Joshua W. McNeal, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2026)

MEMORANDUM DECISION

[1] Joshua W. McNeal pleaded guilty to Level 2 and Level 4 felony dealing in methamphetamine, Level 5 felony dealing in a narcotic drug, and to being a habitual offender. The Wabash Circuit Court ordered him to serve an aggregate thirty-five-year sentence with four years suspended to probation and to pay restitution. McNeal appeals his sentence and the restitution order arguing that:

1. The trial court abused its discretion when it failed to consider McNeal's proffered mitigating circumstances;

2. His aggregate sentence is inappropriate in light of the nature of the offenses and his character; and

3. The trial court erred when it ordered McNeal to pay restitution without holding an evidentiary hearing.

[2] We affirm in part, reverse in part, and remand for proceedings consistent with this opinion.

Facts and Procedural History

[3] In August 2024, on three separate dates, McNeal participated in three controlled buys involving the sale of methamphetamine and fentanyl. Thereafter, the State charged McNeal with Level 2 and Level 4 felony dealing in methamphetamine and with Level 5 felony dealing in a narcotic drug. The State later also alleged that McNeal was a habitual offender. McNeal pleaded guilty to those offenses and to being a habitual offender on December 29, 2025.

[4] On February 5, 2026, the trial court held McNeal's sentencing hearing. The court considered McNeal's criminal history, consisting of four felony and six misdemeanor convictions and multiple probation revocations, as an aggravating circumstance. The court found that McNeal's guilty plea was a mitigating circumstance. The court also noted McNeal's expression of remorse but stated it was struggling with whether McNeal was remorseful for the crime or because he got caught. Tr. Vol. 2, p. 52. The court imposed concurrent terms of twenty-three years with four years suspended for the Level 2 felony dealing in methamphetamine conviction, nine years for the Level 4 felony dealing in methamphetamine conviction, and five years for the Level 5 felony dealing in a narcotic drug conviction. The court enhanced the sentence on the Level 2 felony dealing conviction by twelve years for the habitual offender adjudication. In the aggregate, the court ordered McNeal to serve thirty-five years with four years suspended to probation.

[5] The issue of restitution was briefly discussed during the hearing, but the court told the parties that it was “not planning on addressing restitution today” and the court would “let it be an issue on probation.” Id. at 46. However, in the sentencing order, the trial court ordered McNeal to pay $7,273.50 in restitution to the Wabash County Drug Task Force.

[6] McNeal now appeals.

The trial court did not abuse its discretion when it declined to consider McNeal's proffered mitigating circumstances.

[7] The trial court considered McNeal's guilty plea as a mitigating circumstance but declined to find the other mitigators McNeal argued at sentencing. As relevant here, “[w]e review a sentencing court's decision about whether to find a mitigating factor for an abuse of discretion.” Russell v. State, 234 N.E.3d 829, 847 (Ind. 2024). Sentencing courts are “under no duty to deem mitigating every factor advanced simply because it was supported by some evidence in the record.” Id. (quotation marks and brackets omitted). Further, “the sentencing court is not obligated to credit or weigh the defendant's evidence of mitigating circumstances the same way the defendant does.” Id. at 848 (quotation marks and brackets omitted).

[8] McNeal argues that the trial court abused its discretion when it failed to consider the following additional proposed mitigating circumstances: his substance abuse issues, that he was 37-years-old when he committed his offenses, that he is a high school graduate, that he has four minor children he helps to care for, that “he would likely respond well to probation now that he is an older person,” and his expression of remorse. Appellant's Br. at 15.

[9] The only evidence presented to support these proposed mitigating circumstances was McNeal's own testimony. It was within the trial court's discretion to determine the credibility of McNeal's statements. Moreover, regarding his substance abuse issues, McNeal reported an extensive use of narcotics and illegal substances throughout his life, he has had opportunities to address his substance abuse issues in treatment and in drug court, but he has not taken advantage of those opportunities. He violated the terms of the drug court program in 2025. Appellant's App. Vol. 2, p. 71. The trial court did not abuse its discretion when it declined to find his substance abuse issues as a mitigating circumstance. See Hape v. State, 903 N.E.2d 977, 1002 (Ind. Ct. App. 2009), trans. denied.

[10] McNeal lumps his proffered mitigating circumstance concerning his age together with his argument that he is young enough to be rehabilitated. The trial court was well within its discretion to reject these proposed mitigating circumstances after considering McNeal's failure to take advantage of prior opportunities to rehabilitate himself.

[11] McNeal also did not explain why the fact that he graduated from high school should be considered a mitigating circumstance or how his incarceration will result in undue hardship to his wife and children. A parent's incarceration “is always a hardship on dependents,” and McNeal failed to explain why his incarceration would result in an undue burden on his family. See, e.g., Vazquez v. State, 839 N.E.2d 1229, 1234 (Ind. Ct. App. 2005), trans. denied.

[12] Finally, the trial court acknowledged McNeal's expression of remorse but declined to consider it as a mitigating circumstance. It was within the court's discretion to do so.

[13] In sum, the trial court did not abuse its discretion when it rejected McNeal's proffered mitigating circumstances.

McNeal's sentence is not inappropriate in light of the nature of his offenses and his character.

[14] We now turn to McNeal's claim that his aggregate thirty-five-year sentence, with four years suspended to probation, is inappropriate in light of his offenses and his character. Under Indiana Appellate Rule 7(B), we may modify a sentence that we find is “inappropriate in light of the nature of the offense and the character of the offender.” Making this determination “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.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008).

[15] However, appellate revision of sentences under Rule 7(B) is reserved for “a rare and exceptional case.” Livingston v. State, 113 N.E.3d 611, 612 (Ind. 2018) (per curiam). Thus, when conducting this review, we will defer to the sentence imposed by the trial court unless the defendant demonstrates compelling evidence that portrays the nature of the offenses and his character in a positive light, such as showing a lack of brutality in the offenses or showing substantial virtuous character traits. Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015).

[16] The sentencing range for a Level 2 felony is ten to thirty years with the advisory sentence being seventeen and one-half years. Ind. Code § 35-50-2-4.5. The court imposed a twenty-three-year sentence.¹ The court was also authorized to impose an additional term of eight to twenty years because McNeal is a habitual offender. Ind. Code § 35-50-2-8(i). The court enhanced McNeal's sentence on the Level 2 felony conviction by twelve years for the habitual offender adjudication.² McNeal's aggregate sentence of thirty-five years with four years suspended to probation is significantly less than the maximum fifty-year-sentence allowed by statute.

[17] McNeal argues that there is nothing particularly egregious about his offenses, and we agree. McNeal facilitated the sale of methamphetamine and fentanyl to a confidential informant through three separate controlled buys in August 2024. On August 12, McNeal agreed to sell methamphetamine to a confidential informant and arranged for the informant to purchase methamphetamine from “his guy,” later identified as Terry Pence. Appellant's App. Vol. 2, p. 30. Pence delivered 3.71 grams of methamphetamine to the informant. On August 15, after the confidential informant sent $310 to Pence via Cashapp as agreed, McNeal delivered 14.26 grams of methamphetamine to the informant. Id. at 32. The next day, McNeal agreed to sell fifteen Fentanyl pills to a confidential informant for $180. McNeal told the informant that he needed the cash before he could pick up the pills. McNeal accepted $180 from the informant but never delivered the Fentanyl pills. Id. at 34.

[18] Turning to McNeal's character, we note that he failed to present evidence portraying his character in a positive light. McNeal relies on the facts that he accepted responsibility and pleaded guilty to the offenses, that he expressed remorse, that he graduated from high school, and that he helps to care for his four minor children in arguing that his sentence is inappropriate. These facts are not enough for McNeal to establish that he has substantial virtuous character traits. Moreover, McNeal's decision to plead guilty was likely a pragmatic one as he was charged with three offenses resulting from controlled buys. For this reason, the trial court also did not credit McNeal's expression of remorse.

[19] McNeal's criminal history and repeated probation violations support the sentence imposed. McNeal has four prior felony convictions, including two for possession of methamphetamine, and six misdemeanor convictions. He also violated his probation in multiple cases. Two months before McNeal committed the offenses in this case, he was placed into the Wabash County Problem Solving Drug Court Program. By committing the offenses in this case, he violated the terms of his placement in that program. McNeal has been provided with opportunities to address his substance abuse issues and to rehabilitate himself but has not taken advantage of those opportunities.

[20] For all of these reasons, we conclude that McNeal has not met his burden of persuading us that his thirty-five-year sentence, with four years suspended to probation, is inappropriate in light of his offenses and his character.

The trial court erred when it ordered McNeal to pay restitution without holding an evidentiary hearing.

[21] “A restitution order must be supported by sufficient evidence of actual loss sustained by the victim of a crime.” Akehurst v. State, 115 N.E.3d 515, 518 (Ind. Ct. App. 2018). “The amount of actual loss is a factual matter to be determined upon the presentation of evidence.” Baker v. State, 70 N.E.3d 388, 390 (Ind. Ct. App. 2017), trans. denied.

[22] The trial court apparently relied on the probation department's assertion in the pre-sentence investigation report and recommendation that McNeal should pay $7,273.50 to the Wabash County Drug Task Force for the costs of investigating his dealing offenses. Appellant's App. Vol. 2, p. 77. But no evidence was offered and the court specifically stated it would not address the issue of restitution at the sentencing hearing. For this reason, the State concedes that the trial court erred when it ordered McNeal to pay restitution in its written sentencing order. Appellee's Br. at 16 (“Because the trial court stated it was not going to impose restitution without providing McNeal an opportunity to contest it in a hearing, the State does not oppose remand for a hearing on restitution.”).

[23] We therefore reverse the sentencing order, in part, to vacate the restitution order and remand this case to the trial court to hold an evidentiary hearing on that issue. See Iltzsch v. State, 981 N.E.2d 55, 57 (Ind. 2013).

Conclusion

[24] We affirm McNeal's aggregate sentence of thirty-five years with four years suspended to probation. However, the trial court erred when it ordered McNeal to pay restitution without holding an evidentiary hearing.

[25] Affirmed in part, reversed in part and remanded for proceedings consistent with this opinion.

FOOTNOTES

1.   The concurrent terms imposed for the Level 4 felony dealing conviction, nine years, and for the Level 5 felony dealing in a narcotic conviction, five years, were less than the maximum sentences allowed by statute. See Ind. Code §§ 35-50-2-5.5, -6.

2.   The sentencing order incorrectly states that the sentence imposed for the habitual offender adjudication “shall be served Consecutively with Count II ․” Appellant's App. Vol. 2, p. 6. However, the trial court used the correct terminology both at the sentencing hearing and in the written sentencing order and stated that the sentence on Count II (the Level 2 felony count) is enhanced by twelve years for the habitual offender adjudication. Id.; Tr. Vol. 2, p. 52. See also Ind. Code § 35-50-2-8(j) (explaining that “[h]abitual offender is a status that results in an enhanced sentence. It is not a separate crime and does not result in a consecutive sentence”). It is evident from the sentencing order that the court imposed the twelve-year enhancement on the sentence for McNeal's Level 2 felony conviction. We therefore do not agree with McNeal that the sentencing order requires correction.

Mathias, Judge.

Kenworthy, J., and DeBoer, J., concur.