Steven Richards v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: March 17, 2016
• Docket: 03A05-1507-CR-948
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Mar 17 2016, 9:11 am

this Memorandum Decision shall not be CLERK Indiana Supreme Court regarded as precedent or cited before any Court of Appeals and Tax Court 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 Christopher L. Clerc Gregory F. Zoeller Columbus, Indiana Attorney General

Paula J. Beller Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Steven Richards, March 17, 2016 Appellant-Defendant, Court of Appeals Case No. 03A05-1507-CR-948 v. Appeal from the Bartholomew Superior Court State of Indiana, The Honorable James D. Worton, Appellee-Plaintiff. Judge Trial Court Cause No. 03C01-1501-F6-126

Vaidik, Chief Judge.

Court of Appeals of Indiana | Memorandum Decision 03A05-1507-CR-948 | March 17, 2016 Page 1 of 6 Case Summary Steven Richards pled guilty to battering his girlfriend, and the trial court

sentenced him to two and a half years in the county jail with six months

suspended to probation. He contends that the trial court abused its discretion in

not recognizing his guilty plea and remorse as mitigators. Because Richards

has failed to prove that his guilty plea and remorse were significant mitigators,

we affirm his sentence.

Facts and Procedural History [1] Nine days after being released from work release for a receiving-stolen-property

conviction, Richards—who was thirty-two years old and had at least twelve

criminal convictions—head-butted his live-in girlfriend, resulting in a knot to

her forehead. Later that same day, Richards choked his girlfriend, causing her

to briefly lose consciousness. The girlfriend’s eight-year-old daughter witnessed

Richards choking her mother.

[2] The State charged Richards with Count 1: Level 6 felony strangulation and

Count 2: Level 6 felony domestic battery. Richards and the State entered into a

plea agreement in which Richards agreed to plead guilty to Amended Count 1:

Level 6 felony battery with moderate bodily injury. In exchange, the State

agreed to dismiss Count 2. The trial court accepted the plea agreement.

[3] Richards testified at the sentencing hearing. He opened by saying he “wanted

to apologize to both our families for all the trouble I’ve put us all through.” Tr.

Court of Appeals of Indiana | Memorandum Decision 03A05-1507-CR-948 | March 17, 2016 Page 2 of 6 p. 8. Richards explained that the incident occurred because he was using

alcohol and methamphetamine, was stressed, and was “hanging out with the

wrong people.” Id. at 25.

[4] The trial court found five aggravators, including Richards’ numerous

convictions (which included convictions for both battery and domestic battery),

the numerous chances he had been given to turn his life around, as well as the

fact that he committed this offense in the presence of the victim’s eight-year-old

daughter. Appellant’s Br. p. 6 (Sentencing Order). The court found no

mitigators. Id. Although the court was “encouraged” that Richards had taken

AA, Celebrate Recovery, and GED classes in jail, the court said that “in [its]

mind [that did] not mitigate anything in this offense.” Tr. p. 55. In addition,

the court acknowledged that Richards pled guilty; however, it found that

Richards’ guilty plea did not amount to a mitigator because he “received a deal

from the plea bargain.” Id. The court sentenced Richards to two and a half

years in the Bartholomew County Jail with six months suspended to probation.

[5] Richards now appeals his sentence.

Discussion and Decision [6] Richards contends that the trial court erred by not recognizing two mitigators:

his guilty plea and remorse. Sentencing decisions rest within the sound

discretion of the trial court and are reviewed on appeal for an abuse of

discretion. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g,

Court of Appeals of Indiana | Memorandum Decision 03A05-1507-CR-948 | March 17, 2016 Page 3 of 6 875 N.E.2d 218 (Ind. 2007). 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. Id. at 490-91.

[7] One way that a trial court may abuse its discretion is by not recognizing

mitigators that are clearly supported by the record and advanced for

consideration. Id.; see also McElfresh v. State, No. 32S01-1511-CR-667 (Ind.

March 3, 2016), slip op. at 12. The defendant bears the burden of

demonstrating that the trial court failed to find or identify a mitigating factor by

establishing that the mitigating evidence is both significant and clearly

supported by the record. McElfresh, slip op. at 12.

[8] Richards first argues that the trial court abused its discretion by not recognizing

his guilty plea as a mitigator. A defendant who pleads guilty deserves to have

“some” mitigating weight given to his plea in return. Anglemyer, 875 N.E.2d at

220. A guilty plea’s significance, however, varies from case to case. Id. at 221.

For example, a guilty plea may not be significantly mitigating when it does not

demonstrate the defendant’s acceptance of responsibility or when the defendant

receives a substantial benefit in return for the plea. Id. A guilty plea also may

not be significantly mitigating when the plea was more likely the result of

pragmatism than acceptance of responsibility and remorse. Id.

[9] Here, the record shows that Richards’ decision to plead guilty was fueled by

pragmatism. The State had three witnesses to Richards’ crime: Richards’

Court of Appeals of Indiana | Memorandum Decision 03A05-1507-CR-948 | March 17, 2016 Page 4 of 6 girlfriend, the girlfriend’s daughter, and a neighbor. Richards also received a

substantial benefit: the State dismissed a Level 6 felony domestic-battery

charge, which carried a domestic-violence determination. See Ind. Code § 35-

38-1-7.7. Richards has therefore failed to prove that his guilty plea was a

significant mitigator.

[10] Richards next argues that the trial court abused its discretion by not recognizing

his remorse as a mitigator. He claims that his in-court apology and the fact that

he took classes in jail show that he “has genuine remorse” and “has learned his

lesson.” Appellant’s Br. p. 4.

[11] A trial court’s determination of a defendant’s remorse is similar to a

determination of credibility. Stout v. State, 834 N.E.2d 707, 711 (Ind. Ct. App.

2005), trans. denied. Although Richards testified at the sentencing hearing that

he “wanted to apologize to both our families for all the trouble I’ve put us all

through,” Tr. p. 8, he did not apologize for his actions. In addition, Richards

attempted to minimize his conduct by claiming that the battery was caused by

drugs and alcohol, stress, and his association with others. The trial court was in

the best position to gauge the sincerity of Richards’ remorse and did not find it

mitigating. Accordingly, Richards has failed to prove that his remorse was a

[12] Although Richards does not directly argue that the trial court should have

considered the classes he took in jail as a mitigator, he testified about the classes

at his sentencing hearing, and the trial court found that the classes were not

Court of Appeals of Indiana | Memorandum Decision 03A05-1507-CR-948 | March 17, 2016 Page 5 of 6 entitled to any mitigating weight. The Indiana Supreme Court recently held

that a trial court abused its discretion by not affording any mitigating weight to

the programs the defendant was enrolled in while in jail because the programs

did not make the defendant eligible for reduced time. McElfresh, slip op. at 13.

Nevertheless, our Supreme Court found that the error was harmless given the

defendant’s criminal history. Id. Likewise here, even assuming that the trial

court should have afforded some mitigating weight to the classes that Richards

took in jail, we find that any error was harmless given Richards’ significant

criminal history, which included other battery convictions. We therefore affirm

Richards’ sentence.

[13] Affirmed.

Bailey, J., and Crone, J., concur.

Court of Appeals of Indiana | Memorandum Decision 03A05-1507-CR-948 | March 17, 2016 Page 6 of 6