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:

P. JEFFREY SCHLESINGER GREGORY F. ZOELLER

Public Defender Attorney General of Indiana

Crown Point, Indiana

IAN McLEAN

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

BERNARD SIMMONS, )

)

Appellant-Defendant, )

)

vs. ) No. 45A04-1203-CR-104

)

STATE OF INDIANA, )

)

Appellee-Plaintiff. )

APPEAL FROM THE LAKE SUPERIOR COURT

The Honorable Salvador Vasquez, Judge

Cause No. 45G01-0909-FA-42

November 16, 2012

MEMORANDUM DECISION - NOT FOR PUBLICATION

MAY, Judge
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Bernard Simmons appeals his six-year sentence for Class C felony criminal 

confinement.1 We affirm.

FACTS AND PROCEDURAL HISTORY

On September 4, 2009, the State charged Simmons with one count of Class A felony 

child molesting,2 one count of Class B felony child molesting,3and one count of Class C 

felony child molesting4after Simmons was discovered with a partially clothed minor who 

later indicated sexual intercourse occurred. Pursuant to a plea agreement, the State dismissed 

those counts and filed a charge of Class C felony criminal confinement, to which Simmons 

entered a plea of guilty. The plea left sentencing open to the trial court’s discretion based on 

the parties’ arguments. The trial court sentenced Simmons to six years incarcerated.

DISCUSSION AND DECISION

A person who commits a Class C felony “shall be imprisoned for a fixed term of 

between two (2) and eight (8) years, with the advisory sentence being four (4) years.” Ind. 

Code § 35-50-2-6(a). “[S]entencing is principally a discretionary function in which the trial 

court’s judgment should receive considerable deference.” Cardwell v. State, 895 N.E.2d 

1219, 1222 (Ind. 2008). A trial court may impose any sentence “within the allowable range 

for a given crime without a requirement to identify specific aggravating or mitigating 

circumstances.” Id. Nevertheless, the court “must enter a statement including reasonably 

 

1

Ind. Code § 35-42-3-3(b)(1).

2

Ind. Code § 35-42-4-3(a).

3

Ind. Code § 35-42-4-3(a).

4

Ind. Code § 35-42-4-3(b).
3

detailed reasons or circumstances for imposing a particular sentence.” Id. at 1223. We 

review the reasons given, and the omission of reasons arguably supported by the record, for

an abuse of discretion. Id. “The relative weight or value assignable to reasons properly 

found or those which should have been found is not subject to review for abuse [of 

discretion].” Id. A sentencing court abuses its discretion only if its 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.” Anglemyer v. State, 868 N.E.2d 

482, 490 (Ind. 2007), clarified on reh’g on other grounds 875 N.E.2d 218 (Ind. 2007).

Simmons argues the trial court should have considered as a mitigator “the undisputed 

testimony that Simmons would suffer hardship and probably beatings while incarcerated” and

the trial court improperly “utiliz[ed] facts from a charge which [sic] was not proven to 

impose an aggravated sentence[.]” (Br. of Appellant at 6.) There was no abuse of discretion.

The trial court found as mitigators:

1. The defendant has pled guilty and admitted responsibility which 

minimal weight is given since the defendant was originally charged 

with a Class A felony.

2. Evidence at sentencing indicates that the defendant has diminished 

capacity. However, the defendant functions well in society and recently 

obtained a driver’s license.

3. The defendant has a lack of criminal activity or history.

(App. at 14.) Simmons’ father testified Simmons “won’t make it in jail” because he “doesn’t

even defend himself when he’s out here free.” (Tr. at 44.) The trial court noted:

Do I think a prison sentence will be a hardship to you? I do. Mostly because 

of your diminished mental capacity. But can I use that as such a significant 

factor, just by all the aggravating factors that I’ve noted, to keep you out of 

prison? The answer I have for myself and the answer I have for you is 
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absolutely not.

(Id. at 72-3.) The trial court is not required to accept the mitigators proffered by the 

defendant, nor is it required to give a proposed mitigator the same weight a defendant does. 

Flickner v. State, 908 N.E.2d 270, 273 (Ind. Ct. App. 2009). Therefore, the trial court did not 

abuse its discretion when it did not give the same mitigating weight to the alleged hardship 

Simmons might face in prison as Simmons might have hoped.

The trial court found as aggravators:

1. As indicated in the factual basis for the plea agreement: upon the 

discovery of confinement, the victim was found crying on a bed and 

adjusting her underwear.

2. Evidence at sentencing reveals that the defendant would sedate the 

victim to facilitate the defendant’s advances toward the victim.

3. The defendant was the live-in boyfriend of the victim’s mother and 

served as a caretaker when the mother was at work. As such, he 

violated a significant position of trust.

4. The victim testified to multiple episodes of sexual intercourse.

5. The defendant’s character is deceptive and manipulative.

(App. at 14-5.) Simmons argues the trial court’s consideration of the victim’s testimony that 

there were multiple episodes of sexual intercourse was improper because those facts were 

unproven. However, the trial court may consider uncharged conduct as an aggravating 

circumstance. Harlan v. State, 971 N.E.2d 163, 170 (Ind. Ct. App. 2012). Simmons’ presentence investigation report indicated there were uncharged incidents of alleged sexual 

contact with the victim in Illinois. The victim testified at sentencing hearing about multiple 

episodes of sexual intercourse. Based on that evidence, we find no abuse of discretion in the 

trial court’sfinding an aggravator in the multiple episodes of sexual intercourse, even though
5

Simmons was not criminally charged for those offenses. Accordingly, we affirm.

Affirmed.

NAJAM, J., and KIRSCH, J., concur.