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.
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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