William Southard, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2026)

MEMORANDUM DECISION

Case Summary

[1] In July of 2025, sixty-one-year-old William Southard attacked Glenn Barker—a fellow resident of Southard's apartment building—and repeatedly punched him in the head with such force that Southard broke his own hand. As a result of the attack, Barker suffered a near-fatal brain bleed, underwent two surgeries, and spent five weeks in physical therapy.

[2] Southard pled guilty without benefit of a plea agreement to one count of Level 5 felony battery resulting in serious bodily injury and one count of Level 6 felony battery resulting in moderate bodily injury. The trial court entered a judgment of conviction for the Level 5 felony battery charge, merged the remaining charge, and sentenced Southard to four years of incarceration. Southard contends that the trial court abused its discretion in sentencing him and that his sentence is inappropriate in light of the nature of his offense and his character. Because we disagree with Southard's contentions, we affirm.

Facts and Procedural History

[3] In July of 2025, Southard and Barker lived in the same apartment building in Clinton, Indiana. Southard had lived in the building for around two and one-half years. Southard and Barker had a contentious relationship; each had repeatedly complained about the other to the apartment building's manager. Around the end of June of 2025, approximately one week before the incident leading to this appeal took place, the building manager served Southard with an eviction notice. Southard blamed Barker for “get[ting him] evicted.” Tr. Vol. II p. 36.

[4] On July 5, 2025, a witness saw Southard waiting near the apartment building's elevator. Southard told the witness that he was waiting for Barker. The witness later reported to the police that Southard had left his position near the elevator but had returned to attack Barker. When Southard encountered Barker, Southard pinned Barker against the wall and struck him multiple times in the head. Barker “turned around and walked away from” Southard. Tr. Vol. II p. 37. Southard initially “turned around the other way and started walking away” from Barker but then turned around and saw Barker stumble to the ground. Tr. Vol. II p. 37. Southard then “went back and ․ hit [Barker] ․ three or four” more times while Barker was on the ground, striking Barker with such force that Southard broke his own hand. Tr. Vol. II p. 37. Bystanders attempted to call the building's manager and first responders but were unable to physically intervene in the attack because a door blocked their access to Barker.

[5] After the attack, Southard “got up” and left the apartment building. Tr. Vol. II p. 37. Meanwhile, a responding police officer found Barker seated on a couch with blood on his face and swelling on the back of his head. After taking witnesses’ statements, obtaining a description of Southard, and learning that Southard had walked toward the Clinton City Police Department to turn himself in, the responding officer left the scene in search of Southard.

[6] The responding officer did not find Southard at the police station, instead finding him in front of the local library. When the officer asked Southard what had happened, Southard answered, “I beat the [expletive] out of him[,] dude,” and, when asked why, Southard replied, “for telling on me too many times, and telling lies about me repeatedly.” Appellant's App. Vol. II p. 42. When the officer handcuffed Southard, the officer noticed that Southard's hand was “very swollen[.]” Appellant's App. Vol. II p. 42. Southard told the officer that he was “unsure if he had broken it while striking [Barker].” Appellant's App. Vol. II p. 42. The officer transported Southard to the local hospital for a medical evaluation. At the hospital, Southard told a nurse that he had broken his hand “ ‘on a guy[’s] head.’ ” Appellant's App. Vol. II p. 42.

[7] As a result of the attack, Barker suffered a brain bleed that would have been fatal but for prompt medical intervention. Barker remained hospitalized for seventeen days, underwent two surgeries, and required five weeks of physical therapy.

[8] The State charged Southard with one count of Level 5 felony battery resulting in serious bodily injury and one count of Level 6 felony battery resulting in moderate bodily injury. On February 13, 2026, Southard agreed to plead guilty to both counts without the benefit of a plea agreement and with sentencing left to the trial court's discretion. The trial court accepted the guilty plea, entered judgment of conviction on the Level 5 felony count, merged the Level 6 felony count into the Level 5 felony count, and ordered a presentence investigation report (“PSI”).¹

[9] Southard's sentencing hearing was held on February 25, 2026. Southard testified that he was sixty-one years old when the incident occurred and that it was “the first time [that he had] ever been in trouble within [sic] the law.” Tr. Vol. II p. 39. He testified to several mitigating factors that he believed warranted a two-year sentence with the balance suspended to probation, including that he had turned himself in to the police after the incident had occurred; he had lived a “pretty good Christian life”; and he had been “very helpful to people” and had “help[ed] a lot of people” in the apartment building. Tr. Vol. II p. 43. Southard further testified that while in jail awaiting sentencing, he had completed “MRT”² and a “CPR class” certification, and that he had attended Bible-study class, Alcoholics Anonymous, and Narcotics Anonymous. Tr. Vol. II p. 44. According to the PSI, Southard's Indiana Risk Assessment System (“IRAS”) score categorized him as a low risk to reoffend.

[10] At sentencing, Southard also testified to his account of the attack on Barker, casting Barker as the initial aggressor. While Southard testified that he was “sorry that [he] did it[,]” he also testified that Barker had “pushed” Southard “to the limit[,]” that Southard was “not the cause of what [had] happened” and that Barker “brought it on hi[m]self[.]” Tr. Vol. II pp. 45, 50. On cross-examination, Southard acknowledged that, after Barker had fallen to the floor, he “could have walked away at that point.” Tr. Vol. II p. 47.

[11] The trial court found as mitigating factors Southard's open guilty plea, which “show[ed] a degree of accountability”; his lack of prior criminal history; and his proactive use of his time while in jail, including completing programming. Tr. Vol. II p. 55. The trial court declined to find as mitigating factors Southard's claims that he had been provoked by Barker and that he had shown remorse.

[12] The trial court found several aggravating factors, including that (1) Barker's injuries were “significant and greater than the elements necessary to prove the commission of” the Level 5 felony—referencing Barker's brain bleed, the seventeen-day hospitalization, the multiple surgeries, and that Barker likely would have died absent prompt medical treatment; (2) Southard had lain in wait for Barker; (3) Southard could have walked away after the initial attack but instead returned to strike Barker several more times in the head; and (4) Southard had lacked remorse. Tr. Vol. II p. 56. The trial court concluded that the aggravating factors outweighed the mitigating factors, observed that a single aggravator would suffice to enhance the sentence, and imposed an enhanced sentence of four years of incarceration.

Discussion and Decision

[13] Southard challenges his sentence on appeal, arguing both that the trial court abused its discretion in sentencing him and that his sentence is inappropriate.

I. The Trial Court Did Not Abuse Its Discretion in Sentencing Southard to an Enhanced Four-Year-Term of Incarceration

[14] Southard contends that the trial court abused its discretion in sentencing him. Sentencing decisions rest within the sound discretion of the trial court and are reviewed on appeal only for an abuse of discretion. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), modified on other grounds on reh'g, 875 N.E.2d 218 (Ind. 2007). “An abuse of discretion occurs if the decision is clearly against the logic and effect of the facts and circumstances before the court, or the reasonable, probable, and actual deductions to be drawn therefrom.” Id. (quotation omitted).

We review for an abuse of discretion the court's finding of aggravators and mitigators to justify a sentence, but we cannot review the relative weight assigned to those factors. When reviewing the aggravating and mitigating circumstances identified by the trial court in its sentencing statement, we will remand only if the record does not support the reasons, or the sentencing statement omits reasons that are clearly supported by the record, and advanced for consideration, or the reasons given are improper as a matter of law.

Baumholser v. State, 62 N.E.3d 411, 416 (Ind. Ct. App. 2016) (citation and quotation omitted), trans. denied. Moreover,

[a] single aggravating circumstance may be sufficient to enhance a sentence. When a trial court improperly applies an aggravator but other valid aggravating circumstances exist, a sentence enhancement may still be upheld. The question we must decide is whether we are confident the trial court would have imposed the same sentence even if it had not found the improper aggravator.

Id. at 417 (internal quotation and citation omitted).

[15] Southard pled guilty to Level 5 felony battery resulting in serious bodily injury. Indiana Code section 35-50-2-6(b) provides that “[a] person who commits a Level 5 felony ․ shall be imprisoned for a fixed term of between one (1) and six (6) years, with the advisory sentence being three (3) years.” The trial court sentenced Southard to four years of incarceration, one year above the advisory sentence and two years below the maximum.

[16] In arguing that the trial court abused its discretion in sentencing him to an enhanced sentence, Southard contends that the trial court failed to consider certain mitigating factors that he claims were clearly supported by the record; improperly weighed a particular mitigating circumstance; and found aggravating factors that Southard claims were improper or unsupported by the evidence.

A. The Trial Court Did Not Abuse Its Discretion by Declining to Find Southard's Proffered Mitigating Factors.

[17] Southard claims that the trial court abused its discretion in either failing to consider or discounting the following as mitigating factors: (1) Southard was sixty-one years old, “diabetic and living on Social Security Disability” when he attacked Barker; (2) Southard had “turned himself in to police immediately following the incident”; (3) the “months and months” of “prolonged provocation and harassment by Barker”; and (4) Southard's IRAS score had categorized him as a low risk to reoffend. Appellant's Br. pp. 11–12. Southard also claims that the trial court abused its discretion by failing to find his remorse as a mitigating factor.

[18] The finding of mitigating circumstances falls within the court's sentencing discretion. The trial court is not obligated to find a circumstance to be mitigating merely because it is advanced as such by the defendant, nor is it required to explain why it does not find a proffered circumstance to be mitigating. The court need not consider alleged mitigating circumstances that are highly disputable in nature, weight, or significance. Moreover, the trial court is not required to give the same weight to mitigating circumstances as does the defendant. On appeal, the defendant must show that the proffered mitigating circumstance is both significant and clearly supported by the record.

Kedrowitz v. State, 199 N.E.3d 386, 406 (Ind. Ct. App. 2022) (internal citations omitted), trans. denied.

1. Southard's Age, Poor Health, and Limited Financial Means

[19] The first mitigating factors that Southard claims the trial court improperly overlooked are his advanced age, poor health, and limited financial means. However, it has long been held that age is neither a statutory nor a per se mitigating factor. Monegan v. State, 756 N.E.2d 499, 504 (Ind. 2001) (citing Sensback v. State, 720 N.E.2d 1160, 1164 (Ind. 1999)).

[20] Regarding Southard's health, Southard has not explained how his diabetes had anything to do with his crime. See Wooley v. State, 716 N.E.2d 919, 931 (Ind. 1999) (finding no error in the trial court's failure to consider defendant's seizure disorder as a mitigating circumstance where there was no showing that his disorder affected his behavior or reduced his responsibility for his crime). Southard has also presented no evidence that he cannot or will not be treated while incarcerated or that incarceration would constitute an undue hardship due to his health problems. See Henderson v. State, 848 N.E.2d 341, 345 (Ind. Ct. App. 2006) (finding no abuse of discretion in failing to consider poor health to be a mitigator where the defendant failed to establish that her health problems should be a factor in determining an appropriate period of incarceration).

[21] Regarding his limited financial resources, Southard has failed to establish that this proffered mitigating factor is significant. See Kedrowitz, 199 N.E.3d at 406. Simply put, Southard has failed to show that his age, health issues, and limited financial resources were both significant and clearly supported by the record. Therefore, the trial court did not abuse its discretion in declining to consider these factors to be mitigating factors.

2. Southard's Surrender to the Police

[22] Southard contends that the trial court should have considered as a mitigating factor that he had turned himself in to the police immediately after attacking Barker. The trial court was not required to find as a mitigating factor that Southard had turned himself in to the police. The evidence showed that Southard had walked away from the apartment building and toward the police department but was found by law enforcement in front of the local library. Because Southard has failed to establish that this proffered mitigating evidence was both significant and clearly supported by the record, the trial court did not abuse its discretion in declining to find his alleged surrender to police to be a mitigating factor.

3. Southard's Allegation of Strong Provocation

[23] Southard also contends that the trial court abused its discretion by having “discounted the months and months” of “prolonged provocation and harassment by Barker.” Appellant's Br. pp. 11–12. We disagree. The trial court was not required to find as a mitigating factor that Southard had acted under strong provocation when he attacked Barker, especially in light of the evidence that Southard had lain in wait for Barker. Because this asserted mitigating factor was not clearly supported by the record, the trial court did not abuse its discretion by discounting it.

4. Southard's Low-Risk-to-Reoffend IRAS Score

[24] Southard further contends that the trial court abused its discretion by not considering as a mitigating factor the probation officer's opinion, as found in the PSI, that Southard's IRAS score had categorized Southard as a low risk to reoffend. Southard's contention is without support. As our Supreme Court held in Jenkins v. State, the trial court “ha[s] no absolute duty to negative potentially mitigating circumstances, and [i]s under no obligation to follow the recommendation set out in the presentence report.” 492 N.E.2d 666, 669 (Ind. 1986) (internal citation omitted).

5. Southard's Remorse

[25] Southard also contends that the trial court abused its discretion by failing to consider his remorse to be a mitigating factor. Indeed, the trial court found that Southard lacked remorse and considered his lack of remorse to be an aggravating factor. The Indiana Supreme Court has classified a trial court's determination of the sincerity of a defendant's claimed remorse to be similar to a determination of credibility. Pickens v. State, 767 N.E.2d 530, 535 (Ind. 2002). As such, “the trial court is in the best position to judge the sincerity of a defendant's remorseful statements.” Stout v. State, 834 N.E.2d 707, 711 (Ind. Ct. App. 2005), trans. denied.

[26] Southard argues that the trial court's “rejection of [his] claim of remorse is not supported by the record.” Appellant's Br. p. 8. To support his claim, he points to his testimony at sentencing, where he had told the trial court that he “messed up”; he “did something that's completely out of [his] nature”; he “regret[ted] that [he] did it;” he “should have never hit [Barker]”; and he was “sorry for what [he had] done.” Tr. Vol. II pp. 45, 46, 50. He focuses our attention on the PSI report that had noted that Southard “admits fault to his actions” and had “turned himself over to law enforcement[.]” Appellant's App. Vol. II p. 38.

[27] Despite Southard's apology, and even after having pled guilty, Southard continued to blame Barker for the incident, testifying that Barker had “pushed” him “to the limit”; Southard was “not the cause of what [had] happened”; Barker had “brought it on hi[m]self”; and that “[a]ll [Barker] would have had to do was kept [sic] his mouth shut and kept [sic] his hands off of me and none of this would have happened.” Tr. Vol. II pp. 45, 50. The trial court considered Southard's testimony, and in finding Southard's lack of remorse to be an aggravating factor, the trial court had noted:

I thought there might be a little bit of remorse here on the stand today when you were speaking. However, your statement, as the Court specifically wrote down, “The guy pushed me to the limit. I am not the cause of this. He brought this upon himself.” Mr. Southard, under the circumstances you are taking no accountability for or have any remorse for your specific actions ․. You still blame the victim, as the Court could tell in your tone of your voice today and the observations in this court, you still have a hatred for the victim in this case. You still hold that grudge.

Tr. Vol. II p. 59.

[28] The trial court, being in the best position to judge Southard's credibility as to his stated remorse, Stout, 834 N.E.2d at 711, was not required to assign the same weight and significance to Southard's claimed remorse as Southard. See Kedrowitz, 199 N.E.3d at 406. Southard has not demonstrated that his claimed remorse is both significant and clearly supported by the record. Accordingly, the trial court did not abuse its discretion by declining to find Southard's claimed remorse to be a significant mitigating factor.

B. The Trial Court Did Not Abuse Its Discretion by Failing to Give Sufficient Mitigating Weight to a Particular Proffered Mitigating Factor.

[29] Southard contends that the trial court abused its discretion in failing to give sufficient mitigating weight to the programs that he had completed while in jail, claiming that the trial court “erroneously gave slight weight to the many positive programs” that he had “utilized while in jail[.]” Appellant's Br. p. 12. This is not a cognizable argument, however, because when trial courts find aggravating and mitigating circumstances, they cannot be said to have abused their “discretion in failing to ‘properly weigh’ such factors.” Anglemyer, 868 N.E.2d at 491 (quoting Jackson v. State, 728 N.E.2d 147, 155 (Ind. 2000)). Southard has failed to establish that the trial court abused its discretion in this manner.

C. The Trial Court Did Not Abuse Its Discretion by Considering Aggravating Factors That Southard Claims Are Improper or Unsupported by the Evidence.

[30] Southard claims that certain aggravating factors found by the trial court were improper or not supported by the record and therefore constituted an abuse of discretion. Southard argues that the trial court abused its discretion when it identified the following aggravating factors: Barker's injuries were significant and greater than the elements necessary to prove the commission of the Level 5 felony; Southard had lain in wait for Barker; and Southard could have walked away after the initial attack but instead returned to strike Barker several more times in the head.

1. Severity of the Injury

[31] Southard contends that the trial court abused its discretion in finding as an aggravating factor that the harm suffered by Barker was greater than the elements necessary to prove his offense. Indiana Code Section 35-38-1-7.1(a) provides that “[i]n determining what sentence to impose for a crime, the court may consider the following aggravating circumstances: (1) The harm, injury, loss, or damage suffered by the victim of an offense was: (A) significant; and (B) greater than the elements necessary to prove the commission of the offense.” Battery is a Level 5 felony if it “results in serious bodily injury to another person.” Ind. Code §§ 35-42-2-1(c)(1), –(g)(1) (2025). “ ‘Serious bodily injury’ means bodily injury that creates a substantial risk of death or that causes: (1) serious permanent disfigurement; (2) unconsciousness; (3) extreme pain; (4) permanent or protracted loss or impairment of the function of a bodily member or organ; or (5) loss of a fetus.” Ind. Code § 35-31.5-2-292.

[32] Southard claims that the trial court improperly considered the “extreme pain”—that Barker had suffered as a result of the attack—as the “serious bodily injury” that supported the enhancement of Southard's actions to a Level 5 felony, because “extreme pain” is an element of the offense. Appellant's Br. p. 10. Southard's claim is unsupported by the record. The record here establishes that Barker had suffered both extreme pain and bodily injury that had created a substantial risk of death. In finding this aggravating factor, the trial court had noted and relied upon Barker's brain bleed, the seventeen-day hospitalization, the multiple surgeries, and that Barker likely would have died absent prompt medical treatment. The trial court did not abuse its discretion in doing so.³

2. Southard's Lying in Wait and His Failure to Walk Away After the Initial Attack

[33] To the extent that Southard contends that the trial court erred by finding as aggravating factors that he had lain in wait for Barker and that he returned to strike Barker several more times in the head when he could have walked away after the initial attack, we are unpersuaded. The manner in which a crime is committed, including whether a defendant lay in wait for a victim, may serve as an aggravating circumstance. See Taylor v. State, 695 N.E.2d 117, 120 (Ind. 1998) (determining that the trial court sufficiently explained its reliance on the defendant's lying in wait for the victim as an aggravating circumstance). Here, the evidence supports the trial court's determination that Southard had lain in wait for Barker. Indeed, a witness had seen Southard waiting near the apartment building's elevator, and Southard had told the witness that he was waiting for Barker.

[34] The evidence likewise supports the trial court's determination that Southard had returned to strike Barker several more times in the head when he could have walked away after the initial attack. The evidence established that after the first punches, Southard initially “turned around” and “started walking away” from Barker, but then Southard “went back and ․ hit [Barker] ․ three or four” more times while Barker was on the ground. Tr. Vol. II p. 37. Thus, the evidence supports the trial court's determination that Southard had not only lain in wait for Barker, he had also returned to strike Barker multiple times when he could have walked away after the initial attack. The trial court did not err in finding these factual circumstances as aggravating factors.⁴

II. Southard's Four-Year Sentence Is Not Inappropriate

[35] Indiana Appellate Rule 7(B) provides that “[t]he Court may revise a sentence authorized by statute if, after due consideration of the trial court's decision, the Court finds that the sentence is inappropriate in light of the nature of the offense and the character of the offender.” In analyzing such claims, we “concentrate less on comparing the facts of [the case at issue] to others, whether real or hypothetical, and more on focusing on the nature, extent, and depravity of the offense for which the defendant is being sentenced, and what it reveals about the defendant's character.” Paul v. State, 888 N.E.2d 818, 825 (Ind. Ct. App. 2008) (internal quotation omitted), trans. denied. The defendant bears the burden of persuading us that his sentence is inappropriate. Sanchez v. State, 891 N.E.2d 174, 176 (Ind. Ct. App. 2008).

[36] Southard pled guilty to Level 5 felony battery resulting in serious bodily injury. Again, Indiana Code section 35-50-2-6(b) provides that “a person who commits a Level 5 felony ․ shall be imprisoned for a fixed term of between one (1) and six (6) years, with the advisory sentence being three (3) years.” The trial court imposed a four-year sentence, only one year above the advisory sentence and two years below the maximum sentence allowed by statute.

[37] “The nature of the offense is found in the details and circumstances of the commission of the offense and the defendant's participation.” Perry v. State, 78 N.E.3d 1, 13 (Ind. Ct. App. 2017). Nothing about the nature of Southard's offense warrants the revision of his sentence. After Southard had been served with an eviction notice, which he had blamed on Barker, Southard waited for Barker, pinned him against a wall, and struck him repeatedly in the head. Even after Barker had walked away and stumbled to the ground, Southard returned and struck Barker several more times, striking Barker with such force that Southard broke his own hand. As a result of the attack, Barker suffered a brain bleed that would have been fatal without prompt medical care, and he required a seventeen-day hospitalization, surgeries, and follow-up treatment. The nature of Southard's offense was egregious, fully justifying an enhanced sentence.

[38] As for Southard's character, “[t]he character of the offender is found in what we learn of the offender's life and conduct.” Id. (internal quotation omitted). Southard points to the fact that he had “tried to be helpful to other tenants in his building”; he “immediately turned himself in to law enforcement following the altercation”; he admitted to his conduct; and he “consistently demonstrated” remorse. Appellant's Br. pp. 14–15. While some of these statements may be true, the fact that Southard had lain in wait for his victim, beaten him savagely, and returned to inflict more injury reflects poorly on his character. Southard also demonstrated poor character by blaming Barker for the incident, telling the trial court that Barker had “pushed” him “to the limit”; he was “not the cause of what [had] happened”; Barker “brought it on hi[m]self”; and that “[a]ll [Barker] would have had to do was kept [sic] his mouth shut and kept [sic] his hands off of me and none of this would have happened.” Tr. Vol. II pp. 45, 50.

[39] In sum, Southard committed a serious offense, and but for prompt medical treatment, Southard's attack on Barker could have resulted in Barker's death; Southard failed to walk away after the initial attack and later placed the blame for the incident on his victim, which reflected poorly on his character. As such, Southard has failed to meet his burden of persuading us that his four-year sentence is inappropriate in light of the nature of his offense and his character.

[40] The judgment of the trial court is affirmed.

FOOTNOTES

1.   Because Southard pled guilty without the benefit of a plea agreement, nothing limited the trial court to considering only the facts presented during the guilty-plea and sentencing hearings or prevented the trial court from considering the statements in the probable-cause affidavit. As a result, we may also consider the statements in the probable-cause affidavit. See Bethea v. State, 983 N.E.2d 1134, 1145 (Ind. 2013) (stating that unless parties bargain in plea agreements for language excluding specific factors of an offense from trial court consideration, “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”).

2.   Although Southard did not define “MRT,” it is presumably the acronym for Moral Reconation Therapy, which the Vermillion County jail defines as “a systematic treatment strategy that seeks to decrease recidivism among juvenile and adult criminal offenders by increasing moral reasoning.” Addiction Education, Vermillion Cnty., https://www.vermilliongov.us/sheriff/addiction-education/ (last visited July 31, 2026).

3.   Southard correctly observes, and the record confirms, that the trial court misstated the number of surgeries Barker underwent, referring to “three surgeries” when Barker's victim's statement noted two surgeries. Tr. Vol. II p. 57; c.f. Appellant's App. Vol. II p. 44. The misstatement, however, does not require remand for revision of Southard's sentence, as Southard might suggest, because we will only do so if we cannot “say with confidence that the trial court would have imposed the same sentence had it properly considered reasons that enjoy support in the record.” Anglemyer, 868 N.E.2d at 491. Here, we can say with confidence that the trial court would have imposed the same sentence had it noted that Barker had undergone two surgeries and not three.

4.   Southard also takes issue with statements the trial court made during sentencing that Southard had pled guilty because he was “facing a higher level crime” or “something that was more severe.” Appellant's Br. pp. 14, 11; see also Tr. Vol. II pp. 55, 59. The trial court's statements likely stemmed from the prosecutor's argument that Southard had “pled guilty ․ once he was informed that he either pleads guilty or [the prosecutor] would file a Level 3 Felony for what happened here because of the injuries to the victim.” Tr. Vol. II pp. 51–52. It is well settled that the arguments of counsel are not evidence. Thomas v. State, 774 N.E.2d 33, 36 (Ind. 2002). And the record does not reflect that a Level 3 felony was ever charged or formally threatened.Nevertheless, the trial court's statements do not amount to an abuse of discretion or warrant resentencing. The trial court did not treat the statements as an aggravating factor; rather, it appears that the trial court invoked the statements to explain the weight it had assigned to the guilty-plea mitigating factor. See Tr. Vol. II pp. 55, 59. In any event, any error that might have occurred in this regard was harmless error, given the other valid aggravating factors that the trial court had found. See Baumholser, 62 N.E.3d at 417 (noting that “[a] single aggravating circumstance may be sufficient to enhance a sentence”).

Bradford, Judge.

Tavitas, C.J., and Felix, J., concur.