Aaron Morgan v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Dec 28 2016, 9:03 am
regarded as precedent or cited before any
CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Laura Paul Gregory F. Zoeller
Indianapolis, Indiana Attorney General of Indiana
Richard C. Webster
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Aaron Morgan, December 28, 2016
Appellant-Defendant, Court of Appeals Case No.
28A01-1608-CR-1781
v. Appeal from the Green Circuit
Court
State of Indiana, The Honorable Erik C. Allen,
Appellee-Plaintiff. Judge
Trial Court Cause No.
28C01-1312-FC-41
Robb, Judge.
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Case Summary and Issue
[1] Aaron Morgan pleaded guilty to sexual battery as a Class D felony and the trial
court sentenced him to two and one-half years in the Indiana Department of
Correction. Morgan appeals his sentence, raising one issue for review, which
we restate as whether the trial court abused its discretion in sentencing him.
Concluding the trial court did not abuse its discretion, we affirm.
Facts and Procedural History
[2] On the evening of September 11, 2014, Morgan babysat a ten-year-old girl. At
some point, Morgan put his hand under the girl’s clothing and fondled her
vagina. The girl’s mother was notified of the incident and reported the incident
to law enforcement.
[3] The State charged Morgan with child molesting as a Class C felony and sexual
battery as a Class D felony. Morgan then entered into a plea agreement with
the State whereby he agreed to plead guilty to sexual battery as a Class D felony
in exchange for the State dismissing the remaining count; the plea agreement
also provided sentencing would be left to the discretion of the trial court. The
trial court accepted Morgan’s plea and entered judgment of conviction.
[4] At the sentencing hearing, Morgan testified he is currently married and pays
child support for his two children from a previous marriage. As to child
support, Morgan is in arrears but has recently been consistent in paying $130.00
per week. Morgan claimed a lengthy incarceration would cause financial and
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emotional hardship to his current wife, ex-wife, and two children. Specifically,
he stated his current wife relies solely on his paychecks, he would not be able to
make child support payments to his ex-wife, and he would be unable to visit
with his children. As mitigating factors, Morgan requested the trial court
consider his acceptance of responsibility, his remorse, the undue hardship on
his dependents, and the fact his plea saved the State the burden of a jury trial.
The State did not recommend a sentence. The trial court then sentenced
Morgan:
In considering the sentence I have examined the pre-sentence
investigation report, listened to the evidence presented here
today, the argument of counsel, statement of Mr. Morgan and
this certainly is a very serious offense it has a dramatic impact on
the young lady who is the victim of the offense and that is
certainly indicated I think by the nature of the offense, but also
supported by the information set out in the letters from the
child’s mother and grandmother who have very consistent and
close contact with the child describing the impact that this has
had upon her. Considering the sentence to impose will accept the
aggravating factors as set out in the pre-sentence investigation
report, the history of criminal and delinquent behavior as set out
specifically in the pre-sentence investigation report each of those
offenses where there is a conviction or an adjudication entered,
the victim of the offense was less than 12 years of age at the time
the offense was committed, the child was 10 years of age
although chronically [sic] two years is not a major difference, but
I think the age of 10 is a significant difference than even a young
12 or 13 year old child, 10 is a very young age to be subjective
[sic] to this type of behavior and I think that is a rather young
age, the most compelling I think the aggravating circumstance is
the fact that you were trusted by this child’s mother and placed in
a position of having care and control of this young lady and you
violated that trust and you violated that position of care and
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control and that is a major aggravator. People entrust their
children to folks, babysat, allowing you to live in their home I
believe you said and you took complete advantage in a very
traumatic way of that trust and violated that trust, I think that has
a very substantial weight as an aggravating circumstance. I agree
as a mitigating circumstance that you pled guilty and accepted
responsibility and I take you at your word the comments you
made and I think they were appropriate and I appreciate those
comments by pleading guilty you have accepted responsibility
and taken responsibility for the decision that you made. The or
[sic] recognize that is part of pleading guilty, but also separately
that saving the burden of the child of having to testify at a trial
and saving the burden of a jury trial is given mitigating weight as
well, but clearly through the young age of the child and the
position of trust that you were in related to that child and the
impact of the child as set out in the description of the letters I
think that the aggravating circumstances do outweigh the
mitigating circumstances and I give you credit though for
mitigating circumstances, I was thinking that a 3 year executed
sentence was probably appropriate and I give you some credit for
the mitigating circumstances so I will reduce that a little bit.
What I am going to order is a fully executed 2 year 180 day
sentence to the Indiana Department of Corrections . . . .
Transcript at 21-23. This appeal ensued.
Discussion and Decision
I. Standard of Review
[5] We review a trial court’s sentencing decision for an abuse of discretion.
Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d
218. An abuse of discretion occurs when the trial court’s decision is “clearly
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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. (citation omitted). A trial court may abuse its discretion by
failing to enter a sentencing statement, finding aggravating or mitigating
circumstances unsupported by the record, omitting aggravating or mitigating
circumstances supported by the record, or noting reasons that are improper
considerations as a matter of law. Id. at 490-91.
II. Undue Hardship
[6] Morgan contends the trial court abused its discretion in failing to find a
mitigating circumstance clearly supported by the record. Specifically, he
contends the trial court failed to find as a mitigating circumstance that his
incarceration would result in undue hardship to his dependents. See Ind. Code
§ 35-38-1-7.1(b)(10) (stating “[i]mprisonment of the person will result in undue
hardship to the person or the dependents of the person” is one of the factors the
court may consider as mitigating). The State counters Morgan failed to
establish the potential undue hardship amounted to a special circumstance
thereby requiring the trial court to find it as a mitigating circumstance. We
agree with the State.
[7] At the outset, we acknowledge the trial court did not find Morgan’s claim of
undue hardship to his dependents as a mitigating circumstance. However, a
trial court is neither required to accept a defendant’s arguments as to what
constitutes a mitigating factor nor give the same weight to proffered mitigating
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facts as the defendants does. Healy v. State, 969 N.E.2d 607, 616 (Ind. Ct. App.
2012), trans. denied. In addition, a trial court does not abuse its discretion in
failing to identify undue hardship as a mitigating circumstance unless the
mitigating evidence is both significant and clearly supported by the record.
Dowdell v. State, 720 N.E.2d 1146, 1154 (Ind. 1999) (noting evidence of special
circumstances is required because “[m]any persons convicted of serious crimes
have one or more” dependents). Here, the only evidence in the record showing
any hardship to Morgan’s dependents comes from Morgan’s testimony at the
sentencing hearing where he claimed his incarceration would deprive him of the
opportunity to visit with his children, pay child support to his ex-wife, and
financially support his current wife. Although we recognize these
circumstances are unfortunate, the circumstances are typical of all those
sentenced to the Department of Correction and we are therefore not persuaded
Morgan’s circumstances are so significant as to require the trial court to find
undue hardship as a mitigating circumstance. Because the mitigating evidence
is not significant, we conclude the trial court did not abuse its discretion in not
finding undue hardship as a mitigating circumstance.
Conclusion
[8] The trial court did not abuse its discretion in sentencing Morgan. Accordingly,
we affirm.
[9] Affirmed.
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Kirsch, J., and Barnes, J., concur.
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