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Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT:
ATTORNEYS FOR APPELLEE:
BRUCE W. GRAHAM
Trueblood & Graham P.C.
Attorney General of Indiana
RICHARD C. WEBSTER
Deputy Attorney General
COURT OF APPEALS OF INDIANA
STATE OF INDIANA,
APPEAL FROM THE TIPPECANOE SUPERIOR COURT 2
The Honorable Thomas H. Busch, Judge
Cause No. 79D02-0410-FA-24
August 25, 2006
MEMORANDUM DECISION - NOT FOR PUBLICATION
Appellant, Antonio Tutson, pleaded guilty to one count of Possession of Cocaine,
a Class B felony, 1 and one count of Criminal Confinement Resulting in Serious Bodily
Injury, also a Class B felony. 2 Upon appeal, Tutson challenges the sentence imposed by
the trial court, arguing that the trial court improperly relied upon aggravating
circumstances and failed to give sufficient weight to various mitigating factors.
On October 12, 2004, Tutson met with Patricia Lynn to sell her cocaine. 3 Lynn
entered Tutson’s vehicle to complete the transaction. Instead of paying Tutson, Lynn
took the cocaine and put it in her mouth. Tutson beat Lynn in an attempt to recover the
cocaine. Tutson then physically restrained Lynn when she attempted to exit his vehicle.
Lynn sustained multiple serious injuries to her right eye in the incident.
On October 20, 2004, Tutson was arrested and charged with Count I, dealing in
cocaine, a Class A felony; Count II, possession of cocaine, a Class C felony; Count III,
dealing in cocaine, a Class A felony; Count IV, possession of cocaine, a Class B felony;
Count V, conspiring to commit dealing in cocaine, a Class A felony; Count VI, criminal
confinement resulting in serious bodily injury, a Class B felony; and, Count VII, battery
resulting in serious bodily injury, a Class C felony. Tutson subsequently entered into a
plea agreement whereby he agreed to plead guilty to possession of cocaine, a Class B
felony, and to criminal confinement resulting in serious bodily injury, a Class B felony.
Ind. Code § 35-48-4-6(b)(2) (Burns Code Ed. Supp. 2006).
Ind. Code § 35-42-3-3(b)(2) (Burns Code Ed. Repl. 2004).
Tutson met with Lynn at a location within 1,000 feet of St. James Elementary School in
The State agreed to drop all of the other charges and stipulated that sentencing would be
left to the discretion of the trial court after an evidentiary hearing. The State additionally
agreed that any imposed sentences would be served concurrently.
At Tutson’s sentencing hearing, the trial court identified his juvenile history 4 and
his high likelihood to re-offend as aggravating factors.
The trial court found as
mitigating factors Tutson’s family support and his young age but concluded that the
aggravators carried more weight. The trial court then sentenced Tutson to an enhanced
sentence of fifteen years on each count, to be served concurrently.
Upon appeal, Tutson claims that the trial court did not give appropriate mitigating
weight to his background, including his work history, church affiliation, and the fact that
he grew up in an economically disadvantaged community. Tutson also maintains that the
trial court did not adequately consider his guilty plea and, finally, that his victim
“facilitated” the criminal act.
The determination that a circumstance is mitigating is within the trial court’s
discretion. Taylor v. State, 681 N.E.2d 1105, 1112 (Ind. 1997). The trial court is not
required to give the same weight to proffered mitigating circumstances as the defendant
does. Thacker v. State, 709 N.E.2d 3, 10 (Ind. 1999). The trial court’s determination of
the proper weight to be given aggravating and mitigating circumstances and the
appropriateness of the sentence as a whole is entitled to great deference and will be set
aside only upon a showing of a manifest abuse of discretion. Id.
Tutson admitted to attempted robbery and was placed on five years probation and ordered to
perform community service on November 8, 2000. Prior to that, Tutson was ordered by a juvenile court
to complete “Drug School” for possession of a controlled substance on November 28, 1999.
While the fact that Tutson grew up in an economically disadvantaged location is
unfortunate, a difficult childhood carries little mitigating weight. Coleman v. State, 741
N.E.2d 697, 703 (Ind. 2000), cert. denied, 534 U.S. 1057 (2001). Similarly, Tutson’s
work history is of minimal mitigating weight given that he was unemployed for eight
months prior to committing these offenses.
Indiana courts have long recognized that a guilty plea is a significant mitigating
circumstance in some instances. Trueblood v. State, 715 N.E.2d 1242, 1257 (Ind. 1999),
cert. denied, 531 U.S. 858 (2000). Where the State reaps a substantial benefit from the
defendant’s act of pleading guilty, the defendant deserves to have a substantial benefit
returned. Sensback v. State, 720 N.E.2d 1160, 1164 (Ind. 1999). However, a guilty plea
is not automatically a significant mitigating factor. Id. at 1165. Although in pleading
guilty Tutson saved the State the expense of a trial, he nevertheless received the
considerable benefit of the State dropping three Class A felonies and three Class C
felonies, along with an agreement for concurrent sentences. When the State agrees to
dismiss charges in exchange for a plea of guilty, a trial court may choose to disregard the
guilty plea as a significant mitigating factor. See id. at 1165. Clearly, Tutson received a
significant benefit from his guilty plea. The trial court was therefore not obligated to
consider the plea as a significant mitigating factor.
Tutson also argues that Lynn facilitated her confinement and that this facilitation
should mitigate his sentence. During the sentencing hearing, the trial court directly
addressed this argument by correctly noting that simply because Tutson was engaged in
an illegal business, he did not have the right to batter customers who did not pay. We
further note that Tutson, who apparently traveled from Chicago to Lafayette for the
express purpose of selling cocaine, must have been aware of his “business” risks.
Regardless, for obvious reasons, Lynn’s conduct is not justification for Tutson’s decision
to strike her.
We decline to entertain Tutson’s claim that his sentence should be
mitigated because the victim “facilitated” the serious injuries she sustained by taking the
drugs Tutson was preparing to deal to her without paying for them.
Tutson finally contends that the trial court improperly relied upon his history of
juvenile delinquency and his likelihood to re-offend as aggravating factors. Specifically,
Tutson claims that because there is no specific record of an adjudication for either of the
juvenile offenses found in his pre-sentence investigation report, such offenses may not be
used to establish a criminal history.
In Jordan v. State, 512 N.E.2d 407, 410 (Ind. 1987), our Supreme Court held the
“[a] sentencing court may consider prior criminal conduct or history of
criminal activity as an aggravating factor. A juvenile history detailed in a
pre-sentence report filed with the trial court may suffice as evidence of a
criminal history, and thus constitute an aggravating circumstance . . . . It is
. . . not a particular adjudication of delinquency that subjects a defendant to
an aggravated sentence, but rather, [it] is any conduct tending to show a
Tutson’s pre-sentence investigation report clearly reflects criminal behavior from
juvenile proceedings. On November 28, 1999, Tutson was ordered to complete “Drug
School” because he was found to be in possession of a controlled substance.
November 8, 2000, Tutson received five years of probation and ordered to perform
community service for an attempted robbery. Not only does Tutson’s juvenile record
evince a criminal history for purposes of sentencing, it also indicates a “criminal pattern”
given that both juvenile offenses occurred within five years of the current offense. The
trial court properly treated Tutson’s juvenile history as an aggravating circumstance.
Tutson also objects to the “LSIR” as an objective tool used to determine his
likelihood to re-offend. Tutson argues that the “LSIR” evaluation is an arbitrary report
used simply to amplify pre-sentence investigation reports. The “LSIR,” however, is
based on factors such as the defendant’s employment history, the defendant’s connection
to the community in which he committed an offense, and the defendant’s social circles.
All of these factors have a logical connection to a defendant’s likelihood to re-offend, and
these factors, not a raw score on the “LSIR,” are what ultimately may serve to aggravate
The trial court had a statutory obligation to consider Tutson’s likelihood to reoffend, see Ind. Code § 35-38-1-7.1(a)(1) (Burns Code Ed. Repl. 2004), and here the trial
court simply used the “LSIR” as a means to examine factors relevant to Tutson’s
propensity to re-offend or not to re-offend. At the sentencing hearing, the trial court
explained that Tutson’s “LSIR” determined that he is unemployed, his only connection to
Lafayette was to sell drugs, and that his friends are drug dealers. These factors, not
Tutson’s “LSIR” score of 48, are what, in part, led the trial court to aggravate his
sentence, and we cannot say the trial court erred in doing so.
The judgment of the trial court is affirmed.
BAKER, J., and MAY, J., concur.