Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.


ATTORNEY FOR APPELLANT:                            ATTORNEYS FOR APPELLEE:

P. JEFFREY SCHLESINGER                             GREGORY F. ZOELLER
Public Defender                                    Attorney General of Indiana
Crown Point, Indiana
                                                   IAN McLEAN
                                                   Deputy Attorney General

                                                                                    FILED
                                                   Indianapolis, Indiana

                                                                                 Nov 16 2012, 9:20 am
                               IN THE
                     COURT OF APPEALS OF INDIANA                                         CLERK
                                                                                       of the supreme court,
                                                                                       court of appeals and
                                                                                              tax court




BERNARD SIMMONS,                                   )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )       No. 45A04-1203-CR-104
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                       APPEAL FROM THE LAKE SUPERIOR COURT
                           The Honorable Salvador Vasquez, Judge
                               Cause No. 45G01-0909-FA-42


                                       November 16, 2012

                MEMORANDUM DECISION - NOT FOR PUBLICATION

MAY, Judge
        Bernard Simmons appeals his six-year sentence for Class C felony criminal

confinement.1 We affirm.

                          FACTS AND PROCEDURAL HISTORY

        On September 4, 2009, the State charged Simmons with one count of Class A felony

child molesting,2 one count of Class B felony child molesting,3 and one count of Class C

felony child molesting4 after Simmons was discovered with a partially clothed minor who

later indicated sexual intercourse occurred. Pursuant to a plea agreement, the State dismissed

those counts and filed a charge of Class C felony criminal confinement, to which Simmons

entered a plea of guilty. The plea left sentencing open to the trial court’s discretion based on

the parties’ arguments. The trial court sentenced Simmons to six years incarcerated.

                                 DISCUSSION AND DECISION

        A person who commits a Class C felony “shall be imprisoned for a fixed term of

between two (2) and eight (8) years, with the advisory sentence being four (4) years.” Ind.

Code § 35-50-2-6(a). “[S]entencing is principally a discretionary function in which the trial

court’s judgment should receive considerable deference.” Cardwell v. State, 895 N.E.2d

1219, 1222 (Ind. 2008). A trial court may impose any sentence “within the allowable range

for a given crime without a requirement to identify specific aggravating or mitigating

circumstances.” Id. Nevertheless, the court “must enter a statement including reasonably



1
  Ind. Code § 35-42-3-3(b)(1).
2
  Ind. Code § 35-42-4-3(a).
3
  Ind. Code § 35-42-4-3(a).
4
  Ind. Code § 35-42-4-3(b).

                                               2
detailed reasons or circumstances for imposing a particular sentence.” Id. at 1223. We

review the reasons given, and the omission of reasons arguably supported by the record, for

an abuse of discretion. Id. “The relative weight or value assignable to reasons properly

found or those which should have been found is not subject to review for abuse [of

discretion].” Id. A sentencing court abuses its discretion only if 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.” Anglemyer v. State, 868 N.E.2d

482, 490 (Ind. 2007), clarified on reh’g on other grounds 875 N.E.2d 218 (Ind. 2007).

       Simmons argues the trial court should have considered as a mitigator “the undisputed

testimony that Simmons would suffer hardship and probably beatings while incarcerated” and

the trial court improperly “utiliz[ed] facts from a charge which [sic] was not proven to

impose an aggravated sentence[.]” (Br. of Appellant at 6.) There was no abuse of discretion.

       The trial court found as mitigators:

       1.     The defendant has pled guilty and admitted responsibility which
              minimal weight is given since the defendant was originally charged
              with a Class A felony.
       2.     Evidence at sentencing indicates that the defendant has diminished
              capacity. However, the defendant functions well in society and recently
              obtained a driver’s license.
       3.     The defendant has a lack of criminal activity or history.

(App. at 14.) Simmons’ father testified Simmons “won’t make it in jail” because he “doesn’t

even defend himself when he’s out here free.” (Tr. at 44.) The trial court noted:

       Do I think a prison sentence will be a hardship to you? I do. Mostly because
       of your diminished mental capacity. But can I use that as such a significant
       factor, just by all the aggravating factors that I’ve noted, to keep you out of
       prison? The answer I have for myself and the answer I have for you is
                                              3
       absolutely not.

(Id. at 72-3.) The trial court is not required to accept the mitigators proffered by the

defendant, nor is it required to give a proposed mitigator the same weight a defendant does.

Flickner v. State, 908 N.E.2d 270, 273 (Ind. Ct. App. 2009). Therefore, the trial court did not

abuse its discretion when it did not give the same mitigating weight to the alleged hardship

Simmons might face in prison as Simmons might have hoped.

       The trial court found as aggravators:

       1.     As indicated in the factual basis for the plea agreement: upon the
              discovery of confinement, the victim was found crying on a bed and
              adjusting her underwear.
       2.     Evidence at sentencing reveals that the defendant would sedate the
              victim to facilitate the defendant’s advances toward the victim.
       3.     The defendant was the live-in boyfriend of the victim’s mother and
              served as a caretaker when the mother was at work. As such, he
              violated a significant position of trust.
       4.     The victim testified to multiple episodes of sexual intercourse.
       5.     The defendant’s character is deceptive and manipulative.

(App. at 14-5.) Simmons argues the trial court’s consideration of the victim’s testimony that

there were multiple episodes of sexual intercourse was improper because those facts were

unproven. However, the trial court may consider uncharged conduct as an aggravating

circumstance. Harlan v. State, 971 N.E.2d 163, 170 (Ind. Ct. App. 2012). Simmons’ pre-

sentence investigation report indicated there were uncharged incidents of alleged sexual

contact with the victim in Illinois. The victim testified at sentencing hearing about multiple

episodes of sexual intercourse. Based on that evidence, we find no abuse of discretion in the

trial court’s finding an aggravator in the multiple episodes of sexual intercourse, even though


                                               4
Simmons was not criminally charged for those offenses. Accordingly, we affirm.

      Affirmed.

NAJAM, J., and KIRSCH, J., concur.




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