In Re: The Termination of the Parent-Child Relationship of L.C., F.T., and M.R. (Minor Children) S.C. (Mother) v. The Indiana Department of Child Services (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
Aug 27 2020, 11:05 am
regarded as precedent or cited before any
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
Tyler D. Helmond Megan M. Smith
Voyles Vaiana Lukemeyer Baldwin & Deputy Attorney General
Webb Indianapolis, Indiana
Indianapolis, Indiana Anthony J. Smith
Certified Legal Intern
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Antonio Rodriquez Walters, August 27, 2020
Appellant-Defendant, Court of Appeals Case No.
20A-CR-326
v. Appeal from the Vanderburgh
Circuit Court
State of Indiana, The Honorable Gary J. Schutte,
Appellee-Plaintiff. Magistrate
Trial Court Cause No.
82C01-1910-F5-7366
Pyle, Judge.
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Statement of the Case
[1] Antonio Rodriquez Walters (“Walters”), following a guilty plea, appeals his
aggregate three-and-one-half-year sentence for his Level 6 felony resisting law
enforcement conviction1 and habitual offender adjudication.2 Walters argues
that the trial court abused its discretion in its determination of aggravating and
mitigating circumstances. Concluding that the trial court did not abuse its
discretion, we affirm his sentence.
[2] We affirm.
Issue
Whether the trial court abused its discretion when sentencing
Walters.
Facts
[3] In October 2019, the State charged Walters with Level 5 felony domestic
battery and Level 6 felony resisting law enforcement, and it alleged that he was
an habitual offender. Just prior to trial, the State filed a motion to dismiss
without prejudice the Level 5 felony domestic battery charge, and the trial court
granted the motion. On the morning of Walters’ January 13, 2020 jury trial, he
1
IND. CODE § 35-44.1-3-1.
2
I.C. § 35-50-2-8.
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pled guilty to the Level 6 felony resisting law enforcement charge and admitted
that he was an habitual offender.3
[4] At a subsequent sentencing hearing, Walters recognized that he had a
significant criminal history. Indeed, the presentence investigation report (“PSI)
indicates that the forty-nine-year-old Walters had accumulated more than
eighteen felony convictions and fourteen misdemeanor convictions in a twenty-
nine-year time span. The PSI also revealed that Walters’ results from the
Indiana Risk Assessment System (“IRAS”) instrument showed that he was at a
high risk to reoffend.
[5] During sentencing, Walters’ counsel “advise[d]” the trial court that Walters’
“mother [wa]s ill” but did not give any further details regarding her illness. (Tr.
Vol. 2 at 14). Counsel stated that Walters “want[ed] to see his mother before
she passes” but acknowledged that counsel “d[id]n’t have any reason [to] think
that’s imminent[.]” (Tr. Vol. 2 at 14). Walters’ counsel also discussed a police
officer body cam video from Walters’ resisting law enforcement offense but did
not introduce the video as an exhibit during sentencing. Walters’ counsel told
the trial court that she had reviewed the body cam video and asserted that the
officer’s injuries that had occurred as part of Walters’ resisting law enforcement
offense were “not [from] a battery situation[.]” (Tr. Vol. 2 at 14). Walters’
counsel asserted that the video showed that Walters “obviously didn’t – didn’t
3
Walters pled guilty without a plea agreement.
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express himself appropriately” and also showed that “the officer came to
[Walters] in a very aggressive manner.” (Tr. Vol. 2 at 14). Counsel stated that
Walters had “tried to talk to the officer and was essentially not being heard,
largely because he wasn’t complying with the officer’s request[.]” (Tr. Vol. 2 at
14). Walters’ counsel further stated that “from Mr. Walters’ perspective[,] . . .
he felt like he was being treated unfairly by being arrested before an
investigation was complete.” (Tr. Vol. 2 at 14).
[6] The State responded to Walters’ discussion of the circumstances surrounding
Walters’ resisting law enforcement offense. The State acknowledged that
Walters’ “resisting law enforcement [offense] did come from a skirmish [and]
that they were wrestling around on the ground in an attempt to restrain and
arrest Mr. Walters.” (Tr. Vol. 2 at 15). The State also recognized that the
officer had “approach[ed] [Walters] quickly” but stated that “[t]hat was due to
the lead [domestic battery] charge that [had been] dismissed[.]” (Tr. Vol. 2 at
15).
[7] When sentencing Walters, the trial court stated that it had “taken into
consideration” Walters’ prior criminal history, including his eighteen felony
convictions, and his “high risk to re-offend[.]” (Tr. Vol. 2 at 15). The trial
court also “consider[ed]” Walters’ guilty plea and admission to being an
habitual offender. The trial court sentenced Walters to one and one-half (1½)
years at the Indiana Department of Correction for his Level 6 felony resisting
law enforcement conviction and enhanced that sentence by two (2) years for his
habitual offender adjudication. Walters now appeals.
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Decision
[8] Walters contends that the trial court abused its discretion when sentencing him.
Specifically, he contends that the trial court abused its discretion in its
determination of mitigating and aggravating circumstances.
[9] 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). So long as the sentence is within the statutory range, it is
subject to review only for an abuse of discretion. Id. An abuse of discretion
will be found where 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. A trial court may abuse its discretion in
a number of ways, including: (1) failing to enter a sentencing statement at all;
(2) entering a sentencing statement that includes aggravating and mitigating
factors that are unsupported by the record; (3) entering a sentencing statement
that omits reasons that are clearly supported by the record; or (4) entering a
sentencing statement that includes reasons that are improper as a matter of law.
Id. at 490-91.
[10] Walters first contends that the trial court abused its discretion by failing to
consider his mother’s illness and the circumstances of his crime as mitigating
factors. A trial court, however, is not obligated to accept a defendant’s claim as
to what constitutes a mitigating circumstance. Rascoe v. State, 736 N.E.2d 246,
249 (Ind. 2000). In fact, a claim that the trial court failed to find a mitigating
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circumstance 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.
[11] Walters contends that the trial court should have found his mother’s illness and
the circumstances of his offense as mitigators pursuant to INDIANA CODE §§ 35-
38-1-7.1(b)(4) (“There are substantial grounds tending to excuse or justify the
crime, though failing to establish a defense”) and 35-38-1-7.1(b)(5) (“The person
acted under strong provocation”). Additionally, Walters asserts that the trial
court abused its discretion by failing to consider the circumstances of his offense
in the “proper context” that “Walters is black.” (Walters’ Br. 8, 9).
[12] Walters, however, did not raise these arguments to the trial court as a basis to
consider his mother’s illness and the circumstances of his offense as mitigating
factors. Accordingly, Walters has waived such argument on appeal. See Bryant
v. State, 984 N.E.2d 240, 252 (Ind. Ct. App. 2013) (“Failure to present
a mitigating circumstance to the trial court waives consideration of the
circumstance on appeal.”), trans. denied. Moreover, because Walters failed to
show that his proffered mitigators were both significant and clearly supported
by the record, the trial court did not abuse its discretion by declining to find
them as mitigating circumstances.
[13] Next, Walters argues that the trial court abused its discretion by finding his high
risk to reoffend as an aggravating circumstance. We recognize that “the
offender risk assessment scores do not in themselves constitute, and cannot
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serve as, an aggravating or mitigating circumstance.” J.S. v. State, 928 N.E.2d
576, 578 (Ind. 2010). Instead, these “offender assessment instruments are
appropriate supplemental tools for judicial consideration at sentencing” and can
be used by the trial court “in formulating the manner in which a sentence is to
be served.” Malenchik v. State, 928 N.E.2d 564, 575 (Ind. 2010).
[14] When sentencing Walters, the trial court stated that it had “taken into
consideration” Walters’ prior criminal history and the fact that Walters was “a
high risk to re-offend[.]” (Tr. Vol. 2 at 15). While a defendant’s risk assessment
result can properly be used “in formulating the manner in which a sentence is to
be served[,]” see Malenchik, 928 N.E.2d at 575, here, the trial court used the
IRAS risk assessment result, in and of itself, as a separate aggravating factor,
which is improper. See J.S., 928 N.E.2d at 578; Malenchik, 928 N.E.2d at 575.
See also Kayser v. State, 131 N.E.3d 717, 722 (Ind. Ct. App. 2019) (holding that
the trial court erred by using a defendant’s risk assessment score as an
aggravating factor).
[15] However, to the extent the trial court improperly considered the IRAS
assessment as an aggravating factor, the error does not require this Court to
remand for resentencing. See Anglemyer, 868 N.E.2d at 491 (explaining that, if a
trial court improperly considers an aggravating circumstance, we need to
remand for resentencing only “if we cannot say with confidence that the trial
court would have imposed the same sentence had it properly considered
reasons that enjoy support in the record”). Here, it is clear from a review of the
record that the trial court relied upon Walters’ extensive criminal history, which
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is a valid and undisputed aggravating circumstance, when imposing a slightly
enhanced sentence for Walters’ Level 6 felony resisting law enforcement
conviction. Because we are confident that the trial court would have imposed
the same sentence even without reference to Walters’ risk assessment, we
conclude that the trial court did not abuse its discretion when sentencing
Walters. See Kayser, 131 N.E.3d at 723 (holding that, despite a trial court’s
improper use of a defendant’s risk assessment score as an aggravating factor, the
trial court did not abuse its discretion when sentencing a defendant where our
Court was confident that the trial court would have imposed the same sentence
even without reference to the assessment score in its list of aggravating factors).
See also Gleason v. State, 965 N.E.2d 702, 712 (Ind. Ct. App. 2012) (explaining
that “[o]ne valid aggravator alone is enough to enhance a sentence”).
[16] Affirmed.
Kirsch, J., and Tavitas, J., concur.
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