MEMORANDUM DECISION Sep 04 2015, 8:39 am 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 Mark Small Gregory F. Zoeller Indianapolis, Indiana Attorney General of Indiana Justin F. Roebel Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Jonathan Paul Graham, September 4, 2015
Appellant-Defendant, Court of Appeals Cause No. 54A01-1502-CR-61 v. Appeal from the Montgomery Superior Court State of Indiana, The Honorable Heather Dennison, Judge Appellee-Plaintiff. Cause No. 54D01-1410-F6-3649
Riley, Judge.
Court of Appeals of Indiana | Memorandum Opinion 54A01-1502-CR-61 | September 4, 2015 Page 1 of 7 STATEMENT OF THE CASE
[1] Appellant-Defendant, Jonathan Graham (Graham), appeals his sentence after
pleading guilty to one Count of possession of paraphernalia, a Class A
misdemeanor, Ind. Code § 35-48-4-8.3(a)(1); two Counts of contributing to the
delinquency of a minor, I.C. § 35-46-1-8(a), Class A misdemeanors; and one
Count of maintaining a common nuisance, a Level 6 felony, I.C. § 35-48-4-
13(b)(1).
[2] We affirm.
ISSUE
[3] Graham raises one issue on appeal, which we restate as: Whether the trial
court abused its sentencing discretion by failing to consider Graham’s guilty
plea and mental illness as mitigating factors.
FACTS AND PROCEDURAL HISTORY
[4] On October 31, 2014, the Department of Child Services (DCS) received a report
that on October 21, 2014, Graham had smoked marijuana with his fifteen-year-
old step-daughter, J.L., and also with J.L.’s friends, D.C., aged fourteen, and
B.C., aged fifteen, in Graham’s apartment in Crawfordsville, Indiana. On the
same day, DCS went to the apartment to investigate. When they questioned
Graham and his wife, Krystal Graham (Krystal), about the claims, they both
denied the allegations. While speaking with the adults, J.L. arrived and agreed
to speak privately with DCS. J.L. admitted that she smoked marijuana with
Court of Appeals of Indiana | Memorandum Opinion 54A01-1502-CR-61 | September 4, 2015 Page 2 of 7 Graham. Again, DCS questioned Graham and Krystal, and Graham admitted
to the accusations.
[5] On the same day, the State filed an Information, charging Graham with Count
I, possession of paraphernalia, a Class A misdemeanor; Count II, possession of
marijuana, a Class A misdemeanor; Counts III, IV, and V, contributing to the
delinquency of a minor, Class A misdemeanors; Count VI, neglect of a
dependent, a Level 6 felony; and Count VII, maintaining a common nuisance,
a Level 6 felony.
[6] On February 5, 2015, Graham entered into a plea agreement with the State
where he admitted to Counts I, IV, V, and VII, in exchange for the State’s
dismissal of Counts II, III, and VI. The plea agreement left Graham’s sentence
to the trial court’s discretion. The trial court then held Graham’s guilty plea
hearing, and Graham admitted the factual basis for his plea. Graham’s
sentencing hearing was heard on the same day. As for aggravating factors, the
trial court identified Graham’s juvenile adjudication for theft and forgery as
well as seven felonies and five misdemeanor convictions as an adult. In
addition, the trial court identified Graham’s long use of drugs dating back to his
teenage years. The trial court found no mitigating circumstances. For Counts
IV, and V, the trial court sentenced Graham to concurrent sentences of one year
each in the Montgomery County Jail. On Count I, the court sentenced Graham
to a consecutive term of one year in the Montgomery County jail. As for Count
VII, the trial court sentenced Graham to a consecutive sentence of two and one-
half years in the Department of Correction. Graham’s aggregate sentence was
Court of Appeals of Indiana | Memorandum Opinion 54A01-1502-CR-61 | September 4, 2015 Page 3 of 7 four and one-half years but the trial court suspended two and one-half years to
years to probation.
[7] Graham now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION1
[8] Graham argues that the trial court abused its discretion when sentencing him
because it overlooked two potential mitigating factors: his guilty plea and his
mental health issues. We cannot agree.
[9] To show that a trial court failed to identify or find a mitigating factor, the
defendant must establish that the mitigating evidence is both significant and
clearly supported by the record. Anglemyer v. State, 868 N.E.2d 482, 493 (Ind.
2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007). While a failure to find
mitigating circumstances clearly supported by the record may imply that the
sentencing court improperly overlooked them, the court is obligated neither to
credit mitigating circumstances in the same manner as would the defendant,
nor to explain why it has chosen not to find mitigating circumstances. Roush v.
1 Pursuant to Indiana Administrative Rule 9(G)(2)(b) and Indiana Code section 35-38-1-13, the presentence investigation (PSI) report must be excluded from public access. However, in this case, the information contained in the PSI report “is essential to the resolution” of Graham’s claims on appeal. Ind. Admin. Rule 9(G)(7)(a)(ii)(c). Accordingly, we have included confidential information in this decision only to the extent necessary to resolve the appeal.
Court of Appeals of Indiana | Memorandum Opinion 54A01-1502-CR-61 | September 4, 2015 Page 4 of 7 State, 875 N.E.2d 801, 811 (Ind. Ct. App. 2007). Our supreme court has noted
that “[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.” Smith v. State, 770 N.E.2d 818, 822–23
(Ind. 2002).
[10] Turning to Graham’s first claim, we note that although a guilty plea may be a
mitigating circumstance, it “does not rise to the level of significant mitigation
where the defendant has received a substantial benefit from the plea or where
the evidence against him is such that the decision to plead guilty is merely a
pragmatic one.” Barker v. State, 994 N.E.2d 306, 312 (Ind. Ct. App. 2013).
Here, there was overwhelming evidence of Graham’s guilt such that the
decision to plead guilty was merely pragmatic. Moreover, Graham received a
substantial benefit in return for the guilty plea: the State dismissed three of the
charges, half of his sentence was suspended, and the trial court ordered
concurrent sentences for Counts IV and V. See McElroy v. State, 865 N.E.2d
584, 591 (Ind. 2007) (holding that receiving concurrent sentences was a
substantial benefit). Accordingly, the trial court did not abuse its discretion
when it did not find that Graham’s guilty plea was a mitigating factor.
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MEMORANDUM DECISION Sep 04 2015, 8:39 am 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 Mark Small Gregory F. Zoeller Indianapolis, Indiana Attorney General of Indiana Justin F. Roebel Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Jonathan Paul Graham, September 4, 2015
Appellant-Defendant, Court of Appeals Cause No. 54A01-1502-CR-61 v. Appeal from the Montgomery Superior Court State of Indiana, The Honorable Heather Dennison, Judge Appellee-Plaintiff. Cause No. 54D01-1410-F6-3649
Riley, Judge.
Court of Appeals of Indiana | Memorandum Opinion 54A01-1502-CR-61 | September 4, 2015 Page 1 of 7 STATEMENT OF THE CASE
[1] Appellant-Defendant, Jonathan Graham (Graham), appeals his sentence after
pleading guilty to one Count of possession of paraphernalia, a Class A
misdemeanor, Ind. Code § 35-48-4-8.3(a)(1); two Counts of contributing to the
delinquency of a minor, I.C. § 35-46-1-8(a), Class A misdemeanors; and one
Count of maintaining a common nuisance, a Level 6 felony, I.C. § 35-48-4-
13(b)(1).
[2] We affirm.
ISSUE
[3] Graham raises one issue on appeal, which we restate as: Whether the trial
court abused its sentencing discretion by failing to consider Graham’s guilty
plea and mental illness as mitigating factors.
FACTS AND PROCEDURAL HISTORY
[4] On October 31, 2014, the Department of Child Services (DCS) received a report
that on October 21, 2014, Graham had smoked marijuana with his fifteen-year-
old step-daughter, J.L., and also with J.L.’s friends, D.C., aged fourteen, and
B.C., aged fifteen, in Graham’s apartment in Crawfordsville, Indiana. On the
same day, DCS went to the apartment to investigate. When they questioned
Graham and his wife, Krystal Graham (Krystal), about the claims, they both
denied the allegations. While speaking with the adults, J.L. arrived and agreed
to speak privately with DCS. J.L. admitted that she smoked marijuana with
Court of Appeals of Indiana | Memorandum Opinion 54A01-1502-CR-61 | September 4, 2015 Page 2 of 7 Graham. Again, DCS questioned Graham and Krystal, and Graham admitted
to the accusations.
[5] On the same day, the State filed an Information, charging Graham with Count
I, possession of paraphernalia, a Class A misdemeanor; Count II, possession of
marijuana, a Class A misdemeanor; Counts III, IV, and V, contributing to the
delinquency of a minor, Class A misdemeanors; Count VI, neglect of a
dependent, a Level 6 felony; and Count VII, maintaining a common nuisance,
a Level 6 felony.
[6] On February 5, 2015, Graham entered into a plea agreement with the State
where he admitted to Counts I, IV, V, and VII, in exchange for the State’s
dismissal of Counts II, III, and VI. The plea agreement left Graham’s sentence
to the trial court’s discretion. The trial court then held Graham’s guilty plea
hearing, and Graham admitted the factual basis for his plea. Graham’s
sentencing hearing was heard on the same day. As for aggravating factors, the
trial court identified Graham’s juvenile adjudication for theft and forgery as
well as seven felonies and five misdemeanor convictions as an adult. In
addition, the trial court identified Graham’s long use of drugs dating back to his
teenage years. The trial court found no mitigating circumstances. For Counts
IV, and V, the trial court sentenced Graham to concurrent sentences of one year
each in the Montgomery County Jail. On Count I, the court sentenced Graham
to a consecutive term of one year in the Montgomery County jail. As for Count
VII, the trial court sentenced Graham to a consecutive sentence of two and one-
half years in the Department of Correction. Graham’s aggregate sentence was
Court of Appeals of Indiana | Memorandum Opinion 54A01-1502-CR-61 | September 4, 2015 Page 3 of 7 four and one-half years but the trial court suspended two and one-half years to
years to probation.
[7] Graham now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION1
[8] Graham argues that the trial court abused its discretion when sentencing him
because it overlooked two potential mitigating factors: his guilty plea and his
mental health issues. We cannot agree.
[9] To show that a trial court failed to identify or find a mitigating factor, the
defendant must establish that the mitigating evidence is both significant and
clearly supported by the record. Anglemyer v. State, 868 N.E.2d 482, 493 (Ind.
2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007). While a failure to find
mitigating circumstances clearly supported by the record may imply that the
sentencing court improperly overlooked them, the court is obligated neither to
credit mitigating circumstances in the same manner as would the defendant,
nor to explain why it has chosen not to find mitigating circumstances. Roush v.
1 Pursuant to Indiana Administrative Rule 9(G)(2)(b) and Indiana Code section 35-38-1-13, the presentence investigation (PSI) report must be excluded from public access. However, in this case, the information contained in the PSI report “is essential to the resolution” of Graham’s claims on appeal. Ind. Admin. Rule 9(G)(7)(a)(ii)(c). Accordingly, we have included confidential information in this decision only to the extent necessary to resolve the appeal.
Court of Appeals of Indiana | Memorandum Opinion 54A01-1502-CR-61 | September 4, 2015 Page 4 of 7 State, 875 N.E.2d 801, 811 (Ind. Ct. App. 2007). Our supreme court has noted
that “[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.” Smith v. State, 770 N.E.2d 818, 822–23
(Ind. 2002).
[10] Turning to Graham’s first claim, we note that although a guilty plea may be a
mitigating circumstance, it “does not rise to the level of significant mitigation
where the defendant has received a substantial benefit from the plea or where
the evidence against him is such that the decision to plead guilty is merely a
pragmatic one.” Barker v. State, 994 N.E.2d 306, 312 (Ind. Ct. App. 2013).
Here, there was overwhelming evidence of Graham’s guilt such that the
decision to plead guilty was merely pragmatic. Moreover, Graham received a
substantial benefit in return for the guilty plea: the State dismissed three of the
charges, half of his sentence was suspended, and the trial court ordered
concurrent sentences for Counts IV and V. See McElroy v. State, 865 N.E.2d
584, 591 (Ind. 2007) (holding that receiving concurrent sentences was a
substantial benefit). Accordingly, the trial court did not abuse its discretion
when it did not find that Graham’s guilty plea was a mitigating factor.
[11] Lastly, Graham challenges the trial court’s denial that his mental illness was a
mitigating circumstance. This court has held that a defendant’s mental illness
can be a mitigating factor in sentencing. Ousley v. State, 807 N.E.2d 758, 762
(Ind. Ct. App. 2004). But this does not mean that a defendant’s claim of mental
illness is automatically to be given significant mitigating weight. Id. The
Court of Appeals of Indiana | Memorandum Opinion 54A01-1502-CR-61 | September 4, 2015 Page 5 of 7 mitigating weight to be given to a defendant’s mental illness depends upon: (1)
the extent of the defendant’s inability to control his or her behavior due to the
disorder or impairment; (2) overall limitations on the defendant’s functioning;
(3) the duration of the mental illness; and (4) the extent of any nexus between
the disorder or impairment and the commission of the crime. Id.
[12] At the sentencing hearing, Graham stated that he suffered from depression,
anxiety, post-traumatic stress, and paranoid schizophrenia. Graham also stated
that he met weekly with his mental health providers at Wabash Valley to
maintain and manage his mental health issues. The trial court recognized
Graham’s mental issues but found that Graham’s self-serving statements
regarding his mental illness were “somewhat questionable” when “taken in
conjunction with other documents.” (Transcript p. 41). Also, Graham had not
provided the trial court with any documentation substantiating his claim that
his was seeing anyone for his mental health issues at Wabash Valley.
Moreover, it was not clear how many sessions Graham had attended or if the
sessions were regular. Additionally, the trial court found that Graham’s
lengthy substance abuse negatively affected his mental health.
[13] In addition, when considering the four Ousley factors, Graham does not argue
that his mental illness impaired his ability to control his behavior, that it
impaired his ability to function, or that there was any nexus between his mental
health and the commission of his crimes. The other factor is duration of the
mental illness. Under these circumstance, we find that the trial court was not
required to consider mental illness as a factor in sentencing Graham.
Court of Appeals of Indiana | Memorandum Opinion 54A01-1502-CR-61 | September 4, 2015 Page 6 of 7 CONCLUSION
[14] Based on the foregoing, we conclude that trial court did not abuse its discretion
by failing to consider Graham’s guilty plea and mental illness as mitigating
factors in sentencing Graham.
[15] Affirmed.
[16] Friedlander, Sr. J. and Brown, J. concur
Court of Appeals of Indiana | Memorandum Opinion 54A01-1502-CR-61 | September 4, 2015 Page 7 of 7