as a mitigating factor.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-663 | October 12, 2018                   Page 5 of 13
[11]   Although the trial court erred in failing to identify McCauley’s guilty plea as a

       mitigating factor, this error was harmless. As the State correctly notes, the trial

       court was not required to give this factor the weight McCauley requests. The

       trial court also identified two aggravating factors that were considered in

       McCauley’s sentence. We find it unlikely that the trial court’s sentence would

       have been different even if the court had acknowledged his guilty plea.

       McCauley had already received some benefit for his guilty plea, namely,

       conviction of a lesser included offense and the State’s dismissal of the other

       charge against McCauley. See Banks v. State, 841 N.E.2d 654, 658-59 (Ind. Ct.

       App. 2006) (“Because Banks had already received some benefit in exchange for

       his guilty plea, Banks was entitled to little, if any, mitigating weight for it at

       sentencing. Thus, we find that the trial court’s omission in this regard was

       harmless error.”), trans. denied.


[12]   Relatedly, McCauley argues that he received no “discernable benefit” from

       pleading guilty, as the “record does not reflect whether the charge was reduced

       to a lesser included Level 5 felony as an enticement to plead guilty or because

       the State later learned that the quantity of Heroin was actually less than

       originally believed.” Appellant’s Br. at pp. 7-8. There is no requirement that

       McCauley receive a certain benefit threshold in exchange for his guilty plea.

       See Banks, 841 N.E.2d at 658. McCauley’s Level 4 felony was reduced to a

       Level 5 felony, and Count II was dismissed. We find that McCauley obtained a




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-663 | October 12, 2018   Page 6 of 13
       benefit from his guilty plea, and the trial court was not required to weigh his

       guilty plea as a mitigating factor in the same way McCauley suggests. 2


                                                      B. Aggravators

[13]   Next, McCauley argues that it was an error for the trial court to consider the

       nature of the offense as an aggravating factor. In determining whether the

       nature of the offense is an appropriate aggravating factor, “a material element

       of a crime cannot be an aggravating circumstance.” Gleason v. State, 965 N.E.2d

       702, 711 (Ind. Ct. App. 2012). Instead, “the nature and the circumstances of

       the crime can be an aggravator.” Id. “If the nature of the offense is identified as

       an aggravating factor, the trial court must discuss facts that go beyond the

       statutory requirements of the crime.” Id. (citing McElroy v. State, 865 N.E.2d

       584 (Ind. 2007)). The trial court spoke about the country’s opioid crisis,

       presumably due to McCauley’s admission of his drug addiction problem. Even

       if it was error for the trial court to consider this fact alone as part of the “nature

       of the offense” analysis, the trial court also found McCauley’s recent arrest

       while on pretrial release was an aggravating factor. This aggravating factor

       alone would have been sufficient to increase McCauley’s sentence one year

       above the advisory guideline. Therefore, even if the trial court’s discussion of




       2
         While we are aware that there may be circumstances where the State dismisses other charges for its own
       benefit, and not for the benefit of the defendant, we do not find that to be the case here. See Cotto, 829 N.E.2d
       at 525 (finding that dismissal of other counts against Cotto was not a benefit to Cotto, as the State had
       dismissed the other counts “in the interests of simplifying the case for the jury and judicial economy to speed
       the resolution of the charges”).

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-663 | October 12, 2018                     Page 7 of 13
       stopping the drug crisis was insufficient as a matter of law, the error was

       harmless.


                                            C. Sentencing Statement

[14]   Next, McCauley argues that the trial court’s sentencing statement was “brief,”

       “lacked detail,” and “sparse.” Appellant’s Br. p. 6. When sentencing a

       defendant for a felony, the trial court must enter a sentencing statement

       “including reasonably detailed reasons or circumstances for imposing a

       particular sentence.” Anglemyer, 868 N.E.2d at 490. The statement must have a

       “‘reasonably detailed recitation’ of the court’s reasons for imposing” the term.

       Id. at 492. Importantly, a statement that identifies both aggravating and

       mitigating factors and explains why “they are deemed as such” can be sufficient

       to “conduct meaningful appellate review.” Id.


[15]   The trial court stated:


               Well Mr. McCauley I can tell Ms. Fehr did an excellent job
               trying uh doing her best to represent you. Um I can tell you have
               health problems . . . [b]ut uh you have health problems and the
               fact that you didn’t show up to probation, the fact that you got
               another offense that – that right off the bat even if it wasn’t a
               dealing case I – I would be un in [sic] not inclined to give you
               home detention. Uh your [sic] and being a dealing case and I
               consistently speak to our community that the only way we’re
               going to solve the uh opioid crisis in our community and our
               State and our Nation is that we help the people who are users
               and we try to rehabilitate them and we cut off the supply. That
               means people who are willing or engage in dealing they go to jail.


       Tr. Vol. II pp. 34-35. The trial court went on to say:
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-663 | October 12, 2018   Page 8 of 13
               That’s not acceptable behavior. So I cannot find a mitigating
               factor in the matter and then your aggravating factors are you’re
               [sic] the nature of the crime of course itself and then that you
               recently violated and had a new arrest while on pretrial release.
               I’m going to sentence you pursuant to the recommendation to
               four years to the Indiana Department of Corrections. You will
               receive credit for the uh twenty (20) days that you’ve actually
               served.


       Id. at 35.


[16]   Here, we find that the sentencing statement was sufficient for meaningful

       appellate review. Even if the trial court’s statement was an abuse of discretion,

       the error was harmless because McCauley’s sentence was not inappropriate, as

       discussed further below.


                                    D. Pre-Sentence Investigation Report

[17]   Finally, it was not error for the trial court to use the PSI, prepared by the

       probation office in sentencing McCauley. McCauley was released on his bond

       and was instructed to report to the probation department either that same day

       or first thing the following morning. Instead, McCauley did not attend three of

       his four scheduled probation meetings, and at the meeting he attended, he failed

       to bring the required documentation. McCauley claims he had to reschedule

       the first two meetings due to car trouble. At the third scheduled meeting,

       McCauley claimed he did not bring his informational packet, and the probation

       officer asked to reschedule the appointment. On his fourth scheduled meeting,

       McCauley stated he was sick and unable to attend. McCauley later noted that


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-663 | October 12, 2018   Page 9 of 13
       he was “ill,” “had a fever,” and “just slept” through his appointment. Tr. Vol.

       II p. 31.


[18]   Mary Kay Dobbs, of the Hancock County Probation Department, attempted to

       complete McCauley’s PSI. While she was able to complete the report itself, she

       was unable to complete the interview due to McCauley’s lack of attendance and

       lack of preparation at the scheduled meetings. Ms. Dobbs confirmed

       McCauley’s account that McCauley was unable to attend the first two meetings

       because he did not have a ride. As to the third meeting, Ms. Dobbs confirmed

       McCauley’s account that he did not fill out the PSI packet. Ms. Dobbs stated

       that, without this packet, the interview could take two to three hours, which

       was not in her schedule for the day.


[19]   As to the fourth meeting, Ms. Dobbs told a slightly different version of events

       than McCauley. On the day of the scheduled final appointment, Ms. Dobbs

       said that McCauley’s daughter called Ms. Dobbs and was “very embarrassed”

       because “[McCauley’s daughter] felt like she had made a commitment to make

       sure that [McCauley] was there for the appointment but that he was refusing to

       come to the appointment.” Id. at 28-29. According to Ms. Dobbs, McCauley’s

       daughter did not know why McCauley refused to attend the meeting.


[20]   McCauley cannot now benefit from his failure to provide detailed personal

       information for his PSI. Aside from the fact that McCauley had four

       opportunities to do so, McCauley was also given the opportunity to add any

       facts he thought might be relevant to the PSI at the sentencing hearing. Id. at


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-663 | October 12, 2018   Page 10 of 13
       14. McCauley provided some information regarding his drug addiction and

       reasons why he missed his meeting with the probation department, but he

       provided no other detailed personal information. To the extent McCauley now

       claims that there is detailed personal information that should have been

       included and considered in the PSI, McCauley had ample opportunity to

       provide that information and failed to do so. Accordingly, the trial court did

       not abuse its discretion in using the PSI to sentence McCauley.


                                        II.     Inappropriate Sentencing

[21]   Next, we address whether McCauley’s sentence is inappropriate. Indiana

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

       statute if, after due consideration of the trial court’s decision, we find that the

       sentence “is inappropriate in light of the nature of the offense and the character

       of the offender.” McCain v. State, 88 N.E.3d 1066, 1067 (Ind. 2018). The

       defendant bears the burden to persuade this court that his or her sentence is

       inappropriate. Phipps v. State, 90 N.E.3d 1190, 1198 (Ind. 2018). Indiana’s

       flexible sentencing scheme allows trial courts to tailor an appropriate sentence

       to the circumstances presented, and the trial court’s judgment “should receive

       considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008).

       The principal role of appellate review is to attempt to “leaven the outliers.”

       Shoun v. State, 67 N.E.3d 635, 642 (Ind. 2017). Whether we regard a sentence

       as inappropriate at the end of the day turns on “our sense of the culpability of

       the defendant, the severity of the crime, the damage done to others, and myriad

       other facts that come to light in a given case.” Cardwell, 895 N.E.2d at 1224.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-663 | October 12, 2018   Page 11 of 13
[22]   In determining whether a sentence is inappropriate, we look to the statutory

       ranges established for the classification of the relevant offense. McCauley

       pleaded guilty to a Level 5 felony. The sentence for a Level 5 felony ranges

       from one year to six years, with an advisory sentence of three years. Ind. Code

       § 35-50-2-6(b). Here, the trial court imposed a four-year sentence.


[23]   We first review the nature of McCauley’s offense. McCauley sold heroin to

       undercover officers. McCauley pleaded guilty to an amended Count I, dealing

       in a narcotic, a Level 5 felony.


[24]   Next, we consider McCauley’s character. McCauley’s criminal history does

       not reflect well upon his character. The trial court noted this concern when

       identifying the aggravating factors. McCauley was arrested for a new offense

       while on pretrial release. McCauley was charged with both theft, a Class A

       misdemeanor, and leaving the scene of an accident, a Class B misdemeanor,

       after his arrest for the initial charges of dealing in a narcotic drug and

       possession of a narcotic drug. 3 McCauley’s past criminal history also includes a

       2011 misdemeanor conviction for possession of a controlled substance, 4 a 2011




       3
        We reject McCauley’s argument that the new arrest and probation violation should not be used as an
       aggravator because it will be the “topic of a subsequent violation hearing and the new charge is pending but
       not yet resolved at the time of sentencing, so these should not be used to aggravate the sentence at hand.”
       Appellant’s Br. pp. 6-7. The PSI indicates that McCauley admitted to theft, and it was proper for the trial
       court to consider this admission at sentencing. See Malenchik v. State, 928 N.E.2d 564, 568 (Ind. 2010) (citing
       Ind. Code § 35-38-1-7.1(c) (noting that, while a pre-sentence report is required to include certain items
       pursuant to Indiana Code Section 35-38-1-7.1, the criteria “do[es] not limit the matters that the court may
       consider in determining the sentence”).
       4
           This charge was reduced to a misdemeanor pursuant to a plea agreement.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-663 | October 12, 2018                   Page 12 of 13
       theft charge which was dismissed, and misdemeanor convictions in 2012, 2014,

       and 2015 for driving with a suspended license.


[25]   McCauley struggled with substance abuse issues after he started taking Percocet

       following a dental procedure in 2011, and “it kind of escalated from there.” Tr.

       Vol. II at 18. According to McCauley, he is a patient at a clinic to assist him

       with addiction. McCauley also identified other medical issues, which require

       regular doctor visits.


                                                  Conclusion

[26]   The trial court’s sentence is within the statutory guidelines, and only one year

       higher than the advisory sentence for a Level 5 felony. Based on the foregoing,

       we are not convinced that McCauley’s sentence is inappropriate. McCauley

       has not met his burden. We affirm.


[27]   Affirmed.


       Brown, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-663 | October 12, 2018   Page 13 of 13
