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
      Court of Appeals of Indiana | Memorandum Decision 19A-CR-154 | September 12, 2019   Page 2 of 9
      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


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-154 | September 12, 2019                   Page 3 of 9
      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.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-154 | September 12, 2019                Page 4 of 9
                                            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
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-154 | September 12, 2019   Page 5 of 9
       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
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-154 | September 12, 2019   Page 6 of 9
       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.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-154 | September 12, 2019   Page 7 of 9
       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

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-154 | September 12, 2019   Page 8 of 9
       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.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-154 | September 12, 2019   Page 9 of 9
