Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the Jul 31 2013, 8:13 am purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
DONALD S. EDWARDS GREGORY F. ZOELLER Columbus, Indiana Attorney General of Indiana
RICHARD C. WEBSTER Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
JAMES W. BAKER, JR., ) ) Appellant-Defendant, ) ) vs. ) No. 03A01-1302-CR-49 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE BARTHOLOMEW CIRCUIT COURT The Honorable Stephen R. Heimann, Judge Cause No. 03C01-1204-FB-1743
July 31, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
ROBB, Chief Judge Case Summary and Issue
James W. Baker, Jr., appeals his sentence for two counts of burglary as Class C
felonies. On appeal, Baker raises one issue: whether the trial court abused its discretion
in failing to consider mitigating factors when determining Baker’s sentence. 1 Concluding
that the trial court did not abuse its discretion, we affirm.
Facts and Procedural History
In April 2012, Baker was charged with burglary as a Class B felony, and later two
additional charges for burglary were added—count two as a Class B felony and count
three as a Class C felony. The charges stemmed from incidents in August 2011. In
November 2012, Baker entered into a plea agreement with the State, and pursuant to the
agreement he pleaded guilty to the lesser included charge of burglary as a Class C felony
for both counts one and two, with the State dropping the charges on count three. In
January 2013, the trial court held a sentencing hearing. At the hearing, Baker testified
that his criminal history was all related to his drug addiction, in that the crimes were
committed when he was on or in search of drugs. He testified that he has been going to
Alcoholics Anonymous/Narcotics Anonymous meetings and was enrolled in an
automotive tech program. He also noted that he has a six-year-old daughter whom he has
supported as much as he could, and that both of his parents had medical problems and his
father was worried that he was not going to see Baker again. Baker also apologized to
the victims of his crimes.
1 Baker filed a motion to amend his brief on June 21, 2013, which we denied. Baker then filed a second, identical, motion to amend brief, postmarked July 4, 2013, which we determine was moot because his first motion to amend had been denied. 2 The trial court found no mitigating circumstances, stating at the hearing that
Baker’s daughter was born before the current offenses were committed and that when one
commits a crime, it is clear that might limit the person’s ability to be around for his
parents. The court found four aggravating factors: Baker’s significant criminal history,
including five previous felonies and twelve convictions overall; that Baker was on parole
at the time of the underlying offense; that Baker had been on probation or parole before
and had violated four times; and that, as a slight aggravator, Baker had been offered
treatment outside of a penal facility and it was not successful.
The trial court sentenced Baker to eight years on each of the two counts, all
executed, to be served concurrently with each other but consecutively with Baker’s
sentences in two other, separate cases. In its order, the trial court also recommended that
the Department of Correction place Baker in a substance abuse program while he is
incarcerated. Baker now appeals.
Discussion and Decision
I. Standard of Review
The determination of a defendant’s sentence is within the trial court’s discretion,
and we review sentencing only for an abuse of that discretion. Newman v. State, 719
N.E.2d 832, 838 (Ind. Ct. App. 1999), trans. denied. It is the trial court’s responsibility to
determine the weight to be given to aggravating or mitigating circumstances, and the
proper weight to be afforded to mitigating factors may be no weight at all. Id. “An
allegation that the trial court failed to find a mitigating circumstance requires the
defendant to establish that the mitigating evidence is both significant and clearly
supported by the record. The trial court is not obligated to accept the defendant’s 3 contentions as to what constitutes a mitigating circumstance.” Hackett v. State, 716
N.E.2d 1273, 1277-78 (Ind. 1999) (citation omitted).
II. Baker’s Sentence
Baker contends that there are four factors that the trial court should have
considered as mitigating factors in determining his sentence: the fact that he pleaded
guilty, his drug addiction, his remorse at sentencing, and family hardship. We will
address each in turn.
As for his guilty plea, our supreme court has noted that the mitigating quality of a
guilty plea will vary from case to case. Anglemyer v. State, 875 N.E.2d 218, 221 (Ind.
2007). A guilty plea is not necessarily a significant mitigating factor when it does not
demonstrate an acceptance of responsibility, or where the defendant receives a substantial
benefit in return for the plea. Id. Here, the plea agreement provided that one of the three
counts against Baker was to be dismissed, and Baker would plead to lesser included
charges on the other two counts. We cannot say that Baker has established that this
factor was significant or that the court erred in failing to find it as a mitigating factor.
Baker testified to his long-standing drug addiction problem. He also indicated that
addiction programs had been available to him in the past, but he had chosen not to take
advantage of programs that were only voluntary and were not required. Drug addiction is
not necessarily a mitigating factor. See Rose v. State, 810 N.E.2d 361, 366-67 (Ind. Ct.
App. 2004) (holding that the court did not err in finding that addictions were not a
mitigating circumstance). The court was aware of Baker’s addiction, but also noted that
treatment had been offered in the past and was not successful. We also note that the court 4 recommended that Baker be placed in a substance abuse program while incarcerated for
this offense, indicating that the court considered Baker’s addiction in the sentencing
order, just not as a mitigating factor as Baker would prefer.
Baker also contends that the court should have considered his remorse as a
mitigating factor. While testifying at the sentencing hearing, Baker did apologize to the
victims of his crimes. However, remorse is similar to a determination of credibility, and
“without evidence of some impermissible consideration by the trial court, a reviewing
court will accept its determination as to remorse.” Stout v. State, 834 N.E.2d 707, 711
(Ind. Ct. App. 2005), trans. denied. There is no indication here of any impermissible
consideration by the trial court in failing to include remorse as a mitigating factor.
Finally, Baker argues that the trial court should have considered hardship to his
family as a mitigating factor. Firstly, we note that the relevant consideration is whether
incarceration will impose an undue hardship. Jones v.
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Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the Jul 31 2013, 8:13 am purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
DONALD S. EDWARDS GREGORY F. ZOELLER Columbus, Indiana Attorney General of Indiana
RICHARD C. WEBSTER Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
JAMES W. BAKER, JR., ) ) Appellant-Defendant, ) ) vs. ) No. 03A01-1302-CR-49 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE BARTHOLOMEW CIRCUIT COURT The Honorable Stephen R. Heimann, Judge Cause No. 03C01-1204-FB-1743
July 31, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
ROBB, Chief Judge Case Summary and Issue
James W. Baker, Jr., appeals his sentence for two counts of burglary as Class C
felonies. On appeal, Baker raises one issue: whether the trial court abused its discretion
in failing to consider mitigating factors when determining Baker’s sentence. 1 Concluding
that the trial court did not abuse its discretion, we affirm.
Facts and Procedural History
In April 2012, Baker was charged with burglary as a Class B felony, and later two
additional charges for burglary were added—count two as a Class B felony and count
three as a Class C felony. The charges stemmed from incidents in August 2011. In
November 2012, Baker entered into a plea agreement with the State, and pursuant to the
agreement he pleaded guilty to the lesser included charge of burglary as a Class C felony
for both counts one and two, with the State dropping the charges on count three. In
January 2013, the trial court held a sentencing hearing. At the hearing, Baker testified
that his criminal history was all related to his drug addiction, in that the crimes were
committed when he was on or in search of drugs. He testified that he has been going to
Alcoholics Anonymous/Narcotics Anonymous meetings and was enrolled in an
automotive tech program. He also noted that he has a six-year-old daughter whom he has
supported as much as he could, and that both of his parents had medical problems and his
father was worried that he was not going to see Baker again. Baker also apologized to
the victims of his crimes.
1 Baker filed a motion to amend his brief on June 21, 2013, which we denied. Baker then filed a second, identical, motion to amend brief, postmarked July 4, 2013, which we determine was moot because his first motion to amend had been denied. 2 The trial court found no mitigating circumstances, stating at the hearing that
Baker’s daughter was born before the current offenses were committed and that when one
commits a crime, it is clear that might limit the person’s ability to be around for his
parents. The court found four aggravating factors: Baker’s significant criminal history,
including five previous felonies and twelve convictions overall; that Baker was on parole
at the time of the underlying offense; that Baker had been on probation or parole before
and had violated four times; and that, as a slight aggravator, Baker had been offered
treatment outside of a penal facility and it was not successful.
The trial court sentenced Baker to eight years on each of the two counts, all
executed, to be served concurrently with each other but consecutively with Baker’s
sentences in two other, separate cases. In its order, the trial court also recommended that
the Department of Correction place Baker in a substance abuse program while he is
incarcerated. Baker now appeals.
Discussion and Decision
I. Standard of Review
The determination of a defendant’s sentence is within the trial court’s discretion,
and we review sentencing only for an abuse of that discretion. Newman v. State, 719
N.E.2d 832, 838 (Ind. Ct. App. 1999), trans. denied. It is the trial court’s responsibility to
determine the weight to be given to aggravating or mitigating circumstances, and the
proper weight to be afforded to mitigating factors may be no weight at all. Id. “An
allegation that the trial court failed to find a mitigating circumstance requires the
defendant to establish that the mitigating evidence is both significant and clearly
supported by the record. The trial court is not obligated to accept the defendant’s 3 contentions as to what constitutes a mitigating circumstance.” Hackett v. State, 716
N.E.2d 1273, 1277-78 (Ind. 1999) (citation omitted).
II. Baker’s Sentence
Baker contends that there are four factors that the trial court should have
considered as mitigating factors in determining his sentence: the fact that he pleaded
guilty, his drug addiction, his remorse at sentencing, and family hardship. We will
address each in turn.
As for his guilty plea, our supreme court has noted that the mitigating quality of a
guilty plea will vary from case to case. Anglemyer v. State, 875 N.E.2d 218, 221 (Ind.
2007). A guilty plea is not necessarily a significant mitigating factor when it does not
demonstrate an acceptance of responsibility, or where the defendant receives a substantial
benefit in return for the plea. Id. Here, the plea agreement provided that one of the three
counts against Baker was to be dismissed, and Baker would plead to lesser included
charges on the other two counts. We cannot say that Baker has established that this
factor was significant or that the court erred in failing to find it as a mitigating factor.
Baker testified to his long-standing drug addiction problem. He also indicated that
addiction programs had been available to him in the past, but he had chosen not to take
advantage of programs that were only voluntary and were not required. Drug addiction is
not necessarily a mitigating factor. See Rose v. State, 810 N.E.2d 361, 366-67 (Ind. Ct.
App. 2004) (holding that the court did not err in finding that addictions were not a
mitigating circumstance). The court was aware of Baker’s addiction, but also noted that
treatment had been offered in the past and was not successful. We also note that the court 4 recommended that Baker be placed in a substance abuse program while incarcerated for
this offense, indicating that the court considered Baker’s addiction in the sentencing
order, just not as a mitigating factor as Baker would prefer.
Baker also contends that the court should have considered his remorse as a
mitigating factor. While testifying at the sentencing hearing, Baker did apologize to the
victims of his crimes. However, remorse is similar to a determination of credibility, and
“without evidence of some impermissible consideration by the trial court, a reviewing
court will accept its determination as to remorse.” Stout v. State, 834 N.E.2d 707, 711
(Ind. Ct. App. 2005), trans. denied. There is no indication here of any impermissible
consideration by the trial court in failing to include remorse as a mitigating factor.
Finally, Baker argues that the trial court should have considered hardship to his
family as a mitigating factor. Firstly, we note that the relevant consideration is whether
incarceration will impose an undue hardship. Jones v. State, 790 N.E.2d 536, 540 (Ind.
Ct. App. 2003). Additionally, our supreme court has noted that “[m]any persons
convicted of serious crimes have one or more children and, absent special circumstances,
trial courts are not required to find that imprisonment will result in an undue hardship.”
Dowdell v. State, 720 N.E.2d 1146, 1154 (Ind. 1999). Baker does not assert any special
circumstances here, but only argues that he was supporting his child prior to arrest, and
that his incarceration would therefore be a hardship to her. The trial court was not
required to find this a mitigating factor. As for Baker’s parents, undue hardship there
may have been a mitigating factor if the evidence showed that he was supporting and
helping his parents prior to his arrest. However, the gist of his testimony at sentencing
was that his father had become ill and needed assistance, and that his mother had medical 5 issues that limited her as well. There was no indication in his testimony, or in his brief,
of what, if any, assistance he had been providing that would now be denied to them. The
court considered his parents’ health and declined to find it a mitigating factor. In sum,
Baker has not established that there is mitigating evidence that is both significant and
clearly supported by the record and thus there was no abuse of discretion.
Conclusion
Concluding that the trial court did not abuse its discretion in failing to find
mitigating factors when determining Baker’s sentence, we affirm.
Affirmed.
RILEY, J., and KIRSCH, J., concur.