Michael Jones v. State of Indiana

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,
FILED
Mar 13 2012, 9:30 am
collateral estoppel, or the law of the case.
CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
MICHAEL FRISCHKORN GREGORY F. ZOELLER
Frischkorn Law LLC Attorney General of Indiana
Fortville, Indiana
JOSEPH Y. HO
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
MICHAEL JONES, )
)
Appellant-Defendant, )
)
vs. ) No. 30A01-1108-CR-378
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE HANCOCK SUPERIOR COURT
The Honorable Terry K. Snow, Judge
Cause No. 30D01-1011-FB-213
March 13, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
VAIDIK, Judge
Case Summary
Michael Jones appeals his eighteen-year sentence with three years suspended to
probation for scalding and permanently scarring the hands of his girlfriend’s two-year-old
daughter. Jones argues that the trial court erred in finding three of the five aggravators
and his sentence is inappropriate in light of the nature of the offense and his character.
Although the trial court found two improper aggravators, we can say with confidence that
the court would have imposed the same sentence even without them. In addition, in light
of the two-year-old’s serious injuries and the fact that Jones had been recently released
from probation for a prior neglect of a dependent conviction, he has failed to persuade us
that his sentence is inappropriate. We therefore affirm the trial court.
Facts and Procedural History
On September 14, 2010, twenty-year-old Jones watched his then-girlfriend A.G.’s
twenty-seven-month-old daughter, B.C., in Greenfield, Indiana, while A.G. ran some
errands. At some point, Jones called A.G. to tell her that B.C.’s hands were “messed up”
and that she needed to come home. Appellant’s App. p. 11. When A.G. arrived, she
found the skin coming off of B.C.’s hands. Id. Jones explained that he had attempted to
wash ink from B.C.’s hands, but the water was too hot. Id. B.C. was taken to Riley
Hospital for Children. B.C. suffered second- and third-degree burns to the backs of her
hands, required a skin graft using skin from her leg and thigh, and has permanent
scarring. According to a doctor at Riley, B.C.’s burns were not accidental but rather were
intentionally inflicted.
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About two and one-half months after the incident, the State charged Jones with
Class B felony battery, Class B felony neglect of a dependent, and Class A misdemeanor
intimidation (relating to A.G.). Thereafter, Jones and the State entered into a plea
agreement whereby Jones would plead guilty to Class B felony neglect of a dependent,
the State would dismiss the remaining charges, and both sides would argue sentencing.
Id. at 79. The trial court accepted the plea agreement.
At sentencing, evidence was presented concerning B.C.’s burns, skin graft,
permanent scarring, and need for future surgery. Evidence was also presented that Jones
had a prior conviction for neglect of a dependent. That is, in 2008 Jones was convicted,
in the very same court, of Class D felony neglect of a dependent. He was sentenced to
eighteen months, which was suspended to probation, and had his conviction reduced to a
Class A misdemeanor. Notably, Jones committed this offense “in a matter of months”
after being released from probation for his previous neglect of a dependent conviction.
Tr. p. 29. Jones was also arrested in Marion County for Class B misdemeanor disorderly
conduct after the offense in this case but before charges were filed. The State requested a
sentence of eighteen years, all executed. Defense counsel conceded that the event was
“tragic” and the photographs of B.C.’s injuries and scarring were “heart wrenching,” but
he argued that Jones had a poor upbringing himself. Id. at 29-30, 31. Defense counsel
asked for the presumptive sentence of ten years, with four years suspended to probation.
Id. at 33. Jones then testified that he was “truly sorry for th[e] horrible crime,” took “full
responsibility,” and “couldn’t tell you a reason why [he] did this.” Id. at 34, 35. Jones
also requested anger management classes.
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The trial court sentenced Jones to eighteen years with three years suspended to
probation. The trial court orally explained its sentence as follows:
Court finds the following aggravators:
1. Defendant having previous criminal (inaudible) activity.
2. That he is in need of rehabilitative treatment and this [can] be provided
by commitment to a penal facility.
3. In you (inaudible) appreciate the seriousness of the crime.
4. Victim of the crime was less than 12 years of age. And finally, the
Defendant was in a position of trust – however, position of trust is, only in
this case because it was neglect of a depend[e]nt. The Court finds the
mitigating factors to be, the Court commends admitting and accept[ing]
responsibility for the crime. Court finds that the aggravators outweigh the
mitigators. Quite honestly, I do – I’m making myself notes here, jockeying
back and forth, for what the appropriate sentence in this case was. It
appears that, in fact, you have a track record – the injury, abuse and neglect
of a child that has been in his care. You seem – the Court’s consideration
the last time around when you received alternate A Misdemeanor
sentencing. I have accepted in being probation, so that (inaudible), but not
only was the child less than 12, she was two years old which is
substantially less than 12. Never have to (inaudible) statute for that but
that’s something that has [to] be considered.
Id. at 36-37.
Jones now appeals his sentence.
Discussion and Decision
Jones raises two issues on appeal. First, he contends that the trial court erred in
finding three aggravators. Second, he contends that his sentence is inappropriate in light
of the nature of the offense and his character.
I. Abuse of Discretion
The trial court found five aggravators, and Jones contends that three are them are
improper. Sentencing decisions rest within the sound discretion of the trial court.
Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 2184
(Ind. 2007). So long as the sentence is within the statutory range, it is subject to review
only for an abuse of discretion. Id. An abuse of discretion will be found where 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.A trial court may abuse its discretion in a number of ways, including: (1) failing to
enter a sentencing statement at all; (2) entering a sentencing statement that includes
aggravating and mitigating factors that are unsupported by the record; (3) entering a
sentencing statement that omits reasons that are clearly supported by the record; or (4)
entering a sentencing statement that includes reasons that are improper as a matter of law.
Id. at 490-91. Because the trial court no longer has any obligation to weigh aggravating
and mitigating factors against each other when imposing a sentence, a trial court cannot
now be said to have abused its discretion in failing to properly weigh such factors. Id. at
491. If a trial court abuses its discretion, “remand for resentencing may be the
appropriate remedy 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.” Id.Jones first argues that the trial court erred in finding as an aggravator that he is in
need of rehabilitative treatment that is best provided by a penal facility because the court
failed to explain “why” he needs such treatment. Appellant’s Br. p. 4. To the contrary,
the trial court clearly explained that Jones had a “track record” of abusing and neglecting
children in his care and had already received the benefit of Class A misdemeanor
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sentencing for neglect of a dependent. Accordingly, the trial court did not abuse its
discretion in finding this aggravator.
Jones next argues that the trial court erred in finding the third aggravator, “In you
(inaudible) appreciate the seriousness of the crime.” Although it is unclear from the
transcript of the sentencing hearing, Jones believes that the trial court found that a lesser
sentence would depreciate the seriousness of the crime, Appellant’s Br. p. 4 n.2, while
the State believes that the trial court meant to say Jones’s “inability to appreciate the
seriousness of the offense.” Appellee’s Br. p. 5 n.1. We note that neither party, however,
submitted statements of evidence pursuant to Appellate Rule 31 or asked for a correction
or modification of the transcript pursuant to Appellate Rule 32.
In any event, we give Jones the benefit of the doubt and proceed as if the trial
court found that the imposition of a lesser sentence would depreciate the seriousness of
the offense. A trial court’s statement that the imposition of a reduced sentence would
depreciate the seriousness of the offense as an aggravating circumstance is generally
improper where the record does not suggest that a term less than the advisory sentence is
being considered. See Jones v. State, 780 N.E.2d 373, 380 (Ind. 2002); Eversole v. State,
873 N.E.2d 1111, 1114 n.1 (Ind. Ct. App. 2007) (“We note a finding that a lesser
sentence would depreciate the seriousness of the crime has application only when the trial
court is considering imposition of a sentence less than the advisory sentence.”), trans.
denied.1 Here, although Jones requested the advisory sentence (with some of the time
1
We note, however, that our Supreme Court has held that “it is not error to enhance a sentence
based upon the aggravating circumstance that a sentence less than the enhanced term would depreciate
the seriousness of the crime committed.” Mathews v. State, 849 N.E.2d 578, 590 (Ind. 2006) (emphasis
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suspended to probation), there is no indication that the trial court was considering a term
less than the advisory. Accordingly, if the trial court found this aggravator, it abused its
discretion in doing so.
Finally, Jones argues that the trial court erred in finding as an aggravator that he
was in a position of trust because it is an element of neglect of a dependent. “[H]aving
the care of a dependent, whether assumed voluntarily or because of a legal obligation,” is
an element of neglect of a dependent. Ind. Code § 35-46-1-4. Generally, a trial court
may not use a material element of a crime as an aggravating circumstance. McCann v.
State, 749 N.E.2d 1116, 1120 (Ind. 2001). Nevertheless, this Court has affirmed a trial
court’s finding of the position-of-trust aggravator in a neglect of a dependent case. See
Robinson v. State, 894 N.E.2d 1038, 1042-43 (Ind. Ct. App. 2008). In Robinson, we
found that the trial court “did not merely rely on an element of the crime” as an
aggravator but rather considered the particularized circumstances of the crime. Id. at
1043. That is, the trial court found that the defendant was in a position of care over a
completely defenseless and vulnerable newborn. Id.Here, however, the trial court used position of trust and having the care of a
dependent as one in the same. The trial court stated, “And finally, the Defendant was in a
position of trust – however, position of trust is, only in this case because it was neglect of
a depend[e]nt.” Because of this singular treatment, the trial court abused its discretion in
finding Jones’s position of trust as an aggravator.
added). But given the state of this record, we do not know what the trial court actually found to be
aggravating.
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In sum, we find that the trial court found three proper aggravators – Jones’s
criminal history, his need for rehabilitative treatment in a penal facility, and B.C. was
substantially less than twelve years old – and two improper aggravators. Given the
nature of twenty-seven-month old B.C.’s injuries and the fact that Jones had recently
been released from probation for neglect of a dependent, we can say with confidence that
the trial court would have imposed the same sentence regardless of the two improper
aggravators.
II. Inappropriate Sentence
Jones also contends that his sentence is inappropriate in light of the nature of the
offense and his character. Our rules authorize revision of a sentence “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.” Ind.
Appellate Rule 7(B). “[A] defendant must persuade the appellate court that his or her
sentence has met this inappropriateness standard of review.” Childress v. State, 848
N.E.2d 1073, 1080 (Ind. 2006).
The principal role of Rule 7(B) review “should be to attempt to leaven the outliers,
and identify some guiding principles for trial courts and those charged with improvement
of the sentencing statutes, but not to achieve a perceived ‘correct’ result in each case.”
Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). Whether a sentence is
inappropriate ultimately turns on the culpability of the defendant, the severity of the
crime, the damage done to others, and a myriad of other factors that come to light in a
given case. Id. at 1224. When reviewing the appropriateness of a sentence under Rule
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7(B), we may consider all aspects of the penal consequences imposed by the trial court in
sentencing the defendant, including whether a portion of the sentence was suspended.
Davidson v. State, 926 N.E.2d 1023, 1025 (Ind. 2010).
A person who commits a Class B felony shall be imprisoned for a fixed term
between six and twenty years, with the advisory sentence being ten years. Ind. Code §
35-50-2-5. Here, the trial court sentenced Jones to eighteen years and suspended three of
them to probation.
The nature of the offense is horrendous. Jones, who by his own admission took
care of twenty-seven-month-old B.C. “every day for 10 months,” scalded B.C.’s hands
with hot water for no reason. Tr. p. 34, 35. B.C. sustained second- and third-degree
burns, stayed in Riley Hospital for at least twelve days, underwent painful and frequent
bandage changes and special baths which required drugs to keep her calm, and had a skin
graft using skin from her leg and thigh. The result of Jones’s actions is that B.C. has
permanent scarring, faces an additional surgery, and is self-conscious about her “boo-
boos.” Id. at 23. The pictures included in the record on appeal speak a thousand words.
Jones’s character does not fare much better. Jones was twenty years old at the
time of this offense and had recently been released from probation for a prior neglect of a
dependent conviction. For the earlier offense, Jones received the benefit of alternate
Class A misdemeanor sentencing and probation. Even though Jones pled guilty in this
case and accepted responsibility for his actions, he has utterly failed to demonstrate that
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he is deserving of the leniency he requests.2 Accordingly, we conclude that Jones’s
eighteen-year sentence with three years suspended to probation is not inappropriate.
Affirmed.
ROBB, C.J., and NAJAM, J., concur.
2
We note that Jones erroneously argues on appeal that his character “does not support the trial
court’s imposition of the maximum eight-year sentence for Class C felony conviction.” Appellant’s Br.
p. 6.
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