Court of Appeals of Indiana | Memorandum Decision 19A-CR-2737 | April 8, 2020 Page 1 of 6

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

R. Brian Woodward

Appellate Public Defender

Crown Point, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Samantha M. Sumcad

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Kyjuan A. Phillips,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

April 8, 2020

Court of Appeals Case No.

19A-CR-2737

Appeal from the Lake Superior 

Court

The Honorable Diane Ross 

Boswell, Judge

Trial Court Cause No.

45G03-1904-F4-43

Pyle, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2737 | April 8, 2020 Page 2 of 6

Statement of the Case

[1] Kyjuan Phillips (“Phillips”) appeals the five-year sentence imposed after he pled 

guilty to Level 5 felony dealing in a narcotic drug.1 His sole argument is that 

the trial court abused its discretion in sentencing him. Finding no abuse of the 

trial court’s discretion, we affirm Phillips’ sentence.

[2] We affirm. 

Issue

Whether the trial court abused its discretion in sentencing 

Phillips.

Facts

[3] In April 2019, the State charged thirty-six-year-old Phillips with ten counts 

resulting from his sale of heroin to a confidential informant during controlled 

drug buys on February 5, February 11, and March 8. For the February 5 drug 

buy, the State charged Phillips with: (1) Level 5 felony dealing in a narcotic 

drug; (2) Level 6 felony possession of a narcotic drug; and (3) Level 6 felony 

maintaining a common nuisance. For the February 11 drug buy, the State 

charged Phillips with: (4) Level 4 felony dealing in a narcotic drug; (5) Level 6 

felony possession of a narcotic drug; and (6) Level 6 felony maintaining a 

common nuisance. For the March 8 drug buy, the State charged Phillips with: 

(7) Level 5 felony dealing in a narcotic drug; (8) Level 6 felony possession of a 

1

IND. CODE § 35-48-4-1.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2737 | April 8, 2020 Page 3 of 6

narcotic drug; and (9) Level 6 felony maintaining a common nuisance. The 

State also charged Phillips with (10) Class C misdemeanor possession of 

paraphernalia after searching his home on March 11.

[4] In September 2019, Phillips pled guilty to Level 5 felony dealing a narcotic drug 

for delivering heroin to the confidential informant on February 5. Pursuant to 

the terms of a plea agreement, the State dismissed the remaining counts, which 

included a Level 4 felony, and sentencing was left to the trial court’s discretion.

[5] The trial court held a sentencing hearing in December 2019. The State 

presented evidence that Phillips has an extensive criminal history that includes

three felony convictions in Florida for burglary, larceny, and home invasion 

with a firearm or other deadly weapon. Phillips served time in both a Florida

county jail and a Florida prison for these convictions. Phillips also has four 

felony convictions in Illinois, which include two convictions for possession of a 

controlled substance in 2006 and 2012 and two convictions for 

manufacturing/dealing in a controlled substance in 2006 and 2007. Phillips 

also has four misdemeanor convictions in Illinois, including two convictions for 

retail theft, one conviction for battery, and one conviction for resisting a peace 

officer. Phillips served time in both an Illinois county jail and an Illinois prison 

for these convictions. He also served time on probation. Phillips has one 

misdemeanor conviction in Indiana in 2019 for false informing. 

[6] Phillips told the trial court that he had sold the heroin in this case “to support 

[his] habit.” (Tr. Vol. 2 at 22). He further told the trial court that he was no 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2737 | April 8, 2020 Page 4 of 6

longer addicted to heroin because he had not used the drug during the six 

months that he had been incarcerated on these charges. When the trial court 

asked him if he had had any treatment for his substance abuse, Phillips 

responded that shortly before he had been arrested in this case, his doctor had 

prescribed Narcan and Suboxone. However, according to Phillips, the drugs

had not helped. Phillips also explained that he had completed a Fresh Start 

Counseling Program while he was incarcerated on the current charges.

[7] The State asked the trial court to impose the maximum six-year sentence for a 

Level 5 felony because of Phillips’ extensive criminal history. Phillips asked the 

trial court to “consider his time in jail and a probation sentence or perhaps a 

split sentence.” (Tr. Vol. 2 at 18).

[8] At the end of the hearing, the trial court found two aggravating factors: (1) 

Phillips’ prior criminal history; and (2) Phillips’ need for correctional treatment 

because prior attempts at rehabilitation had not been a deterrent. The trial 

court found no mitigating factors and sentenced Phillips to five (5) years in the 

Department of Correction. 

[9] Phillips appeals his sentence.

Decision

[10] Phillips’ sole argument is that the trial court abused its discretion in sentencing 

him. Sentencing decisions rest within the sound discretion of the trial court. 

Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007). So long as the sentence is 

within the statutory range, it is subject to review only for an abuse of discretion. 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2737 | April 8, 2020 Page 5 of 6

Id. An abuse of discretion occurs if 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. at 491. 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. at 490-91. 

[11] Here, Phillips argues that the trial court abused its discretion because it failed to 

find his guilty plea to be a mitigating factor.

2

 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 

2

Phillips also argues that the trial court abused its discretion when it failed to find his history of substance 

abuse to be a mitigating factor. Phillips has waived appellate review of this factor because he failed to 

advance it for consideration in the trial court. See Simms v. State, 791 N.E.2d 225, 233 (Ind. Ct. App. 2003) 

(explaining that “[i]f the defendant fails to advance a mitigating circumstance at sentencing, this court will 

presume that the circumstance is not significant and the defendant is precluded from advancing it as a 

mitigating circumstance for the first time on appeal.”) Waiver notwithstanding, we find no error. Although 

we have recognized that a history of substance abuse may be a mitigating factor, Field v. State, 843 N.E.2d 

1008, 1012 (Ind. Ct. App. 2006), trans. denied, we have also held that where a defendant is aware that he has a 

substance abuse problem but has not taken appropriate steps to treat it, the trial court does not abuse its 

discretion by rejecting substance abuse as a mitigating factor. Bryant v. State, 802 N.E.2d 486, 501 (Ind. Ct. 

App. 2004), trans. denied. Here, Phillips has an extensive criminal history related to his drug use. He has 

known for some time that he has a substance abuse problem and has not taken appropriate steps to treat it. 

Under these circumstances, the trial court did not abuse its discretion in failing to find Phillips’ history of 

substance abuse to be a mitigating factor.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2737 | April 8, 2020 Page 6 of 6

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. 

[12] A guilty plea is not necessarily a mitigating factor where the defendant receives 

a substantial benefit from the plea. Barker v. State, 994 N.E.2d 306, 312 (Ind. 

Ct. App. 2013), trans. denied. Here, in exchange for Phillips’ guilty plea to one 

Level 5 felony, the State dismissed one misdemeanor and eight additional 

felony charges, including a Level 4 felony. Phillips received a substantial 

benefit from his plea, and the trial court did not abuse its discretion when it did 

into find his guilty plea to be a mitigating factor.3

[13] Affirmed.

Bradford, C.J., and Baker, J., concur. 

3 We further note that even if the trial court had abused its discretion by failing to find Phillips’ guilty plea to 

be a mitigating factor, any error was harmless. When the trial court abuses its discretion in sentencing, we 

will remand if we cannot say with confidence that the trial court would have imposed the same sentence. 

Webb v. State, 941 N.E.2d 1082, 1090 (Ind. Ct. App. 2011), trans. denied. Here, the trial court found two 

aggravating circumstances, including Phillips’ extensive criminal history that included prior felony 

convictions for the same offense to which he pled guilty in this case. Based on this criminal history, we 

conclude that the trial court would have imposed the same sentence even if it had found Phillips’ guilty plea 

to be a mitigating factor.