MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                     FILED
regarded as precedent or cited before any                            Feb 28 2019, 10:45 am
court except for the purpose of establishing                              CLERK
the defense of res judicata, collateral                               Indiana Supreme Court
                                                                         Court of Appeals
estoppel, or the law of the case.                                          and Tax Court




ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Christopher L. Clerc                                    Curtis T. Hill, Jr.
Columbus, Indiana                                       Attorney General of Indiana
                                                        Chandra K. Hein
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Jonathan D. Taylor,                                     February 28, 2019
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A-CR-2306
        v.                                              Appeal from the Bartholomew
                                                        Circuit Court
State of Indiana,                                       The Honorable Kelly S. Benjamin,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        03C01-1712-F2-6997



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2306 | February 28, 2019             Page 1 of 9
                                Case Summary and Issue
[1]   Jonathan Taylor pleaded guilty to burglary, a Level 4 felony, and the trial court

      sentenced him to eight years executed in the Indiana Department of Correction.

      Taylor appeals his sentence, presenting the sole issue of 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 December 19, 2017, Daniel Butler and Rachel Hiatt were at their residence

      in Columbus, Indiana, when two men kicked in the door and entered their

      home. The men referred to each other as “Little John” and “T.Y.” Appellant’s

      Appendix, Volume 2 at 41. Butler had never seen either of the men before, but

      Hiatt knew T.Y. “Little John” was later identified as Taylor.


[3]   Taylor instructed T.Y. to take certain items from the house and T.Y. took a

      computer, two televisions, golf clubs, cell phones, purses, and “other items

      belonging to [Butler] and [Hiatt].” Id. During the incident, Taylor pointed a

      handgun at Butler and Hiatt and at one point, he put the gun to Butler’s temple

      and told Butler that he could shoot or “pistol whip” him. Id. Taylor had also

      pulled the magazine from the firearm to show Butler that the firearm was

      loaded.


[4]   After the home invasion, the police received a report of a possible drunk driver

      near 3rd Street and Central Avenue. When police located the vehicle, it was

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2306 | February 28, 2019   Page 2 of 9
      parked in front of a home opposite the Centra Bank on 7th Street. Taylor,

      T.Y., and a woman named Breanna Meier were in the vehicle and police

      discovered “items later determined to be items taken from the home of [Butler]

      and [Hiatt].” Id. at 42.


[5]   In an interview with the police, Taylor admitted to being present during the

      home invasion, burglary, and armed robbery at Butler and Hiatt’s home;

      however, he claimed he was “only assisting T.Y.” and that the gun used was a

      “little BB gun[.]” Id. at 43. After the interview, Taylor was placed under arrest.


[6]   On December 27, the State charged Taylor with the following: Count 1,

      burglary, a Level 2 felony; Count 2, aiding, inducing, or causing burglary, a

      Level 2 felony; Count 3, armed robbery, a Level 3 felony; Count 4, aiding,

      inducing, or causing armed robbery, a Level 3 felony; Count 5, armed robbery,

      a Level 3 felony; and Count 6, aiding, inducing, or causing armed robbery, a

      Level 3 felony. See id. at 81-87. On July 16, 2018, Taylor pleaded guilty to

      burglary, a Level 4 felony, and the State agreed to dismiss the remaining

      charges. As part of the plea agreement, the parties agreed to a sentencing cap of

      ten years.


[7]   In its sentencing order, the trial court identified Taylor’s criminal history,

      previous probation violations, the facts and circumstances of the offense, and

      the benefit of the plea offer as aggravating circumstances. Appealed Order at 1.

      The trial court found two mitigating circumstances, namely Taylor’s “lapse of

      criminal activity during a period of time that he had employment” and that he


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2306 | February 28, 2019   Page 3 of 9
      has a “support system but did not take advantage of that before committing the

      offense.” Id. The trial court sentenced Taylor to eight years at the Department

      of Correction. Taylor now appeals.



                                Discussion and Decision
                           I. Propriety of Taylor’s Sentence
[8]   Sentencing decisions rest within the trial court’s discretion and are afforded

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

      Accordingly, we review sentencing decisions 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 (2007). A trial court abuses its discretion when its 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.


[9]   There are several ways in which a trial court can abuse its discretion in

      sentencing:


              (1) failing to enter a sentencing statement, (2) entering a
              sentencing statement that explains reasons for imposing the
              sentence but the record does not support the reasons, (3) the
              sentencing statement omits reasons that are clearly supported by
              the record and advanced for consideration, or (4) the reasons
              given in the sentencing statement are improper as a matter of
              law.


      Phelps v. State, 24 N.E.3d 525, 527 (Ind. Ct. App. 2015).



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2306 | February 28, 2019   Page 4 of 9
[10]   Here, Taylor claims the trial court erred by failing to consider his guilty plea as

       a “significant mitigating factor supported by the record.” Brief of Appellant at

       7. Specifically, he contends his guilty plea should be been afforded “some

       mitigating weight” as he took responsibility for his actions. Id. at 8. “[A]n

       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.”

       Anglemyer, 875 N.E.2d at 220-21.


[11]   In Anglemyer, our supreme court recognized that “the significance of a guilty

       plea as a mitigating factor varies from case to case.” Id. at 221. And it has

       explained that a guilty plea is not always a significant mitigating circumstance:


               For example, a guilty plea may not be significantly mitigating
               when it does not demonstrate the defendant’s acceptance of
               responsibility or when the defendant receives a substantial benefit
               in return for the plea. . . .


               [In this case, the defendant] was exposed to a potential
               maximum sentence of twenty-eight years. In exchange for his
               plea, [he] received the benefit of a twelve-year reduction in
               sentence. This alone was a substantial benefit.


       Id. (citations omitted). Thus, a guilty plea may be less significant when it is

       merely a pragmatic decision. Id.; see also Edrington v. State, 909 N.E.2d 1093,

       1101 (Ind. Ct. App. 2009), trans. denied. The significance of a guilty plea may

       also be reduced if there is substantial admissible evidence against the defendant,

       the plea was made on the eve of trial, or if the circumstances indicate the

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2306 | February 28, 2019   Page 5 of 9
       defendant is not taking responsibility for his or her actions. Caraway v. State,

       959 N.E.2d 847, 853 (Ind. Ct. App. 2011), trans. denied.


[12]   Taylor has failed to demonstrate that his guilty plea is a significant mitigating

       factor supported by the record. To the contrary, a review of the record reveals

       Taylor’s guilty plea is of little significance as a mitigating circumstance. First,

       Taylor received a substantial benefit by accepting the State’s plea agreement.

       As the trial court acknowledged at the sentencing hearing, Taylor received a

       “big benefit from going to a Level 2 Felony down to a Level 4. That is a switch

       from a max of 30 years to 12.” Transcript, Volume 2 at 38. Thus, Taylor’s

       possible sentence exposure was reduced by eighteen years. See Anglemyer, 875

       N.E.2d at 221 (noting that a reduction in sentencing exposure is “a substantial

       benefit”). Second, although Taylor ultimately pleaded guilty to Level 4

       burglary, the record reveals that he did not take responsibility, continued to

       blame his co-defendant, and demonstrated a lack of remorse. At the sentencing

       hearing, the trial court engaged in the following colloquy with Taylor:


               [Court]:         So who put the gun to [Butler’s] head?


               [Taylor]:        Nobody. There was no gun that was . . . he says
                                that I put a gun. He also stated that I took him
                                upstairs. He also stated that I threatened to pistol-
                                whip him or do things of that and where I’m from
                                we do things like that. But if you don’t know me,
                                have never met me, but she states how you know
                                that that’s where I’m from and that’s what I do.


               [Court]:         Then what the heck are you remorseful for?

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2306 | February 28, 2019   Page 6 of 9
        [Taylor]:        I’m remorseful. . .


        [Court]:         Because I’m looking through these facts and every
                         single fact, although you are fuzzy on it because you
                         start out with I’m fuzzy, and then you go through
                         and list every single fact that looks bad and say
                         either it didn’t happen or the other guy did it. I was
                         just there to get 50 bucks. So what are you
                         remorseful for?


        [Taylor]:        For even going there in the beginning.


        [Court]:         Well, there’s nothing criminal about going to
                         someone’s house. So what are you remorseful for?


        [Taylor]:        I’m remorseful for what happened after the stealing
                         of property; for the altercation between us.


        [Court]:         Which you didn’t do?


        [Taylor]:        Yeah, I didn’t do it.


        [Court]:         Okay, so what are you remorseful for?


        [Taylor]:        But since I have pled guilty to the fact of a Level 4
                         Burglary.


        [Court]:         For what? You’re saying you didn’t do anything.


        [Taylor]:        For entry of the residence. I did enter the residence;
                         I did go in; I did have an altercation between them.



Court of Appeals of Indiana | Memorandum Decision 18A-CR-2306 | February 28, 2019   Page 7 of 9
               ***


               [Court]:         Well, that sounds like you’re trying to defend
                                yourself or it was just a mutual combat. That
                                doesn’t sound like you’re guilty of anything. So
                                what are you remorseful for?


               [Taylor]:        For being there; for being part of the burglary. For
                                even putting myself in that . . . for even being in
                                their home. I should have never walked inside. I
                                should have never even continued to go on
                                furthermore.


       Tr., Vol. 2 at 28-29. The trial court commented on Taylor’s lack of remorse,

       stating:


               [W]hen I say I think you have a lack of remorse, I believe that to
               be true. When I try to say what are you sorry for; just being
               there. Even in the PSI, ultimately [Taylor] reports the incident is
               his fault; that he is remorseful. But [Taylor] had gone through a
               whole paragraph of saying what [he] did not do. . . .


       Id. at 39. Given Taylor’s lack of remorse and failure to accept responsibility,

       the significance of his guilty plea is greatly reduced, especially in relation to the

       substantial benefit he gained.


[13]   Finally, given Taylor’s lack of remorse, the evidence against him, and his

       possible sentence exposure, his guilty plea is more likely a pragmatic decision

       than an acceptance of responsibility. Based on our review of the record, we

       cannot agree with Taylor’s assertion that his guilty plea is a significant

       mitigating circumstance. See Anglemyer, 875 N.E.2d at 220 (a defendant must
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2306 | February 28, 2019   Page 8 of 9
       “establish that the mitigating evidence is not only supported by the record but

       also that the mitigating evidence is significant.”).1



                                                   Conclusion
[14]   For the foregoing reasons, we conclude the trial court did not abuse its

       discretion in sentencing Taylor. Accordingly, we affirm.


[15]   Affirmed.


       Riley, J., and Kirsch, J., concur.




       1
         In his brief, Taylor frames the issue as whether the trial court abused its discretion when it found his guilty
       plea an aggravating factor and asks this court to “reweigh the aggravating and mitigating circumstances
       independently[.]” Br. of Appellant at 8. However, his argument focuses on the mitigating weight he believes
       should have been afforded to his guilty plea. Taylor fails to explicitly argue that this finding was an improper
       or invalid statutory consideration in imposing his sentence under Indiana Code section 35-38-1-7.1 and fails
       to provide any support for the notion that a guilty plea cannot be an aggravating factor. Thus, Taylor has
       waived any potential argument in this respect. See Ind. Appellate Rule 46(A)(8)(a) (“The argument must
       contain the contentions of the appellant on the issues presented, supported by cogent reasoning. Each
       contention must be supported by citations to the authorities, statutes, and the Appendix or parts of the
       Record on Appeal relied on[.]”).

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2306 | February 28, 2019                    Page 9 of 9
