Brandon Hill v. State of Indiana (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Dec 10 2019, 10:02 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Jennifer L. Koethe Curtis T. Hill, Jr.
Navarre, Florida Attorney General of Indiana
Samantha M. Sumcad
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Brandon Hill, December 10, 2019
Appellant-Defendant, Court of Appeals Case No.
19A-CR-609
v. Appeal from the LaPorte Circuit
Court
State of Indiana, The Honorable Thomas Alevizos,
Appellee-Plaintiff, Judge
Trial Court Cause No.
46C01-1806-F5-623
Robb, Judge.
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Case Summary and Issue
[1] Brandon Hill pleaded guilty to two counts of robbery, both Level 5 felonies, and
was sentenced to an enhanced sentence of five years on each count to be served
concurrently in the Indiana Department of Correction. Hill appeals his
sentence, raising one issue for our review: whether the trial court abused its
discretion in sentencing him. Concluding the trial court did not abuse its
sentencing discretion, we affirm.
Facts and Procedural History
[2] On March 19 and March 21, 2018, Hill stole money from two different
individuals in LaPorte, Indiana. The State charged Hill with two counts of
robbery by placing a person in fear, both Level 5 felonies.
[3] Hill and the State entered into a written plea agreement pursuant to which Hill
agreed to plead guilty to both counts of robbery as charged and sentencing was
left to the trial court’s discretion. The trial court accepted the plea agreement
and held a sentencing hearing on February 15, 2019. At the hearing, Hill stated
in court:
I want to apologize to the Court and to the State of Indiana for
my actions. There is no excuse, you know. I came here with
different intentions and different things pointed me in different
routes. Like, I had a – I needed the support[.]
Since I was 11-years-old I have been locked up, detained,
incarcerated, held. . . . I did 10 years straight in the State of
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Illinois and . . . [the State of Illinois doesn’t] offer programs and
rehabilitation.
Transcript, Volume II at 17-18. The trial court considered Hill’s extensive
criminal history, which includes prior convictions of robbery, and the closeness
in time of his crimes as aggravating circumstances. As a mitigating
circumstance, the trial court found the fact that Hill pleaded guilty. The trial
court determined the aggravating circumstances outweighed the mitigating
circumstance and sentenced Hill to an enhanced sentence of five years on each
count to be served concurrently. Hill now appeals.
Discussion and Decision
[4] Hill contends that the trial court abused its discretion in sentencing him.
Sentencing decisions rest within the sound discretion of the trial court.
Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d
218 (Ind. 2007). When a sentence is within the statutory range, it is subject to
review only for abuse of discretion. Id. 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.[5] A trial court may abuse its sentencing discretion in a number of ways:
(1) failing to enter a sentencing statement, (2) entering a
sentencing statement that explains reasons for imposing the
sentence but the record does not support the reasons, (3) the
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sentencing statement omits reasons that are clearly supported by
the record and advanced for consideration, or (4) the reasons
given in the sentencing statement are improper as a matter of
law.
Phelps v. State, 24 N.E.3d 525, 527 (Ind. Ct. App. 2015). Hill contends he
expressed remorse and the trial court abused its discretion in omitting his
remorse as a mitigating circumstance.
[6] The finding of a mitigating circumstance is discretionary and therefore, the trial
court has no obligation to accept the defendant’s argument as to what
constitutes a mitigating circumstance or to give the weight to mitigating
evidence that the defendant would. Hunter v. State, 72 N.E.3d 928, 935 (Ind. Ct.
App. 2017), trans. denied. “An 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.” Anglemyer, 868
N.E.2d at 493.
[7] Remorse has been recognized by our supreme court as a valid mitigating
circumstance. Hape v. State, 903 N.E.2d 977, 1002 (Ind. Ct. App. 2009) (citing
Cotto v. State, 829 N.E.2d 520, 526 (Ind. 2005)), trans. denied. But the trial court
“possesses the ability to directly observe a defendant and can best determine
whether a defendant’s remorse is genuine.” Phelps v. State, 969 N.E.2d 1009,
1020 (Ind. Ct. App. 2012), trans. denied. A trial court’s assessment of a
defendant’s proclaimed remorse is similar to a determination of credibility.
Pickens v. State, 767 N.E.2d 530, 535 (Ind. 2002). “Without evidence of some
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impermissible consideration by the court, we accept its determination of
credibility.” Id. Therefore, “[s]ubstantial deference must be given to the trial
court’s evaluation of a defendant’s remorse.” Phelps, 969 N.E.2d at 1020.
[8] Here, Hill robbed two people on two separate occasions. At his sentencing
hearing, Hill apologized to the trial court and the State for his actions. There is,
however, no indication that Hill expressed remorse to the victims for taking their
property. In addition, the record shows, and the trial court and counsel
discussed, that Hill committed a separate robbery within four weeks after he
committed the robberies in this case. Hill’s expression of remorse tends to
demonstrate that he was remorseful for getting arrested rather than being truly
regretful for committing robberies and the harm he caused. The State argues,
and we agree, that although Hill apologized, he blamed his previous contact
with the justice system and the lack of institutional support as the cause of his
actions instead of taking true responsibility. Indeed, it was the trial court that
heard Hill’s apology and was in the best position to assess his credibility and
proclaimed remorse. The trial court was well within its discretion to decide that
Hill’s remorse was not a significant factor. See Haddock v. State, 800 N.E.2d 242,
245 (Ind. Ct. App. 2003) (stating that a trial court has discretion to determine
whether a circumstance is mitigating, and it is not required to explain why it
does not find a circumstance to be mitigating). Giving deference to the trial
court’s assessment, we hold that it did not abuse its discretion in omitting
remorse as a mitigating circumstance. See Phelps, 969 N.E.2d at 1020.
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[9] Even if the trial court erred by not considering Hill’s remorse to be a mitigating
circumstance, the sentence may stand if we can “say with confidence that the
trial court would have imposed the same sentence[.]” Anglemyer, 868 N.E.2d at
491. Here, the trial court found Hill’s extensive criminal history and the
closeness in time of his crimes warranted an enhanced sentence. Hill has not
shown that the trial court would have imposed a different sentence had it
considered his remorse. Therefore, our confidence in the sentence is not
diminished.
[10] Hill also briefly argues that the trial court abused its discretion by giving
insufficient weight to the fact that he pleaded guilty, pointing out that he saved
the State the time and expense of trial. See Appellant’s Brief at 9. We agree that
Hill saved the State the time and expense of preparing for trial and we note he
received no real benefit from the plea agreement. However, Hill cannot attack
the weight the trial court assigned to a certain mitigating circumstance. See
Anglemyer, 868 N.E.2d at 491 (noting that “a trial court cannot now be said to
have abused its discretion in failing to ‘properly weigh’” mitigating
circumstances). Therefore, the trial court did not abuse its discretion in the
weight it assigned to Hill’s plea of guilty.1
1
Hill references Indiana Appellate Rule 7(B) in his brief, but he does not present a cogent argument
supported by reasoning under that rule. See Ind. Appellate Rule 46(A)(8)(a). Accordingly, to the extent Hill
intended to argue his sentence was inappropriate, he has waived this issue for review. See Foutch v. State, 53
N.E.3d 577, 580 n.1 (Ind. Ct. App. 2016) (waiving a defendant’s abuse of discretion sentencing argument
where he failed to present a separate cogent argument on that issue).
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Conclusion
[11] The trial court did not abuse its discretion in sentencing Hill. Accordingly, his
sentence is affirmed.
[12] Affirmed.
Mathias, J., and Pyle, J., concur.
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