Eran D. Haddock v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Sep 12 2019, 9:26 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 ATTORNEYS FOR APPELLEE
William T. Myers Curtis T. Hill, Jr.
Marion, Indiana Attorney General of Indiana
Matthew B. Mackenzie
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Eran D. Haddock, September 12, 2019
Appellant-Defendant, Court of Appeals Case No.
19A-CR-154
v. Appeal from the Huntington
Superior Court
State of Indiana, The Honorable Jennifer E.
Appellee-Plaintiff. Newton, Judge
Trial Court Cause No.
35D01-1505-F3-116
Tavitas, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-154 | September 12, 2019 Page 1 of 9
Case Summary
[1] Eran Haddock appeals his sentence for dealing in cocaine or a narcotic drug, a
Level 3 felony. We affirm.
Issue
[2] Haddock raises one issue, which we restate as whether the trial court abused its
discretion in sentencing Haddock.
Facts
[3] On March 13, 2015, the State charged Haddock with two counts of dealing in
cocaine or a narcotic drug, Level 3 felonies. The offenses were Level 3 felonies
because the amount of the drug was at least one gram but less than five grams
and the offenses were committed in the physical presence of a child less than
eighteen years of age with Haddock’s knowledge that the child was present and
might be able to see or hear the offense. See Ind. Code §§ 35-48-4-1; 35-48-1-
16.5.
[4] On January 5, 2016, Haddock pleaded guilty to one count of dealing in cocaine
or a narcotic drug, a Level 3 felony, and the State dismissed the remaining
charge. Haddock admitted that he sold seven hydromorphone pills weighing
1.3 grams to a confidential informant in the presence of a child less than
eighteen years of age when he knew the child was present and might be able to
see or hear the offense. The plea agreement left sentencing to the trial court’s
discretion. The plea agreement also provided: “I understand that I have a right
to appeal my sentence. As a condition of entering into this plea agreement, I
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hereby knowingly and voluntarily waive my right to appeal my sentence so long
as the Judge sentences me within the terms of my plea agreement.” Appellant’s
App. Vol. II p. 27. At the sentencing hearing, Haddock acknowledged that an
aggravated sentence was appropriate and requested a sentence of twelve years
with three years suspended to probation. The trial court sentenced Haddock to
fourteen years with two years suspended to probation.
[5] On April 30, 2018, Haddock filed a petition for permission to file a belated
appeal, which the trial court denied. On appeal, this Court reversed and
remanded with instructions for the trial court to grant Haddock’s petition for
permission to file the belated notice of appeal. Haddock v. State, 112 N.E.3d 763(Ind. Ct. App. 2018), trans. denied. Haddock now appeals his sentence.
Analysis
[6] Haddock argues that the trial court abused its discretion when sentencing him. 1
Sentencing decisions rest within the sound discretion of the trial court.
1
The State contends Haddock waived his right to appeal his sentence in his plea agreement. “It is well
settled that a defendant can waive his right to appeal a sentence.” Haddock, 112 N.E.3d at 767 (citing Crider v.
State, 984 N.E.2d 618, 623 (Ind. 2013)). “However, a defendant’s waiver of appellate rights is only valid if
the sentence is imposed in accordance with the law.” Id. “Thus, if a sentence imposed is illegal, and the
defendant does not specifically agree to the sentence, the waiver-of-appeal provision is invalid.” Id.Here Haddock’s plea agreement provided: “I understand that I have a right to appeal my sentence. As a
condition of entering into this plea agreement, I hereby knowingly and voluntarily waive my right to appeal
my sentence so long as the Judge sentences me within the terms of my plea agreement.” Appellant’s App.
Vol. II p. 27. Haddock, however, argues that the trial court abused its discretion in sentencing him because it
failed to consider certain proposed mitigators and it used an element of the offense as an aggravator.
“A sentence that is contrary to or violative of a penalty mandated by statute is illegal in the sense that it is
without statutory authorization.” Reed v. State, 856 N.E.2d 1189, 1199 (Ind. 2006). The State argues that
“[a] legal sentence may be improper or inappropriate under certain circumstances but Defendant’s rule would
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McElfresh v. State, 51 N.E.3d 103, 107 (Ind. 2016). As 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.[7] 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. (citing Anglemyer v. State, 868 N.E.2d 482,
490-91 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007)). If a trial court
abuses its discretion by improperly considering 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.” Anglemyer, 868 N.E.2d at
491. A trial court’s sentencing order may not be challenged as reflecting an
improper weighing of aggravating or mitigating circumstances. Id.
render all appellate sentencing waivers ineffectual.” Appellee’s Br. p. 8. We need not determine whether
Haddock waived his right to appeal his sentence because, waiver notwithstanding, we conclude that the trial
court properly sentenced Haddock.
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I. Mitigating Factors
[8] Haddock first argues that the trial court should have considered the hardship on
his children and “the fact that he accepted responsibility and showed remorse at
sentencing” as mitigators. Appellant’s Br. p. 11. A trial court 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). A trial court has discretion to
determine whether the factors are mitigating, and it is not required to explain
why it does not find the defendant’s proffered factors to be mitigating. Haddock
v. State, 800 N.E.2d 242, 245 (Ind. Ct. App. 2003). A claim that the trial court
failed to find a mitigating 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.
[9] Haddock argued at the sentencing hearing that he had two dependent children
and that the mother of the children was also incarcerated. There was no
indication at the hearing or in the pre-sentence investigation report of who is
caring for the children now or the extent to which Haddock had been caring for
the children. Although we recognize these circumstances are unfortunate, we
are not persuaded that Haddock’s circumstances are so significant as to require
the trial court to find undue hardship as a mitigating circumstance.
[10] As for Haddock’s remorse, our Supreme Court has held that a trial court’s
determination of a defendant’s remorse is similar to a determination of
credibility. Pickens v. State, 767 N.E.2d 530, 535 (Ind. 2002). “Without
evidence of some impermissible consideration by the court, we accept its
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determination of credibility.” Id. Although Haddock briefly expressed remorse
during the sentencing hearing, it was within the trial court’s discretion to
determine the credibility of that remorse. Our review of the evidence does not
demonstrate an impermissible consideration by the trial court, and we cannot
say that the trial court abused its discretion with respect to Haddock’s remorse
as a mitigating factor.
[11] Next, we address Haddock’s acceptance of responsibility. Haddock did plead
guilty, and a defendant who pleads guilty deserves “‘some’ mitigating weight be
given to the plea in return,” but the “significance of a guilty plea as a mitigating
factor varies from case to case.” Anglemyer, 875 N.E.2d at 220-21. “[A] guilty
plea may not be significantly mitigating when it does not demonstrate the
defendant’s acceptance of responsibility . . . or when the defendant receives a
substantial benefit in return for the plea.” Id. at 221. Haddock received a
significant benefit from his plea agreement because an additional Level 3 felony
charge was dismissed. Given the benefit Haddock received for his plea
agreement, we cannot say this proposed mitigator was so significant that the
trial court was required to find it as a mitigating factor.
II. Aggravating Factors
[12] Next, Haddock argues that the trial court abused its discretion by finding an
element of the offense as an aggravating factor. “[A] material element of a
crime may not be used as an aggravating factor to support an enhanced
sentence.” McElroy v. State, 865 N.E.2d 584, 589 (Ind. 2007). In evaluating the
nature of the offense, however, the trial court “may properly consider the
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particularized circumstances of the factual elements as aggravating factors.”
McCarthy v. State, 749 N.E.2d 528, 539 (Ind. 2001).
[13] Haddock contends that the trial court found the presence of a child during the
offense to be an aggravator, which also was an element of the offense. At the
sentencing hearing, the deputy prosecutor disagreed with Haddock’s proposed
hardship to his children mitigator and stated:
-- not for aggravation but for the fact that you know, his crime
was elevated because there was a child present. He was able to
hear or see that offense and that is an element of the crime. So
I’m not asking that for aggravation but that’s why we believe that
it’s an appropriate sentence based upon his criminal history. I
always get frustrated when people come in and throw themselves
on the mercy of the Court and say, “I want to be out for my
kids.” But when you are out for your kids you are doing drugs in
front of them which is not beneficial to them at all.
Tr. Vol. II p. 25. Immediately after the deputy prosecutor’s statement, the trial
court stated:
The criminal history shows two (2) other felony offenses, eight
(8) prior, misdemeanor offenses, five (5) petitions to revoke. The
factual basis for this particular offense specifically includes that it
took place in the physical presence of a child less than eighteen
(18) years of age. You are sentenced to fourteen (l4) years. The
Court will suspend two (2) years leaving an executed sentence of
twelve (12) years.
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Id. at 25-26. It is unclear whether the trial court found the presence of a child as
an aggravator or whether the trial court was merely commenting on Haddock’s
proposed mitigator of hardship to his children.
[14] Even if the trial court abused its discretion in considering the presence of a
child, however, we find no error in Haddock’s sentence. “Where the trial court
has erred in sentencing a defendant, there are several options for the appellate
court.” Mannix v. State, 54 N.E.3d 1002, 1011 (Ind. Ct. App. 2016) (citing
Windhorst v. State, 868 N.E.2d 504, 507 (Ind. 2007)). “Without a trial court
sentencing order that meets the requirements of the law,” we have the option to
remand to the trial court for a clarification or new sentencing determination.
Id. Additionally, we may exercise our authority to review and revise the
sentence under Indiana Appellate Rule 7(B). Id.[15] Indiana Appellate Rule 7(B) provides that this court may revise a sentence
authorized by statute if, after due consideration of the trial court’s decision, we
find that the sentence “is inappropriate in light of the nature of the offense and
the character of the offender.” The nature of the offense is that Haddock sold
seven hydromorphone pills to a confidential informant in the presence of a
child less than eighteen years of age when he knew the child was present and
might be able to see or hear the offense. The pills weighed 1.3 grams. As for
the character of the offender, Haddock has a significant criminal history, which
the trial court recognized. As an adult, Haddock has convictions for two
felonies and eight misdemeanors, and his probation has been revoked five
times. Haddock conceded at his sentencing hearing that an aggravated
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sentence was warranted given his criminal history. Despite any error in the trial
court’s finding of aggravators, given the nature of Haddock’s offense and his
criminal history, Haddock’s sentence of fourteen years with two years
suspended to probation is not inappropriate.
Conclusion
[16] The trial court did not abuse its discretion in determining mitigating factors.
Even if the trial court abused its discretion when considering one aggravator,
Haddock’s sentence is not inappropriate. We affirm.
[17] Affirmed.
Brown, J., concurs.
Altice, J., concurs in result without opinion.
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