MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                           FILED
this Memorandum Decision shall not be                                 Mar 20 2019, 7:38 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Evan K. Hammond                                          Curtis T. Hill, Jr.
Marion, Indiana                                          Attorney General of Indiana

Nathan D. Meeks                                          Laura R. Anderson
Marion, Indiana                                          Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Andrew Lee Swain,                                        March 20, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-1838
        v.                                               Appeal from the Grant Superior
                                                         Court
State of Indiana,                                        The Honorable Jeffrey D. Todd,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause Nos.
                                                         27D01-1707-F5-94
                                                         27D01-1712-F6-652
                                                         27D01-0906-FA-124



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1838 | March 20, 2019                 Page 1 of 7
                                       Statement of the Case
[1]   Andrew Lee Swain appeals his sentence following the revocation of his

      probation and his guilty plea to escape, as a Level 5 felony, and unlawful

      possession of a syringe, as a Level 6 felony. He raises two issues for our review,

      which we restate as follows:


              1.      Whether the trial court abused its discretion when it
                      sentenced him.

              2.      Whether his sentence is inappropriate in light of the nature
                      of the offenses and his character.


[2]   We affirm.


                                 Facts and Procedural History
[3]   In July 2016, after completing the executed portion of a twenty-year sentence

      with five years suspended to probation for multiple felonies pursuant to a plea

      agreement, Swain entered into a participation agreement for reentry intensive

      supervision court (“RISC”). Subsequently, while still participating in RISC,

      Swain began using methamphetamine and cocaine “day in and day out.” Tr. at

      22. On February 17, 2017, Swain attended a trial court hearing while under the

      influence of methamphetamine and cocaine. The trial court ordered that Swain

      “be confined,” but Swain fled when officers attempted to place him in custody.

      Id. at 9. Consequently, on July 25, the State charged Swain with escape, as a

      Level 5 felony.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1838 | March 20, 2019   Page 2 of 7
[4]   In the meantime, on May 31, the probation department filed an amended

      petition to terminate Swain’s participation in RISC based on several alleged

      violations, including failed drug screens. And on December 22, the State

      charged Swain with unlawful possession of a syringe with intent to commit an

      offense, a Level 6 felony. On January 5, 2018, the probation department filed a

      petition to revoke Swain’s probation.


[5]   On June 7, Swain pleaded guilty to escape and possession of a syringe, and he

      admitted to violating the terms of his probation. Following a sentencing

      hearing on July 5, the trial court gave considerable mitigating weight to Swain’s

      guilty plea without the benefit of a plea agreement. The trial court found

      Swain’s criminal history, including his probation violation, to be an aggravating

      factor. The trial court then sentenced Swain to three years for escape and one

      year for unlawful possession of a syringe. And the court ordered Swain to serve

      three years executed for his probation violation. The trial court ordered the

      escape and probation violation sentences to run consecutively and the

      possession sentence to run concurrently for an aggregate term of six years. This

      appeal ensued.


                                     Discussion and Decision
                                     Issue One: Abuse of Discretion

[6]   Swain first contends that the trial court abused its discretion when it sentenced

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

      receive a considerable amount of deference. Cardwell v. State, 895 N.E.2d 1219,


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1838 | March 20, 2019   Page 3 of 7
      1222 (Ind. 2008). 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.” Gross

      v. State, 22 N.E.3d 863, 869 (Ind. Ct. App. 2014) (citation omitted), trans. denied.


[7]   A trial court abuses its discretion in sentencing if it does any of the following:


                  (1) fails “to enter a sentencing statement at all;” (2) enters “a
                  sentencing statement that explains reasons for imposing a
                  sentence—including a finding of aggravating and mitigating
                  factors if any—but the record does not support the reasons;”
                  (3) enters a sentencing statement that “omits reasons that are
                  clearly supported by the record and advanced for
                  consideration;” or (4) considers reasons that “are improper as
                  a matter of law.”


      Id. (quoting Anglemyer v. State, 868 N.E.2d 482, 490-491 (Ind.), clarified on reh’g

      on other grounds, 875 N.E.2d 218 (Ind. 2007)). However, “the relative weight or

      value assignable to reasons properly found, or to those which should have been

      found, is not subject to review for abuse of discretion. Sandleben v. State, 22

      N.E.3d 782, 796 (Ind. Ct. App. 2014), trans. denied.


[8]   It is well settled that


              a finding of mitigating circumstances . . . lies within the trial
              court’s discretion. The court need not state in the record those
              mitigating circumstances that it considers insignificant. And the
              trial court is not obligated to explain why it did not find a factor
              to be significantly mitigating. Nor is the sentencing court
              required to place the same value on a mitigating circumstance as
              does the defendant.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1838 | March 20, 2019   Page 4 of 7
       Id. at 796-97. Further, “‘[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.’”

       Anglemeyer, 868 N.E.2d at 493 (quoting Fugate v. State, 608 N.E.2d 1370, 1374

       (Ind. 1993)).


[9]    Here, Swain asserts that the trial court abused its discretion when it did not find

       his mental illness to be a mitigating circumstance. This court has previously

       held that mental illness need not be considered and given mitigating weight in

       every case. Ousley v. State, 807 N.E.2d 758, 762 (Ind. Ct. App. 2004). “Rather,

       mental illness is a mitigating factor to be used in certain circumstances, such as

       when the evidence demonstrates longstanding mental health issues or when the

       jury finds that a defendant is mentally ill.” Id.


[10]   Swain has not shown that his alleged mental illness was such that it warranted

       mitigating weight as a matter of law. Indeed, Swain mentioned his PTSD only

       in passing during the sentencing hearing, and he does not direct us to any part

       of the sentencing transcript showing that he proffered his mental illness as a

       mitigator. Swain did not present medical records or other evidence to show

       either that he had been diagnosed with PTSD by a medical doctor or how long

       he has suffered from PTSD. We agree with the State that there is nothing in the

       record beyond Swain’s “cursory self-diagnosis,” and, thus, that Swain’s claimed

       mental illness is not clearly supported by the record. Appellee’s Br. at 17.

       Further, Swain has not shown any nexus between his alleged mental illness and



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1838 | March 20, 2019   Page 5 of 7
       the offenses. We cannot say that the trial court abused its discretion when it did

       not find Swain’s mental illness to be a mitigating circumstance.


                               Issue Two: Inappropriateness of Sentence

[11]   Swain next contends that his six-year sentence is inappropriate in light of the

       nature of the offenses and his character. Indiana Appellate Rule 7(B) provides

       that “[t]he Court may revise a sentence authorized by statute if, after due

       consideration of the trial court’s decision, the Court finds that the sentence is

       inappropriate in light of the nature of the offense and the character of the

       offender.” And the Indiana Supreme Court has recently explained that:


               The principal role of appellate review should be to attempt to
               leaven the outliers . . . but not achieve a perceived “correct”
               result in each case. Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.
               2008). Defendant has the burden to persuade us that the
               sentence imposed by the trial court is inappropriate. [Anglemyer,
               868 N.E.2d at 494].


       Shoun v. State, 67 N.E.3d 635, 642 (Ind. 2017) (omission in original).


[12]   Indiana’s flexible sentencing scheme allows trial courts to tailor sentencing

       decisions to fit the circumstances presented. The trial court’s judgment “should

       receive considerable deference.” Cardwell, 895 N.E.2d at 1222. Whether we

       regard a sentence as inappropriate turns on “our sense of the culpability of the

       defendant, the severity of the crime, the damage done to others, and myriad

       other facts that come to light in a given case.” Id. at 1224. The question is not

       whether another sentence is more appropriate, but rather whether the sentence


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1838 | March 20, 2019   Page 6 of 7
       imposed is inappropriate. King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App.

       2008).


[13]   Swain suggests that his sentence is inappropriate in light of the nature of the

       offenses because it was only recently that “he has been able to maintain his

       sobriety” and “make the correlation between substance abuse and his criminal

       behavior.” Appellant’s Br. at 9. And he contends that his sentence is

       inappropriate in light of his character because he “didn’t have any role models”

       growing up, but he has now, as the trial court observed, “show[n] emotional

       growth” and a “desire to change his life.” Id. at 10 (quoting Tr. at 34-35).


[14]   We cannot say that Swain’s six-year sentence is inappropriate in light of the

       nature of the offenses and his character. Swain was admittedly high on

       methamphetamine and cocaine when he appeared in open court and then

       attempted to evade law enforcement. And Swain’s substance abuse issues do

       not reflect favorably on his character given his continued use of illicit drugs

       during his treatment. We decline Swain’s invitation to revise his sentence.


[15]   Affirmed.


       Pyle, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1838 | March 20, 2019   Page 7 of 7
