Kevin Sweat v. State of Indiana (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any May 22 2020, 10:31 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 ATTORNEY FOR APPELLEE
Megan K. Bolt Myriam Serrano
Gibson Law Office Deputy Attorney General
Lafayette, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Kevin Sweat, May 22, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-3077
v. Appeal from the Tippecanoe
Superior Court
State of Indiana, The Honorable Steven P. Meyer,
Appellee-Plaintiff. Judge
Trial Court Cause Nos.
79D02-1803-F1-2
79D02-1811-F4-41
Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-3077 | May 22, 2020 Page 1 of 11
Statement of the Case
[1] Kevin Sweat appeals the trial court’s denial of his motion to withdraw his guilty
plea and the sentence imposed by the court pursuant to his plea agreement.
Sweat raises the following three issues for our review:
1. Whether the trial court abused its discretion when it
denied his motion to withdraw his guilty plea.
2. Whether the trial court abused its discretion when it
sentenced him.
3. Whether his sentence is inappropriate in light of the nature
of the offenses and Sweat’s character.
[2] We affirm.
Facts and Procedural History
[3] In 2018, under two cause numbers, the State charged Sweat with thirteen felony
offenses relating to his alleged molestations of his minor daughter, C.S., and
another minor child, R.S. In September of 2019, Sweat entered into a plea
agreement with the State. Pursuant to that agreement, Sweat agreed to plead
guilty in the two cause numbers to child molesting, as a Class A felony; child
molesting, as a Class C felony; sexual misconduct with a minor, as a Level 4
felony; child seduction, as a Level 5 felony; and incest, as a Class B felony. The
State agreed to dismiss the remaining charges. The agreement further provided
that, while the sentences in the two different cause numbers would run
Court of Appeals of Indiana | Memorandum Decision 19A-CR-3077 | May 22, 2020 Page 2 of 11
consecutively, the aggregate total sentence imposed by the court “shall be forty
to seventy (40-70) years.” Appellant’s App. Vol. 2 at 52.
[4] Prior to establishing a factual basis for his guilty plea at his ensuing change-of-
plea hearing, Sweat and his attorney engaged in the following conversation:
[Attorney]: The State (inaudible) and so (inaudible) is not going
to be day for day because it’s credit restricted. (Inaudible) but
because (inaudible) it’s a mistake on my part that I had failed to
tell you (inaudible).
[Sweat]: So what’s that mean?
[Attorney]: So, what that means, is we talked about how the A
felony you’ll get, you would get credit for day for day. It won’t
be day for day. It’s gonna be at a slower rate because it’s a Credit
Restricted Felony because of the statute. And so, it’s not gonna
be the day for day, it’s gonna be at a slower rate. I still think we
go forward with it but—
[Sweat]: Is that gonna be a longer time?
[Attorney]: No, I mean the length . . . everything else will stay
the same, the Plea Agreement will stay the same, it’s just, you
remember me talking about credit time, and you earn credit time?
The time (inaudible) in which you earn credit time, in that, on
that A Felony, will be slower than day for day, and not day for
day. Do you understand what I’m saying?
[Sweat]: I think so. It sounds like I’ll get more time.
[Attorney]: (Inaudible) right and so that the time with it which
you earn credit time will be at a slower rate than day for day.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-3077 | May 22, 2020 Page 3 of 11
[Sweat]: Okay.
[Attorney]: Okay. Do you still want to go forward?
[Sweat]: Yeah.
[Attorney]: Okay.
Tr. at 16-17. Sweat then established a factual basis for his guilty plea. The
court found that Sweat had entered into the plea agreement knowingly,
“freely[,] and voluntarily”; accepted the plea agreement; entered its judgment of
conviction; and set the matter for a sentencing hearing. Id. at 22-23.
[5] More than two months later, Sweat filed a motion to withdraw his guilty plea.
In that motion, he asserted in relevant part as follows:
5. Immediately prior to entering the guilty plea and establishing
a factual basis, [Sweat’s attorney at the hearing] advised [Sweat]
that credit time [for the Class A felony] would be “slower” than
day for day. [Sweat] was still not advised specifically what credit
time would be earned.
6. [Sweat] accepted the Plea Agreement because he relied on [his
attorney’s] representation that he could become eligible for
release in ten (10) years.
7. [Sweat’s] belief that he would earn one day of credit for each
day served was material to his decision to accept the Plea
Agreement. [Sweat] would not have accepted the Plea
Agreement if he had been properly advised that he would be
credit restricted.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-3077 | May 22, 2020 Page 4 of 11
Appellant’s App. Vol. 2 at 54-55.
[6] The court held a hearing on Sweat’s motion to withdraw his guilty plea, after
which the court denied Sweat’s motion. In reaching that decision, the court
stated that credit time is not “a material element in determining . . . whether a
person should plead because credit time is never guaranteed” but, rather, “is
really an administrative issue” with the Department of Correction. Tr. at 35-36.
The court also stated that Sweat’s attorney at the change-of-plea hearing
corrected his initial advice to Sweat on credit time prior to Sweat agreeing that
he wanted to continue to proceed with the plea agreement.
[7] After an ensuing sentencing hearing, the court sentenced Sweat to an aggregate
term of forty-seven years, with eight years suspended to probation. In
determining that sentence, the court found the following aggravating and
mitigating circumstances:
The Court finds as aggravating factors: the harm, injury, loss, or
damage suffered by the victims is significant and greater than the
elements necessary to prove the commission of the crime[s]; the
impact the crimes ha[ve] had on the families of the victims; the
defendant committed the crime of violence and knowingly
committed the offense in the presence or within hearing of an
individual who was less than 18 years of age; the overall
seriousness of the offense[s]; the defendant was in a position of
care, custody, and control of the victims; the defendant’s lack of
empathy for his victims; the victim felt threat[en]ed to engage in
the acts or that she couldn’t tell anyone about the offense.
The Court finds as mitigating factors: the defendant has no
criminal history; the defendant plead[ed] guilty (diminished by
Court of Appeals of Indiana | Memorandum Decision 19A-CR-3077 | May 22, 2020 Page 5 of 11
the benefit he received from the plea agreement); the defendant
has strong support from family and friends; the defendant’s good
work history; the defendant is willing to make restitution.
The Court further finds that the aggravating factors outweigh the
mitigating factors.
Appellant’s App. Vol. 2 at 64-65. This appeal ensued.
Discussion and Decision
Issue One: Motion to Withdraw Guilty Plea
[8] On appeal, Sweat first asserts that the trial court abused its discretion when it
denied his motion to withdraw his guilty plea. As the Indiana Supreme Court
has explained:
Indiana Code § 35-35-1-4(b) governs motions to withdraw guilty
pleas. After a defendant pleads guilty but before a sentence is
imposed, a defendant may motion to withdraw a plea of guilty.
Id. The court must allow a defendant to withdraw a guilty plea if
“necessary to correct a manifest injustice.” Id.
By contrast, the court must deny the motion if withdrawal of the
plea would “substantially prejudice[]” the State. Id. In all other
cases, the court may grant the defendant’s motion to withdraw a
guilty plea “for any fair and just reason.” Id.
A trial court’s ruling on a motion to withdraw a guilty plea
“arrives in this Court with a presumption in favor of the ruling.”
Coomer v. State, 652 N.E.2d 60, 62 (Ind. 1995). We will reverse
the trial court only for an abuse of discretion. Id. In determining
whether a trial court has abused its discretion in denying a
motion to withdraw a guilty plea, we examine the statements
Court of Appeals of Indiana | Memorandum Decision 19A-CR-3077 | May 22, 2020 Page 6 of 11
made by the defendant at his guilty plea hearing to decide
whether his plea was offered “freely and knowingly.” Id.
Brightman v. State, 758 N.E.2d 41, 44 (Ind. 2001) (footnotes omitted; alteration
original to Brightman).
[9] Sweat asserts that he did not enter into his guilty plea knowingly because he
was unaware of the precise contours of the credit time, if any, he might accrue
against his sentence. The record from the change-of-plea hearing makes clear
that Sweat’s counsel at that hearing had initially misinformed Sweat regarding
credit time, telling Sweat that he would earn day-for-day credit against his
sentence. However, prior to proceeding with the plea agreement, this mistake
was corrected—Sweat’s counsel informed Sweat that he would not earn day-
for-day credit but would instead earn credit time at a “slower” rate as a credit-
restricted felon. Tr. at 16-17. Sweat acknowledged that he understood that he
would have to actually serve “more time” as a result of his attorney’s
clarification on credit time. Id. Nonetheless, when asked if he still wanted to
proceed on the plea agreement with the corrected understanding on credit time,
Sweat stated that he did.
[10] We are not persuaded that, had Sweat known the precise credit restriction, i.e.,
six days served for one day of credit, 1 that that would have mattered to his
1
As relevant to the Class A felony conviction on which Sweat’s status as a credit-restricted felon is based,
“[a] person who is a credit restricted felon and who is imprisoned for a crime or imprisoned awaiting trial or
sentencing is initially assigned to Class IV,” and a person assigned to Class IV “earns one (1) day of credit
Court of Appeals of Indiana | Memorandum Decision 19A-CR-3077 | May 22, 2020 Page 7 of 11
decision to plead guilty. Sweat pleaded guilty knowing that his credit time was
going to be some measure slower than one-for-one, and he was not so
concerned about the precise rate of accrual that he wanted to inquire further
before continuing with his plea agreement. Indeed, as the trial court noted
when it denied Sweat’s motion to withdraw his guilty plea, there is no
guarantee that any credit time will actually accrue against a defendant’s
sentence once he begins his incarceration. In other words, Sweat received the
full benefit of his bargain. Accordingly, we cannot say that the trial court
abused its discretion when it denied Sweat’s motion to withdraw his guilty plea.
Issue Two: Whether the Trial Court
Abused its Discretion in Sentencing Sweat
[11] Sweat next asserts that the trial court found and considered improper
aggravators when it sentenced him. Sentencing decisions lie within the sound
discretion of the trial court. Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind.
2008). 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.” Gross v. State, 22
N.E.3d 863, 869 (Ind. Ct. App. 2014) (citation omitted), trans. denied.
[12] A trial court abuses its discretion in sentencing if it does any of the following:
time for every six (6) days the person is imprisoned for a crime or confined awaiting trial or sentencing.” I.C.
§§ 35-50-6-3(d), -4(b) (Version a 2013)
Court of Appeals of Indiana | Memorandum Decision 19A-CR-3077 | May 22, 2020 Page 8 of 11
(1) fails “to enter a sentencing statement at all;” (2) enters “a
sentencing statement that explains reasons for imposing a
sentence—including a finding of aggravating and mitigating
factors if any—but the record does not support the reasons;” (3)
enters a sentencing statement that “omits reasons that are clearly
supported by the record and advanced for consideration;” or (4)
considers reasons that “are improper as a matter of law.”
Id. (quoting Anglemyer v. State, 868 N.E.2d 482, 490-91 (Ind.), clarified on reh’g on
other grounds, 875 N.E.2d 218 (Ind. 2007)).
[13] According to Sweat, the trial court first abused its discretion when it found
Sweat’s “lack of empathy” to be an aggravator. Appellant’s Br. at 14. Sweat
asserts that he demonstrated proper remorse at the sentencing hearing. But we
conclude that Sweat’s argument on this factor is merely a request for this court
to reweigh the evidence and reassess his credibility, which we will not do.
[14] Sweat next asserts that the court erred when it found that one of the offenses
was committed in the presence of another minor and that one of the victims felt
threatened during the commission of one or more of the offenses. But those
findings are readily supported by the State’s exhibits at sentencing, namely, the
police reports from the two victims. The trial court was not required “to turn a
blind eye to the facts” that brought Sweat before it as demonstrated by those
exhibits. Bethea v. State, 983 N.E.2d 1134, 1145 (Ind. 2013).
[15] Last, Sweat asserts that the trial court erred when it found his position of trust
over C.S. to be an aggravating factor because his status as her father was a
necessary element to his conviction for incest. But Sweat is not correct. His
Court of Appeals of Indiana | Memorandum Decision 19A-CR-3077 | May 22, 2020 Page 9 of 11
position of trust was not a biological condition, and we have rejected this
argument before. See Grimes v. State, 84 N.E.3d 635, 644 (Ind. Ct. App. 2017),
trans. denied. The trial court did not abuse its discretion when it sentenced
Sweat.
Issue Three: Indiana Appellate Rule 7(B)
[16] Sweat’s final argument on appeal is that his forty-seven-year sentence, with
eight years suspended to probation, for five felony convictions relating to child
molesting is inappropriate in light of the nature of the offenses and his
character. But Sweat’s argument on this issue is premised on his belief that the
sentence imposed is erroneous “in light of the improper aggravators” he
identified in Issue Two. Appellant’s Br. at 17. As he summarizes his one-
paragraph argument on this issue, “[h]ad the court not found and considered
multiple improper aggravators with significant weight,” Sweat may have
received a different sentence. Id. at 18.
[17] An argument under Indiana Appellate Rule 7(B) requires the appellant to show
that the sentence imposed is inappropriate in light of the nature of offenses and
his character. E.g., Sorenson v. State, 133 N.E.3d 717, 729 (Ind. Ct. App. 2019),
trans. denied. Sweat makes no such argument under Appellate Rule 7(B).
Accordingly, his argument on this issue is waived. See Ind. Appellate Rule
46(A)(8)(a).
[18] Moreover, as we reject Sweat’s assertion that the trial court found improper
aggravators, as explained in Issue Two, we reject his argument that his sentence
Court of Appeals of Indiana | Memorandum Decision 19A-CR-3077 | May 22, 2020 Page 10 of 11
is inappropriate in light of those aggravators. And Sweat’s remaining assertions
on this issue are not sufficient to carry his burden of demonstrating appellate
relief under Appellate Rule 7(B). Sweat pleaded guilty to five felonies relating
to the molestation of his daughter and another minor, established a clear factual
basis for those offenses, agreed to be sentenced within a range of forty to
seventy years, and actually received a sentence of forty-seven years with eight
years suspended. We affirm his sentence.
[19] Affirmed.
Kirsch, J., and Brown, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-3077 | May 22, 2020 Page 11 of 11