Jerald Clark, III v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Sep 01 2016, 5:57 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.

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Scott L. Barnhart Gregory F. Zoeller Brooke Smith Attorney General of Indiana Keffer Barnhart, LLP Indianapolis, Indiana Tyler G. Banks Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Jerald Clark, III, September 1, 2016 Appellant-Defendant, Court of Appeals Case No. 82A01-1602-CR-386 v. Appeal from the Vanderburgh Circuit Court State of Indiana, The Honorable Michael J. Cox, Appellee-Plaintiff. Magistrate Judge Trial Court Cause No. 82C01-1507-F5-3991

May, Judge. Court of Appeals of Indiana | Memorandum Decision 82A01-1602-CR-386 | September 1, 2016 Page 1 of 7 [1] Jerald Clark, III, appeals his eight and one-half year sentence for Level 6 felony

auto theft with habitual offender enhancement, 1 Level 6 felony resisting law

enforcement with habitual offender enhancement, 2 Level 6 felony operating a

vehicle while privileges are suspended, 3 Class A misdemeanor resisting law

enforcement, 4 and two counts of Class A misdemeanor leaving the scene of an

accident with bodily injury. 5 Additionally, Clark appeals the accuracy of the

sentencing order. The trial court did not abuse its discretion by declining to

find mitigators, but the sentencing order is inaccurate. Accordingly we affirm

and remand.

Facts and Procedural History [2] On July 7, 2015, Clark stole a car, confined his ex-girlfriend in it, fled from

police, collided with two other vehicles, and then fled on foot before being

apprehended by police. On January 4, 2016, Clark entered a plea agreement

with the State regarding the seven crimes with which he was charged on July

10, 2015. The State dismissed a Level 5 felony criminal confinement charge,

1 Ind. Code § 35-43-4-2.5 (2014) and Ind. Code § 35-50-2-8 (2015). 2 Ind. Code § 35-44.1-3-1 (2014) and Ind. Code § 35-50-2-8 (2015). 3 Ind. Code § 9-30-10-16 (2015). 4 Ind. Code § 35-44.1-3-1 (2014). 5 Ind. Code § 9-26-1-1.1 (2015).

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together with its attendant habitual offender allegation, and Clark pled guilty to

the remaining six crimes. [3] Clark requested mercy at the sentencing hearing due to his extensive history of

substance abuse. The trial court made a comprehensive sentencing statement

wherein it detailed Clark’s “exquisite” criminal history, (Tr. at 15), found the

injuries and damages to the victims were “significant,” (id. at 16), and did “not

find any mitigating factors.” (Id.) The trial court imposed a two and one-half

year sentence for auto theft (Count II), which it enhanced by six years for a

habitual offender finding; a two and one-half year sentence for felony resisting

law enforcement (Count III), which it enhanced by six years for a habitual

offender finding; two and one-half years for operating a vehicle after being a

habitual traffic offender (Count IV); and one year each for the misdemeanors

(Counts V, VI, & VII). The court noted the underlying offense sentence in

Count II and the habitual offender enhancement sentence “are to run

consecutively to one another.” (Id. at 16.) It ordered likewise for the Count III

sentence and then ordered “Counts II, III, IV, V, VI and VII shall run

concurrently with one another for a total period of incarceration of 8½ years.”

(Id. at 18.)

Discussion and Decision Mitigating Circumstances [4] Clark asserts the trial court abused its discretion when sentencing him because it

did not find any mitigating circumstances. He claims the court should have Court of Appeals of Indiana | Memorandum Decision 82A01-1602-CR-386 | September 1, 2016 Page 3 of 7

found his guilty plea, his extensive substance abuse problems, and his remorse

to be mitigating factors. [5] When the trial court imposes a sentence within the statutory range, we review

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 (Ind. 2007). We may reverse a decision that 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 In re L.J.M ., 473 N.E.2d 637, 640 (Ind. Ct. App.

1985)). Our review of the trial court’s exercise of discretion in sentencing

includes an examination of its reasons for imposing the sentence. Id. “This

necessarily requires a statement of facts, in some detail, which are peculiar to

the particular defendant and the crime . . . [and] such facts must have support in

the record.” Id. [6] The trial court is not required to find mitigating circumstances. Fugate v. State,

608 N.E.2d 1370, 1374 (Ind. 1993). When a defendant offers evidence of

mitigators, the trial court has the discretion to determine whether the factors are

mitigating, and it is not required to explain why it does not find the proffered

factors to be mitigating. Taylor v. State, 681 N.E.2d 1105, 1112 (Ind. 1997).

However, a court abuses its discretion if it does not consider significant

mitigators advanced by the defendant and clearly supported by the record.

Anglemyer, 868 N.E.2d at 490.

Court of Appeals of Indiana | Memorandum Decision 82A01-1602-CR-386 | September 1, 2016 Page 4 of 7 [7] The court did not abuse its discretion by failing to declare Clark’s guilty plea a

mitigator, as he received significant benefit from the plea bargain. See Fields v.

State, 852 N.E.2d 1030, 1034 (Ind. Ct. App. 2006) (when defendant receives

significant benefit, plea “does not reflect as favorably upon [defendant’s]

character as it might otherwise”), trans. denied. In return for Clark’s guilty plea,

the State agreed to drop the most serious charge, Level 5 felony criminal

confinement. A conviction thereof could have increased Clark’s possible

underlying sentence from two and one-half years to six years. Compare Ind.

Code § 35-50-2-6(b) (Level 5 felony carries a maximum six years), with Ind.

Code § 35-50-2-7(b) (Level 6 felony carries a maximum two and one-half years).

In addition, if Clark had been convicted of the Level 5 felony, he would have

been qualified to be assigned only to “Class B” as a prisoner and could have

only “earn[ed] one (1) day of good time credit for every three (3) days” he was

imprisoned. See Ind. Code § 35-50-6-3.1(c) and Ind. Code § 35-50-6-4 (b). As

the State dismissed the Level 5 felony and Clark was convicted only of the

Level 6 felony, he qualifies to be assigned to “Class A” and can “earn[] one (1)

day of good time credit for each day” he is imprisoned. See Ind. Code § 35-50-

6-3.1(b) and Ind. Code § 35-50-6-4(a). As such, Clark received significant

benefit for his guilty plea. [8] Clark’s assertion the court should have found his substance abuse issues to be a

mitigator is not supported by the record as he has not taken advantage of prior

court orders to complete substance abuse treatments. Clark was twice found in

contempt for failing to complete substance abuse counseling and treatment. As

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a youth, Clark did not complete the Youth Alcohol Program (YAP) and was

ordered to serve his sentence incarcerated instead. Although Clark has a

fourteen-year criminal history involving substance abuse, he has not resolved

his substance abuse issues. In such a circumstance, the court was not required

to find a mitigator. See Caraway v. State, 959 N.E.2d 847, 952 (Ind. Ct. App.

2011) (no error when trial court found as an aggravator that Caraway

recognized addiction but did not seek treatment), trans. denied. [9] Finally, Clark’s assertions regarding his remorse are not supported by the

record. He did “ask for mercy of the Court . . . I need some kind of treatment .

. . for my, uh, addiction to come out to society and be a better person.” (Tr. at

4.) However, when the trial court was explaining the possible sentence, Clark

stated “since I signed the plea, I’d look more towards 2 [years] than 6 [years.]”

(Tr. at 12.) The trial court went to great lengths to be sure Clark understood the

habitual offender enhancement would increase his sentence. Still, instead of

expressing remorse for his actions, Clark said, “I didn’t think there was anyway

[sic] possible I could be facing anywhere remotely close to 8½ years on Level

6’s, you know.” (Id. at 13.) We find no error in the trial court not recognizing

Clark as remorseful. See Chambliss v. State, 746 N.E.2d 73, 78-79 (Ind. 2001)

(trial court did not abuse its discretion when it did not recognize remorse as a

mitigating circumstance, even though the defendant read a note to the family of

the victim and defendant’s attorney referred to his remorse during the hearing).

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Sentencing Order [10] Clark asserts the sentencing order is not clear enough because it says all the

sentences should be served both consecutively and concurrently. As it is

impossible to serve the sentences both consecutively and concurrently, we agree

the order must be corrected. The State asserts the underlying felony sentences

and the habitual offender sentences should not be listed separately. We agree.

See Hendrix v. State, 759 N.E.2d 1045, 1048 (Ind. 2001) (“habitual offender

finding does not constitute a separate crime nor does it result in a separate

sentence”). Accordingly, we remand for the trial court to clarify and correct the

sentencing order.

Conclusion [11] As the trial court did not abuse its discretion when it found no mitigating

factors, we affirm Clark’s sentence. However, we remand the sentencing order

for clarification and correction. [12] Affirmed and remanded.

Kirsch, J., and Crone, J., concur.

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