MEMORANDUM DECISION
                                                                Sep 04 2015, 8:39 am
Pursuant to Ind. Appellate Rule 65(D), this
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                                   ATTORNEYS FOR APPELLEE
Mark Small                                               Gregory F. Zoeller
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Justin F. Roebel
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Jonathan Paul Graham,                                    September 4, 2015

Appellant-Defendant,                                     Court of Appeals Cause No.
                                                         54A01-1502-CR-61
        v.                                               Appeal from the Montgomery
                                                         Superior Court
State of Indiana,                                        The Honorable Heather Dennison,
                                                         Judge
Appellee-Plaintiff.
                                                         Cause No. 54D01-1410-F6-3649




Riley, Judge.




Court of Appeals of Indiana | Memorandum Opinion 54A01-1502-CR-61 | September 4, 2015   Page 1 of 7
                                   STATEMENT OF THE CASE

[1]   Appellant-Defendant, Jonathan Graham (Graham), appeals his sentence after

      pleading guilty to one Count of possession of paraphernalia, a Class A

      misdemeanor, Ind. Code § 35-48-4-8.3(a)(1); two Counts of contributing to the

      delinquency of a minor, I.C. § 35-46-1-8(a), Class A misdemeanors; and one

      Count of maintaining a common nuisance, a Level 6 felony, I.C. § 35-48-4-

      13(b)(1).


[2]   We affirm.


                                                    ISSUE

[3]   Graham raises one issue on appeal, which we restate as: Whether the trial

      court abused its sentencing discretion by failing to consider Graham’s guilty

      plea and mental illness as mitigating factors.


                           FACTS AND PROCEDURAL HISTORY

[4]   On October 31, 2014, the Department of Child Services (DCS) received a report

      that on October 21, 2014, Graham had smoked marijuana with his fifteen-year-

      old step-daughter, J.L., and also with J.L.’s friends, D.C., aged fourteen, and

      B.C., aged fifteen, in Graham’s apartment in Crawfordsville, Indiana. On the

      same day, DCS went to the apartment to investigate. When they questioned

      Graham and his wife, Krystal Graham (Krystal), about the claims, they both

      denied the allegations. While speaking with the adults, J.L. arrived and agreed

      to speak privately with DCS. J.L. admitted that she smoked marijuana with



      Court of Appeals of Indiana | Memorandum Opinion 54A01-1502-CR-61 | September 4, 2015   Page 2 of 7
      Graham. Again, DCS questioned Graham and Krystal, and Graham admitted

      to the accusations.


[5]   On the same day, the State filed an Information, charging Graham with Count

      I, possession of paraphernalia, a Class A misdemeanor; Count II, possession of

      marijuana, a Class A misdemeanor; Counts III, IV, and V, contributing to the

      delinquency of a minor, Class A misdemeanors; Count VI, neglect of a

      dependent, a Level 6 felony; and Count VII, maintaining a common nuisance,

      a Level 6 felony.


[6]   On February 5, 2015, Graham entered into a plea agreement with the State

      where he admitted to Counts I, IV, V, and VII, in exchange for the State’s

      dismissal of Counts II, III, and VI. The plea agreement left Graham’s sentence

      to the trial court’s discretion. The trial court then held Graham’s guilty plea

      hearing, and Graham admitted the factual basis for his plea. Graham’s

      sentencing hearing was heard on the same day. As for aggravating factors, the

      trial court identified Graham’s juvenile adjudication for theft and forgery as

      well as seven felonies and five misdemeanor convictions as an adult. In

      addition, the trial court identified Graham’s long use of drugs dating back to his

      teenage years. The trial court found no mitigating circumstances. For Counts

      IV, and V, the trial court sentenced Graham to concurrent sentences of one year

      each in the Montgomery County Jail. On Count I, the court sentenced Graham

      to a consecutive term of one year in the Montgomery County jail. As for Count

      VII, the trial court sentenced Graham to a consecutive sentence of two and one-

      half years in the Department of Correction. Graham’s aggregate sentence was

      Court of Appeals of Indiana | Memorandum Opinion 54A01-1502-CR-61 | September 4, 2015   Page 3 of 7
      four and one-half years but the trial court suspended two and one-half years to

      years to probation.


[7]   Graham now appeals. Additional facts will be provided as necessary.


                                   DISCUSSION AND DECISION1

[8]   Graham argues that the trial court abused its discretion when sentencing him

      because it overlooked two potential mitigating factors: his guilty plea and his

      mental health issues. We cannot agree.


[9]   To show that a trial court failed to identify or find a mitigating factor, the

      defendant must establish that the mitigating evidence is both significant and

      clearly supported by the record. Anglemyer v. State, 868 N.E.2d 482, 493 (Ind.

      2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007). While a failure to find

      mitigating circumstances clearly supported by the record may imply that the

      sentencing court improperly overlooked them, the court is obligated neither to

      credit mitigating circumstances in the same manner as would the defendant,

      nor to explain why it has chosen not to find mitigating circumstances. Roush v.




      1
        Pursuant to Indiana Administrative Rule 9(G)(2)(b) and Indiana Code section 35-38-1-13, the presentence
      investigation (PSI) report must be excluded from public access. However, in this case, the information
      contained in the PSI report “is essential to the resolution” of Graham’s claims on appeal. Ind. Admin. Rule
      9(G)(7)(a)(ii)(c). Accordingly, we have included confidential information in this decision only to the extent
      necessary to resolve the appeal.

      Court of Appeals of Indiana | Memorandum Opinion 54A01-1502-CR-61 | September 4, 2015              Page 4 of 7
       State, 875 N.E.2d 801, 811 (Ind. Ct. App. 2007). Our supreme court has noted

       that “[i]f 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.” Smith v. State, 770 N.E.2d 818, 822–23

       (Ind. 2002).


[10]   Turning to Graham’s first claim, we note that although a guilty plea may be a

       mitigating circumstance, it “does not rise to the level of significant mitigation

       where the defendant has received a substantial benefit from the plea or where

       the evidence against him is such that the decision to plead guilty is merely a

       pragmatic one.” Barker v. State, 994 N.E.2d 306, 312 (Ind. Ct. App. 2013).

       Here, there was overwhelming evidence of Graham’s guilt such that the

       decision to plead guilty was merely pragmatic. Moreover, Graham received a

       substantial benefit in return for the guilty plea: the State dismissed three of the

       charges, half of his sentence was suspended, and the trial court ordered

       concurrent sentences for Counts IV and V. See McElroy v. State, 865 N.E.2d

       584, 591 (Ind. 2007) (holding that receiving concurrent sentences was a

       substantial benefit). Accordingly, the trial court did not abuse its discretion

       when it did not find that Graham’s guilty plea was a mitigating factor.


[11]   Lastly, Graham challenges the trial court’s denial that his mental illness was a

       mitigating circumstance. This court has held that a defendant’s mental illness

       can be a mitigating factor in sentencing. Ousley v. State, 807 N.E.2d 758, 762

       (Ind. Ct. App. 2004). But this does not mean that a defendant’s claim of mental

       illness is automatically to be given significant mitigating weight. Id. The

       Court of Appeals of Indiana | Memorandum Opinion 54A01-1502-CR-61 | September 4, 2015   Page 5 of 7
       mitigating weight to be given to a defendant’s mental illness depends upon: (1)

       the extent of the defendant’s inability to control his or her behavior due to the

       disorder or impairment; (2) overall limitations on the defendant’s functioning;

       (3) the duration of the mental illness; and (4) the extent of any nexus between

       the disorder or impairment and the commission of the crime. Id.


[12]   At the sentencing hearing, Graham stated that he suffered from depression,

       anxiety, post-traumatic stress, and paranoid schizophrenia. Graham also stated

       that he met weekly with his mental health providers at Wabash Valley to

       maintain and manage his mental health issues. The trial court recognized

       Graham’s mental issues but found that Graham’s self-serving statements

       regarding his mental illness were “somewhat questionable” when “taken in

       conjunction with other documents.” (Transcript p. 41). Also, Graham had not

       provided the trial court with any documentation substantiating his claim that

       his was seeing anyone for his mental health issues at Wabash Valley.

       Moreover, it was not clear how many sessions Graham had attended or if the

       sessions were regular. Additionally, the trial court found that Graham’s

       lengthy substance abuse negatively affected his mental health.


[13]   In addition, when considering the four Ousley factors, Graham does not argue

       that his mental illness impaired his ability to control his behavior, that it

       impaired his ability to function, or that there was any nexus between his mental

       health and the commission of his crimes. The other factor is duration of the

       mental illness. Under these circumstance, we find that the trial court was not

       required to consider mental illness as a factor in sentencing Graham.

       Court of Appeals of Indiana | Memorandum Opinion 54A01-1502-CR-61 | September 4, 2015   Page 6 of 7
                                               CONCLUSION


[14]   Based on the foregoing, we conclude that trial court did not abuse its discretion

       by failing to consider Graham’s guilty plea and mental illness as mitigating

       factors in sentencing Graham.


[15]   Affirmed.


[16]   Friedlander, Sr. J. and Brown, J. concur




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