MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any                             Apr 08 2020, 12:42 pm
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
R. Brian Woodward                                         Curtis T. Hill, Jr.
Appellate Public Defender                                 Attorney General of Indiana
Crown Point, Indiana
                                                          Samantha M. Sumcad
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Kyjuan A. Phillips,                                       April 8, 2020
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          19A-CR-2737
        v.                                                Appeal from the Lake Superior
                                                          Court
State of Indiana,                                         The Honorable Diane Ross
Appellee-Plaintiff.                                       Boswell, Judge
                                                          Trial Court Cause No.
                                                          45G03-1904-F4-43



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2737 | April 8, 2020                  Page 1 of 6
                                        Statement of the Case
[1]   Kyjuan Phillips (“Phillips”) appeals the five-year sentence imposed after he pled

      guilty to Level 5 felony dealing in a narcotic drug.1 His sole argument is that

      the trial court abused its discretion in sentencing him. Finding no abuse of the

      trial court’s discretion, we affirm Phillips’ sentence.


[2]   We affirm.


                                                      Issue
                         Whether the trial court abused its discretion in sentencing
                         Phillips.

                                                      Facts
[3]   In April 2019, the State charged thirty-six-year-old Phillips with ten counts

      resulting from his sale of heroin to a confidential informant during controlled

      drug buys on February 5, February 11, and March 8. For the February 5 drug

      buy, the State charged Phillips with: (1) Level 5 felony dealing in a narcotic

      drug; (2) Level 6 felony possession of a narcotic drug; and (3) Level 6 felony

      maintaining a common nuisance. For the February 11 drug buy, the State

      charged Phillips with: (4) Level 4 felony dealing in a narcotic drug; (5) Level 6

      felony possession of a narcotic drug; and (6) Level 6 felony maintaining a

      common nuisance. For the March 8 drug buy, the State charged Phillips with:

      (7) Level 5 felony dealing in a narcotic drug; (8) Level 6 felony possession of a



      1
          IND. CODE § 35-48-4-1.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2737 | April 8, 2020    Page 2 of 6
      narcotic drug; and (9) Level 6 felony maintaining a common nuisance. The

      State also charged Phillips with (10) Class C misdemeanor possession of

      paraphernalia after searching his home on March 11.


[4]   In September 2019, Phillips pled guilty to Level 5 felony dealing a narcotic drug

      for delivering heroin to the confidential informant on February 5. Pursuant to

      the terms of a plea agreement, the State dismissed the remaining counts, which

      included a Level 4 felony, and sentencing was left to the trial court’s discretion.


[5]   The trial court held a sentencing hearing in December 2019. The State

      presented evidence that Phillips has an extensive criminal history that includes

      three felony convictions in Florida for burglary, larceny, and home invasion

      with a firearm or other deadly weapon. Phillips served time in both a Florida

      county jail and a Florida prison for these convictions. Phillips also has four

      felony convictions in Illinois, which include two convictions for possession of a

      controlled substance in 2006 and 2012 and two convictions for

      manufacturing/dealing in a controlled substance in 2006 and 2007. Phillips

      also has four misdemeanor convictions in Illinois, including two convictions for

      retail theft, one conviction for battery, and one conviction for resisting a peace

      officer. Phillips served time in both an Illinois county jail and an Illinois prison

      for these convictions. He also served time on probation. Phillips has one

      misdemeanor conviction in Indiana in 2019 for false informing.


[6]   Phillips told the trial court that he had sold the heroin in this case “to support

      [his] habit.” (Tr. Vol. 2 at 22). He further told the trial court that he was no


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2737 | April 8, 2020   Page 3 of 6
       longer addicted to heroin because he had not used the drug during the six

       months that he had been incarcerated on these charges. When the trial court

       asked him if he had had any treatment for his substance abuse, Phillips

       responded that shortly before he had been arrested in this case, his doctor had

       prescribed Narcan and Suboxone. However, according to Phillips, the drugs

       had not helped. Phillips also explained that he had completed a Fresh Start

       Counseling Program while he was incarcerated on the current charges.


[7]    The State asked the trial court to impose the maximum six-year sentence for a

       Level 5 felony because of Phillips’ extensive criminal history. Phillips asked the

       trial court to “consider his time in jail and a probation sentence or perhaps a

       split sentence.” (Tr. Vol. 2 at 18).


[8]    At the end of the hearing, the trial court found two aggravating factors: (1)

       Phillips’ prior criminal history; and (2) Phillips’ need for correctional treatment

       because prior attempts at rehabilitation had not been a deterrent. The trial

       court found no mitigating factors and sentenced Phillips to five (5) years in the

       Department of Correction.


[9]    Phillips appeals his sentence.


                                                    Decision
[10]   Phillips’ sole argument is that the trial court abused its discretion in sentencing

       him. Sentencing decisions rest within the sound discretion of the trial court.

       Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007). So long as the sentence is

       within the statutory range, it is subject to review only for an abuse of discretion.
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2737 | April 8, 2020   Page 4 of 6
       Id. 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. at 491. A trial

       court may abuse its discretion in a number of ways, including: (1) failing to

       enter a sentencing statement at all; (2) entering a sentencing statement that

       includes aggravating and mitigating factors that are unsupported by the record;

       (3) entering a sentencing statement that omits reasons that are clearly supported

       by the record; or (4) entering a sentencing statement that includes reasons that

       are improper as a matter of law. Id. at 490-91.


[11]   Here, Phillips argues that the trial court abused its discretion because it failed to

       find his guilty plea to be a mitigating factor.2 A trial court is not obligated to

       accept a defendant’s claim as to what constitutes a mitigating circumstance.

       Rascoe v. State, 736 N.E.2d 246, 249 (Ind. 2000). A trial court has discretion to



       2
         Phillips also argues that the trial court abused its discretion when it failed to find his history of substance
       abuse to be a mitigating factor. Phillips has waived appellate review of this factor because he failed to
       advance it for consideration in the trial court. See Simms v. State, 791 N.E.2d 225, 233 (Ind. Ct. App. 2003)
       (explaining that “[i]f the defendant fails to advance a mitigating circumstance at sentencing, this court will
       presume that the circumstance is not significant and the defendant is precluded from advancing it as a
       mitigating circumstance for the first time on appeal.”) Waiver notwithstanding, we find no error. Although
       we have recognized that a history of substance abuse may be a mitigating factor, Field v. State, 843 N.E.2d
       1008, 1012 (Ind. Ct. App. 2006), trans. denied, we have also held that where a defendant is aware that he has a
       substance abuse problem but has not taken appropriate steps to treat it, the trial court does not abuse its
       discretion by rejecting substance abuse as a mitigating factor. Bryant v. State, 802 N.E.2d 486, 501 (Ind. Ct.
       App. 2004), trans. denied. Here, Phillips has an extensive criminal history related to his drug use. He has
       known for some time that he has a substance abuse problem and has not taken appropriate steps to treat it.
       Under these circumstances, the trial court did not abuse its discretion in failing to find Phillips’ history of
       substance abuse to be a mitigating factor.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2737 | April 8, 2020                        Page 5 of 6
       determine whether the factors are mitigating, and it is not required to explain

       why it does not find the defendant’s proffered factors to be mitigating. Haddock

       v. State, 800 N.E.2d 242, 245 (Ind. Ct. App. 2003). A claim that the trial court

       failed to find a mitigating circumstance 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.


[12]   A guilty plea is not necessarily a mitigating factor where the defendant receives

       a substantial benefit from the plea. Barker v. State, 994 N.E.2d 306, 312 (Ind.

       Ct. App. 2013), trans. denied. Here, in exchange for Phillips’ guilty plea to one

       Level 5 felony, the State dismissed one misdemeanor and eight additional

       felony charges, including a Level 4 felony. Phillips received a substantial

       benefit from his plea, and the trial court did not abuse its discretion when it did

       into find his guilty plea to be a mitigating factor.3


[13]   Affirmed.


       Bradford, C.J., and Baker, J., concur.




       3
         We further note that even if the trial court had abused its discretion by failing to find Phillips’ guilty plea to
       be a mitigating factor, any error was harmless. When the trial court abuses its discretion in sentencing, we
       will remand if we cannot say with confidence that the trial court would have imposed the same sentence.
       Webb v. State, 941 N.E.2d 1082, 1090 (Ind. Ct. App. 2011), trans. denied. Here, the trial court found two
       aggravating circumstances, including Phillips’ extensive criminal history that included prior felony
       convictions for the same offense to which he pled guilty in this case. Based on this criminal history, we
       conclude that the trial court would have imposed the same sentence even if it had found Phillips’ guilty plea
       to be a mitigating factor.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2737 | April 8, 2020                            Page 6 of 6
