Anthony Epeards v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: April 20, 2020
• Docket: 19A-CR-2593
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Apr 20 2020, 10:25 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Ruth A. Johnson Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana Evan Matthew Comer Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Anthony Epeards, April 20, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-2593 v. Appeal from the Greene Circuit Court State of Indiana, The Honorable Erik C. Allen, Appellee-Plaintiff. Judge Trial Court Cause No. 28C01-1901-F4-1

Bailey, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2593 | April 20, 2020 Page 1 of 6 Case Summary [1] Anthony Epeards (“Epeards”) pleaded guilty to Sexual Misconduct with a

Minor, as a Level 4 felony,1 and received a nine-year sentence. He now

appeals, arguing that the trial court abused its sentencing discretion by omitting

mitigating factors. We affirm.

Facts and Procedural History [2] In January 2019, the State charged Epeards with two counts of Level 4 felony

Sexual Misconduct with a Minor and one count of Level 5 felony Child

Solicitation.2 A jury trial was scheduled for August 6, 2019, prior to which the

count of Child Solicitation was dismissed. On the day of the scheduled jury

trial, Epeards and the State reached a plea agreement under which Epeards

would plead guilty to one count of Sexual Misconduct with a Minor in

exchange for dismissal of the remaining count, with sentencing left to the

discretion of the court. The court then held a change-of-plea hearing at which

Epeards admitted that, when he was twenty-nine years old, he performed or

submitted to sexual intercourse or other sexual conduct with fourteen-year-old

H.G. The trial court accepted the plea and entered a judgment of conviction.

1 Ind. Code § 35-42-4-9(a). 2 I.C. § 35-42-4-6.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2593 | April 20, 2020 Page 2 of 6 [3] A sentencing hearing was held in October 2019. At the hearing, there was

evidence that H.G. struggled with depression and confided in Epeards, who

was a neighbor of her family member. Epeards and H.G. communicated

through an online messaging program. In the messages, Epeards called H.G.

his “one and only,” Ex. at 22, and his “sexy baby,” id. at 129. He said that he

loved her and missed her. At one point, Epeards told H.G., “I really plan on

giving you a way better life as soon as you’re able to leave.” Id. at 22. He told

her they would “be able to travel around” and “see stuff and do stuff.” Id. In

another message, Epeards said, “I really hope your feelings for me never change

as you get older.” Id. at 25. He assured H.G. that he was “here forever.” Id.

[4] Epeards called several witnesses, and elicited testimony that Epeards had been

consistently employed and that he was a hard worker and a valued employee.

[5] The court identified two aggravating factors—(1) that Epeards has a criminal

history and (2) that he “groomed and took advantage of [H.G.] while she was

in a very vulnerable position.” App. Vol. II at 18. The trial court assigned

“substantial aggravating weight” to the latter aggravating factor. Id. The court

also identified one mitigating factor—that Epeards chose to plead guilty. The

court assigned this mitigating factor minimal weight, noting that Epeards

waited to plead guilty until the day of the scheduled trial. Determining that the

aggravating factors outweighed the mitigating factor, the court imposed a nine-

year sentence, with six years executed and three years suspended to probation.

[6] Epeards now appeals.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2593 | April 20, 2020 Page 3 of 6 Discussion and Decision [7] Sentencing is principally a discretionary function, and we give “considerable

deference” to the court’s decision. Cardwell v. State, 895 N.E.2d 1219, 1222

(Ind. 2008). We review its decision for an abuse of discretion, which “occurs if

the decision is clearly against the logic and effect of the facts and circumstances

before the court.” Bethea v. State, 983 N.E.2d 1134, 1139 (Ind. 2013).

[8] In accordance with Indiana Code Section 35-38-1-3, “[b]efore sentencing a

person for a felony, the court must conduct a hearing to consider the facts and

circumstances relevant to sentencing.” If the court identifies aggravating or

mitigating circumstances, then the court must enter a “statement of the court’s

reasons for selecting the sentence that it imposes.” I.C. § 35-38-1-3. A court

abuses its sentencing discretion by omitting a mitigating circumstance that is

“clearly supported by the record and advanced for consideration.” Anglemyer v.

State, 868 N.E.2d 482, 490-91 (Ind. 2007), clarified on reh’g. A court need not

identify every mitigating circumstance, but it must “identify all significant

mitigating circumstances.” Id. at 492-93 (emphasis added). Moreover, a court

is not obligated to explain why it did not find a circumstance to be significantly

mitigating. Id. at 493. Furthermore, “[a]n allegation that the trial court failed

to identify or find a mitigating factor requires the defendant to establish that the

mitigating evidence is both significant and clearly supported by the record.” Id.

[9] Here, the court identified two aggravating factors and one mitigating factor. It

imposed an aggravated sentence of nine years, which is within the statutory

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2593 | April 20, 2020 Page 4 of 6 range for a Level 4 felony. See I.C. § 35-50-2-5.5 (setting forth a sentencing

range of two years to twelve years with an advisory sentence of six years).

[10] Epeards briefly suggests—for the first time in his Reply Brief—that the court

abused its discretion by failing to consider evidence that Epeards has a helping

nature and is a caring friend. Epeards has waived this argument by raising it for

the first time in his Reply Brief. See Bowman v. State, 51 N.E.3d 1174, 1179-80

(Ind. 2016). Waiver notwithstanding, the circumstances of the offense are that

Epeards took advantage of a child who confided in him. Thus, we cannot say

the trial court abused its discretion in its treatment of this character evidence.

[11] Epeards chiefly argues that the trial court should have identified an additional

mitigating factor—i.e., that Epeards has an “outstanding work ethic” with a

“steady record as a productive member of society.” Br. of Appellant at 7.

[12] Notably, a court “does not abuse its discretion by declining to find alleged

mitigating factors that are ‘highly disputable in nature, weight or significance.’”

Jackson v. State, 973 N.E.2d 1123, 1130-31 (Ind. Ct. App. 2012) (quoting Rawson

v. State, 865 N.E.2d 1049, 1056 (Ind. Ct. App. 2007), trans. denied), trans. denied.

Moreover, as this Court has previously observed, “[m]any people are gainfully

employed such that this would not require the trial court to note it as a

mitigating factor.” Newsome v. State, 797 N.E.2d 293, 301 (Ind. Ct. App. 2003).

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2593 | April 20, 2020 Page 5 of 6 [13] Ultimately, the court acted well within its discretion in rejecting the proposed

employment-related mitigating factor. We discern no abuse of discretion here.3

[14] Affirmed.

Crone, J., and Altice, J., concur.

3 To the extent Epeards suggests that the court improperly weighed the aggravating circumstances and the mitigating circumstances, we note that “[t]he relative weight or value assignable to reasons properly found or those which should have been found is not subject to review for abuse.” Anglemyer, 868 N.E.2d at 491.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2593 | April 20, 2020 Page 6 of 6