MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                    FILED
this Memorandum Decision shall not be                                Nov 29 2018, 6:42 am
regarded as precedent or cited before any
                                                                          CLERK
court except for the purpose of establishing                          Indiana Supreme Court
                                                                         Court of Appeals
the defense of res judicata, collateral                                    and Tax Court

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
                                                        Marjorie Lawyer-Smith
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Sean Patrick Roberts, Jr.,                              November 29, 2018
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A-CR-1441
        v.                                              Appeal from the Bartholomew
                                                        Circuit Court
State of Indiana,                                       The Honorable Kelly S. Benjamin,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        03C01-1801-F6-167



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1441 | November 29, 2018             Page 1 of 7
                                               Case Summary
[1]   Sean Patrick Roberts, Jr. (“Roberts”) pled guilty to intimidation, as a Level 6

      felony,1 and now appeals his sentence of 730 days of imprisonment. He raises

      one issue on appeal: whether the trial court abused its discretion by not

      considering his guilty plea to be a mitigating factor in his sentencing.


[2]   We affirm.



                                Facts and Procedural History
[3]   On January 9, 2018, Roberts and his fiancée, Shannon Hadley (“Hadley”),

      argued in a Target parking lot. Roberts became angry and grabbed Hadley’s

      book bag, pulling her towards him and onto the ground. While Hadley was on

      the ground, Roberts yelled at her and kicked her while wearing steel-toed boots.

      Roberts also yelled at several bystanders who approached. He told them not to

      call the police and to mind their own business. Roberts threatened the

      bystanders that he would find them and hurt them because he knew what cars

      they drove. Roberts told the bystanders that he would blow up their cars. He

      called them names and continued to scream threats at them while three of them

      called 9-1-1. Roberts yelled at the officers when they arrived and told them he

      would damage the patrol car if they put him in it.




      1
          Ind. Code § 35-45-2-1(a)(2), (b)(1)(A).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1441 | November 29, 2018   Page 2 of 7
[4]   The State charged Roberts with intimidation as a Level 6 felony; criminal

      confinement as a Level 6 felony;2 and battery as a Class B misdemeanor.3

      Roberts pled guilty to intimidation pursuant to a plea agreement, and the State

      agreed to dismissal of the other two charges.


[5]   During Roberts’s sentencing hearing, the trial court questioned him about the

      incident leading to the charges. When Roberts first gave his account of it, he

      did not state that he kicked Hadley; rather, he said “I never hit her. I never laid

      a hand on her.” Tr. at 14. Roberts also did not mention yelling at or

      threatening the bystanders who attempted to intervene. After the court

      questioned Roberts further about the incident and reminded him that there was

      a video recording of what had happened, he admitted to kicking Hadley with

      steel-toed boots while she was on the ground. However, he pointed out to the

      court that Hadley did not have any marks or blood on her face.


[6]   In sentencing Roberts, the trial court stated:


                 The Court is very concerned regarding your answers today. You
                 don’t think you did anything wrong. I’m reading through this
                 probable cause affidavit and I’m taking judicial notice of my file,
                 which has all the contents within it, which includes that and from
                 what you said here today versus what is in here by four people
                 who don’t know each other, it’s completely different. You have
                 a sincere problem figuring out what you did. You were here




      2
          I.C. § 35-42-3-3(a).
      3
          I.C. § 35-42-2-1(c)(1).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1441 | November 29, 2018   Page 3 of 7
              today, still after pleading in, trying to make it sound like it wasn’t
              that bad. It was.


                                                        ***


              You completely do not appreciate the intimidation aspect of it.
              You completely do not appreciate, even more than an anger
              problem. You can’t control yourself. You didn’t place fear just
              in one person that day, you did in about five. So [to] come and
              say that you just kind of grabbed someone and maybe yelled a
              little is completely different than reality.


      Tr. at 18, 20. The court found that there were no mitigating circumstances, and

      it found that the aggravating circumstances included Roberts’s criminal history,

      prior probation violation, and threats to witnesses of the offense. It sentenced

      Roberts to 730 days in the Bartholomew County Jail. 4 This appeal ensued.



                                  Discussion and Decision
[7]   Roberts maintains that the trial court erred in sentencing him. Sentencing

      decisions lie within the sound discretion of the trial court. Cardwell v. State, 895

      N.E.2d 1219, 1222 (Ind. 2008). 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.” Gross v. State, 22 N.E.3d 863, 869 (Ind. Ct. App. 2014) (citation




      4
        The statutory range for a Level 6 felony is between six months and two and one-half years, with an
      advisory sentence of one year. I.C. § 35-50-2-7.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1441 | November 29, 2018                Page 4 of 7
      omitted), trans. denied. A trial court abuses its discretion in sentencing if it does

      any of the following:


                (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. (quoting Anglemyer v. State, 868 N.E.2d 482, 490-491 (Ind. 2007), clarified on

      reh’g, 875 N.E.2d 218 (Ind. 2007)). So long as a sentence is within the statutory

      range, the trial court may impose it without regard to the existence of

      aggravating or mitigating factors. Anglemyer, 868 N.E.2d at 489. However, if

      the trial court does find the existence of aggravating or mitigating factors, it

      must give a statement of its reasons for selecting the sentence it imposes. Id. at

      490. But 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, Gross, 22 N.E.3d at 869, and a trial court is under no obligation to

      explain why a proposed mitigator does not exist or why the court found it to be

      insignificant, Sandleben v. State, 22 N.E.3d 782, 796 (Ind. Ct. App. 2014), trans.

      denied.


[8]   Roberts contends the trial court abused its discretion by failing to find his guilty

      plea to be a mitigating circumstance. As our Supreme Court has held,




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1441 | November 29, 2018   Page 5 of 7
              a defendant who pleads guilty deserves “some” mitigating weight
              be given to the plea in return. McElroy v. State, 865 N.E.2d 584,
              591 (Ind. 2007) (citing Cotto v. State, 829 N.E.2d 520, 525 (Ind.
              2005)). But an allegation that the trial court failed to identify or
              find a mitigating factor requires the defendant to establish that
              the mitigating evidence is not only supported by the record but
              also that the mitigating evidence is significant. See Anglemyer,
              868 N.E.2d at 490-91. And the significance of a guilty plea as a
              mitigating factor varies from case to case. Francis, 817 N.E.2d at
              238 n.3. For example, a guilty plea may not be significantly
              mitigating when it does not demonstrate the defendant’s
              acceptance of responsibility, id., or when the defendant receives a
              substantial benefit in return for the plea. Sensback v. State, 720
              N.E.2d 1160, 1165 (Ind. 1999).


      Anglemyer v. State, 875 N.E.2d 218, 220-21 (Ind. 2007).


[9]   Roberts’s own testimony at his sentencing hearing indicated that he was

      motivated to plead guilty not because of genuine remorse or acceptance of

      responsibility, but to obtain the substantial benefit of the dismissal of the two

      other charges against him. When the court initially questioned Roberts about

      the underlying criminal act, he denied attacking Hadley, stating “I never hit

      her. I never laid a hand on her.” Tr. at 14. Only when he was reminded by the

      judge that there was a security video of the entire incident did Roberts admit

      that he kicked Hadley. And, even then, Roberts sought to minimize the

      violence of his actions, stating “she did not have a mark on her, not one[,] …

      she wasn’t bleeding nowhere.” Id. at 15. Such testimony does not demonstrate

      remorse or a genuine acceptance of responsibility for the crime to which he pled

      guilty. And there is no question that Roberts received a substantial benefit from


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1441 | November 29, 2018   Page 6 of 7
       the guilty plea in that the two other criminal charges were dismissed.

       Therefore, the trial court did not abuse its discretion when it did not find that

       Roberts’s guilty plea was a mitigating circumstance. Anglemyer, 875 N.E.2d at

       221.


[10]   Affirmed.


       Mathias, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1441 | November 29, 2018   Page 7 of 7
