MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                                   FILED
this Memorandum Decision shall not be
                                                                                   Aug 27 2020, 11:05 am
regarded as precedent or cited before any
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
Tyler D. Helmond                                         Megan M. Smith
Voyles Vaiana Lukemeyer Baldwin &                        Deputy Attorney General
Webb                                                     Indianapolis, Indiana
Indianapolis, Indiana                                    Anthony J. Smith
                                                         Certified Legal Intern
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Antonio Rodriquez Walters,                               August 27, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         20A-CR-326
        v.                                               Appeal from the Vanderburgh
                                                         Circuit Court
State of Indiana,                                        The Honorable Gary J. Schutte,
Appellee-Plaintiff.                                      Magistrate
                                                         Trial Court Cause No.
                                                         82C01-1910-F5-7366



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A-CR-326 | August 27, 2020           Page 1 of 8
                                       Statement of the Case
[1]   Antonio Rodriquez Walters (“Walters”), following a guilty plea, appeals his

      aggregate three-and-one-half-year sentence for his Level 6 felony resisting law

      enforcement conviction1 and habitual offender adjudication.2 Walters argues

      that the trial court abused its discretion in its determination of aggravating and

      mitigating circumstances. Concluding that the trial court did not abuse its

      discretion, we affirm his sentence.


[2]   We affirm.


                                                     Issue
                 Whether the trial court abused its discretion when sentencing
                 Walters.

                                                     Facts
[3]   In October 2019, the State charged Walters with Level 5 felony domestic

      battery and Level 6 felony resisting law enforcement, and it alleged that he was

      an habitual offender. Just prior to trial, the State filed a motion to dismiss

      without prejudice the Level 5 felony domestic battery charge, and the trial court

      granted the motion. On the morning of Walters’ January 13, 2020 jury trial, he




      1
          IND. CODE § 35-44.1-3-1.
      2
          I.C. § 35-50-2-8.


      Court of Appeals of Indiana | Memorandum Decision 20A-CR-326 | August 27, 2020   Page 2 of 8
      pled guilty to the Level 6 felony resisting law enforcement charge and admitted

      that he was an habitual offender.3


[4]   At a subsequent sentencing hearing, Walters recognized that he had a

      significant criminal history. Indeed, the presentence investigation report (“PSI)

      indicates that the forty-nine-year-old Walters had accumulated more than

      eighteen felony convictions and fourteen misdemeanor convictions in a twenty-

      nine-year time span. The PSI also revealed that Walters’ results from the

      Indiana Risk Assessment System (“IRAS”) instrument showed that he was at a

      high risk to reoffend.


[5]   During sentencing, Walters’ counsel “advise[d]” the trial court that Walters’

      “mother [wa]s ill” but did not give any further details regarding her illness. (Tr.

      Vol. 2 at 14). Counsel stated that Walters “want[ed] to see his mother before

      she passes” but acknowledged that counsel “d[id]n’t have any reason [to] think

      that’s imminent[.]” (Tr. Vol. 2 at 14). Walters’ counsel also discussed a police

      officer body cam video from Walters’ resisting law enforcement offense but did

      not introduce the video as an exhibit during sentencing. Walters’ counsel told

      the trial court that she had reviewed the body cam video and asserted that the

      officer’s injuries that had occurred as part of Walters’ resisting law enforcement

      offense were “not [from] a battery situation[.]” (Tr. Vol. 2 at 14). Walters’

      counsel asserted that the video showed that Walters “obviously didn’t – didn’t




      3
          Walters pled guilty without a plea agreement.


      Court of Appeals of Indiana | Memorandum Decision 20A-CR-326 | August 27, 2020   Page 3 of 8
      express himself appropriately” and also showed that “the officer came to

      [Walters] in a very aggressive manner.” (Tr. Vol. 2 at 14). Counsel stated that

      Walters had “tried to talk to the officer and was essentially not being heard,

      largely because he wasn’t complying with the officer’s request[.]” (Tr. Vol. 2 at

      14). Walters’ counsel further stated that “from Mr. Walters’ perspective[,] . . .

      he felt like he was being treated unfairly by being arrested before an

      investigation was complete.” (Tr. Vol. 2 at 14).


[6]   The State responded to Walters’ discussion of the circumstances surrounding

      Walters’ resisting law enforcement offense. The State acknowledged that

      Walters’ “resisting law enforcement [offense] did come from a skirmish [and]

      that they were wrestling around on the ground in an attempt to restrain and

      arrest Mr. Walters.” (Tr. Vol. 2 at 15). The State also recognized that the

      officer had “approach[ed] [Walters] quickly” but stated that “[t]hat was due to

      the lead [domestic battery] charge that [had been] dismissed[.]” (Tr. Vol. 2 at

      15).


[7]   When sentencing Walters, the trial court stated that it had “taken into

      consideration” Walters’ prior criminal history, including his eighteen felony

      convictions, and his “high risk to re-offend[.]” (Tr. Vol. 2 at 15). The trial

      court also “consider[ed]” Walters’ guilty plea and admission to being an

      habitual offender. The trial court sentenced Walters to one and one-half (1½)

      years at the Indiana Department of Correction for his Level 6 felony resisting

      law enforcement conviction and enhanced that sentence by two (2) years for his

      habitual offender adjudication. Walters now appeals.

      Court of Appeals of Indiana | Memorandum Decision 20A-CR-326 | August 27, 2020   Page 4 of 8
                                                   Decision
[8]    Walters contends that the trial court abused its discretion when sentencing him.

       Specifically, he contends that the trial court abused its discretion in its

       determination of mitigating and aggravating circumstances.


[9]    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). So long as the sentence is within the statutory range, it is

       subject to review only for an abuse of discretion. Id. An abuse of discretion

       will be found where 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. 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.


[10]   Walters first contends that the trial court abused its discretion by failing to

       consider his mother’s illness and the circumstances of his crime as mitigating

       factors. A trial court, however, 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). In fact, a claim that the trial court failed to find a mitigating


       Court of Appeals of Indiana | Memorandum Decision 20A-CR-326 | August 27, 2020   Page 5 of 8
       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.


[11]   Walters contends that the trial court should have found his mother’s illness and

       the circumstances of his offense as mitigators pursuant to INDIANA CODE §§ 35-

       38-1-7.1(b)(4) (“There are substantial grounds tending to excuse or justify the

       crime, though failing to establish a defense”) and 35-38-1-7.1(b)(5) (“The person

       acted under strong provocation”). Additionally, Walters asserts that the trial

       court abused its discretion by failing to consider the circumstances of his offense

       in the “proper context” that “Walters is black.” (Walters’ Br. 8, 9).


[12]   Walters, however, did not raise these arguments to the trial court as a basis to

       consider his mother’s illness and the circumstances of his offense as mitigating

       factors. Accordingly, Walters has waived such argument on appeal. See Bryant

       v. State, 984 N.E.2d 240, 252 (Ind. Ct. App. 2013) (“Failure to present

       a mitigating circumstance to the trial court waives consideration of the

       circumstance on appeal.”), trans. denied. Moreover, because Walters failed to

       show that his proffered mitigators were both significant and clearly supported

       by the record, the trial court did not abuse its discretion by declining to find

       them as mitigating circumstances.


[13]   Next, Walters argues that the trial court abused its discretion by finding his high

       risk to reoffend as an aggravating circumstance. We recognize that “the

       offender risk assessment scores do not in themselves constitute, and cannot


       Court of Appeals of Indiana | Memorandum Decision 20A-CR-326 | August 27, 2020   Page 6 of 8
       serve as, an aggravating or mitigating circumstance.” J.S. v. State, 928 N.E.2d

       576, 578 (Ind. 2010). Instead, these “offender assessment instruments are

       appropriate supplemental tools for judicial consideration at sentencing” and can

       be used by the trial court “in formulating the manner in which a sentence is to

       be served.” Malenchik v. State, 928 N.E.2d 564, 575 (Ind. 2010).


[14]   When sentencing Walters, the trial court stated that it had “taken into

       consideration” Walters’ prior criminal history and the fact that Walters was “a

       high risk to re-offend[.]” (Tr. Vol. 2 at 15). While a defendant’s risk assessment

       result can properly be used “in formulating the manner in which a sentence is to

       be served[,]” see Malenchik, 928 N.E.2d at 575, here, the trial court used the

       IRAS risk assessment result, in and of itself, as a separate aggravating factor,

       which is improper. See J.S., 928 N.E.2d at 578; Malenchik, 928 N.E.2d at 575.

       See also Kayser v. State, 131 N.E.3d 717, 722 (Ind. Ct. App. 2019) (holding that

       the trial court erred by using a defendant’s risk assessment score as an

       aggravating factor).


[15]   However, to the extent the trial court improperly considered the IRAS

       assessment as an aggravating factor, the error does not require this Court to

       remand for resentencing. See Anglemyer, 868 N.E.2d at 491 (explaining that, if a

       trial court improperly considers an aggravating circumstance, we need to

       remand for resentencing only “if we cannot say with confidence that the trial

       court would have imposed the same sentence had it properly considered

       reasons that enjoy support in the record”). Here, it is clear from a review of the

       record that the trial court relied upon Walters’ extensive criminal history, which

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-326 | August 27, 2020   Page 7 of 8
       is a valid and undisputed aggravating circumstance, when imposing a slightly

       enhanced sentence for Walters’ Level 6 felony resisting law enforcement

       conviction. Because we are confident that the trial court would have imposed

       the same sentence even without reference to Walters’ risk assessment, we

       conclude that the trial court did not abuse its discretion when sentencing

       Walters. See Kayser, 131 N.E.3d at 723 (holding that, despite a trial court’s

       improper use of a defendant’s risk assessment score as an aggravating factor, the

       trial court did not abuse its discretion when sentencing a defendant where our

       Court was confident that the trial court would have imposed the same sentence

       even without reference to the assessment score in its list of aggravating factors).

       See also Gleason v. State, 965 N.E.2d 702, 712 (Ind. Ct. App. 2012) (explaining

       that “[o]ne valid aggravator alone is enough to enhance a sentence”).


[16]   Affirmed.


       Kirsch, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A-CR-326 | August 27, 2020   Page 8 of 8
