Court of Appeals of Indiana | Memorandum Decision 19A

- CR

- 2593 | April 20, 2020 Page 1 of 6



### 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 Ruth A. Johnson Indianapolis, Indiana A TTORNEY S FOR A PPELLEE 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
Anthony Epeards , Appellant

- Defendant,

v. 

### State of Indiana , Appellee

- Plaintiff

. April 20, 2020 Court of Appeals Ca se No. 19A

- CR

- 2593 Appeal from the Greene Circuit Court The Honorable Erik C. Allen, Judge Trial Court Cause No. 28C01

- 1901

- F4

- 1

Bailey , Judge .Court of Appeals of Indiana | Memorandum Decision 19A

- CR

- 2593 | April 20, 2020 Page 2 of 6 

# Case Summary
[1] Anthony Epeards (“Epeards”) pleaded guilty to Sexual Misconduct with a Minor, as a Level 4 felony, 1 and received a nine

- year sentence. He now appeals, arguing that the trial court abused its sentencing discr etion by omitting mitigating factors

. We affirm.



# Facts and Procedural History
[2] In January 2019, the State charged Epeards with two counts of Level 4 felony Sexual Misconduct with a Minor and one count of Level 5 felony Child Solicitation. 2 A jury trial was scheduled for August 6, 2019 , prior to which the count of Child Solicitation was dismissed . On the day of the scheduled jury trial, Epeards and the State reached a plea agreement under which Epeards would plead guilty to one count of Sexual Misconduct with a Minor in exchange for dismissal of the remaining count , with sentencing left to the discretion of the court

. The court then held a change

- of

- plea hearing at which Epeards admitted that, when he was twenty

- nine years old, he performed or submitted to sexual intercourse or other sexual conduct with fourteen

- year - old H.G. The trial court accepted the plea and entered a judgment of co nviction.

1 Ind. Code § 35

- 42

- 4

- 9(a)

. 2 I.C. § 35

- 42

- 4

- 6

.Court of Appeals of Indiana | Memorandum Decision 19A

- CR

- 2593 | April 20, 2020 Page 3 of 6

[3] A sentencing hearing was held in October 2019. At the hearing, there was evidence that H.G. struggled with depression and confided in Epeards, who was a neighbor of her family member. Epeards and H.G. communicated through an online messaging pr ogram. In the messages, Epeards called H.G. his “one and only,” Ex. at 22, and his “sexy baby,” id. at 129. He said that he loved her and missed her. At one point, Epeards told H.G., “I really plan on giving you a way better life as soon as you’re able to leave .” Id. at 22. He told her they would “be able to travel around” and “see stuff and do stuff.” Id. In another message, Ep eards said , “I really hope your feelings for me never change as you get older.” Id. at 25. He assured H.G. that he was “here forever.” Id.

[4] Epeards called several witnesses , and elicited testimony that Epeards had been consistently employed and that he was a hard w orker and a valued employee.

[5] The court identified two aggravating factors

— (1) that Epeards ha s a criminal history and (2) that he “groomed and took advantage of [H.G.] while she was in a very vulnerable position.” App. Vol. II at 18. The trial court assi gned “substantial aggravating weight” to the latter aggravating factor. Id. The court also identified one mitigating factor

— that Epeards chose to plead guilty . The court assigned this mitigating factor minimal weight , noting that Epeards waited to plead guilty until the day of the scheduled trial. Determining that the aggravating factors outweighed the mitigating factor, the court imposed a nine

year sentence, with six years executed and three years suspended to prob ation.

[6] Epeards now appeals.Court of Appeals of Indiana | Memorandum Decision 19A

- CR

- 2593 | April 20, 2020 Page 4 of 6 

# Discussion and Decision

[7] Sentencing is principally a discretionary function, and we give “considerable deference” to the court’s decis ion. Cardwell v. State , 895 N.E.2d 1219, 1222 (Ind. 2008) . We review its decision for an abuse of discretion, which “occurs if the decision is clearly against the logic and effect of the facts and circumstances before the cou rt.” Bethea v. State , 983 N.E.2d 1134, 1139 (Ind. 2013)

.
[8] In accordance with Indiana Code Section 35

- 38

- 1

- 3 , “[b]efore sentencing a person for a felony, the court must conduct a hearing to consider the facts and circumstances relevant to sentencing.” If the court identifies aggravating or mi tigating circumstances , the n the court must enter a “statement of the court ’ s reasons for selecting the sentence that it impos es.” I.C. § 35

- 38

- 1

- 3

. A court abuses its sentencing discretion by omitting a mitigating circumstance that is “clearly supported by the record and advanced for considerati on.” Anglemyer v. State , 868 N.E.2d 482, 490

- 91 (Ind. 2007) , clarified on reh ’ g . A court need not identify every mitigating circumstance, but it must “identify all significant mitigating circumstanc es.” Id. at 492

- 93 (emphasis added). Moreover, a court is no t obligated to explain why it did not find a circumstance to be significantly mitigat ing. Id. at 493

. Further more , “[ a] n 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 reco rd.” Id.

[9] Here, the court identified two aggravating factors and one mitigating factor. It imposed an aggravated sentence of nine years , which is within the statutoryCourt of Appeals of Indiana | Memorandum Decision 19A

- CR

- 2593 | April 20, 2020 Page 5 of 6

range for a Level 4 felony. See I.C. § 35

- 50

- 2

- 5.5 ( setting forth a sentencing range of two years to twelve years with an advisory sentence of six years).

[10] Epeards briefly suggests

— for the first time in his Reply Brief

— t hat the court abused its discretion by failing to consider evidence that Epeards ha s a helping nature and is a caring friend

. Epeards has waived this argument by raising it for the first time in his Reply Brief. See Bowman v. State , 51 N.E.3d 1174, 1179

- 80 (Ind. 2016) . Waiver notwithstanding, the circumstances of the offense are that Epeards took advantage of a child who confided in him. Thus, we cannot say the trial court abused its discretion in its treatment of this character evidence.

[11] Epeards chiefly argues that the trial court should hav e identified an additional mitigating factor

— i.e. , that Epeards has an “outstanding work ethic” with a “steady record as a productive member of society.” Br. of Appellant at 7.

[12] Notably , a court “ does not abuse its discretion by declining to find alleged

m itigating factors that are ‘highly disputable in nature, weight or significance.’” Jackson v. State , 973 N.E.2d 1123, 1 130

- 31 (Ind. Ct. App. 2012) (quoting Rawson v. State , 865 N.E.2d 1049, 1056 (Ind. Ct. App. 2007) , trans. denied ), trans. denied

. Moreover, as this Court h as previously observed, “[m]any people are gainfully employed such that this would not require the trial court to note it as a mitigating factor.” Newsome v. State , 797 N.E.2d 293, 301 (Ind. Ct. App. 2003)

.Court of Appeals of Indiana | Memorandum Decision 19A

- CR

- 2593 | April 20, 2020 Page 6 of 6

[13] Ultimately, the court acted well within its discretion in rejecting the proposed employment

- related mitigating factor

. We discern no abuse of discretion here. 3

[14] Affirmed.
Crone, J., and Altice, J., concur.

3 To the extent Epeards suggests that the court improperly weighed the aggravati ng circumstances and the mitigating circumstances, we note that “[t]he relative weight or value assignable to reasons properly found or those which should have been found is not subject to review for abuse.” Anglemyer , 868 N.E.2d at 491

.