ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

CHRISTOPHER L. CLERC GREGORY F. ZOELLER

Columbus, Indiana Attorney General of Indiana

LARRY D. ALLEN

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

JUSTIN MALONE, )

)

Appellant-Defendant, )

)

 vs. ) No. 03A01-1307-CR-334

)

STATE OF INDIANA, )

)

Appellee-Plaintiff. )

APPEAL FROM THE BARTHOLOMEW CIRCUIT COURT

The Honorable Stephen R. Heimann, Judge

Cause Nos. 03C01-1302-FC-925, 03C01-0701-FB-24

May 5, 2014

MEMORANDUM DECISION – NOT FOR PUBLICATION

MATHIAS, Judge 

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.
2

Justin Malone (“Malone”) pleaded guilty in Bartholomew Circuit Court to Class D 

felony criminal recklessness and was sentenced to two years incarceration. On appeal, 

Malone claims that the trial court abused its discretion in sentencing him and that his 

sentence is inappropriate. 

We affirm. 

Facts and Procedural History

At the time relevant to this appeal, Malone was a long-term drug user who was on 

probation for a 2007 conviction for manufacturing methamphetamine. On December 20, 

2012, Malone took his girlfriend out for the evening, but his girlfriend ended up going 

home with another man, Gregory Burris (“Burris”). This angered Malone, and, on the 

following day, Malone took the handle from a window-cleaning “squeegee” and 

confronted Burris at Burris’s home. Malone used the handle to strike Burris in the head, 

injuring him. Malone then fled the scene. A guest at Burris’s home witnessed the attack. 

As a result of this incident, the State charged Malone on February 7, 2013, with 

Class C felony battery by means of a deadly weapon and Class D felony criminal 

recklessness. Malone subsequently agreed to plead guilty to the Class D felony in 

exchange for the State dismissing the Class C felony charge. Malone also agreed to 

admit to violating the terms of his probation. At a sentencing hearing held on July 1, 

2013, the trial court accepted Malone’s plea and sentenced him to two years incarceration, 

consecutive to the five-year sentence remaining on Malone’s 2007 conviction. Malone 

now appeals. 
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I. Trial Court’s Sentencing Discretion

Malone first claims that the trial court abused its discretion in sentencing him to an 

aggregate term of two years. Sentencing decisions “rest within the sound discretion of 

the trial court and are reviewed on appeal only 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). 

A trial court may abuse its sentencing discretion by: (1) failing to enter a sentencing 

statement, (2) finding aggravating or mitigating factors unsupported by the record, (3) 

omitting mitigating factors clearly supported by the record and advanced for 

consideration, or (4) giving reasons that are improper as a matter of law. Id. at 490-91. 

Because a trial court no longer has any obligation to weigh aggravating and mitigating 

factors against each other when imposing a sentence, it cannot now be said to have 

abused its discretion in failing to properly weigh such factors. Id. at 491. If a trial court 

abused its discretion in sentencing, remand for resentencing may be the appropriate 

remedy 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. at 

491. 

Malone claims that the trial court abused its discretion by failing to consider his 

guilty plea as a mitigating circumstance. A defendant’s decision to plead guilty is a 

mitigating factor, but it is not necessarily a significant mitigating factor. Cotto v. State, 

829 N.E.2d 520, 525 (Ind. 2005). A guilty plea does not rise to the level of a significant 

mitigating factor if the defendant has received a substantial benefit from the plea, or 

where the evidence is such that the decision is a pragmatic one, the guilty plea does not 
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rise to the level of significant mitigation. Anglemyer v. State, 875 N.E.2d 218, 221 (Ind. 

2007). 

Here, the trial court could have easily concluded that Malone’s decision to plead 

guilty was simply a pragmatic decision, as the victim identified Malone as his attacker 

and there was an eyewitness to the attack. More importantly, Malone had already 

received a substantial benefit from his plea; the State dismissed the pending Class C 

felony charge, substantially reducing the potential sentence Malone could have received. 

Compare Ind. Code § 35-50-2-6 (sentencing range for a Class felony is two to eight 

years) with Ind. Code § 35-50-2-7 (sentencing range for Class D felony is six months to 

three years). Under these facts and circumstances, the trial court did not abuse its 

discretion by failing to identify Malone’s decision to plead guilty as a significant 

mitigating circumstance. 

The same is true of Malone’s alleged remorse. The trial court was in the better 

position to judge the veracity of Malone’s brief claim of remorse. See Mead v. State, 875 

N.E.2d 304, 309-10 (Ind. Ct. App. 2007) (noting that the trial court possesses the ability 

to directly observe the defendant and is therefore in the best position to determine 

whether the defendant is genuinely remorseful). Accordingly, without evidence of some 

impermissible consideration by the trial court, we will accept its determination as to 

remorse. Stout v. State, 834 N.E.2d 707, 711 (Ind. Ct. App. 2005). 

In sum, Malone has not established that the trial court abused its discretion in 

sentencing him. But even if we were to conclude otherwise, Malone would not prevail. 

If a trial court abuses its discretion in sentencing a defendant, we will not remand for 
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resentencing if the sentence imposed is not inappropriate. Chappell v. State, 966 N.E.2d 

124, 134 n.10 (Ind. Ct. App. 2012), trans. denied; Mendoza v. State, 869 N.E.2d 546, 556 

(Ind. Ct. App. 2007), trans. denied; Felder v. State, 870 N.E.2d 554, 558 (Ind. Ct. App. 

2007); see also Windhorst v. State, 868 N.E.2d 504, 507 (Ind. 2007) (noting that when 

trial court errs in sentencing defendant, court on appeal may exercise authority to review 

and revise sentence, instead of remanding for resentencing). In this regard, and as 

discussed below, we conclude that Malone’s two-year sentence is not inappropriate. 

II. Indiana Appellate Rule 7(B)

Malone also claims that his sentence is inappropriate in light of the nature of his 

offense and his character. Even if a trial court acted within its statutory discretion in 

imposing a sentence, Article 7, Sections 4 and 6 of the Indiana Constitution authorize 

independent appellate review and revision of a sentence imposed by the trial court. 

Trainor v. State, 950 N.E.2d 352, 355-56 (Ind. Ct. App. 2011), trans. denied (citing 

Anglemyer, 868 N.E.2d at 491. This authority is implemented through Indiana Appellate 

Rule 7(B), which provides that the court on appeal “may revise a sentence authorized by 

statute if, after due consideration of the trial court’s decision, the Court finds that the 

sentence is inappropriate in light of the nature of the offense and the character of the 

offender.” Id. 

Still, we must and should exercise deference to a trial court’s sentencing decision, 

because Rule 7(B) requires us to give due consideration to that decision and because we 

understand and recognize the unique perspective a trial court brings to its sentencing 

decisions. Id. While we have the power to review and revise sentences, the principal 
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role of our review should be to attempt to level the outliers, and identify some guiding 

principles for trial courts and those charged with improvement of the sentencing statutes, 

but not to achieve what we perceive to be a “correct” result in each case. Fernbach v. 

State, 954 N.E.2d 1080, 1089 (Ind. Ct. App. 2011), trans. denied (citing Cardwell v. State, 

895 N.E.2d 1219, 1225 (Ind. 2008)). The appropriate question is not whether another 

sentence is more appropriate; rather, the question is whether the sentence imposed is 

inappropriate. Former v. State, 876 N.E.2d 340, 344 (Ind. Ct. App. 2007). And it is the 

defendant’s burden on appeal to persuade us that the sentence imposed by the trial court 

is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). 

Malone pleaded guilty to Class D felony criminal recklessness. The sentencing 

range for a Class D felony is six months to three years incarceration, with the advisory 

sentence being one and one-half years. I.C. § 35-50-2-7. Here, the trial court sentenced 

Malone to two years—six months more than the advisory, but one year less than the 

maximum. Both the nature of the offense and the character of the offender support the 

trial court’s sentencing decision. 

Malone attacked a man at his own home with a handle, injuring him. And Malone 

carried out his attack not immediately after his girlfriend left with the victim, but the 

following day. This indicates some level of planning on Malone’s part. Even though this 

is not the most heinous crime, the character of the offender more than supports the trial 

court’s decision to sentence Malone to two years. Malone was thirty-seven years old at 

the time of sentencing, and he had two juvenile delinquency adjudications and nine adult 

criminal convictions, including four felonies. His felony convictions include Class D 
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felony criminal recklessness,1 Class D felony residential entry, and Class B felony 

dealing in methamphetamine. Malone had also violated his probation in the past, and 

was on probation at the time of his current offense. Under these facts and circumstances, 

Malone has not persuaded us that his two-year sentence is inappropriate. 

Conclusion

The trial court did not abuse its discretion by failing to consider as mitigating 

Malone’s guilty plea or his alleged remorse. And Malone’s two-year sentence is not 

inappropriate in light of the nature of the offense and the character of the offender. 

Affirmed. 

FRIEDLANDER, J., and PYLE, J., concur.

 1

 Malone was charged with Class C felony involuntary manslaughter but pleaded guilty to Class C felony 

criminal recklessness.