The opinion
MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Jan 23 2018, 9:02 am
this Memorandum Decision shall not be CLERK
regarded as precedent or cited before any Indiana Supreme Court
Court of Appeals
and Tax Court
court except for the purpose of establishing
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
Lee M. Stoy, Jr.
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Steven R. Burton, January 23, 2018
Appellant-Defendant, Court of Appeals Case No.
03A05-1707-CR-1591
v. Appeal from the Bartholomew
Superior Court
State of Indiana, The Honorable James D. Worton,
Appellee-Plaintiff. Judge
Trial Court Cause No.
03D01-1612-F6-6829 & 03D01-
1311-FD-5985
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellant-Defendant, Steven R. Burton (Burton), appeals the sentence imposed
by the trial court in two separate causes.
[2] We affirm.
ISSUES
[3] Burton presents us with two issues on appeal, which we restate as:
(1) Whether the trial court abused its discretion by failing to identify Burton’s
guilty plea and admission to a probation violation as significant mitigating
factors in its sentencing decision; and
(2) Whether the trial court abused its discretion by revoking Burton’s probation
and ordering him to serve the remainder of his previously suspended sentence
in the Department of Correction.
FACTS AND PROCEDURAL HISTORY
[4] On November 7, 2013, the State filed an Information, charging Burton with
resisting law enforcement, as a Class D felony; invasion of privacy, as a Class D
felony; and criminal recklessness, as a Class A misdemeanor, in Cause number
03D01-1311-FD-5985 (FD-5985). Pursuant to a plea agreement, Burton pled
guilty to resisting law enforcement, as a Class D felony; and invasion of
privacy, as a Class D felony, in exchange for the State’s dismissal of the other
charge. After accepting the plea agreement, the trial court sentenced Burton to
consecutive terms of 2.5 years on each Count to be served in community
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corrections, with two years of each sentence suspended. On December 14,
2015, the State filed a petition to revoke Burton’s probation, and after Burton
admitted to the allegations in the State’s petition, the trial court ordered him to
return to supervised probation. On June 2, 2016, the State filed a second
petition to revoke Burton’s probation for failing to attend two appointments
with his probation officer and for failing to comply with counseling
recommended by probation.
[5] On December 19, 2016, Officer Frank Dickman of the Columbus Police
Department (Officer Dickman) observed a black Chevrolet Cavalier, driven by
Burton, drive aggressively on Saddle Drive, in Columbus, Indiana. After
noticing Burton make a right turn without using his turn signal, Officer
Dickman attempted to initiate a traffic stop and activated his emergency lights.
However, Burton refused to stop and instead tried to avoid capture by driving
through a church parking lot. Officer Dickman pursued Burton, who weaved in
and out of traffic. At a certain point during the pursuit, Burton started driving
on the wrong side of the road. In an attempt to cross back to the correct side of
the road, Burton drove over a raised median, causing his car to lose its right
front tire. The vehicle eventually came to a stop and Burton fled on foot.
Police officers detained Burton.
[6] On December 20, 2016, the State filed an Information, charging Burton with
resisting law enforcement, as a Level 6 felony; resisting law enforcement, as a
Class A misdemeanor; driving while suspended, as a Class A misdemeanor;
and criminal recklessness, as a Class B misdemeanor, under Cause number
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03D01-1612-F6-6829 (F6-6829). As a result of these charges, the State
amended its second petition for revocation of Burton’s probation in FD-5985 to
include these new charges as a possible ground for revocation.
[7] On May 22, 2017, Burton entered into a plea agreement with the State in F6-
6829, in which he agreed to plead guilty to resisting law enforcement, as a Level
6 felony, as well as to admit to the allegations of the State’s second amended
petition to revoke probation in FD-5985. In exchange, the State would dismiss
the remaining Counts in F6-6829 and agreed that the total sentence in F6-6829
should not exceed one year.
[8] On June 14, 2017, the trial court conducted a sentencing hearing in both Cause
numbers. During the hearing, Burton testified that he does not do well on
“general probation” and prefers to be in a program with “some kind of
structure.” (Transcript p. 13). Burton’s probation officer confirmed that Burton
does “well for a while,” but “then he just kind of disappears.” (Tr. p. 17).
Therefore, the probation officer recommended terminating Burton’s probation
in FD-5985. In sentencing Burton in F6-6829, the trial court found his “history
of criminal delinquent behavior, including five convictions for resisting in a
vehicle,” as a “significant, significant aggravator in this case.” (Tr. p. 21). As a
second aggravator, the trial court noted that Burton “has been placed on
[p]robation multiple times in the past and has had multiple [p]etitions to
[r]evoke [p]robation.” (Tr. p. 21). “He’s had an opportunity for treatment
outside the penal facility, nothing has been successful.” (Tr. p. 21). Turning to
mitigating factors, the trial court noted that Burton “has made efforts to
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improve himself by participating in programs while he has been incarcerated.”
(Tr. p. 21). Burton was subsequently sentenced to 352 days in the Bartholomew
County Jail for F6-6829. With regard to Burton’s probation revocation in FD-
5985, the trial court observed:
I am looking through all of these in your criminal history, all of
these probation, I just can’t see, I don’t even see one here that
you have been on [p]robation where you haven’t had a [p]etition
to [r]evoke, at least one filed. So the State argues, the State’s
statement that this is your second chance on this case, [] but all of
these other cases, you’ve had chance after chance and you just
keep violating. So the [c]ourt is going to accept the Probation
Department’s recommendation and order that [Burton] execute
the balance of his sentence in the Indiana Department of
Correction.
(Tr. p. 21).
[9] Burton now appeals. Additional facts will be provided if necessary.
DISCUSSION AND DECISION
I. Finding of Mitigators in F6-6829
[10] Burton contends that the trial court abused its discretion by failing to find
certain mitigators in F6-6829. Specifically, Burton posits that his guilty plea
and his admission to the probation violation in FD-5985 should have been
considered when calculating his sentence. Sentencing decisions are a matter of
trial court discretion and are reviewed on appeal only for an abuse of that
discretion. Anglemyer v. State, 868 N.E.2d 482, 490, clarified on reh’g, 875 N.E.2d
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218 (Ind. 2007). A trial court abuses its discretion if its 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.
(quoting K.S. v. State, 849 N.E.2d 538, 544 (Ind. 2006)). A trial court “may
impose any sentence within the statutory range without regard to the existence
of aggravating or mitigating factors.” Id. at 489. If the trial court “‘finds’ the
existence of ‘aggravating circumstances or mitigating circumstances’ then the
trial court is required to give ‘a statement of the court’s reasons for selecting the
sentence that it imposes.’” Id. at 490 (quoting I.C. § 35-38-1-3(3)).
[11] On appeal, a trial court may be found to have abused its discretion by failing to
enter a sentencing statement at all; entering a sentencing statement that explains
its reasons for imposing a sentence where such reasons are not supported by the
record or are improper as a matter of law; or entering a sentencing statement
that omits reasons which are clearly supported by the record and advanced for
consideration. Id. at 490-91. A trial court does not abuse its discretion by
failing to properly weigh aggravating and mitigating factors. Id. at 491. If we
find that the trial court has abused its sentencing discretion, our court will
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.” Id.
[12] In Anglemyer, our supreme court clarified on rehearing that “a defendant who
pleads guilty deserves ‘some’ mitigating weight to be given to the plea in
return.” Anglemyer, 875 N.E.2d at 220 (citing McElroy v. State, 865 N.E.2d 584,
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591 (Ind. 2007)). Nevertheless, the court qualified its statement by noting that
its significance as a mitigating factor varies from case to case. Id. at 221. As
such, when the evidence of guilt is “overwhelming,” the plea may be merely
pragmatic, thereby diminishing its effect as a mitigating circumstance during
sentencing. Id.
[13] Here, Burton’s guilty plea in F6-6829 and his admission to the probation
revocation appear to be nothing but pragmatic as there was overwhelming
evidence of his guilt. In F6-6829, Officer Dickman pursued Burton when he
refused to stop after the officer initiated a traffic stop. During the pursuit,
Burton’s vehicle became disabled and Burton continued to flee on foot in an
effort to resist apprehension by law enforcement. After entering into a plea
agreement in F6-6829, Burton was no longer in any position to dispute the
allegations in the second amended petition to revoke probation, which included
the charges of F6-6829. Accordingly, his admission became purely pragmatic.
Therefore, based on the directives in Anglemyer, the trial court could properly
decide not to award the guilty plea and admission any mitigating weight.
II. Revocation of Probation in FD-5985
[14] Next, Burton contends that the trial court abused its discretion by ordering him
to serve his entire previously suspended sentence following his probation
revocation in FD-5985.
[15] Indiana Code section 35-38-2-3(h) sets forth a trial court’s sentencing options if
the court finds a probation violation and provides:
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If the court finds that the person has violated a condition at any
time before termination of the period, and the petition to revoke
is filed within the probationary period, the court may impose one
(1) or more of the following sanctions:
(1) Continue the person on probation, with or without modifying
or enlarging the conditions.
(2) Extend the person’s probationary period for not more than
one (1) year beyond the original probationary period.
(3) Order execution of all or part of the sentence that was
suspended at the time of initial sentencing.
[16] The Indiana Supreme Court has held that a trial court’s sentencing decisions for
probation violations are reviewable using the abuse of discretion standard.
Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007). “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.” Id. “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.” Id. An abuse of discretion occurs where the decision is
clearly against the logic and effect of the facts and circumstances. Id.
[17] The record reveals that Burton has had nineteen petitions to revoke his
probation filed against him, which have resulted in his probation being
extended seven times and his probation being unsuccessfully terminated three
times. This trend continued in FD-5985 as this was also the second petition for
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probation revocation in that cause. Moreover, Burton admitted to not doing
well on general probation, preferring a more structured environment and
Burton’s probation officer advised against continuing him on probation. Based
on these circumstances, we cannot conclude that the trial court abused its
discretion in reinstating Burton’s previously suspended sentence.
CONCLUSION
[18] Based on the foregoing, we affirm the trial court’s sentencing decisions in F6-
6829 and FD-5985.
[19] Affirmed.
[20] Baker, J. and Brown, J. concur
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