Mitigators

• It is well-settled that a trial court is not required to find mitigating circumstances, nor is it obligated to accept as mitigating each of the circumstances proffered by the defendant.

Ousley v. State, 807 N.E.2d 758, 761 (Ind. Ct. App. 2004)(citing Powell v. State, 751 N.E.2d 311, 317 (Ind. Ct. App. 2001))

See Weedman v. State, 21 N.E.3d 873, 893 (Ind. Ct. App. 2014), trans. denied(citing Rascoe v. State, 736 N.E.2d 246, 249 (Ind. 2000))(“A trial court is not obligated to accept a defendant's claim as to what constitutes a mitigating circumstance.”)

See also Highbaugh v. State, 773 N.E.2d 247, 252 (Ind. 2002)(citing Spears v. State, 735 N.E.2d 1161, 1167 (Ind. 2000), reh'g denied)(“A trial court is not obligated to find a circumstance to be mitigating simply because the circumstance is proffered by the defendant.”)

• Where the trial court does not find the existence of a mitigating factor after it has been argued by counsel, the trial court is not obligated to explain why it has found that the factor does not exist.

Phelps v. State, 969 N.E.2d 1009, 1019 (Ind. Ct. App. 2012), trans. denied(citing Anglemyer v. State, 868 N.E.2d 482, 493 (Ind. 2007), as amended (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007))

• The trial court is not required to make an affirmative finding expressly negating each potentially mitigating circumstance.

Corbett v. State, 764 N.E.2d 622, 630-31 (Ind. 2002)(citing Stout v. State, 528 N.E.2d 476 (Ind. 1988), reh’g denied)

Statutory mitigators: Text

• The court may consider the following factors as mitigating circumstances or as favoring suspending the sentence and imposing probation:

(1) The crime neither caused nor threatened serious harm to persons or property, or the person did not contemplate that it would do so.

(2) The crime was the result of circumstances unlikely to recur.

(3) The victim of the crime induced or facilitated the offense.

(4) There are substantial grounds tending to excuse or justify the crime, though failing to establish a defense.

(5) The person acted under strong provocation.

(6) The person has no history of delinquency or criminal activity, or the person has led a law-abiding life for a substantial period before commission of the crime.

(7) The person is likely to respond affirmatively to probation or short term imprisonment.

(8) The character and attitudes of the person indicate that the person is unlikely to commit another crime.

(9) The person has made or will make restitution to the victim of the crime for the injury, damage, or loss sustained.

(10) Imprisonment of the person will result in undue hardship to the person or the dependents of the person.

(11) The person was convicted of a crime involving the use of force against a person who had repeatedly inflicted physical or sexual abuse upon the convicted person and evidence shows that the convicted person suffered from the effects of battery as a result of the past course of conduct of the individual who is the victim of the crime for which the person was convicted.

(12) The person was convicted of a crime relating to a controlled substance and the person's arrest or prosecution was facilitated in part because the person:

(A) requested emergency medical assistance; or

(B) acted in concert with another person who requested emergency medical assistance;

for an individual who reasonably appeared to be in need of medical assistance due to the use of alcohol or a controlled substance.

(13) The person has posttraumatic stress disorder, traumatic brain injury, or a postconcussive brain injury.

IC 35-38-1-7.1(b)

Statutory mitigators: The crime neither caused nor threatened serious harm to persons or property, or the defendant did not contemplate that it would do so

• [The defendant] did not specifically cite Indiana Code Section 35-38-1-7.1(c)(1) [recodified without substantive changes at IC 35-38-1-7.1(b)(1)] in support of his argument on this point, though that statutory mitigator would also be inapplicable here. This subsection permits mitigation if “[t]he crime neither caused nor threatened serious harm to persons or property, or the person did not contemplate that it would do so.” In addition to causing serious harm to a victim, rape also necessarily threatens serious harm, and a person found guilty of rape necessarily contemplated that it would do so.

Collins v. State, 740 N.E.2d 143, 148 n. 4 (Ind. Ct. App. 2000)(quoting IC 35-38-1-7.1(b)(1))(alterations in the original)

• IC 35-38-1-7(c)(1) [recodified without substantive changes at IC 35-38-1-7.1(b)(1)] specifies that the court may consider certain mitigating factors including “[t]he crime neither caused nor threatened serious harm to persons or property, . . . .” This factor cannot be satisfied merely because defendant's burglaries may have posed no threat of serious harm to persons alone.

Wilkins v. State, 500 N.E.2d 747, 748 n. 1 (Ind. 1986)(quoting IC 35-38-1-7(c)(1) [recodified without substantive changes at IC 35-38-1-7.1(b)(1)])(alterations in the original)

• [The defendant] also asserts that the trial court should have found that he did not contemplate that his crime would cause serious harm to persons or property. The sentencing judge was entitled to be skeptical about this proposition in light of the fact that [the defendant] arrived at the [victims’] home armed with weapons and duct tape.

Ajabu v. State, 722 N.E.2d 339, 345 (Ind. 2000), reh’g denied(citations omitted)

Statutory mitigators: The victim of the crime induced or facilitated the offense

• [The defendant] claims that the trial court improperly failed to consider as a mitigating factor that [the victim] facilitated the offense. . . . [The defendant] argued at the sentencing hearing that [the victim] facilitated the offense by providing [the defendant] with drugs, providing him with the room, and by “demanding” that [the defendant] maintain their relationship. . . . [W]e are unable to conclude that [the victim’s] acts of providing [the defendant] with a hotel room and drugs is clear evidence that he facilitated his own death. The same is true of the status of [the victim’s] and [the defendant’s] relationship. Encouraging someone to maintain a romantic or sexual relationship is not clear evidence of facilitation of involuntary manslaughter. Although a different trial judge might have come to a different conclusion than did the trial judge here, we cannot say that the evidence of facilitation was clearly supported by the record such that the trial court abused its discretion in failing to consider this as a mitigating factor.

Wells v. State, 904 N.E.2d 265, 274 (Ind. Ct. App. 2009), trans. denied

Statutory mitigators: The defendant has no history of delinquency or criminal activity, or has led a law-abiding life for a substantial period before commission of the crime

• IC 35-38-1-7.1(c)(6) [recodified without substantive changes at IC 35-38-1-7.1(b)(6)] provides that a sentencing court may consider as a mitigating circumstance that the defendant “has no history of delinquency or criminal activity or the person has led a law-abiding life for a substantial period before commission of the crime.”

Bacher v. State, 686 N.E.2d 791, 801-02 (Ind. 1997)(quoting IC 35-38-1-7.1(b)(6))

See Sipple v. State, 788 N.E.2d 473, 482 (Ind. Ct. App. 2003), trans. denied(citing IC 35-38-1-7.1(c)(6) [recodified without substantive changes at IC 35-38-1-7.1(b)(6)])(“A trial court . . . may take the defendant's lack of a history of criminal activity into account as a mitigating circumstance.”)

See Weaver v. State, 845 N.E.2d 1066, 1073 (Ind. Ct. App. 2006), trans. denied(citing Sipple v. State, 788 N.E.2d 473, 482 (Ind. Ct. App. 2003), trans. denied)(“A trial court . . . may take into account as a mitigating circumstance the defendant's lack of a history of criminal activity.”)

• [A] single conviction or juvenile adjudication may negate this mitigating circumstance.

Warlick v. State, 722 N.E.2d 809, 813 n. 2 (Ind. 2000)

Townsend v. State, 860 N.E.2d 1268, 1272 (Ind. Ct. App. 2007), trans. denied(quoting Warlick v. State, 722 N.E.2d 809, 813 n. 2 (Ind. 2000))

• While the absence of a “history of delinquency or criminal activity” is an expressly permitted mitigating consideration, the existence of criminal history which is nonviolent is not specifically recognized as a mitigating factor.

Mayo v. State, 681 N.E.2d 689, 695 (Ind. 1997)(quoting IC 35-38-1-7.1(c)(6) [recodified without substantive changes at IC 35-38-1-7.1(b)(6)])

• While a defendant's lack of criminal history is listed as a statutory mitigating factor, the statute explicitly states that the trial court “may consider” the listed factors as mitigating circumstances.

Truax v. State, 856 N.E.2d 116, 126 (Ind. Ct. App. 2006)(quoting IC 35-38-1-7.1(b)(6))

See Coy v. State, 999 N.E.2d 937, 947 (Ind. Ct. App. 2013)(quoting IC 35-38-1-7.1)(“Indiana Code section 35-38-1-7.1 states that “[t]he court may consider ” as a mitigating circumstance that . . . “[t]he person has no criminal history of delinquency or criminal activity, or the person has led a law-abiding life for a substantial period before commission of the crime. While the court may consider these factors, it is not required to do so.”)(some alterations in the original)

• Trial courts are not required to give significant weight to a defendant's lack of criminal history, Stout v. State, 834 N.E.2d 707, 712 (Ind. Ct. App. 2005), trans. denied, and a trial court may properly conclude that a defendant's lack of a criminal record is not entitled to mitigating weight. Sipple v. State, 788 N.E.2d 473, 483 (Ind. Ct. App. 2003), trans. denied.

Truax v. State, 856 N.E.2d 116, 126 (Ind. Ct. App. 2006)

Statutory mitigators: The defendant has made or will make restitution to the victim of the crime

• Indiana Code Section 35-38-1-7.1(b)(9) provides that a court may consider as a mitigating circumstance that “the person has made or will make restitution to the victim of the crime for the injury, damage, or loss sustained.”

Blixt v. State, 872 N.E.2d 149, 152 (Ind. Ct. App. 2007)

Statutory mitigators: Imprisonment of the defendant will result in undue hardship to the defendant or the dependents of the defendant

• At his sentencing hearing, [the defendant] testified that his imprisonment would cause financial hardship to his wife and three biological children, a statutorily recognized mitigating factor.

Hicks v. State, 631 N.E.2d 499, 502 (Ind. Ct. App. 1994), trans. denied(citing IC 35-38-1-7.1(c)(10) [recodified without substantive changes at IC 35-38-1-7.1(b)(10)])

• Dependent children are properly considered a mitigating factor under IC 35-38-1-7.1(c)(10) [recodified without substantive changes at IC 35-38-1-7.1(b)(10)].

Battles v. State, 688 N.E.2d 1230, 1237 (Ind. 1997)

• Many persons convicted of serious crimes have one or more children and, absent special circumstances, trial courts are not required to find that imprisonment will result in an undue hardship.

Dowdell v. State, 720 N.E.2d 1146, 1154 (Ind. 1999)

• Finally, although [the defendant’s] grandmother testified that [the defendant’s] family needed him at home to work and provide for them, the evidence did not show that [the defendant’s] imprisonment would cause his family undue hardship, which is the mandated level of hardship required to constitute a mitigating circumstance.

Miller v. State, 634 N.E.2d 57, 64 (Ind. Ct. App. 1994)(citing IC 35-38-1-7.1(c)(10) [recodified without substantive changes at IC 35-38-1-7.1(b)(10)])

Discretion of the trial court to consider non-statutory mitigators: Statutory text

• The criteria listed in [IC 35-38-1-7.1(a)] and [IC 35-38-1-7.1(b)] do not limit the matters that the court may consider in determining the sentence.

IC 35-38-1-7.1(c)

Discretion of the trial court to consider non-statutory mitigators: Interpretations of the text

• In determining what sentence to impose, a trial court is guided by a non-exclusive statutory list of eleven aggravating and eleven mitigating circumstances. IC 35-38-1-7.1. These criteria, however, “do not limit the matters that the court may consider in determining the sentence.” IC 35-38-1-7.1(c).

Malenchik v. State, 928 N.E.2d 564, 568-69 (Ind. 2010)

See Kubina v. State, 997 N.E.2d 1134, 1138 (Ind. Ct. App. 2013)(“[O]ur statutes provide for a number of mitigating circumstances, none of which are exclusive . . . .”)

Mitigators from case law: Nature, circumstances, or seriousness of the offense

• Conviction of a crime that does not contain violence as an element is not a circumstance requiring mitigating weight.

Sandleben v. State, 29 N.E.3d 126, 136 (Ind. Ct. App. 2015), trans. denied

• By definition, stalking is not a crime of violence, and the fact that this crime was nonviolent was apparent from the evidence before the trial court. . . . [T]he trial court did not abuse its discretion when it did not consider [the defendant’s] conviction of a nonviolent crime as a mitigating factor.

Sandleben v. State, 29 N.E.3d 126, 136 (Ind. Ct. App. 2015), trans. denied

See Banks v. State, 841 N.E.2d 654, 659 (Ind. Ct. App. 2006), trans. denied(“[T]he fact that [the defendant’s] crime was non-violent and victimless was apparent from the record before the trial court. By definition, the crime of operating a vehicle while privileges are forfeited for life is not a crime of violence. . . . [The defendant] was convicted of a crime that does not contain violence as an element. Therefore, the trial court was not required to assign mitigating weight to these factors at sentencing.”)

• For purposes of sentencing for child molesting, absence of physical harm to the victim was not a mitigating circumstance.

See Neale v. State, 826 N.E.2d 635, 638 (Ind. 2005)(“In each of the cases [the defendant] cites, we considered the fact that the defendant did not cause physical harm to the victim when determining whether he was within the class of offenders for whom the maximum sentence is appropriate. But in each case, we explicitly stated that the absence of physical harm is not an automatic mitigating circumstance such that it would require a lesser sentence than would otherwise be imposed.”)

• For more information about child molesting, please review Child Molesting.

• For purposes of sentencing, lack of physical injury to the victim in the perpetration of rape, criminal deviate conduct, and criminal confinement was not a mitigating factor.

See Peters v. State, 542 N.E.2d 1340, 1345 (Ind. 1989)(“We see no merit in the contention that the lack of physical injury to the victim in the perpetration of this violent crime is a mitigating factor.”)

See also Warren v. State, 470 N.E.2d 342, 345-45 (Ind. 1984)(“Defendant also points out that the victim sustained no physical injuries as a result of this incident. We believe that the trial court had the discretion to disregard this fact since the victim offered no resistance after the defendant had threatened to kill both her and her husband.”)

• For more information about rape, please review Rape.

• For more information about criminal confinement, please review Criminal Confinement.

• As this Court noted in Fointno v. State, 487 N.E.2d 140 (Ind. 1986):

While the absence of [brutality] does not in any way lessen the severity of the crimes as such, and thus does not constitute a mitigating factor justifying a reduction or suspension of the presumptive sentence, the presence of aggravated brutality distinguishes the defendants who commit such acts and justifies a substantially aggravated term where it is present. We do not by this observation debase the seriousness of [sexual assault crimes] themselves. Nor do we suggest that the absence of collateral brutality prevents the imposition of an enhanced sentence.

Buchanan v. State, 767 N.E.2d 967, 973 n. 4 (Ind. 2002)(quoting Fointno v. State, 487 N.E.2d 140, 148 (Ind.1986))(alterations in the original)

Mitigators from case law: The extent of the defendant’s role in the crime

• [A] defendant's lesser role in a crime may be a mitigating factor in some circumstances . . . .

Major v. State, 873 N.E.2d 1120, 1131 (Ind. Ct. App. 2007), trans. denied

See Sensback v. State, 720 N.E.2d 1160, 1164 (Ind. 1999)(“A lesser role in the crime may be a mitigating factor.”)

See also Roney v. State, 872 N.E.2d 192, 205 (Ind. Ct. App. 2007), trans. denied, abrogated on other grounds by Bethea v. State, 983 N.E.2d 1134, 1145 (Ind. 2013)(“Evidence that the defendant was not the person who initiated or planned the crime may constitute a mitigating circumstance.”)

Mitigators from case law: Providing help or aid to the victim

• [W]e find that the trial court failed to discuss additional mitigating circumstances which have some weight. First, [the defendant] was the person who called 9-1-1 and attempted to help [the victim] after finding her injured. Second, she voluntarily offered incriminating information to the police on many separate occasions.

Edgecomb v. State, 673 N.E.2d 1185, 1199 (Ind. 1996), reh’g denied(emphasis added)

• The trial court did not expressly discuss the defendant's assertion that mitigating consideration should have been given for his care for the victim immediately after striking the fatal blow. We find, however, that the defendant's momentary aid, including the possible placement of a pillow under the victim's head and possible use of hydrogen peroxide, but then rummaging through the house and removing the victim's wallet and several weapons, does not clearly constitute a significant mitigating circumstance.

Corbett v. State, 764 N.E.2d 622, 631 (Ind. 2002)

Mitigators from case law: Cooperating with law enforcement and admitting guilt

• [W]e find that the trial court failed to discuss additional mitigating circumstances which have some weight. First, [the defendant] was the person who called 9-1-1 and attempted to help [the victim] after finding her injured. Second, she voluntarily offered incriminating information to the police on many separate occasions.

Edgecomb v. State, 673 N.E.2d 1185, 1199 (Ind. 1996), reh’g denied(emphasis added)

• [The defendant] went to the police voluntarily after the incident had been reported, and he admitted what he had done. This is a valid mitigating circumstance.

Frey v. State, 841 N.E.2d 231, 235 (Ind. Ct. App. 2006)

• [The defendant] also cites his alleged cooperation with police as a mitigating circumstance that the trial court improperly overlooked. It does appear that [the defendant] made no attempt to flee the scene of the crime, immediately reported the shooting, and was generally cooperative and non-combative with the police. Under some circumstances, this might have entitled [the defendant] to some mitigation of his sentence. In this case, however, we do not believe the trial court was compelled to consider or mention this alleged mitigating circumstance.

Cloum v. State, 779 N.E.2d 84, 89 (Ind. Ct. App. 2002)

Mitigators from case law: When the defendant pleads guilty

• Trial courts should be “inherently aware of the fact that a guilty plea is a mitigating circumstance.”

Caraway v. State, 959 N.E.2d 847, 853 (Ind. Ct. App. 2011), trans. denied(quoting Francis v. State, 817 N.E.2d 235, 237 n. 2 (Ind. 2004))

See Singer v. State, 674 N.E.2d 11, 18 (Ind. Ct. App. 1996)(“We . . . recognize that pleading guilty may be considered as a valid mitigating circumstance.”)

• A guilty plea demonstrates a defendant's acceptance of responsibility for the crime and extends a benefit to the State and to the victim or the victim's family by avoiding a full-blown trial.

Francis v. State, 817 N.E.2d 235, 237-38 (Ind. 2004)(citing Scheckel v. State, 655 N.E.2d 506, 511 (Ind. 1995))

See Cotto v. State, 829 N.E.2d 520, 525 (Ind. 2005)(citing Scheckel v. State, 655 N.E.2d 506, 511 (Ind. 1995))(“ A guilty plea demonstrates a defendant's acceptance of responsibility for the crime and at least partially confirms the mitigating evidence regarding his character.”)

See also Singer v. State, 674 N.E.2d 11, 18 (Ind. Ct. App. 1996)(“We do not dispute the fact that defendants who plead guilty spare the victims and their families the ordeal of a full trial, and save time and valuable judicial resources.”)

• This Court has recognized before that “a defendant who willingly enters a plea of guilty has extended a substantial benefit to the state and deserves to have a substantial benefit extended to him in return.”

Francis v. State, 817 N.E.2d 235, 237 (Ind. 2004)(quoting Scheckel v. State, 655 N.E.2d 506, 511 (Ind. 1995))

• Thus, 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, 237 (Ind. 2004)(citing Scheckel v. State, 655 N.E.2d 506, 511 (Ind. 1995))

Caraway v. State, 959 N.E.2d 847, 853 (Ind. Ct. App. 2011), trans. denied(quoting Francis v. State, 817 N.E.2d 235, 237 (Ind. 2004))(alteration in the original)

See Cotto v. State, 829 N.E.2d 520, 525 (Ind. 2005)(citing Widener v. State, 659 N.E.2d 529, 534 (Ind. 1995))(“Our courts have long held that a defendant who pleads guilty deserves to have some mitigating weight extended to the guilty plea in return.”)

• Of course we have frequently observed that a plea is not necessarily a significant mitigating factor.

Cotto v. State, 829 N.E.2d 520, 525-26 (Ind. 2005)(citing Sensback v. State, 720 N.E.2d 1160, 1165 (Ind. 1999))

See Caraway v. State, 959 N.E.2d 847, 853 (Ind. Ct. App. 2011), trans. denied(“We recognize that a guilty plea is not always a significant mitigating circumstance.”)

See also Perry v. State, 904 N.E.2d 302, 311 (Ind. Ct. App. 2009), trans. denied(quoting Cotto v. State, 829 N.E.2d 520, 525-26 (Ind. 2005))(“ We note, however, that a guilty plea ‘is not necessarily a significant mitigating factor.’”)

See also Cherry v. State, 772 N.E.2d 433, 436-37 (Ind. Ct. App. 2002), trans. denied(quoting Trueblood v. State, 715 N.E.2d 1242, 1257 (Ind. 1999), reh’g denied, cert. denied, 531 U.S. 858 (2000))(“‘Nevertheless . . . not every plea of guilty is a significant mitigating circumstance that must be credited by a trial court.’”)

• A plea's significance is reduced if it is made on the eve of trial, if the circumstances indicate the defendant is not taking responsibility for his actions, or if substantial admissible evidence exists against the defendant.

Caraway v. State, 959 N.E.2d 847, 853 (Ind. Ct. App. 2011), trans. denied(citing Primmer v. State, 857 N.E.2d 11, 16 (Ind. Ct. App. 2006), trans. denied)

See Barker v. State, 994 N.E.2d 306, 312 (Ind. Ct. App. 2013), reh’g denied, trans. denied(quoting Amalfitano v. State, 956 N.E.2d 208, 212 (Ind. Ct. App. 2011), trans. denied)(emphasis added)(“‘A guilty plea is not necessarily a mitigating factor where the defendant receives substantial benefit from the plea or where evidence against the defendant is so strong that the decision to plead guilty is merely pragmatic.’”)

See also Brown v. State, 907 N.E.2d 591, 594 (Ind. Ct. App. 2009)(citing Wells v. State, 836 N.E.2d 475, 479 (Ind. Ct. App. 2005), trans. denied)(“[A] guilty plea may not rise to the level of significant mitigation where the evidence against the defendant is such that the decision to plead guilty is merely a pragmatic one.”)

See, e.g., Kinkead v. State, 791 N.E.2d 243, 248 (Ind. Ct. App. 2003), trans. denied(“Given the evidence against him, [the defendant’s] decision to plead guilty may have simply been a pragmatic decision. Therefore, we cannot agree with [the defendant] that the trial court abused its discretion by not considering [the defendant’s] decision to plead guilty as a significant mitigating factor.”)

• Also, the plea may not be significant “when the defendant receives a substantial benefit in return for the plea.”

Caraway v. State, 959 N.E.2d 847, 853 (Ind. Ct. App. 2011), trans. denied(quoting Anglemyer v. State, 875 N.E.2d 218, 220 (Ind. 2007))

See, e.g., Smith v. State, 908 N.E.2d 1251, 1254 (Ind. Ct. App. 2009)(The trial court was not required, in sentencing the defendant for rape and robbery, to consider the defendant's plea of guilty as a significant mitigating factor. The defendant had exchanged his guilty plea for substantial benefit, namely: the dismissal of two felony charges, the state's agreement not to file an habitual offender charge, and the state's recommendation for concurrent sentencing.)

• However, because of the inherent mitigating nature of a guilty plea, we have recognized that a trial court “generally should make some acknowledgment of a guilty plea when sentencing a defendant.”

Caraway v. State, 959 N.E.2d 847, 853 (Ind. Ct. App. 2011), trans. denied(quoting Hope v. State, 834 N.E.2d 713, 718 (Ind. Ct. App. 2005))

• [The defendant] argues that his waiver of his right to jury trial is analogous to a guilty plea and therefore deserving of some mitigating consideration. We do not consider the situations sufficiently analogous to help [the defendant]. Although the State is saved expense in both circumstances, a guilty plea often demonstrates a defendant's acceptance of responsibility, which waiver of jury trial does not. . . . While it may be that in some cases it would be appropriate to accord waiver of jury trial mitigating weight, [the defendant] has failed to establish that this is one of those cases.

McSchooler v. State, 15 N.E.3d 678, 685 (Ind. Ct. App. 2014)

Mitigators from case law: The defendant’s character, in general

• A trial court may evaluate “any other factor which reflects on the defendant's character, good or bad” when determining the appropriate sentence to impose.

Taylor v. State, 695 N.E.2d 117, 121 (Ind. 1998)(quoting Tunstill v. State, 568 N.E.2d 539, 545 (Ind. 1991))

Adkins v. State, 703 N.E.2d 182, 187 (Ind. Ct. App. 1998)(quoting Taylor v. State, 695 N.E.2d 117, 121 (Ind. 1998)(quoting Tunstill v. State, 568 N.E.2d 539, 545 (Ind. 1991)))

• Trial judges are permitted to examine specific activities of the defendant at sentencing, where no presumption of innocence exists, to “give the judge a feel for the kind of person defendant is through a thorough examination of his background.”

Singh v. State, 40 N.E.3d 981, 988 (Ind. Ct. App. 2015), trans. denied(quoting McNew v. State, 391 N.E.2d 607, 612 (Ind. 1979))

• Defendant's remorse and his positive character traits can be significant mitigating factors.

Sherwood v. State, 702 N.E.2d 694, 700 (Ind. 1998), reh’g denied(emphasis added)

• [I]t is within the sound discretion of the trial court to find no mitigator although a number of people found defendant to be of good character.

Grund v. State, 671 N.E.2d 411, 419 (Ind. 1996)

Mitigators from case law: The defendant’s criminal history, or lack thereof

• Historically, the lack of a criminal history has been considered to be a mitigating factor.

Williams v. State, 997 N.E.2d 1154, 1164 (Ind. Ct. App. 2013)

• However, it appears that our supreme court has retreated from this position.

Williams v. State, 997 N.E.2d 1154, 1164 (Ind. Ct. App. 2013)

• [A] defendant's lack of criminal history can no longer be said to always be a significant mitigating factor.

Williams v. State, 997 N.E.2d 1154, 1164 (Ind. Ct. App. 2013)

• This is so because, under Anglemyer, trial courts have no duty to weigh aggravating and mitigating factors. To hold that a particular factor is always significant suggests that the trial court has an obligation to give certain weight to that factor. Yet Anglemyer clearly holds that a trial court cannot now be said to have abused its discretion in how it weighed the aggravating and mitigating factors.

Williams v. State, 997 N.E.2d 1154, 1164 (Ind. Ct. App. 2013)(citing Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007), as amended (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007))

• Although a lack of criminal history may be considered a mitigating circumstance, “[t]rial courts are not required to give significant weight to a defendant's lack of criminal history,” especially “when a defendant's record, while felony-free, is blemished.”

Rawson v. State, 865 N.E.2d 1049, 1058 (Ind. Ct. App. 2007), trans. denied(quoting Stout v. State, 834 N.E.2d 707, 712 (Ind. Ct. App. 2005), trans. denied)

Townsend v. State, 860 N.E.2d 1268, 1272 (Ind. Ct. App. 2007), trans. denied(quoting Stout v. State, 834 N.E.2d 707, 712 (Ind. Ct. App. 2005), trans. denied)

• [T]he trial court determines the weight assigned to mitigating circumstances and a lack of criminal history does not automatically outweigh any valid aggravating circumstances.

Mastin v. State, 966 N.E.2d 197, 203 (Ind. Ct. App. 2012), trans. denied(citing McElroy v. State, 865 N.E.2d 584, 592 (Ind. 2007))

Mitigators from case law: When the defendant has a mental illness or disorder

• [M]ental illness is a mitigating factor to be used in certain circumstances, such as when the evidence demonstrates longstanding mental health issues or when the jury finds that a defendant is mentally ill.

Ousley v. State, 807 N.E.2d 758, 762 (Ind. Ct. App. 2004)

Evans v. State, 855 N.E.2d 378, 387 (Ind. Ct. App. 2006), reh’g denied, trans. denied(quoting Ousley v. State, 807 N.E.2d 758, 762 (Ind. Ct. App. 2004))

• For more information about when the jury finds that a defendant is mentally ill, please review Verdicts, Sentencing, and Other Consequences.

• “[I]n order for a [defendant's] mental history to provide a basis for establishing a mitigating factor, there must be a nexus between the defendant's mental health and the crime in question.”

Steinberg v. State, 941 N.E.2d 515, 534 (Ind. Ct. App. 2011), trans. denied(quoting Corralez v. State, 815 N.E.2d 1023, 1026 (Ind. Ct. App. 2004))(alteration in the original)

Weedman v. State, 21 N.E.3d 873, 894 (Ind. Ct. App. 2014), trans. denied(quoting Steinberg v. State, 941 N.E.2d 515, 534 (Ind. Ct. App. 2011), trans. denied)(alteration in the original)

• [The defendant] next . . . claim[s] that a trial court is required to give significant mitigating weight to a diagnosis of mental illness. That is incorrect. “[D]epending upon the sentencing goals, mental illness can be considered a mitigating factor or an aggravating factor.”

Rawson v. State, 865 N.E.2d 1049, 1057 (Ind. Ct. App. 2007), trans. denied(quoting Scott v. State, 840 N.E.2d 376, 383 (Ind. Ct. App. 2006), trans. denied)(some alteration in the original)

• Thus, in a case where the court finds that defendant, who is mentally ill but able to distinguish right from wrong and therefore not legally insane, suffers from a serious mental illness, particularly a long-standing illness, or where that defendant's visions or voices led to bizarre behavior and played an integral part in the crime, the court may decide not to impose an enhanced sentence or may decide to otherwise accord significant weight to defendant's mental illness as a mitigating factor. On the other hand, where the mental illness is less severe and defendant appears to have more control over his thoughts and actions, or where the nexus between defendant's mental illness and the commission of the crime is less clear, the court may determine on the facts of a particular case that the mental illness warrants relatively little or no weight as a mitigating factor.

Archer v. State, 689 N.E.2d 678, 685 (Ind. 1997), reh’g denied(footnotes omitted)

Mitigators from case law: When the defendant has a physical illness or disability

• We do agree with [the defendant], however, that his illness is a significant mitigating circumstance clearly supported by the record. [The defendant] testified at length about the medical hardships that he would endure if incarcerated. He suffers from lymphoma, malignancy of the larynx, and recurring tumors. He also has pulmonary disease and relies on a breathing apparatus. [The defendant] requires frequent tracheal cleanings and sterile catheters, which the jail cannot provide regularly. The record clearly demonstrates that [the defendant] is seriously ill and requires constant medical attention; therefore, we conclude that the trial court abused its discretion in not considering [the defendant’s] illness as a significant mitigating circumstance.

Moyer v. State, 796 N.E.2d 309, 314 (Ind. Ct. App. 2003)

• [The defendant’s] poor health is a direct consequence of his own lifelong drug and substance abuse. We therefore cannot say that the trial court erred by not considering [the defendant’s] poor health as a mitigating circumstance when his own drug involvement is the direct cause of his deteriorating health. Accordingly, we conclude that the trial court did not abuse its discretion by declining to consider [the defendant’s] poor health to be a mitigating circumstance.

Storey v. State, 875 N.E.2d 243, 252 (Ind. Ct. App. 2007), trans. denied

Mitigators from case law: A history of substance abuse

• While we have recognized that a history of substance abuse may be a mitigating circumstance, Field v. State, 843 N.E.2d 1008, 1012 (Ind. Ct. App. 2006), trans. denied, we have held that when a defendant is aware of a substance abuse problem but has not taken appropriate steps to treat it, the trial court does not abuse its discretion by rejecting the addiction as a mitigating circumstance. Bryant v. State, 802 N.E.2d 486, 501 (Ind. Ct. App. 2004), trans. denied.

Hape v. State, 903 N.E.2d 977, 1002 (Ind. Ct. App. 2009), trans. denied

See James v. State, 643 N.E.2d 321, 323 (Ind. 1994)(“A trial court is not required to consider as mitigating circumstances allegations of [the defendant’s] substance abuse or mental illness.”)

See also Schwass v. State, 554 N.E.2d 1127, 1131 (Ind. 1990)(emphasis added)(“[The defendant] claims that the trial judge did not properly consider mitigating circumstances. He recites as mitigating circumstances his age, his addiction to alcohol and drugs, and his belligerent nature. None of these can be considered to be mandatory mitigating circumstances.”)

Mitigators from case law: Age of the defendant

• It is true that a defendant's youth may be a mitigating factor in some circumstances.

Gross v. State, 769 N.E.2d 1136, 1141 n. 4 (Ind. 2002)

See Coleman v. State, 952 N.E.2d 377, 385 (Ind. Ct. App. 2011)(citing Smith v. State, 872 N.E.2d 169, 178 (Ind. Ct. App. 2007), trans. denied)(“A defendant's youthful age can, in some cases, constitute a significant mitigating circumstance warranting a reduced sentence.”)

• “Age is neither a statutory nor a per se mitigating factor.”

Monegan v. State, 756 N.E.2d 499, 504 (Ind. 2001)(quoting Sensback v. State, 720 N.E.2d 1160, 1164 (Ind. 1999))

Bostick v. State, 804 N.E.2d 218, 225 (Ind. Ct. App. 2004)(quoting Monegan v. State, 756 N.E.2d 499, 504 (Ind. 2001))

See Hoeppner v. State, 918 N.E.2d 695, 698 (Ind. Ct. App. 2009)(quoting Monegan v. State, 756 N.E.2d 499, 504 (Ind. 2001))(alteration in the original)(“Our Supreme Court has commented that ‘[a]ge is neither a statutory nor a per se mitigating factor,’ . . . .”)

• There are both relatively old offenders who seem clueless and relatively young ones who appear hardened and purposeful.

Ellis v. State, 736 N.E.2d 731, 736 (Ind. 2000)

Monegan v. State, 756 N.E.2d 499, 504 (Ind. 2001)

Coleman v. State, 952 N.E.2d 377, 385 (Ind. Ct. App. 2011)(quoting Ellis v. State, 736 N.E.2d 731, 736 (Ind. 2000))

• Accordingly, when a defendant is in his teens or early twenties, chronological age is only the starting point.

Rose v. State, 810 N.E.2d 361, 366 (Ind. Ct. App. 2004)(quoting Monegan v. State, 756 N.E.2d 499, 504 (Ind. 2001))

See Ellis v. State, 736 N.E.2d 731, 736 (Ind. 2000)(“Focusing on chronological age is a common shorthand for measuring culpability, but for people in their teens and early twenties it is frequently not the end of the inquiry.”)

See also Monegan v. State, 756 N.E.2d 499, 504 (Ind. 2001)(“[F]ocusing on chronological age, while often a shorthand for measuring culpability, is frequently not the end of the inquiry for people in their teens and early twenties.”)

• What really must be determined is whether the young offender is “clueless” or “hardened and purposeful.”

Rose v. State, 810 N.E.2d 361, 366 (Ind. Ct. App. 2004)(quoting Monegan v. State, 756 N.E.2d 499, 504 (Ind. 2001))

Mitigators from case law: The defendant’s difficult or troubled childhood

• [O]ur Supreme Court has consistently held that evidence of a difficult childhood warrants little, if any, mitigating weight.

Bryant v. State, 984 N.E.2d 240, 252 (Ind. Ct. App. 2013), trans. denied(citing Ritchie v. State, 875 N.E.2d 706, 725 (Ind. 2007), reh’g denied)

Patterson v. State, 909 N.E.2d 1058, 1062 (Ind. Ct. App. 2009)(quoting Ritchie v. State, 875 N.E.2d 706, 725 (Ind. 2007), reh’g denied)(“Our supreme court has ‘consistently held that evidence of a difficult childhood warrants little, if any, mitigating weight.’”)

See Coleman v. State, 741 N.E.2d 697, 700 (Ind. 2000), reh’g denied, cert. denied, 534 U.S. 1057 (2001)(“As noted in Coleman II, 703 N.E.2d 1022, 1031 (Ind. 1998), reh’g denied, cert. granted, 529 U.S. 1085 (2000), this court has consistently held that evidence of a difficult childhood warrants little, if any, mitigating weight.”)

See also Blanche v. State, 690 N.E.2d 709, 715 (Ind. 1998)(citing Page v. State, 615 N.E.2d 894, 896 (Ind. 1993))(“Evidence of a troubled childhood does not require a trial court to find it a mitigating circumstance.”)

Mitigators from case law: Hardship upon the defendant’s dependents

• [A] trial court “is not required to find that a defendant's incarceration would result in undue hardship upon his dependents.”

Reese v. State, 939 N.E.2d 695, 703 (Ind. Ct. App. 2011), trans. denied(citing Davis v. State, 835 N.E.2d 1102, 1116 (Ind. Ct. App. 2005), trans. denied)

See Weaver v. State, 845 N.E.2d 1066, 1074 (Ind. Ct. App. 2006), trans. denied(citing Haun v. State, 792 N.E.2d 69, 74 (Ind. Ct. App. 2003))(“A sentencing court is not required to find a defendant's incarceration would result in undue hardship on his dependents.”)

See also Haun v. State, 792 N.E.2d 69, 74 (Ind. Ct. App. 2003)(“Specifically, the trial court is not required to find that a defendant's incarceration would result in undue hardship upon his dependents.”)

See also Westmoreland v. State, 787 N.E.2d 1005, 1010 (Ind. Ct. App. 2003)(“Specifically, the trial court is not required to find that a defendant's incarceration would result in undue hardship upon his dependents.”)

• Indeed, “[m]any persons convicted of serious crimes have one or more children and, absent special circumstances, trial courts are not required to find that imprisonment will result in an undue hardship.”

Reese v. State, 939 N.E.2d 695, 703 (Ind. Ct. App. 2011), trans. denied(quoting Dowdell v. State, 720 N.E.2d 1146, 1154 (Ind. 1999))(alteration in the original)

Comer v. State, 839 N.E.2d 721, 730 (Ind. Ct. App. 2005), trans. denied(quoting Dowdell v. State, 720 N.E.2d 1146, 1154 (Ind. 1999))

• [T]he hardship to a defendant's dependents is not always a significant mitigating factor.

McElroy v. State, 865 N.E.2d 584, 592 (Ind. 2007)(citing Bonds v. State, 721 N.E.2d 1238, 1243 (Ind. 1999))

• Our Indiana Supreme Court has often noted this mitigator can properly be assigned no weight when the defendant fails to show why incarceration for a particular term will cause more hardship than incarceration for a shorter term.

Weaver v. State, 845 N.E.2d 1066, 1074 (Ind. Ct. App. 2006), trans. denied

Mitigators from case law: Supportive personal or familial relationships

• [The defendant] contends that the trial court should have given some mitigating weight to the fact that he had a long-term relationship with Carol Ann Peterson, a “supportive significant other.” However, as the State points out, [the defendant] was driving Peterson's car at the time of his arrest, and she testified that she had allowed [the defendant] to drive it knowing that his license was suspended. It was certainly not an abuse of discretion for the trial court to decline to treat [the defendant’s] relationship with Peterson as a mitigating factor.

Banks v. State, 841 N.E.2d 654, 660 (Ind. Ct. App. 2006), trans. denied(citation omitted)

Mitigators from case law: Good work history

• [W]hile the State acknowledges that [the defendant] has been regularly employed, this is not necessarily a significant mitigating factor.

McKinney v. State, 873 N.E.2d 630, 646 (Ind. Ct. App. 2007), trans. denied

• [The defendant] argues that his criminal history and his stable employment should have been considered by the trial court as mitigators. . . . The fact that [the defendant] has been steadily employed need not have been given the same significance by the trial court as [the defendant] would have it give. Many people are gainfully employed such that this would not require the trial court to note it as a mitigating factor or afford it the same weight as [the defendant] proposes.

Newsome v. State, 797 N.E.2d 293, 301 (Ind. Ct. App. 2003), trans. denied(emphasis added)

Mitigators from case law: The defendant’s military service

• [The defendant] first contends that the trial court erred by failing to find his prior military service as a mitigating circumstance. We acknowledge that the presentence investigation report indicates that [the defendant] served three years in the United States Marines and was honorably discharged, and we recognize that service to our country is a commendable act. However, military service is not necessarily a mitigating circumstance, and [the defendant] fails to explain why it should be considered so in this case.

Harman v. State, 4 N.E.3d 209, 218 (Ind. Ct. App. 2014), trans. denied(internal citation omitted)

E.g., Forgey v. State, 886 N.E.2d 16, 23-24 (Ind. Ct. App. 2008)(“The trial court was within its discretion to conclude [the defendant’s] military training assisted his commission of the instant offenses and to reject [the defendant’s] military record as a mitigating sentencing factor.”)

• A defendant's military service may be assigned some mitigating weight, but it is not necessarily a significant mitigating factor.

Massey v. State, 955 N.E.2d 247, 260 (Ind. Ct. App. 2011)

E.g., Baird v. State, 604 N.E.2d 1170, 1182 (Ind. 1992), cert. denied, 510 U.S. 893 (1993)(emphasis added)(“We also find that the mitigating circumstances of [the defendant’s] regular employment, church participation, military service, law abiding nature, and good character in the community each to be in the low range.”)

Mitigators from case law: Remorse and acceptance of responsibility

• Our Supreme Court has recognized remorse as a valid mitigating circumstance.

Hape v. State, 903 N.E.2d 977, 1002 (Ind. Ct. App. 2009), trans. denied(citing Cotto v. State, 829 N.E.2d 520, 526 (Ind. 2005))

See Singer v. State, 674 N.E.2d 11, 17 (Ind. Ct. App. 1996)(citing Kocher v. State, 439 N.E.2d 1344, 1346 (Ind. 1982))(“Remorse may properly be considered as a mitigating factor.”)

See also Sherwood v. State, 702 N.E.2d 694, 700 (Ind. 1998), reh’g denied(emphasis added)(“Defendant's remorse and his positive character traits can be significant mitigating factors.”)

• A trial court is under no obligation to accept a defendant's alleged remorse as a mitigating circumstance.

Phelps v. State, 969 N.E.2d 1009, 1020 (Ind. Ct. App. 2012), trans. denied(citing Manns v. State, 637 N.E.2d 842, 846 (Ind. Ct. App. 1994))

See, e.g., Barker v. State, 994 N.E.2d 306, 312 (Ind. Ct. App. 2013), reh’g denied, trans. denied(“The trial court did not overlook [the defendant’s] apology; the court simply did not find it to be a significant mitigating circumstance.”)

• The trial court possesses the ability to directly observe a defendant and can best determine whether a defendant's remorse is genuine.

Phelps v. State, 969 N.E.2d 1009, 1020 (Ind. Ct. App. 2012), trans. denied(citing Mead v. State, 875 N.E.2d 304, 309-310 (Ind. Ct. App. 2007))

• Here, [the defendant] initially apologized for his offenses during his sentencing hearing: “I've just made a lot of mistakes here and I, I'm sorry for what I've done and would like to apologize to the Court and to the community for my actions that I've done.” However, his expression of remorse is belied by his subsequent attempts to blame others for his situation. (“Urn, I'd like to get, have a chance to straighten my life out and get some kind of drug rehab and, and, and, you know, get the treatment I need cause I've never had an opportunity to get that.”); (claiming that during the police chase, the officer shot him “for no reason” and arguing, “I didn't do nothing to hurt anybody else and I didn't hurt none of them”); (“I know that the court system is based on a chance to let people be, rehabilitate themselves and I've never been given that opportunity at any time in anything I've been through.”). Given this testimony . . . we conclude that the trial court did not abuse its discretion in failing to recognize [the defendant’s] alleged remorse as a significant mitigating circumstance.

Hape v. State, 903 N.E.2d 977, 1003 (Ind. Ct. App. 2009), trans. denied(citations to the record omitted)

• To accept responsibility for one's actions means more than merely admitting the deed, it also connotes a sense of accountability, a willingness to accept the legal consequences flowing from those actions.

Healey v. State, 969 N.E.2d 607, 617 (Ind. Ct. App. 2012), trans. denied

• [The defendant] also points to his expression of remorse and acceptance of responsibility as a mitigating circumstance that the trial court failed to take into consideration. [However, the defendant’s] statement:

I'm sorry that the family—I'm remorseful for all what happened. I was just in the wrong place at the wrong time because I didn't—I didn't tell nobody; I didn't pay nobody. I was just going to talk to the guy about getting my mother's car back. I'm sorry about what all happened. I just don't know what went wrong

is at best an equivocal statement that he was involved in [the victim’s] death but is well short of a full acceptance of responsibility. . . . The trial court did not abuse its discretion in failing to find [the defendant’s] expression of remorse as a significant mitigating circumstance.

Bonds v. State, 721 N.E.2d 1238, 1243 (Ind. 1999)

• [The defendant] expressed his remorse by saying he knew how it felt to lose a loved one, because his own mother died of natural causes, and that he was “very sorry about what happened.” In Bonds v. State, 721 N.E.2d 1238, 1243 (Ind. 1999), . . . [w]e rejected his claim that the trial court erred by not finding remorse as a mitigating circumstance, noting that this statement was equivocal at best and well short of a full acceptance of responsibility. The same is true here.

Price v. State, 765 N.E.2d 1245, 1253 (Ind. 2002)(quotation marks and citations omitted)

Mitigators from case law: Post-incident reform or rehabilitation

• [W]e agree that the classes [the defendant] had enrolled in during his incarceration should have been acknowledged as a mitigating factor. . . . [The defendant] argued that the trial court should have considered the programs he enrolled in while at the New Castle Correctional Facility, which included the “plus program, a boundaries class, financial planning, bible study, and substance abuse classes.” [The defendant] explained that the classes were about how to “become a better father. To become a better man.” [The defendant] also enrolled in these programs, knowing that none would make him eligible for reduced time. Because the proposed mitigating factor was argued and was significant based upon [the defendant’s] receiving no additional benefit for having enrolled, we conclude that this factor was at least slightly mitigating.

McElfresh v. State, No. 32S01-1511-CR-00667, at 7 (Ind. 2016)(citations omitted)

• [A] trial court is not required to consider post-incident reform to be a mitigating circumstance.

State v. Lopez, 676 N.E.2d 1063, 1067 (Ind. Ct. App. 1997), trans. denied(citing Roan v. State, 599 N.E.2d 230, 232 (Ind. Ct. App. 1992))

• [The defendant] next contends that the trial court abused its discretion in failing to identify as mitigators that he participated in numerous jail programs while in pretrial confinement and expressed remorse at sentencing. . . . [T]he trial court did consider [the defendant’s] participation in jail programs and purported remorse but rejected them as mitigators. We agree with the trial court that the jail programs [the defendant] participated in did not correlate to his crimes and were not “rehabilitative programs that addressed any condition for which [the defendant] need[ed] rehabilitation.”

Sharp v. State, 951 N.E.2d 282, 288-89 (Ind. Ct. App. 2011), aff’d on other grounds, 970 N.E.2d 647 (Ind. 2012))(some alteration in the original)(citation omitted)

Not mitigators: When the defendant claims sudden heat

• Defendant also argues that the evidence of sudden heat, while insufficient to sway the jury, should have been given some weight as a mitigator. Defendant cites no authority for the proposition, and we find it to be unpersuasive. Sudden heat is a mitigator only in the sense that it can be used to “mitigate” what would otherwise be murder to a conviction on manslaughter.

Sylvester v. State, 698 N.E.2d 1126, 1132 (Ind. 1998), reh’g denied

Not mitigators: When the defendant claims self-defense

• Defendant argues that the trial court erred in failing to treat defendant's claim of self-defense as a strong mitigating circumstance. The trial court, however, is not required to do so.

Harrison v. State, 699 N.E.2d 645, 651 (Ind. 1998)

Not mitigators: When a codefendant receives a relatively light sentence

• No authority requires co-participants to receive proportional sentences.

Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008)(citing Lopez v. State, 527 N.E.2d 1119, 1133 (Ind. 1988))

• In Cardwell, our Supreme Court expressly reaffirmed that “[n]o authority requires co-participants to receive proportional sentences.” As a result, the Court held that the trial court did not abuse its discretion in refusing to find the relatively slight sentence imposed on Cardwell's codefendant to be mitigating. The same is true in this case.

Davis v. State, 971 N.E.2d 719, 725 (Ind. Ct. App. 2012), trans. denied(quoting Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008))(alteration in the original)

Not mitigators: The defendant’s inability to pay restitution

• [T]he trial court was not obliged to find [the defendant’s] inability to pay restitution from jail a mitigating factor.

Smith v. State, 929 N.E.2d 255, 259 (Ind. Ct. App. 2010)

Not mitigators: Intoxication of the defendant

• “[D]rinking is not to be considered a mitigating circumstance. Drinking goes only to the ability of the defendant to form intent.”

Hornbostel v. State, 757 N.E.2d 170, 184 (Ind. Ct. App. 2001), trans. denied(quoting Robinett v. State, 563 N.E.2d 97, 102 (Ind.1990), reh'g denied)

E.g., Wilson v. State, 533 N.E.2d 114, 117 (Ind. 1989)(“[The defendant] claims that the fact he was an alcoholic and was drunk at the time the offense was committed and that he showed remorse were mitigating factors which should have been considered by the court. The fact that [the defendant] was drunk at the time the offense was committed went only to his ability to form intent which question was fully presented to the jury and determined by them. The trial court did not err in finding there were no mitigating circumstances.”)

• Clearly, when there is conflicting evidence as to a claim of intoxication at the time of the offense, the trial court is not required to give it mitigating weight.

Legue v. State, 688 N.E.2d 408, 411 (Ind. 1997)(citing Crawley v. State, 677 N.E.2d 520, 523 (Ind. 1997))

• Furthermore, we are reluctant to hold that mitigating consideration is necessarily required for sentencing when, at the time of an offense, the defendant was intoxicated.

Legue v. State, 688 N.E.2d 408, 411 (Ind. 1997)

Lemos v. State, 746 N.E.2d 972, 976 (Ind. 2001)(quoting Legue v. State, 688 N.E.2d 408, 411 (Ind. 1997))(alteration in the original)

Not mitigators: The defendant’s prior physical and romantic relationship with the victim

• We . . . vigorously disagree with [the defendant’s] claim that the trial court should have considered his prior physical and romantic relationship with the victim as a mitigating circumstance in this case. [The defendant] cites no authority for the proposition that this would be a proper mitigator. Rather, we flatly reject the idea that a defendant's prior relationship with an individual provides any level of excuse or justification to engage in nonconsensual intercourse with that individual.

Collins v. State, 740 N.E.2d 143, 148 (Ind. Ct. App. 2000)(quotation marks and citation omitted)

• Once the elements of the rape statute have been established beyond a reasonable doubt and the victim's lack of consent has been proven, we believe that the existence of a prior physical relationship between the defendant and the victim cannot and should not serve as a mitigator when a court considers the appropriate sentence for a rape conviction.

Collins v. State, 740 N.E.2d 143, 148 (Ind. Ct. App. 2000)

Not mitigators: Victims’ or their representatives’ sentencing recommendations

• Victims' or their representatives' sentencing recommendations are not mitigating or aggravating factors as those terms are used in the sentencing statute.

Ousley v. State, 807 N.E.2d 758, 764 (Ind. Ct. App. 2004)(citing Brown v. State, 698 N.E.2d 779, 782 (Ind. 1998))

Plea bargains

• Our opinion today does not foreclose the possibility of the Defendant bargaining as to what can and cannot be potential aggravating and mitigating factors. It is well within the purview of contract law, and consequentially, as mentioned above, the law as it relates to plea bargains, for the Defendant to bargain and the State to accept a plea bargain that forecloses the possibility of the trial court using enhancements from the underlying charges that were dismissed, or from the original charges from which a lesser included plea is taken.

Bethea v. State, 983 N.E.2d 1134, 1145 (Ind. 2013)

• However, if a plea bargain lacks such language, we hold it is not necessary for a trial court to turn a blind eye to the facts of the incident that brought the defendant before them.

Bethea v. State, 983 N.E.2d 1134, 1145 (Ind. 2013)

Reports and recommendations filed by the defendant along with the defendant’s sentencing memorandum

• [The defendant] also claims that the trial court abused its discretion by failing to consider as mitigating the fact that [the defendant] was amenable to therapeutic counseling. He refers to a report by a forensic psychologist, which [the defendant] filed with his sentencing memorandum, in which the psychologist was of the opinion that [the defendant] was a good candidate for psychotherapeutic intervention. According to [the defendant], this recommendation, combined with the restrictions placed on sex offenders, means that he will be unlikely to reoffend. The trial court did not have to credit this report or give it any mitigating value. Thus, we cannot say that this particular proffered mitigating factor was clearly supported by the record, yet overlooked by the trial court.

Williams v. State, 997 N.E.2d 1154, 1164-65 (Ind. Ct. App. 2013)(emphasis added)(footnote omitted)