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: ATTORNEY FOR APPELLEE:

KRISTINA J. JACOBUCCI GREGORY F. ZOELLER

Newby Lewis Kaminski & Jones, LLP Attorney General of Indiana

LaPorte, Indiana

GARY R. ROM

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

KELLYLEE SEXTON, )

)

Appellant-Defendant, )

)

vs. ) No. 46A05-1204-CR-204

)

STATE OF INDIANA, )

)

Appellee-Plaintiff. )

APPEAL FROM THE LAPORTE SUPERIOR COURT

The Honorable Kathleen B. Lang, Judge

Cause No. 46D01-1109-FA-375

November 26, 2012

MEMORANDUM DECISION – NOT FOR PUBLICATION

BARNES, Judge
2

Case Summary

Kellylee Sexton appeals his conviction and sentence for one count of Class B 

felony dealing in a controlled substance. We affirm.

Issues

Sexton raises three issues, which we combine and restate as the following:

I. whether the trial court properly denied his motion to 

withdraw his guilty plea; and

II. whether he was properly sentenced.

Facts

On September 30, 2011, the State charged Sexton with one count of Class A 

felony dealing in a controlled substance—hydrocodone—within 1000 feet of a daycare 

center. No detailed facts are contained in the record regarding this offense. Sexton 

asserted to the probation officer preparing the presentence report and testified at 

sentencing that his participation in the offense was minimal, i.e. that he provided 

directions to the house of the drug buyer and waited in the seller’s car while the 

transaction occurred, and that he did not personally handle any of the drugs or money. 

The State did not refute Sexton’s version of events.

At a pretrial hearing on February 16, 2012, the trial court informed the parties that 

they had until 4:00 p.m. on February 17, 2012, to enter into any plea agreement. On 

February 17, 2012, Sexton signed a plea agreement providing that he would plead guilty 

to Class B felony dealing in a controlled substance, with an executed sentencing cap of 
3

twelve years and sentencing otherwise left to the trial court’s discretion. At the change of 

plea hearing held on that same date, Sexton stated that although he had a history of 

mental illness, including attention deficit hyperactivity disorder (“ADHD”), no such 

illness prevented him from understanding the plea agreement. After thoroughly 

questioning Sexton personally regarding his understanding of the plea agreement, the trial 

court took the agreement under advisement and scheduled a sentencing hearing for March 

16, 2012.

On March 13, 2012, Sexton filed a pro se motion to withdraw his guilty plea and 

to dismiss his public defender. At the outset of the March 16, 2012 hearing, the trial 

court denied both motions. Sexton then testified regarding a history of receiving 

medication and treatment for mental illness; the only reference to a specific mental illness

diagnosis, however, was Sexton’s mother’s statement that he had ADHD. Sexton also 

testified regarding his difficult childhood that included not knowing his father and 

frequent stays in foster care due to his mother’s drug addiction.

On March 22, 2012, the trial court sentenced Sexton to a term of twelve years, 

with one year suspended to probation. The court entered the following statement 

explaining its sentence:

Defendant had a troubled childhood. After being 

removed from his mother’s home he lived in a series of foster 

homes and residential institutions. He suffers from mental 

illness, although the exact diagnosis is not clear. He has 

taken medication for his mental health problems for most of 

his life. The crime committed by defendant was a drug

offense. It did not cause or threaten serious harm to person or 
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property. Defendant has a one year old child and another 

child on the way. Defendant played a limited role in the 

commission of this crime. In addition, the defendant did 

plead guilty saving the time and expense of a trial. Finally, 

defendant is remorseful for his part in this drug transaction.

Defendant has a significant criminal history including 

Criminal Confinement, a crime of violence and Battery by 

Bodily Waste committed while the defendant was 

incarcerated. This is defendant’s third felony conviction and 

by law, there is a mandatory minimum sentence of six (6) 

years. Defendant is aware of his mental health problems and 

the need for medication to treat his illness. He maintains that 

he has been unable to get the medication he needs since his 

release from prison. He also testified, however, that he 

simply stopped going to the local mental health provider. 

Although it is true defendant has significant mental health 

concerns, it does not obviate his responsibility for his actions.

App. pp. 36-37. Sexton now appeals.

Analysis

I. Motion to Withdraw Guilty Plea

We first address the trial court’s denial of Sexton’s motion to withdraw his guilty 

plea.1 Indiana Code Section 35-35-1-4(b) governs motions to withdraw guilty pleas that 

are made after entry of the guilty plea but before sentencing, such as Sexton’s motion. 

“The court must allow a defendant to withdraw a guilty plea if ‘necessary to correct a 

manifest injustice.’” Brightman v. State, 758 N.E.2d 41, 44 (Ind. 2001) (quoting Ind. 

Code § 35-35-1-4(b)). Conversely, “the court must deny the motion if withdrawal of the 

plea would ‘substantially prejudice[ ]’ the State.” Id. “In all other cases, the court may 

grant the defendant’s motion to withdraw a guilty plea ‘for any fair and just reason.’” Id. 

 

1 On appeal, Sexton does not challenge the trial court’s denial of his motion to dismiss his public 

defender.
5

Examples of a “manifest injustice” that will require withdrawal of a guilty plea include a 

defendant being denied the effective assistance of counsel, the plea not being entered into 

or ratified by the defendant, the plea not being knowingly and voluntarily made, the 

prosecutor failing to abide by the terms of the plea agreement, or the plea and judgment 

of conviction being void or voidable. Jeffries v. State, 966 N.E.2d 773, 778 (Ind. Ct. 

App. 2012), trans. denied.

We presume that a trial court has correctly ruled on a motion to withdraw a guilty 

plea and will reverse its ruling only for an abuse of discretion. Brightman, 758 N.E.2d at 

44. In determining whether a trial court has abused its discretion in denying a motion to 

withdraw a guilty plea based on a claim that the plea was not knowingly made, we 

examine the statements made by the defendant at his guilty plea hearing to decide 

whether his plea was offered “freely and knowingly.” Id. We will not disturb the trial 

court’s ruling if it was based on conflicting evidence. Turner v. State, 843 N.E.2d 937, 

940-41 (Ind. Ct. App. 2006).

On appeal, Sexton contends in part that he was under inordinate pressure to plead 

guilty because of the trial court’s February 17, 2012 deadline for the parties to reach a 

plea agreement. Sexton’s motion to withdraw his guilty plea, however, made no mention 

of any such claim that he was pressured into pleading guilty because of the trial court’s 

time limit for entering such a plea. Rather, the motion and argument by counsel focused 

solely upon whether Sexton understood the plea and/or whether his mental illness made it 

impossible for him to meaningfully enter the plea. It is well-settled that a party generally 
6

cannot raise new issues for the first time on appeal. Craig v. State, 883 N.E.2d 218, 220 

(Ind. Ct. App. 2008).

Regardless, even if we consider Sexton’s argument regarding the deadline, we 

cannot say the trial court erred in denying permission to withdraw the guilty plea. The 

trial court conducted an in-depth plea colloquy directly with Sexton, including asking 

him whether he had been forced or induced into pleading guilty, which he denied, and 

whether the guilty plea was his free and voluntary act, which he confirmed. The trial 

court also discussed Sexton’s mental health, and Sexton expressly denied that it affected 

his ability to understand the guilty plea proceedings. Finally, among other things the trial 

court asked Sexton to recite in his own words what he was pleading guilty to and what 

his sentence would be, and he responded that he was pleading guilty to Class B felony 

dealing in a schedule II controlled substance and that he could argue sentencing up to a 

cap of twelve years. The transcript does not reflect any confusion on Sexton’s part 

regarding the guilty plea or that he was improperly pressured into entering it. On its face, 

the plea colloquy establishes that Sexton’s guilty plea was a free, knowing, and voluntary 

act. As for Sexton’s demeanor during the colloquy, that was exclusively a matter for the 

trial court to judge. We cannot conclude that withdrawal of Sexton’s guilty plea was 

necessary to correct a manifest injustice or that there was a fair and just reason supporting 

such a withdrawal.

II. Sentence
7

Next, we address Sexton’s arguments regarding his sentence. We engage in a 

four-step process when evaluating a sentence under the “advisory” sentencing scheme. 

Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007). First, the trial court must issue a 

sentencing statement that includes “reasonably detailed reasons or circumstances for 

imposing a particular sentence.” Id. Second, the reasons or omission of reasons given 

for choosing a sentence are reviewable on appeal for an abuse of discretion. Id. Third, 

the weight given to those reasons, i.e. to particular aggravators or mitigators, is not 

subject to appellate review. Id. Fourth, the merits of a particular sentence are reviewable 

on appeal for appropriateness under Indiana Appellate Rule 7(B). Id. Even if a trial 

court abuses its discretion by not issuing a reasonably detailed sentencing statement or in 

its findings or non-findings of aggravators and mitigators, we may choose to review the 

appropriateness of a sentence under Rule 7(B) instead of remanding to the trial court. 

See Windhorst v. State, 868 N.E.2d 504, 507 (Ind. 2007).

Sexton first argues that the trial court abused its discretion in its finding of 

mitigators. Specifically, he claims the trial court improperly failed to assign mitigating 

weight to his history of mental illness, his difficult childhood, his lesser role in the 

commission of the offense, and the purported fact that he was a “follower” in the 

commission of the offense. However, the trial court expressly stated that it was 

recognizing Sexton’s mental illness history, his difficult childhood, and his limited role in 

the commission of the offense. Moreover, although Sexton argues for separate mitigating 

weight to be given to the purported fact that he was a “follower,” we believe this falls 
8

under the ambit of Sexton having played a limited role in the commission of the offense. 

Thus, Sexton’s argument amounts to a request that we re-evaluate the weight the trial 

court gave to these mitigating circumstances. Under Anglemyer, we cannot do so. There 

is no abuse of discretion in the trial court’s sentencing statement.

Sexton also argues that his sentence is inappropriate under Rule 7(B) in light of 

the nature of the offense and his character. Although Rule 7(B) does not require us to be 

“extremely” deferential to a trial court’s sentencing decision, we still must give due 

consideration to that decision. Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App. 

2007). We also understand and recognize the unique perspective a trial court brings to its 

sentencing decisions. Id. “Additionally, a defendant bears the burden of persuading the 

appellate court that his or her sentence is inappropriate.” Id.

The principal role of Rule 7(B) review “should be to attempt to leaven the outliers, 

and identify some guiding principles for trial courts and those charged with improvement 

of the sentencing statutes, but not to achieve a perceived ‘correct’ result in each case.” 

Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). We “should focus on the forest—

the aggregate sentence—rather than the trees—consecutive or concurrent, number of 

counts, or length of the sentence on any individual count.” Id. Whether a sentence is

inappropriate ultimately turns on the culpability of the defendant, the severity of the 

crime, the damage done to others, and myriad other factors that come to light in a given 

case. Id. at 1224. When reviewing the appropriateness of a sentence under Rule 7(B), 

we may consider all aspects of the penal consequences imposed by the trial court in 
9

sentencing the defendant, including whether a portion of the sentence was suspended. 

Davidson v. State, 926 N.E.2d 1023, 1025 (Ind. 2010).

Regarding the nature of the offense, in the absence of any evidence or argument 

by the State to the contrary we accept Sexton’s contention that he played a relatively 

minor role in the sale of hydrocodone. Additionally, there is no evidence that this 

transaction was anything other than a one-time “routine” illegal drug sale.

Turning to Sexton’s character, the present offense was his third adult felony 

conviction. He was convicted of Class B felony criminal confinement in 2002, when he 

was nineteen. In 2004, while incarcerated, Sexton was convicted of Class D felony 

battery by bodily waste upon a law enforcement officer. In May 2011, Sexton agreed to 

be placed on pretrial diversion for one year for one count of Class D felony theft and one 

count of Class B misdemeanor harassment; he was still under the diversion program 

when he committed the present offense. In sum, since becoming an adult Sexton has had 

nearly constant interaction with the criminal justice system, including while he was 

incarcerated for his first felony conviction. This reflects very poorly upon his character.

Sexton nonetheless argues that his mental health issues justify a reduction in his 

sentence. Factors that may be considered in determining the weight to be given mental 

illness in sentencing include: “(1) the extent of the defendant’s inability to control his or 

her behavior due to the disorder or impairment; (2) overall limitations on functioning; (3) 

the duration of the mental illness; and (4) the extent of any nexus between the disorder or 
10

impairment and the commission of the crime.” Washington v. State, 940 N.E.2d 1220, 

1223 (Ind. Ct. App. 2011), trans. denied.

Here, although Sexton testified that he suffers from a longstanding mental illness 

and has taken various medications for it, the only mention of what Sexton specifically 

suffers from was by his mother, who said that Sexton has ADHD. There was no expert 

testimony nor any medical records documenting the full extent of Sexton’s mental illness, 

nor its impact on his overall functioning. As far as any nexus between Sexton’s mental 

illness and the present offense, there was only the non-medical expert testimony of his 

brother that when Sexton was not on his medication, he tended to do what others told him 

to do. We cannot conclude that this vague, undocumented evidence of Sexton’s mental 

health requires a reduction in his sentence.

Similarly, Sexton argues that we ought to find his sentence to be inappropriate in 

light of the evidence he presented of having had a difficult childhood, as exemplified in 

part by his dysfunctional family situation. Indiana courts, however, have consistently 

held that evidence of a difficult childhood and/or growing up in a dysfunctional family 

situation carries little mitigating weight in sentencing. See Timberlake v. State,753 

N.E.2d 591, 609-10 (Ind. 2001) (quoting Coleman v. State, 741 N.E.2d 697, 700 (Ind. 

2000), cert. denied), cert. denied.

We do note that Sexton pled guilty, which often reflects positively upon a 

defendant’s character for purposes of sentencing and Rule 7(B) review. See Cotto v. 

State, 829 N.E.2d 520, 526 (Ind. 2005). However, the importance of a guilty plea varies 
11

from case to case and may not be considered significantly mitigating if it does not 

demonstrate the defendant’s acceptance of responsibility or if the defendant received a 

substantial benefit in return for the plea. Anglemyer v. State, 875 N.E.2d 218, 221 (Ind. 

2007). Here, Sexton received a substantial benefit from the plea: the State abandoned its 

attempt to convict him of Class A felony dealing in a controlled substance in exchange 

for his plea to a Class B felony, and that plea capped his total executed sentence at twelve 

years, well below the twenty-year maximum for a Class B felony.

In sum, although the crime Sexton helped commit was not especially heinous, his 

character as reflected by his criminal history justifies the sentence imposed by the trial 

court. Nothing in the record has convinced us that that sentence is inappropriate.

Conclusion

The trial court did not err in denying Sexton permission to withdraw his guilty 

plea and it properly sentenced him. We affirm.

Affirmed.

VAIDIK, J., and MATHIAS, J., concur.