Dale D. Carter 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 07 2017, 5:52 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Donald C. Swanson, Jr. Curtis T. Hill, Jr.
Deputy Public Defender Attorney General of Indiana
Fort Wayne, Indiana
Tyler G. Banks
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Dale D. Carter, June 7, 2017
Appellant-Defendant, Court of Appeals Case No.
02A03-1701-CR-26
v. Appeal from the Allen Superior
Court
State of Indiana, The Honorable Wendy W. Davis,
Appellee-Plaintiff. Judge
Trial Court Cause No.
02D04-1608-F6-887
Robb, Judge.
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Case Summary and Issue
[1] Dale Carter pleaded guilty to domestic battery, a Level 6 felony, and the trial
court sentenced him to two and one-half years in the Indiana Department of
Correction. Carter raises one issue on appeal: whether his sentence is
inappropriate in light of the nature of the offense and the character of the
offender. Concluding his sentence is not inappropriate, we affirm.
Facts and Procedural History
[2] In August 2016, police responded to a call from nine-year-old N.B. reporting
Carter choked her mother, Naketa Burks, and threw her to the ground. Carter
and Naketa were in a relationship at the time. According to the probable cause
affidavit, N.B. hid in a closet while making the phone call. N.B. and Naketa
both told law enforcement officers that Carter grabbed Naketa’s throat and
threw her to the ground by her hair.
[3] The State charged Carter with domestic battery in the presence of a child less
than sixteen years of age and strangulation, both Level 6 felonies. On
December 16, 2016, Carter and the State entered into a written plea agreement
pursuant to which Carter agreed to plead open to domestic battery as a Level 6
felony in exchange for the State dismissing the strangulation charge.1
1
It appears the State also alleged Carter was an habitual offender, although no such charging information
appears in the appendix. The transcript makes clear, however, an habitual offender charge was dismissed
pursuant to the plea agreement.
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[4] After the sentencing hearing, the trial court found as mitigating factors that
Carter showed remorse and took responsibility for his actions. As aggravating
factors, the trial court noted Carter’s criminal history, which includes six prior
felony convictions, five misdemeanor convictions, and a probation revocation.
The trial court also noted Carter committed the present offense while
participating in a re-entry program and had failed prior rehabilitation attempts
for substance abuse.
[5] The trial court concluded the aggravators outweighed the mitigators and
sentenced Carter to two and one-half years in the Department of Correction.
This appeal ensued.
Discussion and Decision
I. Standard of Review
[6] We are empowered by Indiana Appellate Rule 7(B) to revise 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.” The defendant bears the burden to persuade this court that his
or her sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind.
2006). When conducting this inquiry, we may look to any factors appearing in
the record. Stokes v. State, 947 N.E.2d 1033, 1038 (Ind. Ct. App. 2011), trans.
denied. At the end of the day, our determination will depend on “our sense of
the culpability of the defendant, the severity of the crime, the damage done to
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others, and myriad other factors that come to light in a given case.” Cardwell v.
State, 895 N.E.2d 1219, 1224 (Ind. 2008).
II. Carter’s Sentence
[7] Carter pleaded guilty to domestic battery in the presence of a child less than
sixteen years of age, a Level 6 Felony. The sentencing range for a Level 6
felony is six months to two and one-half-years, with an advisory sentence of one
year. Ind. Code § 35-50-2-7. As to the nature of the offense and his character,
Carter argues he should not have been sentenced above the advisory sentence
because he accepted responsibility for his actions, showed remorse, and
expressed a desire to end his substance abuse and found a support group to help
him do so. We disagree.
[8] First, we consider the nature of Carter’s offense. Carter grabbed his girlfriend’s
throat and threw her to the ground by her hair while her daughter was present,
necessitating the child make a call to the police. The statute under which Carter
was convicted requires the State to prove domestic battery occurred in the
presence of a child less than sixteen years of age. Naketa’s daughter was only
nine years old – well below the statutory requirement.
[9] Next, we consider Carter’s character. When considering the character of the
offender, one relevant factor is the defendant’s criminal history. Wells v. State, 2
N.E.3d 123, 131 (Ind. Ct. App. 2017), trans. denied. As noted by the trial court,
Carter has a significant criminal history with numerous misdemeanors and
felonies. “The significance of a defendant’s criminal history varies based on the
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gravity, nature and number of prior offenses as they relate to the current
offense.” Harris v. State, 897 N.E.2d 927, 930 (Ind. 2008). Much of Carter’s
criminal history consists of convictions for drug possession, which are different
in nature from the current crime, and gun-related offenses, and there is no
evidence guns were involved here. However, Carter’s recent criminal history
also includes a conviction for attempted battery. Furthermore, Carter
previously had his supervised release on probation revoked once, and
committed the present offense while participating in a re-entry program. While
Carter’s promise to turn his life around is laudable, his prior contacts with law
enforcement exhibit a disregard for the law and an unwillingness to abide by it
that casts doubt on this self-serving claim. We also note Carter received a
benefit from the plea agreement in that the other two charges against him were
dropped. In sum, Carter’s sentence is not inappropriate in light of the nature of
the offense and his character.
Conclusion
[10] We conclude Carter’s sentence is not inappropriate and therefore affirm his
sentence.
[11] Affirmed.
Vaidik, C.J., and Bailey, J., concur.
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