Joshua R. Walker v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Jan 30 2017, 8:42 am
regarded as precedent or cited before any
CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Douglas D. Martz Curtis T. Hill, Jr.
Marion, Indiana Attorney General of Indiana
Christina D. Pace
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Joshua R. Walker, January 30, 2017
Appellant-Defendant, Court of Appeals Case No.
05A02-1607-CR-1584
v. Appeal from the Blackford Circuit
Court
State of Indiana, The Honorable Dean A. Young,
Appellee-Plaintiff. Judge
Trial Court Cause No.
05C01-1505-F5-114
Mathias, Judge.
[1] Joshua R. Walker (“Walker”) was convicted in Blackford Circuit Court of
Level 6 felony neglect of a dependent and sentenced to an executed term of two
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and one-half years of incarceration. On appeal, Walker contends that the trial
court abused its discretion in sentencing him by considering an element of the
crime as an aggravating factor.
[2] We affirm.
Facts and Procedural History
[3] Walker and his girlfriend, Doralee Burress (“Burress”), had a child, B.W. On
October 14, 2014, Burress took the child to Riley Children’s Hospital in
Indianapolis because the infant’s head seemed enlarged. At the hospital,
doctors discovered that B.W. had suffered serious injuries, which included
multiple skull fractures, fractured ribs, a possible fracture of his tibia and left
ankle, a lacerated liver, retinal hemorrhaging, and fluid on his brain. One of the
treating physicians told the police that some of the fractures showed signs of
healing, but that the rib fractures had not yet healed. The physician was of the
opinion that the injuries were the result of abuse, not accident. Walker and
Burress were the child’s main caregivers, and only they and Walker’s sister,
Burress’s mother, and Burress’s friend had ever been alone with the child since
his birth.
[4] On May 4, 2015, the State charged Walker with Level 5 felony neglect of a
dependent. Walker entered into a plea agreement with the State on January 28,
2016, in which he agreed to plead guilty to Level 6 felony neglect of a
dependent and serve any sentence received on home detention through
community corrections. The trial court rejected this plea agreement on
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February 26, 2016. Thereafter, the parties entered into another plea agreement.
This time, the agreement called for Walker to plead guilty to Level 6 neglect of
a dependent, but sentencing was left wholly to the discretion of the trial court.
The trial court accepted this plea.
[5] At a sentencing hearing held on June 13, 2016, the trial court found as
mitigating the following factors: Walker had no criminal history; Walker had
served in the Navy for five years; Walker had cooperated with the Department
of Child Services in the CHINS proceeding that was initiated due to B.W.’s
injuries and sought treatment; and Walker was at a low risk to reoffend. The
trial court found as aggravating the extent and severity of the infant’s injuries.
Concluding that the aggravators outweighed the mitigators, the trial court
sentenced Walker to two and one-half years of incarceration, with no time
suspended. Walker now appeals.
Discussion and Decision
[6] Generally speaking, sentencing decisions are left to the sound discretion of the
trial court, and we review the trial court’s decision only for an abuse of this
discretion. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g,
875 N.E.2d 218. An abuse of discretion occurs if the decision is clearly against
the logic and effect of the facts and circumstances before the trial court. Id. The
trial court may abuse its discretion in sentencing in a number of ways, including
(1) wholly failing to enter a sentencing statement, (2) entering a sentencing
statement that explains reasons for imposing the sentence but the record does
not support the reasons, (3) the sentencing statement omits reasons that are
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clearly supported by the record and advanced for consideration, or (4) the
reasons given in the sentencing statement are improper as a matter of law.
Kimbrough v. State, 979 N.E.2d 625, 628 (Ind. 2012) (citing Anglemyer, 868
N.E.2d at 490-91).
[7] Walker argues that the trial court abused its sentencing discretion when it
considered elements of the crime for which he was convicted as aggravating
factors to “enhance” his sentence. In Gomillia v. State, 13 N.E.3d 846 (Ind.
2014), our supreme court explained that “[w]here a trial court’s reason for
imposing a sentence greater than the advisory sentence includes material
elements of the offense, absent something unique about the circumstances that would
justify deviating from the advisory sentence, that reason is improper as a matter of
law.” Id. at 852-53 (emphasis added) (brackets in original) (citations and
internal quotation marks omitted). Thus, if the trial court relies upon an
aggravating factor that is also a material element of the offense, then the trial
court abuses its discretion; but if there is something unique about the
circumstances of the crime, then there is no abuse of discretion in relying upon
these circumstances as an aggravating factor. See id. at 853 (“Generally, the
nature and circumstances of a crime is a proper aggravating circumstance.”).
[8] Applying this to the facts of the present case, we discern no abuse of the trial
court’s sentencing discretion, as the trial court did not rely upon the material
elements of the crime of neglect of a dependent as aggravators; instead, it relied
upon the particularly horrific nature and circumstances of the case as
aggravators.
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[9] The statute defining the crime of neglect of a dependent as a Level 6 felony
provides:
A person having the care of a dependent, whether assumed
voluntarily or because of a legal obligation, who knowingly or
intentionally:
(1) places the dependent in a situation that endangers the
dependent’s life or health;
(2) abandons or cruelly confines the dependent;
(3) deprives the dependent of necessary support; or
(4) deprives the dependent of education as required by law;
commits neglect of a dependent, a Level 6 felony.
Ind. Code § 35-46-1-4(a). Injury to the dependent and the pain the dependent
suffers are not material elements of the crime.1 Yet, it is precisely these facts that
the trial court described as aggravating factors in its sentencing statement:
It is the aggravating circumstances, however, in this case that
leads the Court to the conclusion that it will reach with respect to
the sentence in this case. [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 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
1
We reject Walker’s claim that the length of time that B.W. was abused was a material element of the crime
because the charging information stated that the crime occurred “between August 7, 2014 and October 16,
2014.” Appellant’s App. p. 28. That the charging information included a range of dates does not transform
this range into a material element of the offense. See Blount v. State, 22 N.E.3d 559, 569 (Ind. 2014) (noting
that where time is not otherwise an element of the offense, the State is not required to prove the offense
occurred on the date alleged in the charging instrument) (citing Neff v. State, 915 N.E.2d 1026, 1032 (Ind. Ct.
App. 2009), adhered to on reh’g, 922 N.E.2d 44 (Ind. Ct. App. 2010)).
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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 first was referred
to Riley Hospital he had an unusually large head, he wasn’t
acting right. Once at Riley, they discovered multiple skull
fractures and fluid on his brain. Many of the fractures 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 would 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.
I appreciate the parents have sought treatment now that it’s been
determined that the child was beat up. I appreciate the fact that it
creates a hardship by putting people in jail. I’ve never been able
to figure out how to avoid that one, other than I guess, the person
not committing the crime to begin with. So, that has to go back
on them. It’s unlikely to recur. More than likely, it’s unlikely to
recur, because nobody will ever put a child in their hands without
taking a second look or keeping their eyes on the child the entire
time that it’s in their care. I certainly wouldn’t. The fact that they
have sought this treatment and that they have these mitigating
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things in their past may go to the amount of the sentence that
should be executed but not to the length of the sentence itself or
that some of it should be executed. And some of it must be.
These people are pathetic examples of parents and the Court, if
they’re looking for mercy, they’re not going to find it here. The
Court sentences Mr. Walker to the Indiana Department of
Correction for the advisory sentence of 1 year with an additional
1 1⁄2 years for aggravating circumstances. If I could give you
more, Mr. Walker, I would but I can’t, so I won’t, for a total
sentence of 2 1⁄2 years.
Tr. pp. 33-35 (paragraph breaks added).2
[10] Clearly, the trial court relied on the particularly brutal nature and circumstances
of the crime, not merely the material elements of the crime, in deciding to
sentence Walker to an executed sentence of two and one-half years. Indeed, the
court noted the extended period that B.W. had been seriously injured and in
2
The trial court’s written sentencing order contained similar language:
Comes now the Court and finds as aggravating circumstances that the harm was caused by the
defendant to a totally defenseless, newborn child; that the child was totally dependent upon the
defendant; that the abuse occasioned the child was daily throughout each and every moment of
the first 2 months of the child’s life, and was in the form of repeated acts of physical abuse for
which the defendant did not offer protection, and/or repeated failures to seek medical treatment
for the physical injuries to which the child was subjected and which the defendant had a legal
obligation to provide. Further, the Court finds 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. Further, the Court finds that the extreme nature of the physical abuse experienced by
the child, and as related to the Court through the Probable Cause Affidavit submitted in this case,
as well as in the Child in Need of Services proceedings under Case Numbers 05C01-1410-JC-058
and 05COI-1410-JC-059, was tantamount to continual torture which no reasonable person could
have failed to notice and for which no reasonable, caring and loving parent could fail to address
through medical attention.
Appellant’s App. pp. 144-45.
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obvious pain, yet neither Walker nor Burress did anything to seek treatment for
the child for weeks. Instead, Walker let a newborn infant suffer. Nor do we
agree with Walker that the trial court’s consideration of B.W.’s injuries is
tantamount to punishing him for inflicting the injuries upon B.W. The trial
court merely noted the severity of B.W.’s injuries, the pain the infant was in,
and Walker’s callous disregard for B.W.’s pain and suffering.
[11] Accordingly, we conclude that the trial court did not abuse its discretion in
relying upon the particularly brutal facts and circumstances of the crime and the
severity of Walker’s behavior as a reason for justifying a sentence greater than
the advisory. See Gomillia, 13 N.E.3d at 853 (holding that trial court’s
consideration of nature and circumstances of the crime, which included the
leading role the defendant played in the crime and the terror the victim suffered,
were not material elements of the offense and therefore appropriate aggravating
factors); Hall v. State, 870 N.E.2d 449, 464 (Ind. Ct. App. 2007) (where
circumstances surrounding defendant’s commission of murder, burglary, and
criminal confinement was significantly more heinous than the than typical, trial
court did not abuse its discretion in considering the nature and circumstances of
the crimes as aggravating), trans. denied.
[12] Affirmed.
Baker, J., and Pyle, J., concur.
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