MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                   FILED
regarded as precedent or cited before any                     Jan 13 2017, 8:16 am

court except for the purpose of establishing                       CLERK
                                                               Indiana Supreme Court
the defense of res judicata, collateral                           Court of Appeals
                                                                    and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Evan K. Hammond                                          Curtis T. Hill, Jr.
Grant County Public Defender                             Attorney General of Indiana
Marion, Indiana
                                                         J.T. Whitehead
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Lavon Washington,                                        January 13, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         27A05-1604-CR-749
        v.                                               Appeal from the Grant Superior
                                                         Court
State of Indiana,                                        The Honorable Jeffrey Todd,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause Nos.
                                                         27D01-1511-F5-132
                                                         27D01-1411-F6-127
                                                         27D01-0611-FA-224



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 27A05-1604-CR-749 | January 13, 2017   Page 1 of 9
[1]   The trial court found Lavon Washington guilty of one count of Level 5 felony

      battery, 1 one count of Level 6 felony residential entry, 2 and twenty-six counts of

      Level 6 felony invasion of privacy. 3 In addition, the court found Washington

      violated the conditions of two probation terms he was serving when he

      committed those new crimes. Washington appeals his sentence, claiming the

      trial court abused its discretion by declining to find any mitigating

      circumstances. We affirm.



                                Facts and Procedural History
[2]   Washington and C.W. were married in November 2011 and have a son, L.W.,

      who was born March 7, 2013. Washington’s relationship with C.W. was

      tumultuous. In January 2015, they began living separately, and in July 2015,

      C.W. filed for divorce. 4


[3]   On the evening of October 12, 2015, a guest stayed overnight at C.W.’s home.

      Washington came to C.W.’s house twice, knocked on her door, and sent C.W.

      text messages, but C.W. did not let Washington in the house. The next day, on

      October 13, 2015, Washington returned to C.W.’s home, forced his way inside




      1
          Ind. Code § 35-42-2-1(b)(1) (2014).
      2
          Ind. Code § 35-43-2-1.5 (2014).
      3
          Ind. Code § 35-46-1-15.1 (2014).
      4
          The court dissolved the marriage on November 13, 2015.


      Court of Appeals of Indiana | Memorandum Decision 27A05-1604-CR-749 | January 13, 2017   Page 2 of 9
      the house, and battered C.W. while L.W. was present. C.W. sustained bruises

      and other marks from the attack.


[4]   Shortly after Washington left, C.W. called the police. Washington was

      arrested, charged with Level 5 felony battery and Level 6 felony residential

      entry, and placed in jail. The court ordered Washington to have no contact

      with C.W. or L.W., but Washington continued to call C.W. from jail. 5 Based

      on those calls, the State subsequently charged Washington with twenty-six

      counts of Level 6 felony invasion of privacy. The State also filed two petitions

      to revoke the probation Washington was serving for convictions of domestic

      battery and invasion of privacy against C.W. under Cause Number 27D01-

      1411-F6-127 and of dealing in cocaine under Cause Number 27D01-0611-FA-

      224.


[5]   On February 3, 2016, the court held a bench trial. The court found Washington

      guilty as charged. The court also found Washington’s commission of the

      present crimes violated the two terms of probation he was serving. After trial,

      Washington reported to jail while he awaited sentencing. In further violation of

      the trial court’s no-contact order, Washington continued to call C.W. from jail.

      He also mailed C.W. a letter, addressing it to a code name to conceal the fact

      that he was contacting her.




      5
      At the bench trial, C.W. admitted setting up a Google phone number in December 2015 in order for
      Washington to contact her from jail.

      Court of Appeals of Indiana | Memorandum Decision 27A05-1604-CR-749 | January 13, 2017       Page 3 of 9
[6]   At sentencing, on March 14, 2016, the court found an aggravating factor in

      Washington’s prior criminal history, which included convictions of battery in

      2002, 2003, and 2014; battery resulting in bodily injury in 2005; dealing in

      cocaine in 2006; and invasion of privacy in 2014. The court also found an

      aggravating factor in Washington’s continued contact with C.W. after he was

      convicted on February 3, 2016. The court found no mitigating factors. Because

      the aggravating factors outweighed the mitigating factors, the court found it was

      appropriate to impose sentences above the advisory sentences. The court

      sentenced Washington to four years for battery as a Level 5 felony; one and a

      half years for residential entry as a Level 6 felony, to be served concurrent with

      the battery sentence; and two and a half years each for the twenty-six counts of

      invasion of privacy, with each of those sentences to be served concurrent with

      each other but consecutive to the other two counts. Thus, the aggregate

      sentence imposed for the current crimes was six and a half years.


[7]   At the same hearing, the court revoked Washington’s probation in Cause

      Number 27D01-1411-F6-127 and ordered Washington to serve the remaining

      two years of that sentence consecutive to all his other sentences. The court also

      revoked Washington’s probation in Cause Number 27D01-0611-FA-224 and

      ordered him to serve five years of that sentence consecutive to all other

      sentences. Thus, the court ordered Washington to serve, in total, thirteen and a

      half years, with credit for 104 days served.



                                 Discussion and Decision
      Court of Appeals of Indiana | Memorandum Decision 27A05-1604-CR-749 | January 13, 2017   Page 4 of 9
[8]   Washington argues the trial court abused its discretion in declining to find any

      mitigating factors. 6 Sentencing decisions rest within the sound discretion of the

      trial court. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g

      875 N.E.2d 218 (Ind. 2007). As long as a sentence is within the statutory range,

      we review only for an abuse of discretion. Id. “An abuse of discretion occurs if

      the sentencing 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. A trial court is not required to accept a

      defendant’s argument as to what is a mitigating factor or to provide mitigating

      factors the same weight as does a defendant. Conley v. State, 972 N.E.2d 864,

      873 (Ind. 2012), reh’g denied. “If 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.” Anglemyer,

      868 N.E.2d at 493. However, a court abuses its discretion if it does not




      6
       Prior to addressing the court’s rejection of alleged mitigators, we deal with Washington’s misconceptions
      about his sentence. In his Appellant’s Brief, Washington states repeatedly his sentence is nineteen years. As
      we explained in the facts, the court ordered Washington to serve thirteen and a half years, not nineteen years.
      Of those thirteen and a half years, only six and a half years were imposed for Washington’s new convictions
      under Cause Number 27D01-1511-F5-132 of battery, residential entry, and invasion of privacy. The other
      seven of the thirteen and a half years the court ordered Washington to serve were execution of the suspended
      sentences in Cause Numbers 27D01-1411-F6-127 and 27D01-0611-FA-224 based on Washington’s violation
      of the terms of his probation in both of those causes.
      Washington does not argue the court abused its discretion by revoking his probation terms or by ordering
      execution of those suspended sentences pursuant to its authority under Indiana Code § 35-38-2-3. Nor has he
      provided any cogent argument suggesting how the court’s finding of aggravators or mitigators is relevant to
      the court’s ordering those suspended sentences to be executed. Nevertheless, we note the court was required,
      pursuant to Indiana Code 35-50-1-2(e) (2015), to order the two-year and five-year executed sentences for
      probation violations be served consecutive to Washington’s new sentences.

      Court of Appeals of Indiana | Memorandum Decision 27A05-1604-CR-749 | January 13, 2017             Page 5 of 9
       consider significant mitigators advanced by the defendant and clearly supported

       by the record. Id. at 490.


[9]    Washington argues the trial court should have found as mitigators: (1) the

       undue hardship Washington’s imprisonment would cause L.W.; and (2) C.W.’s

       inducement and facilitation of the offenses. 7 We disagree.


[10]   The trial court did not abuse its discretion in declining to find Washington’s

       imprisonment would result in undue hardship for L.W. An allegation that the

       trial court failed to find a mitigating circumstance requires Washington to show

       the mitigating circumstance is “both significant and clearly supported by the

       record.” Id. at 493. Washington argues L.W., who has Down’s Syndrome,

       would “significantly suffer an undue burden.” (Appellant’s Br. at 9.) While we

       acknowledge L.W.’s Down’s Syndrome may present a “special circumstance”

       that would justify a finding of “undue hardship,” see Dowdell v. State, 720

       N.E.2d 1146, 1154 (Ind. 1999) (“absent special circumstances, trial courts are

       not required to find that imprisonment will result in an undue hardship”), this

       alone does not satisfy Washington’s burden.


[11]   The record demonstrates prior to his incarceration Washington was not living

       with L.W., paying child support, or supporting him in any other manner. C.W.




       7
        Washington also claims the court should have found a third mitigator: C.W.’s statement at sentencing that
       she did not agree Washington should receive a nineteen-year sentence. Because the trial court ordered
       Washington to serve thirteen and a half years, not nineteen years, we cannot say the court overlooked C.W.’s
       statement at the sentencing hearing.

       Court of Appeals of Indiana | Memorandum Decision 27A05-1604-CR-749 | January 13, 2017           Page 6 of 9
       testified that because of L.W.’s Down’s Syndrome, L.W. receives Social

       Security Disability income and Washington was not court-ordered to pay child

       support. C.W. further acknowledged “with [her] son having Down’s

       Syndrome, everything is twice as hard,” (Tr. at 190), and that “[L.W.] does

       need both parents, but even when [Washington] was free, he didn’t wanna [sic]

       be a parent.” (Id.) We therefore cannot say L.W. will experience a hardship

       because of Washington’s imprisonment, and thus Washington has not met his

       burden of demonstrating the trial court abused its discretion by failing to

       recognize a significant mitigator clearly supported by the record.


[12]   We likewise disagree the court abused its discretion in declining to find C.W.’s

       alleged inducement or facilitation of the crimes as a mitigator. We note at

       sentencing Washington’s counsel described Washington and C.W.’s

       relationship as “a dangerous game.” (Id. at 205.) Defense counsel noted

       C.W.’s creation of the Google phone number for purposes of contact with

       Washington, and argued, “it’s their relationship and it’s how it worked,” and

       “[C.W.] was getting something out of those phone calls.” (Id. at 204-205.) We

       note the trial court did not find this as a mitigator and was under no obligation

       to explain why. See Anglemyer, 868 N.E.2d at 493 (“the trial court is not

       obligated to explain why it has found that the factor does not exist”).

       Nonetheless, the record demonstrates that while C.W. set up the Google

       account in order to answer phone calls from Washington, Washington initiated

       the calls in direct violation of the no-contact order, and he continued to do so

       even after the court convicted him of twenty-six counts of invasion of privacy


       Court of Appeals of Indiana | Memorandum Decision 27A05-1604-CR-749 | January 13, 2017   Page 7 of 9
       for the same behavior. See Dixon v. State, 869 N.E.2d 516, 520 (Ind. Ct. App.

       2007) (“When determining whether a party committed the act of invasion of

       privacy identified in Indiana Code § 35-46-1-15.1, we do not consider whether

       the victim knowingly ignored the protective order but, rather, whether the

       defendant knowingly violated the protective order.”). We therefore cannot say

       this circumstance is significantly mitigating or clearly supported by the record.


[13]   The trial court properly considered all of the circumstances. The undisputed

       facts show Washington battered C.W. while L.W. was present. This is not

       Washington’s first offense of this kind or his first offense against C.W. The trial

       court noted the “troubling pattern” presented by Washington’s previous

       convictions of battery. (Tr. at 207.) Indeed, Washington received a suspended

       sentence for his conviction of dealing cocaine and probation for his most recent

       battery conviction. The trial court had given Washington many chances to

       correct his behavior, but Washington continued to offend. The court explicitly

       noted its disappointment with Washington:


               I disagree that [Washington] responded well to Reentry Court.
               Reentry Court - its whole purpose is to reduce recidivism and yet
               here we have recidivism in 2014 through the invasion of privacy
               and domestic battery convictions and then these counts before
               the Court, so I’m saddened in that respect.


       (Id. at 207-208.) The court concluded, “because the aggravating circumstances

       outweigh any mitigating circumstances, the sentences, appropriately, should be

       above the advisory sentence.” (Id. at 208.) The court’s statements demonstrate

       the court considered and balanced the facts before it. It was well within the
       Court of Appeals of Indiana | Memorandum Decision 27A05-1604-CR-749 | January 13, 2017   Page 8 of 9
       court’s purview to find no mitigators. As Washington has not demonstrated the

       trial court overlooked any significant mitigators that were clearly supported by

       the record, we find no abuse of discretion.



                                               Conclusion
[14]   The trial court did not abuse its discretion in declining to find any mitigating

       circumstances. Accordingly, we affirm.


[15]   Affirmed.


       Kirsch, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 27A05-1604-CR-749 | January 13, 2017   Page 9 of 9
