Brian Riley 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 FILED
establishing the defense of res judicata, May 17 2012, 9:12 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:
JOHN ANDREW GOODRIDGE GREGORY F. ZOELLER
Evansville, Indiana Attorney General of Indiana
JOSEPH Y. HO
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
BRIAN RILEY, )
)
Appellant-Defendant, )
)
vs. ) No. 65A01-1111-CR-552
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE POSEY SUPERIOR COURT
The Honorable S. Brent Almon, Judge
Cause No. 65D01-1105-FB-245
May 17, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
BARNES, Judge
Case Summary
Brian Riley appeals his five-year sentence for Class C felony battery resulting in
serious bodily injury.1 We affirm.
Issue
Riley raises one issue, which we restate as whether his sentence is inappropriate.
Facts
On May 24, 2011, Riley hit his wife, A.C., on the face, crushing the left side of her
jaw, breaking the right side in half, and shattering a wisdom tooth. A.C. underwent
surgery and had to have steel plates and screws inserted into her mouth. A.C. continues
to suffer from nerve damage, pain, numbness, and tooth pain.
On May 25, 2011, the State charged Riley with Class B felony aggravated battery
and Class C felony battery resulting in serious bodily injury. On September 16, 2011,
Riley pled guilty to Class C felony battery. Pursuant to the agreement, Riley’s executed
sentence was capped at six years and the State agreed to dismiss the Class B felony
charge.
On November 2, 2011, a sentencing hearing was held at which A.C. testified.
According to the written sentencing order, the trial court sentenced Riley to five years,
with four years executed and one year suspended to probation. Riley now appeals.
1
It is not clear whether Riley’s conviction was for Class C felony battery based on Indiana Code Section
35-42-2-1(a)(3) or 35-42-2-1(a)(6).
2
Analysis
Riley argues that his sentence is inappropriate in light of the nature of the offense
and his character. Indiana Appellate Rule 7(B) permits us to 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 offenses and the character of the offender.
Although Rule 7(B) does not require us to be “extremely” deferential to a trial court’s
sentencing decision, we still must give due consideration to that decision. Rutherford v.
State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007). We also understand and recognize the
unique perspective a trial court brings to its sentencing decisions. Id. “Additionally, a
defendant bears the burden of persuading the appellate court that his or her sentence is
inappropriate.” Id.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). We “should focus on the forest—
the aggregate sentence—rather than the trees—consecutive or concurrent, number of
counts, or length of the sentence on any individual count.” Id. Whether a sentence is
inappropriate ultimately 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. Id. at 1224. When reviewing the appropriateness of a sentence under Rule 7(B),
we may consider all aspects of the penal consequences imposed by the trial court in
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sentencing the defendant, including whether a portion of the sentence was suspended.
Davidson v. State, 926 N.E.2d 1023, 1025 (Ind. 2010).
In considering the nature of the offense, Riley apparently became upset with his
wife after receiving a text message about her, waited for her to return home from work,
and then punched her in the face three times. A.C.’s three children witnessed at least part
of the attack. Both sides of A.C.’s jaw were broken and required surgery. Steel plates
and screws were inserted into A.C.’s mouth, and she continues to suffer from pain and
numbness, which is likely permanent. During the attack, Riley broke the home phone
and A.C.’s cell phone. This was an egregious offense.
As for Riley’s character, we acknowledge his guilty plea. However, in exchange
for his plea, Riley’s executed sentence was capped at six years and a Class B felony
charge was dismissed. Moreover, in January 2010, Riley pled guilty to Class A
misdemeanor battery for an offense against A.C. and, in April 2010, he again pled guilty
to Class A misdemeanor battery for another offense against A.C. Riley’s criminal history
also includes convictions for Class A misdemeanor resisting law enforcement and Class
B misdemeanor criminal mischief and includes other convictions in Alabama. This
criminal history shows an inability to conduct himself in a law-abiding manner. In light
of nature of the offense and his criminal history, Riley has not established that his five-
year sentence is inappropriate.
Conclusion
Riley has not established that his sentence is inappropriate. We affirm.
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Affirmed.
FRIEDLANDER, J., and MAY, J., concur.
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