Court of Appeals of Indiana | Memorandum Decision 18A

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### 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.

A TTORNEY FOR A PPELLANT Jennifer L. Koethe Navarre, Florida A TTORNEY S FOR A PPELLEE Curtis T. Hill, Jr. Attorney General of Indiana
Samantha M. Sumcad Deputy Attorney General Indianapolis, Indiana



### IN THE 

# COURT OF APPEALS OF INDIANA

Erik Lee Minter , Appellant

- Defendant,

v.


### State of Indiana , Appellee

- Plaintiff

. May 9, 2019 Court of Appeals Ca se No. 18A

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- 2312 Appeal from the LaPorte Circuit Court The Honorable Thomas J. Alevizos, Judge Trial Court Cause No. 46C01

- 1511

- F5

- 929

Najam , Judge
.Court of Appeals of Indiana | Memorandum Decision 18A

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- 2312 | May 9, 2019 Page 2 of 5 

### Statement of the Case

[1] Erik Lee Minter appeals his sentence after he pleaded guilty to aggravated battery, as a Level 3 felony, and neglect of a dependen t, as a Level 3 felony. Minter raises a single issue for our review, namely, whether the trial court abused its discretion when it sentenced him. 1 We affirm. 

### Facts and Procedural History

[2] In June of 2018, Minter pleaded guilty to aggravated battery, as a Level 3 felony, and neglect of a dependent, as a Level 3 felon y. Minter plead ed guilty under an open plea

. The victim of both of Minter’s offenses was his sixty

- eight

year - old , physically disabled uncle , who died as a result of Minter’s acts

.

[3] The trial court accepted Minter’s guilty plea and held a sentencing heari ng. At that hearing, the State argued that Minter’s criminal history, the age of the victim, that the victim was physically disabled, that Minter was on pretrial release for another offense a t the time of the instant offenses, that Minter was in a positio n of trust over the victim , 2 that Minter has repeatedly violated probation or other early releases in the past, and the victim’s death were each aggravating circumstances. Minter argu ed , among other things, that his guilty

1 Minter makes passing references to Indiana Appellate Rule 7(B) in his brief on appeal, but it is clear that the substance of his argument is whether the trial court abused its discretion when it sentenced him, not whether his sentence is inappropriate under Appellate Rule 7(B). We limit our review accordingly. Ind. Appellate Rule 46(A)(8)(a).

2 The State limited this factor to the battery offense.Court of Appeals of Indiana | Memorandum Decision 18A

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- 2312 | May 9, 2019 Page 3 of 5 plea, his remorse , that “this crime is the result of circumstances that are unlikely

. . . to ever happen again,” and the hardship that his incarceration would have on his wife , who was homeless, were mitigating factors. Tr. at 9. In his expression of remorse, he stated th at, “[h]ad I not been drinking

. . . the whole incident wouldn’t have happened , ” and he noted adverse circumstances from his childhood that lead him to becoming an alcoholic. Id. at 10.

[4] Following the parties’ arguments, the court found as follows:

Alcohol is not a defense to a crime

. . . . Nor will it be used in this instance as a mitigator for your defense.

. . . I find that your guilty plea is a mitigating factor. I do not find remorse because

. . . you always mitigate your culpability

. . . . [T]he mitigating factor that you pled guilty

. . . is, in fact, mitigated because you plead guilty to only two of the four counts.
On the ag gravating side for the battery, we have criminal history, the fact that you were on pretrial release, and that you were i n a position of trust, and that your victim was both over 65 and disabled

. . . . On the second count , . . . [h]e died

. . . .

Id. at 17

- 19 . The court further found that , “if I were not to impose consecutive sentences, it would demean the seriousness of th e

. . . second offense

. . . .” The court then sentenced Minter to an aggregate term of twen ty

- two years in the Department of Correction. This appeal ensued.


### Discussion and Decision

[5] Minter asserts that the trial court abused its discretion when it senten ced him. Sentencing decisions lie within the sound discretion of the trial court. CardwellCourt of Appeals of Indiana | Memorandum Decision 18A

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- 2312 | May 9, 2019 Page 4 of 5 v. State , 895 N.E.2d 1219, 1222 (Ind. 2008). 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.” Gross v. State , 22 N.E.3d 863, 869 (Ind. Ct. App. 2014) (citation omitted), trans. denied

.

[6] A trial court abuses its discretion in sentencing if it does any of th e following:
(1) fails “to enter a sentencing statement at all;” (2) enters “a sentencing statement that explains reasons for imposing a sentence

— including a finding of aggravating and mitigating factors if any

— but the record does not support the reasons;” (3) enters a sentencing statement that “omits reasons that are clearly supported by the record and advanced for consideration;” or (4) considers reasons that “are improper as a matter of law.”

Id. (quoting Anglemyer v. State , 868 N.E.2d 482, 490

- 491 (Ind.), clarified on reh ’ g other grounds , 875 N.E.2d 218 (Ind. 2007)). Here, Minter asserts that the trial court abused its discretion when it omitted reasons that, according to Minter,

we re clearly supported and advanced for consideration in the trial court, namely, his remorse, his assertion that the circumstances of the instant offenses were unlikely to recur, and the hardship his incarceration would have on his wife.

[7] We cannot agree wit h Minter’s assessment. His purported assertions of

rem orse in the trial court were , as the trial court accurately noted, couched in terms of mitigating his own culpability. His bald and self

- serving assertions that his actions were unlikely to recur had no support aside from Minter’s ownCourt of Appeals of Indiana | Memorandum Decision 18A

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- 2312 | May 9, 2019 Page 5 of 5 opinion. And , even if Minter’s incarceration were to cause a hardship on his wife, Minter does not demonstrate on appeal why that outcome, or the other purported mitigating circumstances, was significant for purposes of sentencing

. See, e.g. , Sandleben v. State , 22 N.E.3d 782, 796 (Ind. Ct. App. 2014) (stating that a “trial court need not state in the record those mitigating circumstances that it considered insigni ficant”) , trans. denied . Finally, insofar as Minter argu es that the trial court erred in the weight it assigned, or did not assign, to the mitigating circumstances, that argument is not available for appellate review

. Anglemyer , 868 N.E.2d at 491.

[8] In sum, Minter has not met his burden on appeal to show that th e trial court abused its discretion when it sentenced him. Accordingly, we affirm his

sentence.

[9] Affirmed.

Baker, J., and Robb, J. , concur

.