Mark A. Taylor, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

Statement of the Case

[1] Mark Taylor pled guilty to possession of methamphetamine, and he admitted to being a habitual offender. Based on his lengthy history of criminal conduct and violation of court orders, the trial court sentenced Taylor to ten years of incarceration. Taylor now appeals and raises two issues for our review that we revise and restate as the following three issues:

1. Whether the trial court abused its discretion by not identifying certain circumstances as mitigating factors at sentencing;

2. Whether the case should be remanded to address an inconsistency between the trial court's oral and written sentencing statements; and

3. Whether Taylor's sentence is inappropriate under Indiana Appellate Rule 7(B).

[2] Because the parties agree remand is appropriate to address the inconsistency between the oral and written sentencing statements, we remand with instructions and otherwise affirm.

Facts and Procedural History

[3] While on probation in Clinton County, Indiana, for unlawfully possessing a syringe,¹ Taylor went “on the run.”² Appellant's App. Vol. II at 66. On September 8, 2021, while “passing through Warren County,” Taylor “pulled over beside the road and went to sleep.” Id. Warren County Deputy Sheriff Anthony Pruitt was dispatched to Taylor's vehicle because it was “stopped in the road.” Id. at 39. Once Deputy Pruitt roused Taylor, Taylor shut off his vehicle and opened his door. Deputy Pruitt “observed a plastic bag sitting on the bottom door jamb.” Id. Taylor admitted the plastic bag “might contain a ‘dab’ of methamphetamine.” Id. at 40. The plastic bag “contained a small bag of white crystal substance that appeared to be methamphetamine, as well as two (2) hypodermic syringes with needles ․” Id. The substance field tested as methamphetamine. Deputy Pruitt arrested Taylor for possessing the substances and on Taylor's outstanding arrest warrant from Clinton County.

[4] The State charged Taylor with possession of methamphetamine as a Level 5 felony ³ and unlawful possession of a syringe as a Level 6 felony ⁴ . The State also alleged Taylor was a habitual offender.⁵ Pursuant to an open plea agreement, Taylor pled guilty to the methamphetamine charge and admitted to the habitual offender enhancement in exchange for the State dismissing the syringe charge. The State also agreed to not make a sentencing recommendation. The trial court accepted the plea agreement and, prior to sentencing, granted Taylor “a limited release from the Warren County Jail for the sole purpose of treatment at Next Step.” Appellant's App. Vol. II at 55. One of the conditions of Taylor's limited pre-sentence release was that if he left Next Step “for any reason without permission,” he had to “immediately and on the same date, return to lawful detention at the Warren County Jail.” Id.

[5] After approximately five months, Taylor “abandoned the Next Step program and was discharged unsuccessfully therefrom.” Appellant's App. Vol. II at 81. Taylor did not turn himself in to the Warren County Jail,⁶ and within two months of leaving Next Step, Taylor committed several offenses in Clinton County for which he was arrested and charged ⁷ . Taylor pled guilty to several of the new offenses in Clinton County and was sentenced.

[6] Twenty-seven months after pleading guilty, the trial court held a sentencing hearing in this case, and it sentenced Taylor to a total of ten years executed at the Indiana Department of Correction (“DOC”). This appeal ensued.⁸

Discussion and Decision

1. The Trial Court Did Not Abuse Its Discretion by Not Identifying Certain Mitigating Circumstances

[7] Taylor contends the trial court abused its discretion by not identifying certain mitigating factors at sentencing. Our Supreme Court has explained the standard of review for such a claim as follows:

We review a sentencing court's decision about whether to find a mitigating factor for an abuse of discretion. Carter v. State, 711 N.E.2d 835, 838–39 (Ind. 1999). “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.” Id. at 838. Sentencing courts are “under no duty to deem mitigating every factor” advanced “simply because it [was] supported by some evidence in the record.” Bivins v. State, 642 N.E.2d 928, 952 (Ind. 1994). And “the sentencing judge is not obligated to explain why [they have] chosen not to make a finding of mitigation ․ Moreover, the [sentencing] court is not obligated to credit or weigh the defendant's evidence of mitigating circumstances the same way the defendant does.” Id. (quotations omitted).

Russell v. State, 234 N.E.3d 829, 847–48 (Ind. 2024) (alterations in original).

[8] At the sentencing hearing, the trial court found two aggravating factors: (1) Taylor's “history of criminal and delinquent behavior,” Tr. Vol. II at 90; and (2) Taylor had “recently violated the conditions of probation, parole, pardon, community corrections placement or pretrial release,” id. at 89. The trial court determined that Taylor's criminal history had significant weight. The trial court found three mitigating factors: (1) Taylor “entered an open plea of guilty,” id.; (2) Taylor had “family supports,” id. at 90; and (3) Taylor had “the ability to earn income,” id. In weighing the mitigating value of Taylor's guilty plea, the trial court considered that Taylor also benefitted from the dismissal of one of the charges, and the State agreed to not make any sentencing recommendation. Considering all this together, the trial court concluded the aggravating factors outweighed the mitigating factors.

[9] On appeal, Taylor asserts the trial court “glossed over” the following five circumstances he believes to be mitigators: (1) he “had accepted responsibility for his actions,” (2) he “pled guilty without the benefit of a sentencing cap,” (3) he “had previously earned his GED,” (4) he “had two minor children”, and (5) he “had completed some substance abuse rehabilitation as enumerated in” his presentence investigation report.⁹ Appellant's Br. at 15 (emphasis in original) (citing Appellant's App. Vol. II at 57–79). First, the State contends—and we agree—that “Taylor did not advance his GED, his two minor children, or his prior substance abuse treatment for consideration in the trial court.” Appellee's Br. at 10 (citing Tr. Vol. II at 87). It is well-established that a trial court “does not abuse its discretion in failing to consider a mitigating factor that was not raised at sentencing.” Anglemyer v. State, 868 N.E.2d 482, 492 (Ind. 2007) (citing Georgopulos v. State, 735 N.E.2d 1138, 1145 (Ind. 2000)), as amended (July 10, 2007), decision clarified on reh'g, 875 N.E.2d 218 (Ind. 2007). We are therefore precluded from reviewing as potentially mitigating factors Taylor obtaining his GED, having two minor children, and participating in substance abuse treatment.

[10] Second, Taylor does not argue that the evidence supporting his five allegedly mitigating factors is significant or clearly supported by the record; instead, he proffers only the bald assertion that “the trial court failed to recognize these specific mitigators that are supported by the trial court's record.” Appellant's Br. at 15. Without more, this is not sufficiently cogent reasoning for this court to say Taylor has shown an abuse of discretion occurred. See Russell, 234 N.E.3d at 847 (citing Carter, 711 N.E.2d at 838–39); see also Ind. Appellate Rule 46(A)(8)(a) (requiring cogent reasoning). Based on the foregoing, we cannot say that the trial court abused its discretion when it declined to find any of these five circumstances to be worthy of any mitigating weight.

2. Remand Is Appropriate to Address the Discrepancy between the Trial Court's Oral and Written Sentencing Statements

[11] In a footnote, Taylor asserts the trial court's oral sentencing statement is inconsistent with its written sentencing order regarding whether his habitual offender enhancement is to run consecutive or concurrent to his sentence in Cause 12D01-2306-F5-745 (“Cause F5-745”). In Cause F5-745, Taylor was convicted of possession of methamphetamine, and he admitted to being a habitual offender.¹⁰ The trial court in Cause F5-745 sentenced Taylor to a total of five years at the DOC—three years for the possession conviction plus two years for the habitual offender enhancement.

[12] Here, the trial court stated that “[a]ny sentence imposed in this case ․ excluding the habitual, will be consecutive to ․ 12D01-2306-F5-745 sentences” and the sentences imposed in two other causes. Tr. Vol. II at 90 (emphasis added). However, in the trial court's written sentencing order, it indicated all ten years of Taylor's sentence in this case, including his five-year habitual offender enhancement, would be consecutive to his sentence in Cause F5-745.

[13] In its own corresponding footnote, the State “agrees this case should be remanded so that the written sentencing order is consistent with the oral sentencing statement.” Appellee's Br. at 11 (citing Appellant's App. Vol. II at 36; Tr. Vol. II at 90; Appellant's Br. at 15 n.4). Given the parties’ agreement on this issue, we remand with instructions to amend the written sentencing order or confirm its accuracy, explaining why it differs from the oral sentencing statement.

3. Taylor's Sentence Is Not Inappropriate Under Appellate Rule 7(B)

[14] Taylor also argues his sentence is inappropriate under Appellate Rule 7(B) and should be revised. The Indiana Constitution authorizes us to independently review and revise a trial court's sentencing decision. Russell, 234 N.E.3d at 855–56 (citing Ind. Const. art. 7, §§ 4, 6; Jackson v. State, 145 N.E.3d 783, 784 (Ind. 2020)). That authority is implemented through Appellate Rule 7(B), which permits us to revise a sentence if, “after due consideration of the trial court's decision, [we] find[ ] that the sentence is inappropriate in light of the nature of the offense and the character of the offender.” Konkle v. State, 253 N.E.3d 1068, 1092 (Ind. 2025) (quoting McCain v. State, 148 N.E.3d 977, 985 (Ind. 2020)).

[15] Our Supreme Court has explained our role under Appellate Rule 7(B) as follows:

“[O]ur constitutional authority to review and revise sentences boils down to our collective sense of what is appropriate,” Cramer [v. State], 240 N.E.3d [693,] 698 [(Ind. 2024)] (quoting Taylor v. State, 86 N.E.3d 157, 165 (Ind. 2017)), an act that, importantly, is reserved for “exceptional” cases, id. (citing Gibson v. State, 43 N.E.3d 231, 241 (Ind. 2015)). Determining a sentence's appropriateness thus “turns on our sense of the culpability of the defendant, the severity of the crime, the damage done to others, and myriad other factors that come to light in a given case.” McCain, 148 N.E.3d at 985.

Konkle, 253 N.E.3d at 1092.

[16] Additionally, the defendant bears the burden of proving that “his or her sentence has met the inappropriateness standard of review.” Konkle, 253 N.E.3d at 1092 (quoting Cramer, 240 N.E.3d at 698). And because sentencing “ ‘is principally a discretionary function in which the trial court's judgment should receive considerable deference,’ a trial court's sentencing decision will generally prevail ‘unless overcome by compelling evidence portraying in a positive light the nature of the offense ․ and the defendant's character ․’ ” Id. (alteration omitted) (quoting Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015)).

[17] In reviewing the defendant's sentence, “we are not limited to the mitigators and aggravators found by the trial court,” Brown v. State, 10 N.E.3d 1, 4 (Ind. 2014), and we “focus on the forest—the aggregate sentence—rather than the trees—consecutive or concurrent, number of counts, or length of the sentence on any individual count,” Lane, 232 N.E.3d at 122 (quoting Cardwell, 895 N.E.2d at 1225). Similarly, a defendant “need not ‘necessarily prove’ that the sentence is inappropriate on both counts” so long as “one of the prongs weighs heavily in favor” of revising the defendant's sentence. Id. at 126–27 (quoting Connor v. State, 58 N.E.3d 215, 219 (Ind. Ct. App. 2016)) (emphasis in original). Nonetheless, “to the extent the evidence on one prong militates against relief, a claim based on the other prong must be all the stronger to justify relief.” Id. at 127 (citing Connor, 58 N.E.3d at 220).

[18] A trial judge may impose any sentence within the statutory range without regard to the existence of aggravating or mitigating factors. Anglemyer, 868 N.E.2d at 489. When considering the nature of the offense, we start with the advisory sentence. Brown, 10 N.E.3d at 4 (citing Anglemyer, 868 N.E.2d at 494). Here, Taylor was convicted of and sentenced on possession of methamphetamine as a Level 5 felony. “A person who commits a Level 5 felony (for a crime committed after June 30, 2014) shall be imprisoned for a fixed term of between one (1) and six (6) years, with the advisory sentence being three (3) years.” I.C. § 35-50-2-6(b) (emphasis added). On his one Level 5 felony conviction, the trial court sentenced Taylor to five years executed at the DOC. Because Taylor was determined to be a habitual offender, his Level 5 felony conviction was to be enhanced by an additional fixed term between three and six years. See I.C. § 35-50-2-8(i)(2). The trial court enhanced that conviction by five years.¹¹ Given the remand for the issue discussed above, we will analyze Taylor's sentence as though the entire sentence is consecutive to Taylor's sentence in Cause F5-745.

[19] Where, as here, the trial court deviated from the advisory sentence, one factor we consider is “whether there is anything more or less egregious about the offense committed by the defendant that makes it different from the ‘typical’ offense accounted for by the legislature when it set the advisory sentence.” T.A.D.W. v. State, 51 N.E.3d 1205, 1211 (Ind. Ct. App. 2016) (quoting Holloway v. State, 950 N.E.2d 803, 806–07 (Ind. Ct. App. 2011)), as amended (May 26, 2023). We also consider whether the offense was “accompanied by restraint, regard, and lack of brutality.” Konkle, 253 N.E.3d at 1093 (quoting Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015)).

[20] Here, Taylor had methamphetamine in his vehicle, and he had it within arm's reach. Taylor argues that his offense was “not at all egregious” because possession of methamphetamine “is essentially a ‘victimless’ crime” and because it would not have been a Level 5 felony but for Taylor having “a previous conviction for a similar type of crime.” Appellant's Br. at 18. First, the Indiana Supreme Court has previously stated that possessory offenses are not victimless because “possessing even small amounts of drugs threatens society.” State v. Timbs, 169 N.E.3d 361, 373 (Ind. 2021) (citing United States v. Green, 532 F.3d 538, 549 (6th Cir. 2008); Taylor v. Lewis, 460 F.3d 1093, 1099 (9th Cir. 2006)). We therefore decline to characterize Taylor's offense as victimless. Otherwise, we don't disagree that there were not many facts that differentiate this offense from any other similar offense.

[21] In considering the character of the offender, “we engage in a broad consideration of a defendant's qualities,” T.A.D.W., 51 N.E.3d at 1211 (citing Aslinger v. State, 2 N.E.3d 84, 95 (Ind. Ct. App. 2014), clarified on other grounds on reh'g), including whether the defendant has “substantial virtuous traits or persistent examples of good character,” Konkle, 253 N.E.3d at 1093 (quoting Stephenson, 29 N.E.3d at 122).

[22] Since 1997, Taylor has been almost constantly subject to court supervision or incarcerated. Taylor was twice adjudicated a juvenile delinquent, and since becoming an adult, he has racked up 16 felony convictions and 8 misdemeanor convictions, with most of those convictions being drug-and theft-related.¹² Taylor was on probation for one of those felony convictions when he committed the instant offense, and he incurred three of those felony convictions and one of those misdemeanor convictions while this case was pending. At the time of his sentencing in this case, Taylor had a pending charge for failure to return to lawful detention as a Level 6 felony.

[23] Throughout his juvenile and adult criminal history, Taylor was ordered to probation 12 times, and he was found to have violated the terms of his probation 10 times. Taylor was placed on community corrections four times, and he was found to have violated the terms of that placement all four times. Taylor failed to appear for 21 hearings—including two hearings in this case—and 15 of those failures resulted in warrants for Taylor's arrest. Additionally, Taylor violated the terms of his limited release in this case. At his sentencing hearing, Taylor testified that he left Next Step and relapsed because he was “scared” and “spo[o]ked” after learning that probation was recommending the trial court sentence him to ten years in this case. Tr. Vol. II at 85.

[24] Based on Taylor's lengthy history of seemingly unending criminal conduct and disregard for the law, we cannot say that Taylor has produced compelling evidence demonstrating that the nature of his offense or his character renders his sentence inappropriate. See Lane, 232 N.E.3d at 126–27.

Conclusion

[25] In sum, the trial court did not abuse its discretion by not identifying certain mitigating factors at sentencing, and Taylor's sentence is not inappropriate under Appellate Rule 7(B). We affirm the trial court on these issues. Because the parties agree that there is a discrepancy between the trial court's oral and written sentencing statements and that remand is appropriate, we remand to the trial court with instructions to amend the written sentencing order to reflect the trial court's intention regarding whether Taylor's habitual offender enhancement in this case is to run concurrent or consecutive to his sentence in Cause F5-745.

[26] Affirmed and remanded.

FOOTNOTES

1.   Cause 12C01-1702-F5-000089.

2.   On September 1, 2021, in Cause 86C01-2109-F6-000959, the State charged Taylor with two counts of escape as Level 6 felonies. These charges were later dismissed.

3.   Ind. Code § 35-48-4-6.1(a), (b)(2).

4.   I.C. § 16-42-19-18(a), (b).

5.   I.C. § 35-50-2-8.

6.   The State charged Taylor in Cause 86C01-2305-F6-000046 with failure to return to lawful detention as a Level 6 felony.

7.   Causes 12C01-2312-F6-001545 and 12D01-2306-F5-000745.

8.   In violation of Indiana Appellate Rule 46(A)(6), Taylor fails to include all relevant facts in the Statement of Facts. For instance, Taylor does not include in his Statement of Facts any of the details about the trial court's sentencing decision—such as the mitigators and aggravators it identified—or about his character as set forth in his presentence investigation report (the “PSI”); Taylor instead includes this information in only his Argument. Taylor's noncompliance with Appellate Rule 46(A)(6) does not substantially impede our review of his claims, so we choose to address the merits thereof. See Pierce v. State, 29 N.E.3d 1258, 1267 (Ind. 2015).

9.   In support of this argument, Taylor cites only to the originally filed PSI (which was updated before his sentencing hearing); he does not direct our attention to any portion of the transcript where he presented these purported mitigating factors for the trial court's consideration. See Appellant's Br. at 15. Further complicating matters, Taylor provides only a general citation to the originally filed PSI and does not specify which pages thereof support each of the five circumstances he claims the trial court should have identified as mitigators. See id. (citing Appellant's App. Vol. II at 57–79). We remind counsel that this court will not search the record to find a basis for a party's argument. Carter ex rel. CNO Fin. Grp., Inc. v. Hilliard, 970 N.E.2d 735, 755 (Ind. Ct. App. 2012) (citing Nealy v. Am. Family Mut. Ins., 910 N.E.2d 842, 845 n.2 (Ind. Ct. App. 2009), trans. denied).

10.   Cause F5-745 stems from a June 15, 2023, incident in Clinton County. Law enforcement responded to an overdose call and discovered Taylor in possession of methamphetamine, fentanyl, and alprazolam.

11.   Taylor asserts that “he was maxed out on the H[abitual ]O[ffender ]E[nhancement].” Appellant's Br. at 19. This is simply not true. By statute, the trial court could have enhanced Taylor's sentence by six years, see I.C. § 35-50-2-8(i)(2), but it chose to enhance it by five years and run it concurrent to his sentence in Cause F5-745. This is not a “maxed out” sentence.

12.   Taylor asserts that he has “13 prior felony convictions.” Appellant's Br. at 18 (citing Appellant's App. Vol. II at 60). As of January 3, 2022, when the original PSI in this case was filed, Taylor did have 13 prior felony convictions. But as of November 18, 2024, when updated PSI information was filed, Taylor had been convicted of three more felonies—for a total of 16 prior felony convictions—and had one pending felony charge.

Felix, Judge.

Judges Vaidik and Tavitas concur. Vaidik, J., and Tavitas, J., concur.