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: ATTORNEYS FOR APPELLEE:

MARK SMALL GREGORY F. ZOELLER

Indianapolis, Indiana Attorney General of Indiana

JODI KATHRYN STEIN

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

TERENCE W. LOWERY, )

)

Appellant-Defendant, )

)

vs. ) No. 54A05-1402-CR-85

)

STATE OF INDIANA, )

)

Appellee-Plaintiff. )

APPEAL FROM THE MONTGOMERY CIRCUIT COURT

The Honorable Harry A. Siamas, Judge

Cause No. 54C01-0903-FA-39

September 18, 2014

MEMORANDUM DECISION – NOT FOR PUBLICATION

BAKER, Judge 
2

Terence Lowery appeals his twenty-year executed sentence that was imposed 

following his guilty plea to one count of Child Molesting as a class A felony1 and one 

count of Sexual Misconduct with a Minor as a class B felony.

2

 Lowery argues that the 

trial court erred when it failed to adequately consider his lack of criminal record and 

mental health during sentencing. Finding that the trial court did not abuse its discretion 

in sentencing Lowery, we affirm.

FACTS

Lowery is A.B’s uncle. In February and October 2006, Lowery engaged in sexual 

intercourse with A.B. on multiple occasions and in different locations. A.B. was thirteen 

and Lowery was twenty-six. From October 2006 until October 2008, Lowery continued 

to have sexual intercourse with A.B. at multiple locations, including North Montgomery 

High School, where A.B. was a student and Lowery was a custodian. In March 2009, 

A.B. told the police about the molestation. 

On March 25, 2009, the State charged Lowery with two counts of child molesting 

as a class A felony and two counts of sexual misconduct with a minor as a class B felony. 

Under a written plea agreement, Lowery pleaded guilty to one count of class A felony 

child molesting and one count of sexual misconduct with a minor, with a twenty-year cap 

on the executed sentence. 

 

1

Ind. Code § 35-42-4-3

2

I.C. § 35-42-4-9
3

On November 6, 2009, the trial court held a combined guilty plea and sentencing 

hearing. During sentencing, the trial court considered Lowery’s lack of criminal history 

and his cooperation with law enforcement as mitigating factors. The trial court found the 

following aggravating factors: 1) the age difference between Lowery and A.B., 2) the fact 

that Lowery was related to A.B., and 3) the length of time spanning the incidents and the 

number of incidents. The trial court found that the aggravating factors outweighed the 

mitigating factors and sentenced Lowery to thirty years with ten years suspended for the 

class A felony child molesting conviction and to twenty years for the class B sexual 

misconduct with a minor conviction. The sentences were ordered to run concurrently for 

an aggregate executed sentence of twenty years. 

Lowery now appeals. 

DISCUSSION AND DECISION

Lowery argues that the trial court erred when it sentenced him to an executed term 

of twenty years, which was the cap in his plea agreement with the State. He contends

that, in doing so, the trial court did not adequately consider the mitigating factors or his 

mental health. 

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). Indeed, a trial court 

“may impose any sentence that is: (1) authorized by law; and (2) permissible under the 

Constitution of the State of Indiana ... regardless of the presence or absence of 
4

aggravating circumstances or mitigating circumstances.” Ind. Code § 35-38-1-7.1(d). A 

trial court abuses its sentencing discretion if its decision is clearly against the logic and 

effect of the facts and circumstances before it, or the reasonable, probable, and actual 

deductions to be drawn therefrom. Childress v. State, 848 N.E.2d 1073, 1078 (Ind.

2006).

When imposing the sentence, a trial court is not obligated to find a circumstance to 

be mitigating merely because it is advanced as such by the defendant. Felder v. State, 

870 N.E.2d 554, 558 (Ind. Ct. App. 2007). An allegation that the trial court failed to 

identify or find a mitigating factor 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. A trial court does not abuse its discretion by failing to consider a mitigating 

factor not argued at sentencing, and it has no obligation to weigh aggravating and 

mitigating factors against each other. Id. at 491–92.

Lowery argues that the trial court did not give adequate weight to the mitigating 

factors it identified at his sentencing hearing. Lowery does not argue that the trial court 

did not weigh his lack of criminal history or his cooperation with law enforcement; he 

simply argues that these factors should have been given more weight. However, our 

Supreme Court has noted that, when imposing a sentence, a trial court has no obligation 

to weigh aggravating and mitigating factors against each other. Kimbrough v. State, 979 

N.E.2d 625, 629 (Ind. 2012). Nor is the trial court required to give the same weight to a 

mitigating factor as a defendant would have. Rogers v. State, 878 N.E.2d 269, 272 (Ind. 
5

Ct. App. 2007). Here, the trial court did weigh the aggravating and mitigating factors; it 

found that the aggravating factors—the age difference between Lowery and A.B., the fact

that Lowery was related to A.B, and the length of time spanning the incidents and the 

number of incidents—outweighed the mitigating factors. We will not find that the trial 

court erred in weighing the mitigating and aggravating factors simply because it did not 

give the mitigating factors the weight Lowery would have liked. 

Lowery also contends that the trial court erred when it did not consider his mental 

health as a mitigating factor. He argues that the trial court should have considered mental 

illness as a mitigating factor because 1) the trial noted that he had trouble in high school 

because of a learning disability and ADD or ADHD, 2) an exhibit presented by Lowery 

showed that a mental health assessment done at Marion County Jail found that Lowery 

was suffering from depression, cocaine dependence, and cannabis abuse, and 3) Lowery 

was molested when he was fourteen. Tr. p. 68; Ex. A; PSR p. 53. 

Lowery relies upon Cox v. State, 780 N.E.2d 1150 (Ind. Ct. App. 2002), to 

support his argument. He correctly notes that, where documented, mental illness, 

especially if it has some connection to the crime involved, must be given some, and 

sometimes considerable, weight in mitigation. Id. at 1162 (citing Biehl v. State, 738 

N.E.2d 337, 340 (Ind. Ct. App. 2000)). 

While we recognize this authority, Lowery’s reliance on Cox is misplaced. In 

Biehl v. State, this Court noted that, when considering what weight to give to the 

evidence of a defendant’s mental illness, the factors include: (1) the extent of the 
6

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 impairment and the commission of the crime. 

738 N.E.2d at 340. Additionally, in Ousley v. State, 807 N.E.2d 758, 762 (Ind. Ct. App. 

2004), we noted that: 

[O]f critical importance to the holding in Biehl is that the defendant 

suffered from a longstanding mental illness that was connected to the crime 

for which Biehl was sentenced, so much so that Biehl was found to be 

guilty but mentally ill. Indeed, in the cases in which our Supreme Court 

has said that a defendant is entitled to mitigating weight based upon a 

mental illness, the evidence of the illness was so pervasive throughout the 

proceedings that the defendant was found to be guilty but mentally ill. 

(internal citations removed). Therefore, this Court has determined that mental illness is a 

mitigating factor that is not required to be given weight at all times; rather, it is a 

mitigating factor to be used in certain circumstances, such as when the evidence 

demonstrates longstanding mental health issues or the jury finds that a defendant is 

mentally ill. Id.

Here, there is scant evidence to show that Lowery might be suffering from 

longstanding mental health issues, and the jury did not find him to be mentally ill. 

Moreover, when considering the four Biehl factors, Lowery does not argue that his 

mental health impaired his ability to control his behavior, that it impaired his ability to

function, or that there was any nexus between his mental health and the commission of 

his crimes. Indeed, Lowery presents no evidence that he had a serious mental illness. 
7

Under these circumstance, we find that the trial court was not required to consider mental 

illness as a factor in sentencing Lowery. 

The judgment of the trial court is affirmed.

KIRSCH, J., and ROBB, J., concur.