Doralee A. Burress v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jun 29 2017, 8:32 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Brandon E. Murphy Curtis T. Hill, Jr.
Muncie, Indiana Attorney General of Indiana
Chandra K. Hein
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Doralee A. Burress, June 29, 2017
Appellant-Defendant, Court of Appeals Case No.
05A02-1606-CR-1398
v. Appeal from the Blackford Circuit
Court
State of Indiana, The Honorable Dean A. Young,
Appellee-Plaintiff. Judge
Trial Court Cause No.
05C01-1505-F5-113
Pyle, Judge.
Court of Appeals of Indiana | Memorandum Decision 05A02-1606-CR-1398 | June 29, 2017] Page 1 of 20
Statement of the Case
[1] Doralee A. Burress (“Burress”) appeals the trial court’s denial of her motion for
a change of judge as well as the sentence the trial court imposed after she pled
guilty to Level 6 felony neglect of a dependent.1 She argues that: (1) the trial
court’s denial of her motion for change of judge was clearly erroneous; (2) the
trial court abused its discretion in sentencing her because it identified improper
aggravators; and (3) her sentence was inappropriate under Indiana Appellate
Rule 7(B). Because we find no error or abuse of discretion as alleged, we affirm
her conviction and sentence.
[2] We affirm.
Issues
1. Whether the trial court erred when it denied Burress’s motion
for change of judge.
2. Whether the trial court abused its discretion when sentencing
Burress.
3. Whether Buress’s sentence was inappropriate under Indiana
Appellate Rule 7(B).
Facts
[3] Burress is the mother of B.W., who was born in August 2014. According to the
factual basis for Burress’s guilty plea, between B.W.’s birth in August 2014 and
1
IND. CODE § 35-46-1-4(a)(1).
Court of Appeals of Indiana | Memorandum Decision 05A02-1606-CR-1398 | June 29, 2017] Page 2 of 20
October 2014, B.W. suffered multiple skull fractures, rib fractures, a fracture to
his tibia, a fracture to his ankle, a lacerated liver, and bruising on his face. It is
not clear exactly when each injury occurred. However, the probable cause
affidavit describes that the bones were in “different stages of healing” when the
injuries were discovered. (App. 18). Burress claimed she did not know how
B.W. had received those injuries, but she admitted that she had noticed them
and failed to seek medical treatment.
[4] On May 4, 2015, the State charged Burress with Level 5 felony neglect of a
dependent resulting in bodily injury.2 On January 4, 2016, Burress agreed,
pursuant to a written plea agreement, to plead guilty to the charge. In exchange
for Burress’s guilty plea, the State agreed that Burress’s sentence length would
be left to the discretion of the trial court and that the sentence would be served
on home detention.
[5] Initially, the trial court set a change of plea hearing for Burress to plead guilty.
However, before the hearing occurred, the trial court entered an order in which
it stated that it had reviewed the pre-sentence investigation report (“PSI”) and
was rejecting the plea agreement. As a basis for its rejection, the trial court
found:
8. That a condition of the Plea Agreement is that the Court
would be restricted from ordering an executed sentence in the
2
The State also charged B.W.’s father, Joshua Walker, with neglect of a dependent, but his case is not a part
of this appeal.
Court of Appeals of Indiana | Memorandum Decision 05A02-1606-CR-1398 | June 29, 2017] Page 3 of 20
Indiana Department of Correction, which if the allegations in the
charging instrument and affidavits supporting the charging
instruments are true, is the only appropriate place for a defendant
committing such acts to be sentenced.
9. That the public’s confidence in the judicial system and their
concepts of justice upon which that system relies would be
severely lessened should the Court accept the Plea Agreement as
tendered in this case.
(App. 93). The PSI that the trial court had relied upon included Burress’s
version of events, which she had written as follows:
My son was hospitalized at Riley for injuries that we could not
explain. I am his mother and felt that I had not provided him
with the proper care and he got hurt because of it. I wish to
move forward and be the best mother that I can for my two
babies. I regret not being able to protect him and I am deeply
sorry for any effects this has had on my family. I will do
everything I can to prevent anything like this from happening
again.[3]
(App. 63-64). The PSI also documented that Burress had made the following
statement to the probation officer:
I have no idea how any of the injuries happened to [B.W.]. We
took him to his doctor here in town. I read what the doctor had
written. He said that [B.W.] had an abnormal head size. I then
3
Pursuant to Indiana Administrative Rule 9(G)(2)(b) and INDIANA CODE § 35-38-1-13, the PSI must be
excluded from public access. However, in this case the information contained in the PSI “is essential to the
resolution” of Burress’s claim on appeal. Ind. Admin. Rule 9(G)(7)(a)(ii)(c). Accordingly, we have included
confidential information in this decision only to the extent necessary to resolve the appeal.
Court of Appeals of Indiana | Memorandum Decision 05A02-1606-CR-1398 | June 29, 2017] Page 4 of 20
called the doctor to see if we should be concerned. That is why I
took him to Riley.
(App. 64).
[6] On March 22, 2016, Burress moved for, among other motions, a change of
judge and for the trial court to reconsider its rejection of the plea agreement. In
her motion for change of judge, she argued that the trial court was biased
because it had relied on improper information and had rejected the plea
agreement even though the agreement was reasonable. As for her allegations
that the trial court judge was biased, Burress claimed that the trial court judge
had “reference[d] information contained in a Pre-Sentence Investigation Report
that was obtained in violation of established local practice, procedure[,] and
custom in Blackford County, Indiana . . . .” (App. 104). She attached to her
motion a memorandum sent from another judge of the Blackford Circuit Court
to the Blackford County Criminal Defense Bar in which the judge explained
that the policy of the court was to schedule one hearing for both a change of
plea and sentencing when a PSI was required. The memorandum specified
that, under this procedure, the trial court should receive the PSI prior to the
combined hearing. In an affidavit Burress attached to her motion, the former
Chief Probation Officer in Blackford County, Aaron Henderson, averred that
one concern he had with this combined hearing process was asking defendants
questions concerning the charged events or including defendants’ answers
within the PSIs when a defendant had not yet formally offered her plea of guilty
in the courtroom. He explained that: “To address that concern, [he] did not
Court of Appeals of Indiana | Memorandum Decision 05A02-1606-CR-1398 | June 29, 2017] Page 5 of 20
include a Defendant’s version of events in [PSIs] when the combined change of
plea and sentencing procedure was used.” (App. 112). Burress did not further
explain how the trial court judge’s consideration of the PSI demonstrated the
judge’s bias.
[7] With respect to her allegation that her plea agreement was reasonable, Burress
noted that the Probation Department had recommended in the PSI that the trial
court accept the plea agreement. She also noted that she did not have a
criminal history and that she had successfully completed Department of Child
Services (“DCS”) services.
[8] The trial court held a hearing on Burress’s motion for change of judge and
motion to reconsider the plea agreement on April 13, 2016 and denied both. In
its order on the motion for change of judge, the trial court specified that it had
rejected the guilty plea “for a variety of reasons,” including:
2. . . .
A. The injuries suffered by the child in this case were
heinous and ongoing.
B. That for the first two months of the child’s life the child
suffered continual physical abuse from one or more
persons.
C. The statements of the parents as set out in the Affidavit
of Probable Cause, as well as in the Presentence
Investigation Report indicate a lack of awareness or
understanding of the child’s injuries.
Court of Appeals of Indiana | Memorandum Decision 05A02-1606-CR-1398 | June 29, 2017] Page 6 of 20
D. That the Plea Agreement called for a fully suspended
sentence, as well as a reduction in the level of offense to
which the defendant would enter a plea of guilty in this
case such that the Court could not in good conscious [sic]
accept the Plea Agreement.
3. That the Presentence Investigation Report did not include any
information that was not required by Indiana law, nor did it
violate any “established local practice” concerning the change of
plea and sentencing procedure in the Blackford Circuit Court.
4. That the plea was unreasonable as determined by the Court
based upon all evidence before the Court including the detailed
Affidavit of Probable Cause, this Court’s knowledge of the facts
and circumstances presented to the Court as part of a companion
CHINS proceeding involving the same parties, and information
contained within the Presentence Investigation Report.
5. That in support of the defendant’s Verified Motion for
Change of Judge are certain exhibits, including Exhibits A and B
which were prior communications between the Court and the
Blackford County Defense Bar regarding combined guilty plea
and sentencing hearings. The Court did indicate the Court’s
preference of excluding probation officer recommendations
regarding a possible sentence for reasons stated therein. Provided
further, the Court did in no way direct any probation officer to
exclude from the presentence investigation report the offender’s
version of the offense.
6. That attached Exhibit 4 to the Verified Motion for Change of
Judge is an Affidavit signed by former Chief Probation Officer
Aaron Henderson wherein Mr. Henderson stated that in
presentence investigation reports he prepared he did not include a
defendant’s version of events. If true, Mr. Henderson’s conduct
may have been in derogation of the requirements of State statute,
the presentence investigation report, and without the knowledge
of the Blackford Circuit Court Judge. Mr. Henderson’s Affidavit
Court of Appeals of Indiana | Memorandum Decision 05A02-1606-CR-1398 | June 29, 2017] Page 7 of 20
specifically stated that his concern regarding including such
information was discussed “either locally or with representatives
of other counties using this procedure[.] . . .” The matter was
never discussed with the Circuit Court Judge or directed to be
implemented by the Circuit Court Judge as outlined in Mr.
Henderson’s Affidavit. Provided further, the conduct of a
probation officer does not bind a court with respect to the Court’s
statutory and constitutional duty to bring criminal matters to a
just conclusion.
7. That the defendant has presented no legal basis to allege
against the presiding judge nor has the defendant raised any facts
or circumstances that would cause a reasonable person, aware of
all the facts, to conclude that the presiding judge may have, or
appear to have, any bias against this defendant.
(App. 120-22).
[9] On May 23, 2016, Burress entered into a second plea agreement with the State
in which she agreed to plead guilty to an amended charge of Level 6 felony
neglect of a dependent. This second plea agreement did not include a cap on
her sentence or provide that she would serve her sentence on home detention.
The trial court held a change of plea hearing and accepted Burress’s second plea
agreement.
[10] Subsequently, on June 13, 2016, the trial court held a joint sentencing hearing
for Burress and B.W.’s father, Joshua Walker (collectively, “the Parents”). At
the hearing, Michelle Coons (“CM Coons”), a case manager with DCS,
testified that B.W. had been found a child in need of services (“CHINS”) and
was taken from the Parents after his injuries had been discovered. However,
Court of Appeals of Indiana | Memorandum Decision 05A02-1606-CR-1398 | June 29, 2017] Page 8 of 20
she said that the Parents had successfully completed the CHINS proceedings
and regained custody of B.W. at DCS’s recommendation. CM Coons also
testified that she was comfortable with B.W.’s placement with Burress.
[11] Next, Buress’s probation officer testified and explained that she had
recommended home detention in Burress’s first PSI due to the length of the
sentence she had originally recommended—six years. However, she testified,
she had “[thought] about the situation further” since her initial
recommendation and had changed her recommendation for Burress’s second
PSI, which was prepared for the sentencing hearing, to one (1) year of
incarceration. (Tr. 25). The fact that the second plea agreement called for a
lower sentencing range “played into” her recommendation. (Tr. 25).
[12] At the conclusion of the hearing, the trial court sentenced Burress to two and
one-half (2½) years executed and told her that it would consider a petition to
modify her sentence after one (1) year of incarceration if she behaved well
during incarceration and had residential and employment opportunities at that
point. The court found that several mitigating factors supported this sentence,
including Burress’s lack of criminal history; the hardship that incarceration
would cause her family; Burress’s remorse; and the fact that the crime was
unlikely to recur. However, the trial court also found certain aggravating
factors that it concluded were especially significant. Specifically:
[B.W.] was a totally defenseless, totally dependent child, who
spent the first two months of his life and every day, every
moment of the first two months of his life in great agony. He
Court of Appeals of Indiana | Memorandum Decision 05A02-1606-CR-1398 | June 29, 2017] Page 9 of 20
was literally beaten up by somebody[,] and the two people that
were responsible to [e]nsure that that would never occur to their
child are deaf and dumb when it comes to the possible
explanation as to why that happened. The injuries have been set
out for the record many times before, but just for purposes of
formulating the Court’s thoughts and the sentencing order in this
case, it’s noteworthy that when he was first referred to Riley
Hospital he had an unusually large head, [and] he wasn’t acting
right. Once at Riley, they discovered multiple skull fractures and
fluid on his brain. Many of the fractures [were] in various stages
of healing[,] which means that it happened more than once.
Multiple rib fractures, again, in various stages of healing, which
indicate that it happened more than once. Possible fracture to
the tibia and left ankle. He had a laceration or a cut on his liver.
There was bruising to the left side of his face. Virtually every
single moment of that child’s life[,] he was in great agony. The
parents were equally responsible to keep that from happening
and should it happen by others to seek medical treatment.
Accordingly, they are both equally culpable. That child was put
to more torture than if he w[ere] an Islamic Jihadist at
Guantanamo, being tortured for information or for his crimes.
He was abused every single day for two months. Every single
day. Either physically beaten up or denied the medical care that
his beatings required. And the parents are deer in headlights
when it comes to what happened to that child. Anything other
than the maximum sentence would seriously depreciate what
happened to this child.
(Tr. 42-44). Burress now appeals.
Decision
[13] On appeal, Burress argues that: (1) the trial court erred when it denied her
motion for change of judge; (2) the trial court abused its discretion when it
sentenced her; and (3) her sentence was inappropriate under Indiana Appellate
Court of Appeals of Indiana | Memorandum Decision 05A02-1606-CR-1398 | June 29, 2017] Page 10 of 20
Rule 7(B) in light of the nature of her offense and her character. We will
address each of these issues in turn.
1. Motion for Change of Judge
[14] First, Burress argues that the trial court erred because its findings in its order
denying her motion for change of judge and its rejection of her first plea
agreement with the State indicated that the trial court judge was biased against
her.
[15] Indiana Criminal Procedure Rule 12(B) provides that:
In felony and misdemeanor cases, the [S]tate or defendant may
request a change of judge for bias or prejudice. The party shall
timely file an affidavit that the judge has a personal bias or
prejudice against the [S]tate or defendant. The affidavit shall state
the facts and the reasons for the belief that such bias or prejudice
exists, and shall be accompanied by a certificate from the
attorney of record that the attorney in good faith believes that the
historical facts recited in the affidavit are true. The request shall
be granted if the historical facts recited in the affidavit support a
rational inference of bias or prejudice.
“‘Adjudicating a request for change of judge based on Rule 12(B) requires an
objective, not subjective, legal determination by the judge, who is to examine
the affidavit, treat the facts recited in the affidavit as true, and determine
whether these facts support a rational inference of bias or prejudice.’” Lehman
v. State, 55 N.E.3d 863, 867 (Ind. Ct. App. 2016) (quoting Voss v. State, 856
N.E.2d 1211, 1216 (Ind. 2006)), trans. denied. The appropriate standard of
review of a trial judge’s decision to grant or deny a motion for change of judge
Court of Appeals of Indiana | Memorandum Decision 05A02-1606-CR-1398 | June 29, 2017] Page 11 of 20
under Indiana Criminal Rule 12 is whether the judge’s decision was clearly
erroneous. Id. at 866. The law starts with the presumption that a judge is
unbiased and unprejudiced. Zavodnik v. Harper, 17 N.E.3d 259, 269 (Ind. 2014).
Reversal will require a showing that leaves us with a definite and firm
conviction that a mistake has been made. Lehman, 55 N.E.3d at 866.
[16] In support of her argument that the trial court judge was biased, Burress first
asserts that the trial court judge “considered information that [was] not []
permitted under local practice in pre-sentence investigation reports[.]”
(Burress’s Br. 15). Specifically, she claims that the trial court appeared to reject
the plea agreement because Burress was unable to explain how any of the
injuries to B.W. had occurred. She contends that the trial court’s reference to
her inability to explain how the injuries happened indicated that he was
punishing her for her lack of explanation rather than for her failure to seek
treatment for B.W., which was the element of her offense.
[17] Notably, Burress did not explicitly raise this argument in her motion for change
of judge or at the hearing on the motion. In Burress’s motion for change of
judge, she argued that the trial court inappropriately considered her version of
events that was documented in the pre-sentence investigation report. She did
not claim that the trial court considered factors that were not elements of her
crime as a result of considering that information in the PSI. In fact, Burress did
not clarify in her motion for change of judge how the trial court’s consideration
of her version of events in the PSI demonstrated the trial court’s bias. Because
she, therefore, is raising a new argument on appeal, we conclude that she has
Court of Appeals of Indiana | Memorandum Decision 05A02-1606-CR-1398 | June 29, 2017] Page 12 of 20
waived that argument for appellate review. See Hape v. State, 903 N.E.2d 977,
997 (Ind. Ct. App. 2009) (stating that a party may not raise an argument for the
first time on appeal), trans. denied.
[18] Next, Burress argues that the trial court’s rejection of a “reasonable” plea
agreement and its statements that “the Indiana Department of Corrections . . .
is the only appropriate place for a defendant” committing the charged acts and
that the Parents were “pathetic examples of parents” indicated that it was
biased against her. (Burress’s Br. 15-16). We disagree because it is clear that
the trial court’s rejection of the plea agreement and its statements regarding the
Parents were based on its evaluation of the evidence, not its bias against the
Parents.
[19] Our supreme court has previously held that:
A judge’s exposure to evidence through judicial sources is
generally insufficient to establish bias. The fact that a litigant has
appeared before a judge in prior cases does not establish bias or
prejudice. Prejudice is not inferred from adverse judicial rulings.
Zavodnik, 17 N.E.3d at 269.
[20] Burress isolates the trial court’s statement that the Department of Correction is
the only place for her from its context. In full, the trial court found:
[A] condition of the Plea Agreement is that the Court would be
restricted from ordering an executed sentence in the Indiana
Department of Correction, which if the allegations in the charging
instrument and affidavits supporting the charging instruments are true,
Court of Appeals of Indiana | Memorandum Decision 05A02-1606-CR-1398 | June 29, 2017] Page 13 of 20
is the only appropriate place for a defendant committing such
acts to be sentenced.
(App. 93) (emphasis added). The full text of this finding emphasizes that the
trial court’s statement that Burress belonged in the DOC was based on the
allegations in the charging information and affidavits supporting the charging
instruments. In the statement, the trial court recognizes that its conclusion is
qualified by the conditional assumption that “the allegations . . . are true.”
(App. 93). In other words, the trial court had not already decided that Burress
belonged in DOC; it merely did not want to foreclose that option. 4
Accordingly, this statement was not evidence of the trial court’s bias. See
Zavodnik, 17 N.E.3d at 269 (“A judge’s exposure to evidence through judicial
sources is generally insufficient to establish bias.”).
[21] As for Burress’s argument that the trial court’s rejection of a reasonable plea
agreement indicated its bias, we must note that the trial court has “wide
discretion” to reject a plea agreement. Nybo v. State , 799 N.E.2d 1146, 1152
(Ind. Ct. App. 2003). As stated above, prejudice is not inferred from adverse
judicial rulings. See id. Burress has not provided any other facts showing that
the trial court thought the plea agreement was reasonable and rejected it
because of bias. Instead, it is clear from the record that the trial court rejected
4
The terms of a plea agreement between the State and the defendant are contractual in nature. State v. Smith,
71 N.E.3d 368, 370 (Ind. 2017). When a trial court accepts a plea agreement, it is bound by its terms. Id.Therefore, if the trial court had accepted the plea agreement that provided that Burress would serve her
sentence on home detention, it would have foreclosed its ability to sentence her to executed time in the
Department of Correction.
Court of Appeals of Indiana | Memorandum Decision 05A02-1606-CR-1398 | June 29, 2017] Page 14 of 20
the plea agreement because it did not think that the plea agreement was
reasonable since it restricted the court’s sentencing discretion to home
detention.5 The trial court had the discretion to determine that incarceration
was more appropriate than home detention. See Million v. State, 646 N.E.2d
998, 1001 (Ind. Ct. App. 1995) (“[P]lacement in a community corrections
program is an alternative to commitment to the Department of Correction and
made at the sole discretion of the trial court. . . . Therefore, a defendant is not
entitled to serve his sentence in a community corrections program but, as with
probation, placement in the program is a ‘matter of grace’ and a ‘conditional
liberty that is a favor, not a right.’”). Therefore, the trial court’s exercise of this
discretion, absent other evidence, was not evidence of bias.
[22] For the foregoing reasons, we conclude that Burress did not present evidence
that supports a rational inference of bias or prejudice. Thus, the trial court did
not err when it denied Burress’s motion for change of judge.
2. Sentencing
[23] Next, Burress argues that the trial court abused its discretion when it sentenced
her because it identified improper aggravating factors. Specifically, she
5
In support of her argument that the plea agreement was reasonable, Burress notes that the Probation
Department recommended that the trial court accept the plea agreement. However, as stated above,
Burress’s probation officer testified that even though she had originally recommended that the trial court
accept the plea agreement, when she “[thought] about the situation further[,]” she recommended one (1) year
of incarceration. (Tr. 25). Burress also overlooks that her probation officer originally recommended home
detention for six years—a significantly longer sentence than the sentence the trial court imposed after its
acceptance of her second plea agreement.
Court of Appeals of Indiana | Memorandum Decision 05A02-1606-CR-1398 | June 29, 2017] Page 15 of 20
challenges the trial court’s comments that: (1) “the harm was caused by the
defendant to a totally defenseless, newborn child[;]” (2) “the child was totally
dependent upon the defendant[;]” (3) the abuse B.W. suffered was “daily” and
like “torture[;]” and (4) “a lesser sentence would seriously depreciate the
seriousness of the offense.” (App. 177, 178).
[24] 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), clarified 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. The trial court can abuse its
discretion by: (1) issuing an inadequate sentencing statement; (2) finding
aggravating or mitigating factors that are not supported by the record; (3)
omitting factors that are clearly supported by the record and advanced for
consideration; or (4) by finding factors that are improper as a matter of law.
Gleason v. State, 965 N.E.2d 702, 710 (Ind. Ct. App. 2012).
[25] First, Burress claims that the trial court abused its discretion when it found as
aggravating factors that the harm was “caused by the defendant to a totally
defenseless newborn child” and that “the child was totally dependent upon the
defendant.” (App. 177). She claims that these factors were improper as a
matter of law because it is an element of the offense of neglect of a dependent
that the alleged victim is dependent upon the defendant.
Court of Appeals of Indiana | Memorandum Decision 05A02-1606-CR-1398 | June 29, 2017] Page 16 of 20
[26] Burress is correct that it is improper as a matter of law to find that a material
element of a crime is an aggravating circumstance. Gleason, 965 N.E.2d at 711.
However, the nature and circumstances of an offense can be aggravators. Id. It
is clear, here, that the trial court found B.W.’s particularized circumstances
aggravating. Our Indiana Code defines “dependent” as “(1) an unemancipated
person who is under eighteen (18) years of age; or (2) a person of any age who
has a mental or physical disability.” I.C. § 35-46-1-1. Contrary to Burress’s
argument, there is a significant difference in circumstances between a
dependent who is eighteen years old and a two-month old infant. In both of the
trial court’s statements, it was emphasizing the particularized circumstances of
a two-month old infant. Unlike older individuals who can walk and talk, but
still qualify legally as dependents, B.W. was entirely physically dependent upon
Burress to seek treatment for his injuries. He could not talk or explain his
injuries to others. He was, as the trial court emphasized, “totally defenseless.”
(App. 177). Accordingly, we conclude that this particularized circumstance
was not an element of the offense, and the trial court did not abuse its discretion
in identifying it as an aggravating factor.
[27] Next, Burress challenges the trial court’s conclusion that the abuse B.W.
suffered was “daily” and equivalent to “torture.” (App. 178). She argues that
these statements were not supported by the record and reflected the trial court’s
attempts to hold her culpable for inflicting B.W.’s injuries herself, rather than
for failing to seek treatment as she was charged. Again, we conclude that the
trial court’s statements were based on the nature and circumstances of the
Court of Appeals of Indiana | Memorandum Decision 05A02-1606-CR-1398 | June 29, 2017] Page 17 of 20
offense. The trial court was emphasizing that B.W.’s injuries were ongoing and
severe, rather than a one-time occurrence. This conclusion was supported by
the record as there was evidence that B.W.’s bones were in “different stages of
healing.” (App. 18). As for the trial court’s analogy to torture, the trial court
was commenting on the severity of B.W.’s injuries—and the impact that
Burress’s failure to seek treatment therefore had on B.W.—not accusing Burress
of inflicting the injuries herself.
[28] Finally, Burress argues that the trial court’s statement that “a lesser sentence
than the one the Court imposes would seriously depreciate the seriousness of
the offense” was an improper aggravator. (App. 177). However, Burress does
not quote the trial court’s entire statement. In full, the trial court found:
that a lesser sentence than the one the Court imposes would
seriously depreciate the seriousness of the offense and that but for
the timely intervention of law enforcement and Child Protective
Services the child would have suffered injury that may likely
have resulted in the death of the child while in the care,
custody[,] and control of both parents.
(App. 177-78). In its full context, it is clear that the trial court was again
referring to the nature and circumstances of the offense—the severity of B.W.’s
injuries. As the nature and circumstances of an offense are not improper
aggravators, we conclude that the trial court did not abuse its discretion.
Gleason, 965 N.E.2d at 711.
Court of Appeals of Indiana | Memorandum Decision 05A02-1606-CR-1398 | June 29, 2017] Page 18 of 20
3. Indiana Appellate Rule 7(B)
[29] Next, Burress argues that her sentence was inappropriate under Indiana
Appellate Rule 7(B) in light of the nature of her offense and her character.
Indiana Appellate Rule 7(B) provides that we may revise a sentence authorized
by statute 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. The defendant bears the burden of persuading this Court that
his sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind.
2006). Whether we regard a sentence as inappropriate turns on 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).
[30] When determining whether a sentence is inappropriate, we acknowledge that
the advisory sentence is the starting point the Legislature has selected as an
appropriate sentence for the crime committed. Childress, 848 N.E.2d at 1081.
The sentencing range for Level 6 felony neglect of a dependent is between six
(6) months and two and one-half (2½) years, with an advisory sentence of one
(1) year. I.C. § 35-50-2-7. Accordingly, Burress received the maximum
sentence for a Level 6 felony.
[31] Burress argues that this sentence was inappropriate because the maximum
sentence should be reserved for the worst offenders, and she believes she is not
the “very worst offender.” (Burress’s Br. 20). In support of this argument, she
notes that she does not have a criminal history, has a solid work history, has
Court of Appeals of Indiana | Memorandum Decision 05A02-1606-CR-1398 | June 29, 2017] Page 19 of 20
addressed her depression issues through therapy, showed remorse, and
complied with court orders in her CHINS proceedings.
[32] While these factors are positive evidence of Burress’s character, we conclude
that her sentence was not inappropriate in light of the nature of her offense. As
the trial court found, B.W. suffered severe and ongoing injuries at an extremely
young and vulnerable age. Those injuries included multiple skull fractures, rib
fractures, a fracture to his tibia, a fracture to his ankle, a lacerated liver, and
bruising on his face. Burress did not do anything to help B.W. and failed to
seek treatment for those serious injuries even though she admits that she
noticed them. Thus, the nature of her offense was egregious—she failed to seek
treatment for severe injuries to a helpless infant even though she was aware of
the injuries. This failure to seek treatment is also a reflection of her poor
character. In light of this evidence, we do not find that her sentence was
inappropriate.
[33] Affirmed.
May, J., and Brown, J., concur.
Court of Appeals of Indiana | Memorandum Decision 05A02-1606-CR-1398 | June 29, 2017] Page 20 of 20