Todd Barlow v. State of Indiana (mem. dec.) ( 2017 )

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Dec 05 2017, 9:07 am
this Memorandum Decision shall not be
CLERK
regarded as precedent or cited before any Indiana Supreme Court
Court of Appeals
court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Christopher L. Clerc Curtis T. Hill, Jr.
Columbus, Indiana Attorney General of Indiana
Michael Gene Worden
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Todd Barlow, December 5, 2017
Appellant-Defendant, Court of Appeals Case No.
03A04-1707-CR-1554
v. Appeal from the Bartholomew
Circuit Court
State of Indiana, The Honorable Kelly S. Benjamin,
Appellee-Plaintiff. Judge
Trial Court Cause Nos.
03C01-1703-F6-1388
03C01-1703-F6-1874
Najam, Judge.
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Statement of the Case
[1] Todd Barlow appeals his sentence following his guilty plea to three Level 6
felonies and the trial court’s revocation of the suspended portion of that
sentence following Barlow’s violation of the conditions of his probation.1
Barlow raises two issues for our review, which we restate as the following three
issues:
1. Whether the trial court abused its discretion when it
sentenced Barlow on the underlying convictions without
finding Barlow’s guilty plea to be a significant
mitigating circumstance.
2. Whether Barlow’s sentence on his underlying convictions
was inappropriate in light of the nature of the offenses and
his character.
2. Whether the trial court abused its discretion when it
sentenced Barlow after it had revoked his probation.
[2] We affirm.
Facts and Procedural History
[3] On April 28, 2017, Barlow pleaded guilty, pursuant to a written plea agreement,
to theft and the unlawful possession of a syringe, each as a Level 6 felony, in
1
Given the rapidity with which Barlow violated the conditions of his probation after the trial court had
originally sentenced him on the three Level 6 felonies, Barlow’s notice of appeal timely captures both
judgments.
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cause number 03C01-1703-F6-1388 (“F6-1388”). In that same agreement,
Barlow pleaded guilty to possession of methamphetamine, as a Level 6 felony,
in cause number 03C01-1703-F6-1874 (“F6-1874”). In exchange for his plea,
the State dismissed an additional Level 6 felony allegation, a Class A
misdemeanor allegation, and two Class B misdemeanor allegations. The plea
agreement left sentencing to the discretion of the trial court. The court accepted
Barlow’s plea agreement.
[4] On June 8, the court held a sentencing hearing. At the conclusion of that
hearing, the court ordered Barlow to serve two-and-one-half years on each of
the three Level 6 felony offenses, with the two sentences in cause number F6-
1388 to run concurrently with each other and the sentences in the two cause
numbers to run consecutive to each other. The court then suspended the
entirety of Barlow’s remaining aggregate sentence to probation. Among other
conditions of his probation, the court prohibited Barlow from using controlled
substances and required him to submit to drug screens.
[5] Six days later, while released on probation, Barlow refused to submit to an oral
drug screen. Accordingly, the State filed its notice of a probation violation in
both cause numbers. And, at the ensuing hearing on June 19, Barlow admitted
that he had refused to submit to the oral drug screen as alleged.
[6] On July 6, the court held a dispositional hearing on Barlow’s probation
violation. Following that hearing, the court ordered Barlow to serve the
entirety of his previously suspended sentence. This appeal ensued.
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Discussion and Decision
Issue One: Whether the Trial Court Abused Its Discretion
When It Imposed Barlow’s Original Sentence
[7] Barlow first asserts on appeal that the trial court abused its discretion when it
originally sentenced him. As our Supreme Court has stated:
Sentencing is left to the discretion of the trial court, and abuse of
that discretion arises by the court: (1) failing to enter a
sentencing statement at all; (2) entering a sentencing statement in
which the aggravating and mitigating factors are not supported
by the record; (3) entering a sentencing statement that does not
include reasons that are clearly supported by the record and
advanced for consideration; or (4) entering a sentencing
statement in which the reasons provided in the statement are
improper as a matter of law.
Ackerman v. State, 51 N.E.3d 171, 193 (Ind. 2016) (quotation marks omitted).
[8] Barlow’s only argument on this issue is that the trial court failed to take his
guilty plea into account when it sentenced him.2 It is well established that “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, 238 (Ind. 2004).
However, it is just as well established that “the significance of a guilty plea as a
mitigating factor varies from case to case,” and “a guilty plea may not be
2
Barlow also states that the trial court “should have . . . taken [his] remorse and requests for treatment as
mitigating factors,” but this statement appears in the context of why Barlow asserts that his guilty plea is
significant. Appellant’s Br. at 14-15. Insofar as Barlow intended his remorse and requests for treatment to be
independent bases for appellate review of the sentence imposed, Barlow has not demonstrated that those
requests were significant mitigating circumstances. See Anglemyer v. State, 875 N.E.2d 218, 221 (Ind. 2007).
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significantly mitigating when . . . the defendant receives a substantial benefit in
return for the plea.” Anglemyer v. State, 875 N.E.2d 218, 221 (Ind. 2007).
Similarly, a guilty plea is not necessarily a mitigating factor “where evidence
against the defendant is so strong that the decision to plead guilty is merely
pragmatic.” Amalfitano v. State, 956 N.E.2d 208, 212 (Ind. Ct. App. 2011),
trans. denied.
[9] We agree with the State that Barlow received a substantial benefit in exchange
for his plea when the State agreed to dismiss four additional charges that were
pending against him. Those four charges, cumulatively, could have resulted in
an additional four-and-one-half years to his sentence, which would have nearly
doubled the five-year aggregate term that the trial court imposed. We also
agree with the State that its evidence against Barlow was strong—police officers
discovered evidence underlying Barlow’s convictions on his person, and a video
recording system recorded him committing theft. Accordingly, we conclude
that Barlow has not met his burden on appeal to show that his guilty plea was a
significant mitigating circumstance, and we cannot say that the trial court
abused its discretion when it did not identify it as such.
Issue Two: Whether Barlow’s Sentence is Inappropriate
[10] Barlow next contends that his five-year, suspended sentence is inappropriate in
light of the nature of the offenses and his character. As we have explained:
Indiana Appellate Rule 7(B) permits an Indiana appellate court
to “revise a sentence authorized by statute if, after due
consideration of the trial court’s decision, the Court finds that the
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sentence is inappropriate in light of the nature of the offense and
the character of the offender.” We assess the trial court’s
recognition or nonrecognition of aggravators and mitigators as an
initial guide to determining whether the sentence imposed was
inappropriate. Gibson v. State, 856 N.E.2d 142, 147 (Ind. Ct.
App. 2006). The principal role of appellate review is to “leaven
the outliers.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.
2008). A defendant must persuade the appellate court that his or
her sentence has met the inappropriateness standard of review.
Roush v. State, 875 N.E.2d 801, 812 (Ind. Ct. App. 2007).
Robinson v. State, 61 N.E.3d 1226, 1228 (Ind. Ct. App. 2016).
[11] The sentencing range for a Level 6 felony is between six months and two-and-
one-half years, with an advisory term of one year imprisonment. Ind. Code §
35-50-2-7(b) (2017). The trial court here ordered Barlow to serve two-and-one-
half years for each of his three Level 6 offenses, but the court ordered two of the
sentences to run concurrently, and the court then suspended the balance of
Barlow’s aggregate sentence.
[12] On appeal, Barlow asserts that the facts underlying his convictions “do not
differ significantly from a ‘typical’ offense . . . .” Appellant’s Br. at 16. He also
asserts that his guilty plea shows his acceptance of responsibility and his
remorse, which, in turn, evince his good character.
[13] We cannot say that Barlow’s sentence is inappropriate. Barlow received no
term of imprisonment aside from time served during the pendency of the
proceedings. And Barlow has twenty prior convictions (as an adult) as well as
numerous failed attempts at probation and similar placements. The trial court’s
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sentence of five years suspended is not inappropriate in light of the nature of the
offenses and Barlow’s character.
Issue Three: Imposition of Previously Suspended Sentence
[14] Last, Barlow asserts that the trial court abused its discretion when it ordered
him to serve the balance of his previously suspended sentence. As our Supreme
Court has explained:
“Probation is a matter of grace left to trial court discretion, not a
right to which a criminal defendant is entitled.” Prewitt v. State,
878 N.E.2d 184, 188 (Ind. 2007) (explaining that: “Once a trial
court has exercised its grace by ordering probation rather than
incarceration, the judge should have considerable leeway in
deciding how to proceed. If this discretion were not afforded to
trial courts and sentences were scrutinized too severely on
appeal, trial judges might be less inclined to order probation to
future defendants.”). A probation hearing is civil in nature, and
the State must prove an alleged probation violation by a
preponderance of the evidence. Braxton v. State, 651 N.E.2d 268,
270 (Ind. 1995); see Ind. Code § 35-38-2-3(f) (2012). When the
sufficiency of evidence is at issue, we consider only the evidence
most favorable to the judgment—without regard to weight or
credibility—and will affirm if “there is substantial evidence of
probative value to support the trial court’s conclusion that a
probationer has violated any condition of probation.” Braxton,
651 N.E.2d at 270.
Murdock v. State, 10 N.E.3d 1265, 1267 (Ind. 2014).
[15] On appeal, Barlow asserts that, when it ordered him to serve the balance of his
previously suspended sentence, the trial court failed to assign mitigating weight
to the fact that Barlow had admitted to the alleged probation violations.
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Barlow further asserts that his “efforts to rehabilitate himself while in
Community Corrections” was entitled to “some mitigating weight.”
Appellant’s Br. at 18.
[16] We reject Barlow’s arguments. In essence, Barlow asks this court to reweigh
the evidence that was before the trial court, which is contrary to our standard of
review in appeals from civil probation revocation proceedings. Murdock, 10
N.E.3d at 1267. Moreover, we conclude that the trial court did not abuse its
discretion when it revoked the entirety of Barlow’s previously suspended
sentence. Barlow was out on probation for just six days before he refused to
submit to an oral drug screen. That fact, along with Barlow’s history of
probation violations in other causes, demonstrated that Barlow was unlikely to
comply with the terms and conditions of his probation. We cannot say that the
trial court abused its discretion on this issue.
Conclusion
[17] In sum, we affirm Barlow’s original sentence as well as the trial court’s
revocation of the previously suspended portion of that sentence.
[18] Affirmed.
Mathias, J., and Barnes, J., concur.
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