Court of Appeals of Indiana | Memorandum Decision 19A-CR-154 | September 12, 2019 Page 1 of 9

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

William T. Myers

Marion, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Matthew B. Mackenzie

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Eran D. Haddock,

Appellant-Defendant,

v. 

State of Indiana, 

Appellee-Plaintiff. 

September 12, 2019

Court of Appeals Case No.

19A-CR-154 

Appeal from the Huntington 

Superior Court

The Honorable Jennifer E. 

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 2 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 3 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 4 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.
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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 
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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 7 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.
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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 9 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.