Court of Appeals of Indiana | Memorandum Decision 03A04-1707-CR-1554 | December 5, 2017 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

Christopher L. Clerc

Columbus, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Michael Gene Worden

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Todd Barlow,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

December 5, 2017

Court of Appeals Case No.

03A04-1707-CR-1554

Appeal from the Bartholomew 

Circuit Court

The Honorable Kelly S. Benjamin, 

Judge

Trial Court Cause Nos.

03C01-1703-F6-1388

03C01-1703-F6-1874

Najam, Judge.
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Statement of the Case

[1] Todd Barlow appeals his sentence following his guilty plea to three Level 6 

felonies and the trial court’s revocation of the suspended portion of that 

sentence following Barlow’s violation of the conditions of his probation.

1

 

Barlow raises two issues for our review, which we restate as the following three 

issues:

1. Whether the trial court abused its discretion when it 

sentenced Barlow on the underlying convictions without 

finding Barlow’s guilty plea to be a significant 

mitigating circumstance.

2. Whether Barlow’s sentence on his underlying convictions

was inappropriate in light of the nature of the offenses and 

his character.

2. Whether the trial court abused its discretion when it 

sentenced Barlow after it had revoked his probation.

[2] We affirm.

Facts and Procedural History

[3] On April 28, 2017, Barlow pleaded guilty, pursuant to a written plea agreement, 

to theft and the unlawful possession of a syringe, each as a Level 6 felony, in 

 

1

 Given the rapidity with which Barlow violated the conditions of his probation after the trial court had 

originally sentenced him on the three Level 6 felonies, Barlow’s notice of appeal timely captures both 

judgments.
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cause number 03C01-1703-F6-1388 (“F6-1388”). In that same agreement, 

Barlow pleaded guilty to possession of methamphetamine, as a Level 6 felony, 

in cause number 03C01-1703-F6-1874 (“F6-1874”). In exchange for his plea, 

the State dismissed an additional Level 6 felony allegation, a Class A 

misdemeanor allegation, and two Class B misdemeanor allegations. The plea 

agreement left sentencing to the discretion of the trial court. The court accepted 

Barlow’s plea agreement.

[4] On June 8, the court held a sentencing hearing. At the conclusion of that 

hearing, the court ordered Barlow to serve two-and-one-half years on each of 

the three Level 6 felony offenses, with the two sentences in cause number F6-

1388 to run concurrently with each other and the sentences in the two cause 

numbers to run consecutive to each other. The court then suspended the 

entirety of Barlow’s remaining aggregate sentence to probation. Among other 

conditions of his probation, the court prohibited Barlow from using controlled 

substances and required him to submit to drug screens.

[5] Six days later, while released on probation, Barlow refused to submit to an oral 

drug screen. Accordingly, the State filed its notice of a probation violation in 

both cause numbers. And, at the ensuing hearing on June 19, Barlow admitted 

that he had refused to submit to the oral drug screen as alleged.

[6] On July 6, the court held a dispositional hearing on Barlow’s probation 

violation. Following that hearing, the court ordered Barlow to serve the 

entirety of his previously suspended sentence. This appeal ensued.
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Discussion and Decision

Issue One: Whether the Trial Court Abused Its Discretion

When It Imposed Barlow’s Original Sentence

[7] Barlow first asserts on appeal that the trial court abused its discretion when it 

originally sentenced him. As our Supreme Court has stated:

Sentencing is left to the discretion of the trial court, and abuse of 

that discretion arises by the court: (1) failing to enter a 

sentencing statement at all; (2) entering a sentencing statement in 

which the aggravating and mitigating factors are not supported 

by the record; (3) entering a sentencing statement that does not 

include reasons that are clearly supported by the record and 

advanced for consideration; or (4) entering a sentencing 

statement in which the reasons provided in the statement are 

improper as a matter of law.

Ackerman v. State, 51 N.E.3d 171, 193 (Ind. 2016) (quotation marks omitted).

[8] Barlow’s only argument on this issue is that the trial court failed to take his 

guilty plea into account when it sentenced him.2 It is well established that “a 

defendant who pleads guilty deserves to have mitigating weight extended to the 

guilty plea in return.” Francis v. State, 817 N.E.2d 235, 238 (Ind. 2004). 

However, it is just as well established that “the significance of a guilty plea as a 

mitigating factor varies from case to case,” and “a guilty plea may not be 

 

2

 Barlow also states that the trial court “should have . . . taken [his] remorse and requests for treatment as 

mitigating factors,” but this statement appears in the context of why Barlow asserts that his guilty plea is 

significant. Appellant’s Br. at 14-15. Insofar as Barlow intended his remorse and requests for treatment to be 

independent bases for appellate review of the sentence imposed, Barlow has not demonstrated that those 

requests were significant mitigating circumstances. See Anglemyer v. State, 875 N.E.2d 218, 221 (Ind. 2007).
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significantly mitigating when . . . the defendant receives a substantial benefit in 

return for the plea.” Anglemyer v. State, 875 N.E.2d 218, 221 (Ind. 2007). 

Similarly, a guilty plea is not necessarily a mitigating factor “where evidence 

against the defendant is so strong that the decision to plead guilty is merely 

pragmatic.” Amalfitano v. State, 956 N.E.2d 208, 212 (Ind. Ct. App. 2011), 

trans. denied.

[9] We agree with the State that Barlow received a substantial benefit in exchange 

for his plea when the State agreed to dismiss four additional charges that were 

pending against him. Those four charges, cumulatively, could have resulted in 

an additional four-and-one-half years to his sentence, which would have nearly 

doubled the five-year aggregate term that the trial court imposed. We also 

agree with the State that its evidence against Barlow was strong—police officers

discovered evidence underlying Barlow’s convictions on his person, and a video 

recording system recorded him committing theft. Accordingly, we conclude 

that Barlow has not met his burden on appeal to show that his guilty plea was a 

significant mitigating circumstance, and we cannot say that the trial court 

abused its discretion when it did not identify it as such.

Issue Two: Whether Barlow’s Sentence is Inappropriate

[10] Barlow next contends that his five-year, suspended sentence is inappropriate in 

light of the nature of the offenses and his character. As we have explained:

Indiana Appellate Rule 7(B) permits an Indiana appellate court 

to “revise a sentence authorized by statute if, after due 

consideration of the trial court’s decision, the Court finds that the 
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sentence is inappropriate in light of the nature of the offense and 

the character of the offender.” We assess the trial court’s 

recognition or nonrecognition of aggravators and mitigators as an 

initial guide to determining whether the sentence imposed was 

inappropriate. Gibson v. State, 856 N.E.2d 142, 147 (Ind. Ct. 

App. 2006). The principal role of appellate review is to “leaven 

the outliers.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 

2008). A defendant must persuade the appellate court that his or 

her sentence has met the inappropriateness standard of review. 

Roush v. State, 875 N.E.2d 801, 812 (Ind. Ct. App. 2007).

Robinson v. State, 61 N.E.3d 1226, 1228 (Ind. Ct. App. 2016).

[11] The sentencing range for a Level 6 felony is between six months and two-andone-half years, with an advisory term of one year imprisonment. Ind. Code § 

35-50-2-7(b) (2017). The trial court here ordered Barlow to serve two-and-onehalf years for each of his three Level 6 offenses, but the court ordered two of the 

sentences to run concurrently, and the court then suspended the balance of 

Barlow’s aggregate sentence.

[12] On appeal, Barlow asserts that the facts underlying his convictions “do not 

differ significantly from a ‘typical’ offense . . . .” Appellant’s Br. at 16. He also 

asserts that his guilty plea shows his acceptance of responsibility and his 

remorse, which, in turn, evince his good character.

[13] We cannot say that Barlow’s sentence is inappropriate. Barlow received no 

term of imprisonment aside from time served during the pendency of the 

proceedings. And Barlow has twenty prior convictions (as an adult) as well as 

numerous failed attempts at probation and similar placements. The trial court’s 
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sentence of five years suspended is not inappropriate in light of the nature of the 

offenses and Barlow’s character.

Issue Three: Imposition of Previously Suspended Sentence

[14] Last, Barlow asserts that the trial court abused its discretion when it ordered 

him to serve the balance of his previously suspended sentence. As our Supreme 

Court has explained:

“Probation is a matter of grace left to trial court discretion, not a 

right to which a criminal defendant is entitled.” Prewitt v. State, 

878 N.E.2d 184, 188 (Ind. 2007) (explaining that: “Once a trial 

court has exercised its grace by ordering probation rather than 

incarceration, the judge should have considerable leeway in 

deciding how to proceed. If this discretion were not afforded to

trial courts and sentences were scrutinized too severely on 

appeal, trial judges might be less inclined to order probation to 

future defendants.”). A probation hearing is civil in nature, and 

the State must prove an alleged probation violation by a 

preponderance of the evidence. Braxton v. State, 651 N.E.2d 268, 

270 (Ind. 1995); see Ind. Code § 35-38-2-3(f) (2012). When the 

sufficiency of evidence is at issue, we consider only the evidence 

most favorable to the judgment—without regard to weight or 

credibility—and will affirm if “there is substantial evidence of 

probative value to support the trial court’s conclusion that a 

probationer has violated any condition of probation.” Braxton, 

651 N.E.2d at 270.

Murdock v. State, 10 N.E.3d 1265, 1267 (Ind. 2014).

[15] On appeal, Barlow asserts that, when it ordered him to serve the balance of his 

previously suspended sentence, the trial court failed to assign mitigating weight 

to the fact that Barlow had admitted to the alleged probation violations. 
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Barlow further asserts that his “efforts to rehabilitate himself while in 

Community Corrections” was entitled to “some mitigating weight.” 

Appellant’s Br. at 18.

[16] We reject Barlow’s arguments. In essence, Barlow asks this court to reweigh 

the evidence that was before the trial court, which is contrary to our standard of 

review in appeals from civil probation revocation proceedings. Murdock, 10 

N.E.3d at 1267. Moreover, we conclude that the trial court did not abuse its 

discretion when it revoked the entirety of Barlow’s previously suspended 

sentence. Barlow was out on probation for just six days before he refused to 

submit to an oral drug screen. That fact, along with Barlow’s history of 

probation violations in other causes, demonstrated that Barlow was unlikely to 

comply with the terms and conditions of his probation. We cannot say that the 

trial court abused its discretion on this issue. 

Conclusion

[17] In sum, we affirm Barlow’s original sentence as well as the trial court’s 

revocation of the previously suspended portion of that sentence.

[18] Affirmed.

Mathias, J., and Barnes, J., concur.