Court of Appeals of Indiana | Memorandum Decision 41A04-1712-CR-2968 | November 30, 2018 Page 1 of 8

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

Michael R. Auger

Franklin, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Evan Matthew Comer

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Joseph Evan Avart,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

November 30, 2018

Court of Appeals Case No.

41A04-1712-CR-2968

Appeal from the Johnson Circuit 

Court

The Honorable K. Mark Loyd, 

Judge

Trial Court Cause No.

41C01-1612-MR-1

Baker, Judge.
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[1] Joseph Avart appeals the sentence imposed by the trial court after Avart 

pleaded guilty to Level 1 Felony Burglary1 and Level 2 Felony Manslaughter.2 

Avart argues that the trial court failed to consider certain mitigating factors and 

that the sentence is inappropriate in light of the nature of the offenses and his 

character. Finding no sentencing error and that the sentence is not 

inappropriate, we affirm.

Facts

[2] In the months leading up to December 2016, Avart was involved in an onagain-off-again relationship with Mindy Tennenhouse. Tennenhouse had 

previously been in a committed relationship with Andrew Perry, but in July 

2016, she left Perry to live with Avart. By October 2016, Tennenhouse had 

reconciled with Perry and moved back in with him in November. During her 

separation from Avart, she maintained contact with him and repeatedly 

suggested that she wanted to leave Perry again.

[3] By that time, Avart had begun stalking Perry. During November 2016, Avart 

drove by Perry’s home approximately five times. He asked his mother, who 

was an employee with the Illinois State Police, to run a criminal background 

check on Perry.

 

1

Ind. Code § 35-43-2-1.

2

Ind. Code § 35-42-1-3.
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[4] On November 29, 2016, Tennenhouse visited Avart at his home and the two 

engaged in sexual intercourse. The next day, Tennenhouse again told Avart 

that she loved him and wanted to be with him. Later that day, Avart went to 

the Indianapolis International Airport, where Perry was expected to arrive after 

being away from home for work. Avart located Perry’s car and followed Perry 

all the way to his home in Greenwood. Avart wanted Perry to “think 

somebody was over his shoulder[.]” Tr. Vol. II p. 26.

[5] The next day, Avart went to a gun store, where he purchased two boxes of 

ammunition for the handgun that he kept inside the glove compartment in his 

car. He reached out to an acquaintance to ask whether the GPS location 

devices in his vehicle and cell phone could be used to track his whereabouts.

[6] In the early morning hours of December 2, 2016, Avart drove to Perry’s house 

after Tennenhouse had left for work. Avart parked his car several blocks down 

from Perry’s house. Before exiting his car, he placed his handgun and a baggie 

of a cocaine lookalike substance in his pockets. Avart entered Perry’s house 

through an open garage door. After Perry discovered Avart inside his house, 

the two men became involved in a verbal altercation and Perry became very 

upset. Perry moved toward Avart, who tripped and fell backwards. Avart then 

pulled his gun out of his pocket and shot Perry in the head.

[7] Believing Perry to be dead, Avart removed several items in the kitchen and 

threw them on the floor to make it appear as though a robbery had occurred. 

He left the cocaine lookalike substance near Perry and fled the scene. Perry’s 
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mother later discovered her son several hours later. Police and paramedics 

arrived at the scene, and Perry was pronounced dead.

[8] Avart initially admitted to following Perry to unsettle him but denied that he 

had been at Perry’s home on the morning of the incident. After police obtained 

the GPS data from Avart’s vehicle and Avart’s cell phone records, which 

showed him near Perry’s home at the time Perry was killed, Avart confessed to 

killing Perry. 

[9] On December 19, 2016, the State charged Avart with one count of murder, later 

amending the charging information to add charges of Level 2 felony voluntary 

manslaughter and Level 1 felony burglary. On November 13, 2017, Avart 

pleaded guilty to voluntary manslaughter and burglary in exchange for the 

dismissal of the murder charge. Following a sentencing hearing, the trial court 

sentenced Avart to concurrent terms of twenty-five years for voluntary 

manslaughter and thirty-five years for burglary. Avart now appeals.

Discussion and Decision

[10] Avart raises two arguments on appeal: (1) the trial court erroneously failed to 

consider relevant mitigating factors; and (2) the sentence is inappropriate in 

light of the nature of the offenses and his character.

[11] With respect to mitigators not found by the trial court, Avart has the burden of 

demonstrating that the mitigating evidence is both significant and clearly 

supported by the record. McElfresh v. State, 51 N.E.3d 103, 112 (Ind. 2016). 

Even if we find error, we will affirm if we are persuaded that the trial court 
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would have imposed the same sentence had it considered the proffered 

mitigators. Id.

[12] First, Avart argues that the trial court should have considered the fact that he 

pleaded guilty to be a mitigating factor.3 A guilty plea need not be considered a 

significant mitigator where the defendant reaped a substantial benefit from the 

plea or where the evidence against the defendant is so overwhelming that the 

plea is merely a pragmatic decision. Wells v. State, 836 N.E.2d 475, 479 (Ind. 

Ct. App. 2005). 

[13] Here, Avart reaped a substantial benefit by pleading guilty. Had he been 

convicted of murder, he faced a sentence of forty-five to sixty-five years 

imprisonment. Ind. Code § 35-50-2-3. By pleading guilty instead to one Level 

1 and one Level 2 felony, he decreased his sentencing exposure—and indeed, 

his sentence here was an aggregate thirty-five-year term, which is ten years less 

than the minimum term he would have faced had he been convicted of murder. 

Moreover, the guilty plea was a pragmatic decision made at the eleventh 

hour—less than two weeks before his jury trial was to take place. See Barker v. 

State, 994 N.E.2d 306, 311-12 (Ind. Ct. App. 2013) (noting that a defendant 

who pleads guilty shortly before trial may not be entitled to any mitigating 

weight for such a decision). Additionally, the evidence against him—including 

 

3 Avart did not argue that the trial court should consider his guilty plea or—later discussed herein—his 

remorse as mitigators. Instead, Avart advanced only two mitigators: his lack of a criminal history and the 

undue hardship that a lengthy incarceration would place on his family. Under these circumstances, we could 

easily conclude that he has waived this argument but will address it nonetheless.
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his own confession—was overwhelming. Under these circumstances, we find 

that the trial court did not err by not finding the guilty plea to be a mitigator.

[14] Second, Avart argues that his remorse should have been a mitigating 

circumstance. The trial court did consider Avart’s show of remorse, but merely 

found it to be unconvincing:

You generally have appeared very remorseful. That is the 

demeanor that you’ve presented to this Court. But your 

statements at the time of the arrest coupled with your written 

statement to me create confusion that doesn’t allow for an easy 

path, and certainly not a mitigated path.

Tr. Vol. II p. 66-67. It is well established that the trial court, “which has the 

ability to correctly observe the defendant and listen to the tenor of his or her 

voice, is in the best position to determine whether the remorse is genuine.” 

Corralez v. State, 815 N.E.2d 1023, 1025 (Ind. Ct. App. 2004). Here, we see no 

reason to second-guess the trial court’s determination that Avart’s show of 

remorse was not sincere and, consequently, was not a mitigating factor.

[15] Next, Avart contends that the sentence imposed by the trial court is 

inappropriate in light of the nature of the offenses and his character. Indiana 

Appellate Rule 7(B) provides that this Court may revise a sentence if it is 

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

offender. We must “conduct [this] review with substantial deference and give 

‘due consideration’ to the trial court’s decision—since the ‘principal role of 

[our] review is to attempt to leaven the outliers,’ and not to achieve a perceived 
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‘correct’ sentence . . . .” Knapp v. State, 9 N.E.3d 1274, 1292 (Ind. 2014) 

(quoting Chambers v. State, 989 N.E.2d 1257, 1259 (Ind. 2013)) (internal 

citations omitted).

[16] Avart was convicted of one Level 1 felony, for which he faced a term of twenty 

to fifty years imprisonment, with an advisory term of thirty years. I.C. § 35-50-

2-4(a). The trial court imposed a thirty-five-year sentence, which is slightly 

above the advisory but far below the maximum possible term. He was also 

convicted of one Level 2 felony, for which he faced a term of ten to thirty years 

imprisonment, with an advisory term of seventeen and one-half years. I.C. § 

35-50-2-4.5. The trial court imposed a twenty-five-year sentence, which is again 

above the advisory but below the maximum possible term. Additionally, the 

trial court ordered that the sentences be served concurrently, meaning that his 

aggregate thirty-five-year sentence was far below the maximum possible term of 

eighty years imprisonment.

[17] As for the nature of Avart’s offenses, he stalked Perry for weeks, repeatedly 

driving by his house and on one occasion, following him home from the airport 

to unsettle him. In the days leading up to the crimes, Avart purchased 

ammunition for his handgun, purchased a cocaine lookalike substance, and 

asked a friend whether the GPS in his phone and vehicle could be used to track 

his whereabouts. In other words, Avart carefully planned and prepared for 

these crimes. After killing Perry, Avart ransacked his home to make it appear 

as though Perry had died during a botched robbery, leaving Perry’s body for his 

mother to find. Avart then lied to the police repeatedly until finally being 
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confronted with incontrovertible evidence that he had, in fact, been at Perry’s 

home on the morning of the incident. We do not find that the nature of the 

offenses aids Avart’s inappropriateness argument.

[18] With respect to Avart’s character, it is true that he does not have a criminal 

history. But the trial court reasonably found that the premeditated, calculated 

nature of Avart’s crime is sufficient to overcome the lack of a prior criminal 

history. See Eversole v. State, 873 N.E.2d 1111, 1114 (Ind. Ct. App. 2007) 

(finding sentence not inappropriate where defendant had no criminal history 

but the violent nature of the crime, particularly the fact that defendant had 

killed a man, overcame the lack of prior criminal history). We also note that 

Avart’s dishonesty, including his attempt to cover up the crime, speaks ill of his 

character. 

[19] Under these circumstances, we find that the sentence imposed by the trial court 

is not inappropriate in light of the nature of the offenses and Avart’s character.

[20] The judgment of the trial court is affirmed.

May, J., and Tavitas, J., concur.