MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be regarded as precedent or cited before any Apr 09 2020, 9:14 am
court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE William T. Myers Curtis T. Hill, Jr. Whitehurst & Myers Law Attorney General of Indiana Marion, Indiana Steven Hosler Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Zachary G. Fellers, April 9, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-1916 v. Appeal from the Huntington Superior Court State of Indiana, The Honorable Jennifer E. Appellee-Plaintiff Newton, Judge Trial Court Cause No. 35D01-1906-F6-168
May, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1916 | April 9, 2020 Page 1 of 6 [1] Zachary G. Fellers appeals his two-year sentence for Level 6 felony escape. 1
Fellers argues the trial court abused its discretion when it failed to identify his
guilty plea and the hardship incarceration would have on his family as
mitigators when sentencing him. We affirm.
Facts and Procedural History 2
[2] In April 2019, Fellers plead guilty to Level 6 felony possession of a hypodermic
needle. The trial court placed Fellers on probation and required him to wear an
electronic ankle bracelet. On June 14, 2019, Fellers tested positive for
methamphetamine and the State filed a petition to revoke his community
corrections placement. On June 16, 2019, Fellers cut off his electronic
monitoring bracelet and fled from his home. When police arrived at his home,
they found Fellers’ electronic monitoring bracelet. Fellers’ wife told the police
that Fellers had left and that she did not know where he had gone. (App. Vol.
II at 11.) On June 18, 2019, the State charged Fellers with Level 6 felony
escape. On July 10, 2019, Fellers was arrested. Fellers plead guilty to Level 6
felony escape, and the trial court sentenced him to three years in prison with
one year suspended to probation.
1 Ind. Code 35-44.2-3-4(b) (2014). 2 The Appellant’s Statement of Facts was a compilation of quotes from the transcript and the appendix. We remind counsel of the requirements of Indiana Appellate Rule 46, which states, in relevant part, the statement of facts “shall describe the facts relevant to the issues presented for review” and “[t]he statement shall be in narrative form and shall not be a witness by witness summary of the testimony.”
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1916 | April 9, 2020 Page 2 of 6 Discussion and Decision [3] Sentencing decisions rest within the sound discretion of the trial court, and we
review such decisions only for an abuse of discretion. Morrell v. State, 118
N.E.3d 793, 796 (Ind. Ct. App. 2019), clarified on reh’g on other grounds, 121
N.E.3d 577 (Ind. Ct. App. 2019), trans. denied. “An abuse of discretion occurs if
the decision is clearly against the logic and effect of the facts and
circumstances.” Allen v. State, 875 N.E.2d 783, 788 (Ind. Ct. App. 2007).
[4] When a trial court imposes a felony sentence, it is required to issue a sentencing
statement “that includes a reasonably detailed recitation of the trial court’s
reasons for the sentence imposed.” Anglemyer v. State, 868 N.E.2d 482, 484-85
(Ind. 2007), clarified on reh’g on other grounds, 875 N.E.2d 218 (Ind. 2007). If the
court finds aggravating or mitigating circumstances, “the statement must
identify all significant mitigating and aggravating circumstances and explain
why each circumstance has been determined to be mitigating or aggravating.”
Id. at 490. A trial court may abuse its discretion in imposing a sentence by
failing to enter a sentencing statement, identifying aggravating and mitigating
factors the record does not support, omitting reasons clearly supported in the
record and advanced for consideration, or stating reasons for a sentence that are
improper as a matter of law. Id. at 490-91.
[5] The sentence for a Level 6 felony is a fixed term between six months and three
years, with the advisory sentence being one and one-half years. Fellers was
sentenced to three years; thus, he received the maximum sentence. The trial
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1916 | April 9, 2020 Page 3 of 6 court found Fellers’ adult and juvenile criminal history and his recent violation
of probation as aggravating factors. The trial court found no mitigators.
[6] First, Fellers argues the trial court should have considered his guilty plea as a
mitigator. “A guilty plea demonstrates a defendant’s acceptance of
responsibility for the crime and extends a benefit to the State and to the victim
or the victim’s family by avoiding a full-blown trial. Thus, a defendant who
pleads guilty deserves to have mitigating weight extended to the guilty plea in
return.” Francis v. State, 817 N.E.2d 235, 237-238 (Ind. 2004). Therefore, the
trial court should have identified Fellers’ guilty plea as a mitigating factor.
[7] However, the court’s error was harmless. Harmless error is “an error that does
not affect the substantial rights of a party.” Rosales v. State, 3 N.E.3d 1014, 1019
(Ind. Ct. App. 2014) (quoting Lander v. State, 762 N.E.2d 1208, 1213 (Ind.
2002)). No error in anything omitted by the trial court “is ground for granting
relief or reversal on appeal where its probable impact, in light of all the evidence
in the case, is sufficiently minor so as not to affect the substantial rights of the
parties.” Ind. App. R. 66.
“A guilty plea is not automatically a significant mitigating factor.” Sensback v. State, 720 N.E.2d 1160, 1164-1165 (Ind. 1999). “A guilty plea 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.”
Wells v. State, 836 N.E.2d 475, 479 (Ind. Ct. App. 2005), trans. denied.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1916 | April 9, 2020 Page 4 of 6 [8] Fellers faced substantial evidence against him. To prove escape, the State need
only show that a person “knowingly or intentionally remove[d] an electronic
monitoring device or GPS tracking device.” Ind. Code § 35-44.1-3-4(b). Police
found the cut off electronic monitoring bracelet in Fellers’ home. Further, his
wife told police he had left home and she did not know where he had gone.
Because the evidence clearly demonstrated Fellers’ had committed escape, it
was pragmatic for Fellers to plead guilty. As a result his guilty plea would not
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be regarded as precedent or cited before any Apr 09 2020, 9:14 am
court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE William T. Myers Curtis T. Hill, Jr. Whitehurst & Myers Law Attorney General of Indiana Marion, Indiana Steven Hosler Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Zachary G. Fellers, April 9, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-1916 v. Appeal from the Huntington Superior Court State of Indiana, The Honorable Jennifer E. Appellee-Plaintiff Newton, Judge Trial Court Cause No. 35D01-1906-F6-168
May, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1916 | April 9, 2020 Page 1 of 6 [1] Zachary G. Fellers appeals his two-year sentence for Level 6 felony escape. 1
Fellers argues the trial court abused its discretion when it failed to identify his
guilty plea and the hardship incarceration would have on his family as
mitigators when sentencing him. We affirm.
Facts and Procedural History 2
[2] In April 2019, Fellers plead guilty to Level 6 felony possession of a hypodermic
needle. The trial court placed Fellers on probation and required him to wear an
electronic ankle bracelet. On June 14, 2019, Fellers tested positive for
methamphetamine and the State filed a petition to revoke his community
corrections placement. On June 16, 2019, Fellers cut off his electronic
monitoring bracelet and fled from his home. When police arrived at his home,
they found Fellers’ electronic monitoring bracelet. Fellers’ wife told the police
that Fellers had left and that she did not know where he had gone. (App. Vol.
II at 11.) On June 18, 2019, the State charged Fellers with Level 6 felony
escape. On July 10, 2019, Fellers was arrested. Fellers plead guilty to Level 6
felony escape, and the trial court sentenced him to three years in prison with
one year suspended to probation.
1 Ind. Code 35-44.2-3-4(b) (2014). 2 The Appellant’s Statement of Facts was a compilation of quotes from the transcript and the appendix. We remind counsel of the requirements of Indiana Appellate Rule 46, which states, in relevant part, the statement of facts “shall describe the facts relevant to the issues presented for review” and “[t]he statement shall be in narrative form and shall not be a witness by witness summary of the testimony.”
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1916 | April 9, 2020 Page 2 of 6 Discussion and Decision [3] Sentencing decisions rest within the sound discretion of the trial court, and we
review such decisions only for an abuse of discretion. Morrell v. State, 118
N.E.3d 793, 796 (Ind. Ct. App. 2019), clarified on reh’g on other grounds, 121
N.E.3d 577 (Ind. Ct. App. 2019), trans. denied. “An abuse of discretion occurs if
the decision is clearly against the logic and effect of the facts and
circumstances.” Allen v. State, 875 N.E.2d 783, 788 (Ind. Ct. App. 2007).
[4] When a trial court imposes a felony sentence, it is required to issue a sentencing
statement “that includes a reasonably detailed recitation of the trial court’s
reasons for the sentence imposed.” Anglemyer v. State, 868 N.E.2d 482, 484-85
(Ind. 2007), clarified on reh’g on other grounds, 875 N.E.2d 218 (Ind. 2007). If the
court finds aggravating or mitigating circumstances, “the statement must
identify all significant mitigating and aggravating circumstances and explain
why each circumstance has been determined to be mitigating or aggravating.”
Id. at 490. A trial court may abuse its discretion in imposing a sentence by
failing to enter a sentencing statement, identifying aggravating and mitigating
factors the record does not support, omitting reasons clearly supported in the
record and advanced for consideration, or stating reasons for a sentence that are
improper as a matter of law. Id. at 490-91.
[5] The sentence for a Level 6 felony is a fixed term between six months and three
years, with the advisory sentence being one and one-half years. Fellers was
sentenced to three years; thus, he received the maximum sentence. The trial
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1916 | April 9, 2020 Page 3 of 6 court found Fellers’ adult and juvenile criminal history and his recent violation
of probation as aggravating factors. The trial court found no mitigators.
[6] First, Fellers argues the trial court should have considered his guilty plea as a
mitigator. “A guilty plea demonstrates a defendant’s acceptance of
responsibility for the crime and extends a benefit to the State and to the victim
or the victim’s family by avoiding a full-blown trial. Thus, a defendant who
pleads guilty deserves to have mitigating weight extended to the guilty plea in
return.” Francis v. State, 817 N.E.2d 235, 237-238 (Ind. 2004). Therefore, the
trial court should have identified Fellers’ guilty plea as a mitigating factor.
[7] However, the court’s error was harmless. Harmless error is “an error that does
not affect the substantial rights of a party.” Rosales v. State, 3 N.E.3d 1014, 1019
(Ind. Ct. App. 2014) (quoting Lander v. State, 762 N.E.2d 1208, 1213 (Ind.
2002)). No error in anything omitted by the trial court “is ground for granting
relief or reversal on appeal where its probable impact, in light of all the evidence
in the case, is sufficiently minor so as not to affect the substantial rights of the
parties.” Ind. App. R. 66.
“A guilty plea is not automatically a significant mitigating factor.” Sensback v. State, 720 N.E.2d 1160, 1164-1165 (Ind. 1999). “A guilty plea 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.”
Wells v. State, 836 N.E.2d 475, 479 (Ind. Ct. App. 2005), trans. denied.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1916 | April 9, 2020 Page 4 of 6 [8] Fellers faced substantial evidence against him. To prove escape, the State need
only show that a person “knowingly or intentionally remove[d] an electronic
monitoring device or GPS tracking device.” Ind. Code § 35-44.1-3-4(b). Police
found the cut off electronic monitoring bracelet in Fellers’ home. Further, his
wife told police he had left home and she did not know where he had gone.
Because the evidence clearly demonstrated Fellers’ had committed escape, it
was pragmatic for Fellers to plead guilty. As a result his guilty plea would not
have been a significant mitigator, and we feel certain, based on the record, it is
unlikely the trial court would have imposed a lesser sentence had it properly
acknowledged the guilty plea as a mitigator.
[9] Next, Fellers argues the trial court abused its discretion when it did not find
hardship on Fellers’ family. “Jail is always a hardship on dependents.” Vazquez
v. State, 839 N.E.2d 1229, 1234 (Ind. Ct. App. 2005), trans. denied. Fellers fails
to explain how his enhanced sentence would be more burdensome on his family
than a lesser sentence. Unfortunately, the dependents of incarcerated
individuals often suffer financial and emotional hardship, but Fellers’ situation
is not unique. See Hunter v. State, 72 N.E.3d 928, 936 (Ind. Ct. App. 2017)
(defendant’s enhanced sentence did not place an unusual hardship on his
dependents), trans. denied. “The trial court is not obligated to accept the
defendant’s arguments as to what constitutes a mitigating factor. Nor is the
court required to give the same weight to proffered mitigating factors as the
defendant does.” Comer v. State, 839 N.E.2d 721, 728 (Ind. Ct. App. 2005)
(internal citation and quotation marks omitted), trans. denied. Even though
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1916 | April 9, 2020 Page 5 of 6 Feller believes he should receive a lesser sentence, the trial court did not
commit reversible error.
Conclusion [10] The trial court abused its discretion when it failed to identify Fellers’ guilty plea
as a mitigator. However, the error was harmless because Fellers’ decision to
enter into a plea agreement was logical based on the substantial amount of
evidence against him. Additionally, the hardship on his family was not
substantial or more burdensome than other families with incarcerated loved
ones; thus, the trial court did not abuse by not considering it as a mitigator.
Accordingly, we affirm.
[11] Affirmed.
Crone, J., and Pyle, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1916 | April 9, 2020 Page 6 of 6