MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                 FILED
this Memorandum Decision shall not be                             Dec 28 2016, 9:03 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
Laura Paul                                              Gregory F. Zoeller
Indianapolis, Indiana                                   Attorney General of Indiana
                                                        Richard C. Webster
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Aaron Morgan,                                           December 28, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        28A01-1608-CR-1781
        v.                                              Appeal from the Green Circuit
                                                        Court
State of Indiana,                                       The Honorable Erik C. Allen,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        28C01-1312-FC-41



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 82A01-1608-CR-1781 | December 28, 2016   Page 1 of 7
                                Case Summary and Issue
[1]   Aaron Morgan pleaded guilty to sexual battery as a Class D felony and the trial

      court sentenced him to two and one-half years in the Indiana Department of

      Correction. Morgan appeals his sentence, raising one issue for review, which

      we restate as whether the trial court abused its discretion in sentencing him.

      Concluding the trial court did not abuse its discretion, we affirm.



                            Facts and Procedural History
[2]   On the evening of September 11, 2014, Morgan babysat a ten-year-old girl. At

      some point, Morgan put his hand under the girl’s clothing and fondled her

      vagina. The girl’s mother was notified of the incident and reported the incident

      to law enforcement.


[3]   The State charged Morgan with child molesting as a Class C felony and sexual

      battery as a Class D felony. Morgan then entered into a plea agreement with

      the State whereby he agreed to plead guilty to sexual battery as a Class D felony

      in exchange for the State dismissing the remaining count; the plea agreement

      also provided sentencing would be left to the discretion of the trial court. The

      trial court accepted Morgan’s plea and entered judgment of conviction.


[4]   At the sentencing hearing, Morgan testified he is currently married and pays

      child support for his two children from a previous marriage. As to child

      support, Morgan is in arrears but has recently been consistent in paying $130.00

      per week. Morgan claimed a lengthy incarceration would cause financial and

      Court of Appeals of Indiana | Memorandum Decision 82A01-1608-CR-1781 | December 28, 2016   Page 2 of 7
emotional hardship to his current wife, ex-wife, and two children. Specifically,

he stated his current wife relies solely on his paychecks, he would not be able to

make child support payments to his ex-wife, and he would be unable to visit

with his children. As mitigating factors, Morgan requested the trial court

consider his acceptance of responsibility, his remorse, the undue hardship on

his dependents, and the fact his plea saved the State the burden of a jury trial.

The State did not recommend a sentence. The trial court then sentenced

Morgan:

        In considering the sentence I have examined the pre-sentence
        investigation report, listened to the evidence presented here
        today, the argument of counsel, statement of Mr. Morgan and
        this certainly is a very serious offense it has a dramatic impact on
        the young lady who is the victim of the offense and that is
        certainly indicated I think by the nature of the offense, but also
        supported by the information set out in the letters from the
        child’s mother and grandmother who have very consistent and
        close contact with the child describing the impact that this has
        had upon her. Considering the sentence to impose will accept the
        aggravating factors as set out in the pre-sentence investigation
        report, the history of criminal and delinquent behavior as set out
        specifically in the pre-sentence investigation report each of those
        offenses where there is a conviction or an adjudication entered,
        the victim of the offense was less than 12 years of age at the time
        the offense was committed, the child was 10 years of age
        although chronically [sic] two years is not a major difference, but
        I think the age of 10 is a significant difference than even a young
        12 or 13 year old child, 10 is a very young age to be subjective
        [sic] to this type of behavior and I think that is a rather young
        age, the most compelling I think the aggravating circumstance is
        the fact that you were trusted by this child’s mother and placed in
        a position of having care and control of this young lady and you
        violated that trust and you violated that position of care and
Court of Appeals of Indiana | Memorandum Decision 82A01-1608-CR-1781 | December 28, 2016   Page 3 of 7
              control and that is a major aggravator. People entrust their
              children to folks, babysat, allowing you to live in their home I
              believe you said and you took complete advantage in a very
              traumatic way of that trust and violated that trust, I think that has
              a very substantial weight as an aggravating circumstance. I agree
              as a mitigating circumstance that you pled guilty and accepted
              responsibility and I take you at your word the comments you
              made and I think they were appropriate and I appreciate those
              comments by pleading guilty you have accepted responsibility
              and taken responsibility for the decision that you made. The or
              [sic] recognize that is part of pleading guilty, but also separately
              that saving the burden of the child of having to testify at a trial
              and saving the burden of a jury trial is given mitigating weight as
              well, but clearly through the young age of the child and the
              position of trust that you were in related to that child and the
              impact of the child as set out in the description of the letters I
              think that the aggravating circumstances do outweigh the
              mitigating circumstances and I give you credit though for
              mitigating circumstances, I was thinking that a 3 year executed
              sentence was probably appropriate and I give you some credit for
              the mitigating circumstances so I will reduce that a little bit.
              What I am going to order is a fully executed 2 year 180 day
              sentence to the Indiana Department of Corrections . . . .


      Transcript at 21-23. This appeal ensued.



                                Discussion and Decision
                                     I. Standard of Review
[5]   We review a trial court’s sentencing decision 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. An abuse of discretion occurs when the trial court’s decision is “clearly


      Court of Appeals of Indiana | Memorandum Decision 82A01-1608-CR-1781 | December 28, 2016   Page 4 of 7
      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. (citation omitted). A trial court may abuse its discretion by

      failing to enter a sentencing statement, finding aggravating or mitigating

      circumstances unsupported by the record, omitting aggravating or mitigating

      circumstances supported by the record, or noting reasons that are improper

      considerations as a matter of law. Id. at 490-91.


                                       II. Undue Hardship
[6]   Morgan contends the trial court abused its discretion in failing to find a

      mitigating circumstance clearly supported by the record. Specifically, he

      contends the trial court failed to find as a mitigating circumstance that his

      incarceration would result in undue hardship to his dependents. See Ind. Code

      § 35-38-1-7.1(b)(10) (stating “[i]mprisonment of the person will result in undue

      hardship to the person or the dependents of the person” is one of the factors the

      court may consider as mitigating). The State counters Morgan failed to

      establish the potential undue hardship amounted to a special circumstance

      thereby requiring the trial court to find it as a mitigating circumstance. We

      agree with the State.


[7]   At the outset, we acknowledge the trial court did not find Morgan’s claim of

      undue hardship to his dependents as a mitigating circumstance. However, a

      trial court is neither required to accept a defendant’s arguments as to what

      constitutes a mitigating factor nor give the same weight to proffered mitigating


      Court of Appeals of Indiana | Memorandum Decision 82A01-1608-CR-1781 | December 28, 2016   Page 5 of 7
      facts as the defendants does. Healy v. State, 969 N.E.2d 607, 616 (Ind. Ct. App.

      2012), trans. denied. In addition, a trial court does not abuse its discretion in

      failing to identify undue hardship as a mitigating circumstance unless the

      mitigating evidence is both significant and clearly supported by the record.

      Dowdell v. State, 720 N.E.2d 1146, 1154 (Ind. 1999) (noting evidence of special

      circumstances is required because “[m]any persons convicted of serious crimes

      have one or more” dependents). Here, the only evidence in the record showing

      any hardship to Morgan’s dependents comes from Morgan’s testimony at the

      sentencing hearing where he claimed his incarceration would deprive him of the

      opportunity to visit with his children, pay child support to his ex-wife, and

      financially support his current wife. Although we recognize these

      circumstances are unfortunate, the circumstances are typical of all those

      sentenced to the Department of Correction and we are therefore not persuaded

      Morgan’s circumstances are so significant as to require the trial court to find

      undue hardship as a mitigating circumstance. Because the mitigating evidence

      is not significant, we conclude the trial court did not abuse its discretion in not

      finding undue hardship as a mitigating circumstance.



                                              Conclusion
[8]   The trial court did not abuse its discretion in sentencing Morgan. Accordingly,

      we affirm.


[9]   Affirmed.



      Court of Appeals of Indiana | Memorandum Decision 82A01-1608-CR-1781 | December 28, 2016   Page 6 of 7
Kirsch, J., and Barnes, J., concur.




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