MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                     Feb 10 2015, 10:06 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                    ATTORNEY FOR APPELLEE
Donald C. Swanson, Jr.                                    Gregory F. Zoeller
Fort Wayne, Indiana                                       Attorney General of Indiana
                                                          Christina D. Pace
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Randall E. Reynolds, II,                                 February 10, 2015

Appellant-Defendant,                                     Court of Appeals Case No. 02A03-
                                                         1408-CR-271
        v.                                               Appeal from the Allen Superior
                                                         Court
State of Indiana,                                        The Honorable Wendy W. Davis,
                                                         Judge
Appellee-Plaintiff.
                                                         Cause No. 02D04-1405-FD-503




Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 02A03-1408-CR-271 | February 10, 2015   Page 1 of 13
[1]   Randall E. Reynolds, II, appeals his sentence for invasion of privacy as a class

      D felony. Reynolds raises one issue which we revise and restate as:


          I. Whether the trial court abused its discretion in sentencing him; and


          II. Whether his sentence is inappropriate in light of the nature of the offense

              and the character of the offender.


      We affirm.


                                      Facts and Procedural History

[2]   In 2013, Reynolds, who was born in 1984, and Kathryn Gill began dating, and

      they dated for approximately six months. On February 26, 2014, Reynolds was

      served with a protective order. Between February 26, and April 20, 2014,

      Reynolds knowingly and intentionally violated the protective order in Allen

      County, Indiana. Specifically, Reynolds made contact with Gill via her cell

      phone and text messaging on numerous occasions. Gill filed seven different

      police reports in reference to the texts, calls, and items left on her porch.

      Reynolds admitted to Fort Wayne Police Detective Jason Snyder that he had

      called Gill and sent her text messages, that he had been to her house on at least

      two occasions, and that he had left a note and some flowers on her front porch.

      Detective Snyder asked Reynolds why he had contacted Gill, and Reynolds

      stated: “I guess I[’]m an idiot.” Appellant’s Appendix at 29. Reynolds had




      Court of Appeals of Indiana | Memorandum Decision 02A03-1408-CR-271 | February 10, 2015   Page 2 of 13
      previously been convicted of invasion of privacy under cause number 17D01-

      0303-CM-212 on March 10, 2003.


[3]   On May 6, 2014, the State charged Reynolds with invasion of privacy as a class

      D felony. On June 25, 2014, Reynolds pled guilty as charged.


[4]   On July 24, 2014, the court held a sentencing hearing. At the hearing,

      Reynolds’s counsel stated that he concurred with the recommendation in the

      presentence investigation report (“PSI”) that Reynolds receive the advisory

      sentence of one and one-half years with 183 days executed and one year of

      probation. Reynolds’s counsel argued that mitigating circumstances included

      Reynolds’s age, he “had a relationship with this woman and he continued to

      have a relationship in violation of the Restraining Order,” there was no

      violence toward the victim, he obtained his GED in 2010, he was employed up

      until his incarceration, and he pled guilty. Sentencing Transcript at 6.


[5]   Gill testified that her world has “changed dramatically,” that she stays locked

      inside unless she is with her mother, that she now carries mace, that she “had to

      completely shut off . . . from the world,” and that her “total life was turned

      inside out and upside down.” Id. at 8. She also stated that she was “completely

      fearful of” Reynolds and that “[i]f he won’t act, he’ll manipulate anyone to do it

      for him.” Id. at 9. Nancy Brown, Gill’s mother, testified that Reynolds began

      threatening Gill and her children and that “[i]nitially it wasn’t as if he was

      gonna do anything, but he knew somebody that was going to.” Id. at 12. She

      also testified that Reynolds would text Gill and say that he saw her at different


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      places, that he was always accurate, that it “was just really creepy,” and that

      she could not figure out how he would know Gill’s location because she did not

      believe that Reynolds had a car. Id. at 14.


[6]   The prosecutor asked for two and one-half years executed. The prosecutor

      stated that the case was “really solid” and that Reynolds’s guilty plea was more

      than acceptance of responsibility, it was “acceptance of reality,” and asked that

      it be given “very little weight.” Id. at 17.


[7]   The court found Reynolds’s guilty plea as a mitigator and stated that Reynolds

      pled guilty “and he’s taken acceptance of responsibility and not even had the,

      um, I guess privilege of having a plea agreement.” Id. at 20. The court did not

      give the guilty plea “a lot of weight” because he was caught by an officer. Id.

      The court stated that it heard no remorse from Reynolds, but acknowledged

      that it heard nothing from Reynolds which is his right. The court stated: “I

      have taken into consideration, um, the advocacy of [Reynolds’s trial counsel] in

      this case in the sense of, um, the type of case that it is and – and you are right,

      nobody was hurt, yet.” Id. at 21. The court observed that Reynolds knows how

      the protective orders work and “has chosen to show complete disdain for the

      system and the Court Orders.” Id. at 21-22. The court acknowledged

      Reynolds’s criminal history including ten misdemeanors, and found that there

      was a pattern of similar offenses that it found extremely aggravating. The court

      observed that prior attempts of rehabilitation failed and that Reynolds was at

      high risk to reoffend, and sentenced him to two years and 183 days with one

      year executed.

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                                                   Discussion

                                                         I.


[8]   The first issue is whether the trial court abused its discretion in sentencing

      Reynolds. We review the sentence for an abuse of discretion. Anglemyer v.

      State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind.

      2007). 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. A trial court

      abuses its discretion if it: (1) fails “to enter a sentencing statement at all;” (2)

      enters “a sentencing statement that explains reasons for imposing a sentence –

      including a finding of aggravating and mitigating factors if any – but the record

      does not support the reasons;” (3) enters a sentencing statement that “omits

      reasons that are clearly supported by the record and advanced for

      consideration;” or (4) considers reasons that “are improper as a matter of law.”

      Id. at 490-491. If the trial court has abused its discretion, we will remand for

      resentencing “if we cannot say with confidence that the trial court would have

      imposed the same sentence had it properly considered reasons that enjoy

      support in the record.” Id. at 491. The relative weight or value assignable to

      reasons properly found, or those which should have been found, is not subject

      to review for abuse of discretion. Id.


[9]   The determination of mitigating circumstances is within the discretion of the

      trial court. Rogers v. State, 878 N.E.2d 269, 272 (Ind. Ct. App. 2007), trans.

      denied. The trial court is not obligated to accept the defendant’s argument as to
      Court of Appeals of Indiana | Memorandum Decision 02A03-1408-CR-271 | February 10, 2015   Page 5 of 13
       what constitutes a mitigating factor, and a trial court is not required to give the

       same weight to proffered mitigating factors as does a defendant. Id. An

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

       requires the defendant to establish that the mitigating evidence is both

       significant and clearly supported by the record. Anglemyer, 868 N.E.2d at 493.

       If the trial court does not find the existence of a mitigating factor after it has

       been argued by counsel, the trial court is not obligated to explain why it has

       found that the factor does not exist. Id.


[10]   Reynolds argues that the trial court abused its discretion when it failed to

       properly identify his GED, completion of substance abuse treatment through

       the Salvation Army, employment prior to his incarceration, the fact that he pled

       guilty fairly quickly, and the fact that he demonstrated remorse to the author of

       the PSI as mitigators.


[11]   With respect to his GED, we observe that Reynolds completed his GED in

       2010, and yet since 2011 he has been sentenced for five misdemeanors. We

       cannot say that the trial court abused its discretion in failing to consider

       Reynolds’s GED as a mitigator.


[12]   As for the completed substance abuse treatment in 2013, Reynolds’s counsel at

       one point mentioned substance abuse1 but Reynolds does not argue on appeal




       1
           At the sentencing hearing, Reynolds’s trial counsel stated:
                  After reviewing all the documents, the Court records, and interviewing my client, uh,
                  with respect to the mental health stipulation, uh, that of course a mental health

       Court of Appeals of Indiana | Memorandum Decision 02A03-1408-CR-271 | February 10, 2015            Page 6 of 13
       and our review does not reveal that he argued that his completed substance

       abuse treatment constituted a mitigator. “If the defendant does not advance a

       factor to be mitigating at sentencing, this Court will presume that the factor is

       not significant and the defendant is precluded from advancing it as a mitigating

       circumstance for the first time on appeal.” Henley v. State, 881 N.E.2d 639, 651

       (Ind. 2008) (quoting Spears v. State, 735 N.E.2d 1161, 1167 (Ind. 2000), reh’g

       denied).


[13]   With respect to employment, we have held that “[m]any people are gainfully

       employed such that this would not require the trial court to note it as a

       mitigating factor . . . .” Newsome v. State, 797 N.E.2d 293, 301 (Ind. Ct. App.

       2003), trans. denied. Reynolds’s trial counsel argued that Reynolds was

       “employed . . . making fifteen ($15.00) dollars per hour . . . up until his

       incarceration.” Sentencing Transcript at 19. The record does not contain any

       evidence regarding Reynolds’s employment other than the PSI. Under

       “Employment,” the PSI states: “TI Automotive, Ashley, Indiana, 2011 to 2013,

       laborer, $13.00 per hour, incarcerated.” Appellant’s Appendix at 23. However,

       under “Financial Situation,” Reynolds indicated that he earned an unknown

       amount in 2013. Id. Further, under the risk and needs assessment, the PSI




               evaluation would be a part of special conditions of probation. And I would anticipate
               that that would be the case, particularly in light of the substance abuse, uh, that these, uh,
               crimes suggest.
       Sentencing Transcript at 18-19.



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       states that the areas of highest concern regarding the risk to reoffend were

       Reynolds’s education, employment and financial situation, and substance

       abuse.2 The “Evaluation/Summary” of the PSI states that Reynolds “has a

       GED and is unemployed.” Id. at 25. We cannot say that Reynolds has

       demonstrated that the evidence of his employment is both clearly supported by

       the record and significant. See Espinoza v. State, 859 N.E.2d 375, 387-388 (Ind.

       Ct. App. 2006) (holding that the defendant failed to establish that the

       employment evidence was both significant and clearly supported by the record

       and that the trial court did not abuse its discretion by not considering

       defendant’s employment history as a mitigating circumstance); Bennett v. State,

       787 N.E.2d 938, 948 (Ind. Ct. App. 2003) (holding that the trial court properly

       did not find that the defendant’s employment was a significant mitigating

       circumstance where defendant did not present a specific work history,

       performance reviews, or attendance records), trans. denied.


[14]   To the extent Reynolds argues that the trial court abused its discretion by failing

       to find that he pled guilty fairly quickly as a mitigator, we note that the court

       found Reynolds’s guilty plea as a mitigator but did not give it “a lot of weight”

       because he was caught by an officer. Id. at 20. As noted, the relative weight or

       value assignable to reasons properly found, or those which should have been




       2
        The PSI indicates that Reynolds received his GED in 2010, that he owed approximately $50,000 in medical
       debt, and that he has used alcohol, marijuana, cocaine, methamphetamine, prescription pills, Spice, acid,
       ecstasy, heroin, and mushrooms.

       Court of Appeals of Indiana | Memorandum Decision 02A03-1408-CR-271 | February 10, 2015      Page 8 of 13
       found, is not subject to review for abuse of discretion. Anglemyer, 868 N.E.2d at

       491.


[15]   As for Reynolds’s remorse, we acknowledge that the PSI indicates that he

       expressed remorse. However, Reynolds does not point to the record and our

       review does not reveal that Reynolds specifically argued that his remorse

       constituted a mitigator. Further, the court asked Reynolds at the sentencing

       hearing whether he had anything to say to the court, and Reynolds said: “No.”

       Sentencing Transcript at 20. We also note that the court told Reynolds that it

       would put into place another no contact order and asked him if he understood

       how this works, Reynolds said yes, the court told Reynolds not to use the

       phones in the Department of Correction to contact certain individuals, and then

       the court said “don’t smirk at me.” Id. at 24. Under the circumstances, we

       cannot say that the trial court abused its discretion.


                                                         II.


[16]   The next issue is whether Reynolds’s sentence is inappropriate in light of the

       nature of the offense and the character of the offender. Ind. 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.” Under this rule, the burden is on the defendant to persuade the

       appellate court that his or her sentence is inappropriate. Childress v. State, 848

       N.E.2d 1073, 1080 (Ind. 2006).


       Court of Appeals of Indiana | Memorandum Decision 02A03-1408-CR-271 | February 10, 2015   Page 9 of 13
[17]   Reynolds argues that his crimes did not involve any violence, that he admitted

       his wrongdoing, and that his crime does not indicate that he is one of the worst

       offenders for whom maximum sentences are appropriate. He argues that he

       obtained his GED, has one dependent child, was employed at the time of his

       incarceration, and completed substance abuse treatment. He asserts that the

       imposition of the minimum sentence of six months is appropriate. The State

       argues that Reynolds’s sentence is not inappropriate based on his repeated and

       egregious conduct, his criminal history, and his history of substance abuse.


[18]   Initially, to the extent Reynolds claims that he received a maximum sentence

       and that such sentences should be reserved for the worst offenders, Reynolds

       did not receive a maximum sentence in this case when the court sentenced him

       to two years and 183 days. See Ind. Code § 35-50-2-7 (Supp. 2013) (“A person

       who commits a Class D felony shall be imprisoned for a fixed term of between

       six (6) months and three (3) years, with the advisory sentence being one and

       one-half (1 ½ ) years.”).3 We also observe that the court ordered that only one

       year of Reynolds’s sentence be executed. See Davidson v. State, 926 N.E.2d

       1023, 1025 (Ind. 2010) (noting that in reviewing sentences pursuant to Ind.

       Appellate Rule 7(B), we may consider not only the appropriateness of the

       aggregate length of the sentence, but also “whether a portion of the sentence is




       3
        Subsequently amended by Pub. L. No. 158-2013, § 660 (eff. July 1, 2014); Pub. L. No. 168-2014, § 117 (eff.
       July 1, 2014).

       Court of Appeals of Indiana | Memorandum Decision 02A03-1408-CR-271 | February 10, 2015       Page 10 of 13
       ordered suspended or otherwise crafted using any of the variety of sentencing

       tools available to the trial judge”).


[19]   Our review of the nature of the offense reveals that Reynolds knowingly and

       intentionally violated a protective order. Specifically, Reynolds made contact

       with Gill via phone and text messages on numerous occasions. Gill filed seven

       different police reports in reference to the texts, calls, and items left on her

       porch. Reynolds admitted to Detective Snyder that he had called Gill and sent

       her text messages, that he had been to her house on at least two occasions, and

       that he had left a note and some flowers on her front porch.


[20]   Our review of the character of the offender reveals that Reynolds pled guilty as

       charged. The PSI reveals that Reynolds has one dependent child for which he

       is not ordered by a court to pay child support. The PSI indicates that Reynolds

       obtained his GED in 2010 and was employed between 2011 and 2013.

       According to the PSI, Reynolds denied having any mental health related

       illnesses, and reported that he first tried alcohol and marijuana when he was ten

       years old and used both once every other day until his present incarceration.

       He reported that he first tried cocaine when he was thirteen years old and used

       it every other day until 2008, used methamphetamine daily from age eighteen

       until 2009, abused prescription pills daily from age twenty to twenty-eight, used

       Spice daily from 2012 until 2013, and experimented with acid, ecstasy, heroin,

       and mushrooms. Reynolds indicated that he completed substance abuse

       treatment at the Salvation Army in 2013. The PSI indicates that he expressed



       Court of Appeals of Indiana | Memorandum Decision 02A03-1408-CR-271 | February 10, 2015   Page 11 of 13
       remorse for his actions and said that “[i]t was stupid.” Appellant’s Appendix at

       24.


[21]   As an adult, Reynolds was convicted of invasion of privacy as a misdemeanor

       in 2003. He was sentenced to 100 days with ninety days suspended and ten

       days executed, and his probation was revoked. In 2004, he was convicted of

       breaking and entering as a fifth degree felony in Ohio. In 2007, he was

       convicted of operating while intoxicated as a misdemeanor. In 2008, Reynolds

       was sentenced for battery as a class B misdemeanor and later violated his

       probation. Also in 2008, he was sentenced for criminal conversion as a

       misdemeanor. In 2010, he was sentenced for criminal trespass as a

       misdemeanor. In 2011, he was sentenced for driving while suspended as a

       misdemeanor, possession of marijuana as a misdemeanor, and public

       intoxication as a misdemeanor. In 2013, he was sentenced for battery resulting

       in bodily injury as a misdemeanor and child solicitation as a class A

       misdemeanor resulting in his registering as a sex offender. The PSI indicates

       that Reynolds’s overall risk assessment score put him in the high risk category

       to reoffend.


[22]   After due consideration of the trial court’s decision, we cannot say that the

       sentence of two years and 183 days with one year executed imposed by the trial

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

       the offender.




       Court of Appeals of Indiana | Memorandum Decision 02A03-1408-CR-271 | February 10, 2015   Page 12 of 13
                                                   Conclusion

[23]   For the foregoing reasons, we affirm Reynolds’s sentence.


[24]   Affirmed.


       Bailey, J., and Robb, J., concur.




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