Donald J. Howard v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
Jan 15 2019, 9:08 am
regarded as precedent or cited before any
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
Devon M. Sharpe Curtis T. Hill, Jr.
Jenner & Pattison Attorney General of Indiana
Madison, Indiana
Henry A. Flores, Jr.
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Donald J. Howard, January 15, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-1736
v. Appeal from the
Jefferson Circuit Court
State of Indiana, The Honorable
Appellee-Plaintiff. Darrell M. Auxier, Judge
Trial Court Cause No.
39C01-1612-F3-1132
Kirsch, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1736 | January 15, 2019 Page 1 of 7
[1] Donald J. Howard (“Howard”) pleaded guilty to battery resulting in serious
bodily injury1 as a Level 3 felony and was sentenced to nine years, with six
years executed in the Indiana Department of Correction (“DOC”) and three
years suspended to probation. He now appeals, contending that his sentence is
inappropriate in light of the nature of the offense and his character.
[2] We affirm.
Facts and Procedural History
[3] Howard and B.C. (“Mother”) are the parents of Z.H. On November 12, 2016,
Mother, Howard, and Howard’s parents took then six-week-old Z.H. to Riley
Hospital for treatment of her torn frenulum.2 Dr. Tara Harris examined Z.H.
and said, “This is the worst injury of this type that I’ve seen in my career.” Tr.
Vol. II at 13. Dr. Harris also noted that Z.H. had bruises on her arms, jaw,
cheek, thigh, and knees, plus abrasions on her left knee and ankle, and on her
back. Id. at 11-12. X-rays revealed that Z.H. had a broken clavicle and had
suffered many broken ribs, five on the left side and three on the right. Id. at 14-
17. Z.H. also had hairline fractures to her left arm, wrist, and femur. Id. at 18-
21, 28. Dr. Harris concluded that Z.H.’s injuries were sustained over time and
were not the result of an accident. Id. at 11, 12, 14-18. Dr. Harris concluded
that the injuries were characteristic of severe physical abuse and would have
1
See Ind. Code § 35-42-2-1(c)(1), (j).
2
The frenulum is the “little piece of tissue that connects the upper lip to the gums.” Tr. Vol. II at 12.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1736 | January 15, 2019 Page 2 of 7
been extremely painful when sustained. Id. at 30-31. The hospital alerted the
police to Z.H.’s injuries.
[4] Thereafter, the State charged Howard with Count I, Level 3 felony battery
resulting in serious bodily injury to a child under fourteen years of age, and
Count II, Level 3 felony neglect of a dependent resulting in serious bodily
injury. Pursuant to a written agreement, Howard pleaded guilty to Count I,
with sentencing left to the discretion of the trial court, and the State agreed to
dismiss Count II. Appellant’s Conf. App. at 55-56. During the pendency of the
action, and in connection with these charges, Howard was involved in a Child
in Need of Services (“CHINS”) proceeding in Jefferson County. Id. at 28.
[5] At the sentencing hearing, Dr. Harris testified for the State regarding Z.H.’s
extensive injuries. The defense presented the testimony of Howard, Mother,
and four individuals who had provided services pertaining to the CHINS
proceeding. When asked whether he could remember the events that caused
Z.H.’s injuries, Howard said, “There was a couple of times that I may have
squeezed her too hard.” Tr. Vol. II at 105-06. Even so, Howard denied any
knowledge that he had harmed Z.H. Id.
[6] At the close of the sentencing hearing, the trial court accepted Howard’s guilty
plea and set forth the following aggravating circumstances: (1) Z.H. was less
than twelve years old and was in Howard’s care and custody; (2) Z.H. was
severely abused on several occasions; (3) damage to her upper lip was the worst
such injury Dr. Harris had ever seen; (4) the injuries were the result of severe
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1736 | January 15, 2019 Page 3 of 7
physical abuse; and (5) Howard, claiming that he was unsure how the injuries
occurred, had not accepted full responsibility for his actions. Id. at 11-21, 30-
31. Regarding mitigating factors, the trial court found: (1) Howard has
minimal criminal history and has successfully completed community
supervision in the past; and (2) Howard has taken substantial steps to address
his problem. Explaining that the aggravating factors and the mitigating factors
“balance each other out,” the trial court sentenced Howard to nine years, with
three years suspended to probation. Id. at 176. Howard now appeals.
Discussion and Decision
[7] Howard contends that his sentence is inappropriate. Pursuant to Indiana
Appellate Rule 7(B), this court “may revise a sentence authorized by statute if,
after due consideration of the trial court’s decision, the [c]ourt finds that the
sentence is inappropriate in light of the nature of the offense and the character
of the offender.” “In conducting our review, we may consider all aspects of the
penal consequences imposed by the trial court in sentencing, i.e., whether it
consists of executed time, probation, suspension, home detention, or placement
in community corrections, and whether the sentences run concurrently or
consecutively.” Davidson v. State, 926 N.E.2d 1023, 1025 (Ind. 2010). Our
Supreme Court has explained that the principal role of appellate review should
be to attempt to leaven the outliers, “not to achieve a perceived ‘correct’ result
in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008); Yoakum v.
State, 95 N.E.3d 169, 176 (Ind. Ct. App. 2018), trans. denied.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1736 | January 15, 2019 Page 4 of 7
[8] We independently examine the nature of Howard’s offense and his character
under Appellate Rule 7(B) with substantial deference to the trial court.
Satterfield v. State, 33 N.E.3d 344, 355 (Ind. 2015). “[W]e do not look to see
whether the defendant’s sentence is appropriate or if another sentence might be
more appropriate; rather, the test is whether the sentence is ‘inappropriate.’”
Barker v. State, 994 N.E.2d 306, 315 (Ind. Ct. App. 2013), trans. denied. Whether
a sentence is inappropriate ultimately depends upon “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.” Cardwell, 895 N.E.2d at
1224. Howard bears the burden of persuading us that his sentence is
inappropriate in light of the nature of the offense and his character. Id.
[9] We begin by noting that Howard sets out his entire argument regarding the
nature of the offense by saying: “Howard argues the sentence ordered by the
trial court was inappropriate and seeks any revised sentence this court finds to
be appropriate based on the facts and circumstances of this case. Howard
respectfully requests this Court exercise its power to revise his sentence . . . .”
Appellant’s Br. at 10-11. The State maintains that Howard has not set forth an
analysis for the nature of the offense and that this failure to argue both prongs
of Rule 7(B) results in waiver of his inappropriateness claim. Appellee’s Br. at 8.
As we explain below, whether by waiver or on the merits, we conclude that
Howard’s sentence was not inappropriate.
[10] “The nature of the offense is found in the details and circumstances of the
commission of the offense and the defendant’s participation.” Croy v. State, 953
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1736 | January 15, 2019 Page 5 of 7
N.E.2d 660, 664 (Ind. Ct. App. 2011). Howard admits, “It is incontrovertible
that the crime of battery on a person under the age of 14 is a serious one, with
sometimes lasting consequences on victims.” Appellant’s Br. at 10. We find that
statement particularly true under the facts here. Howard battered Z.H. over a
period of time. Z.H., who was at that time only six weeks old, suffered
substantial injuries, including more than ten broken bones, a number of
contusions and abrasions, and a tear of her frenulum, which was the most
serious tear Dr. Harris had seen in her career. Tr. Vol. II at 11-31. Z.H. was
Howard’s child and was in his care at the time the crimes were committed.
[11] “The ‘character of the offender’ portion of the standard refers to the general
sentencing considerations and the relevant aggravating and mitigating
circumstances.” Reis v. State, 88 N.E.3d 1099, 1104-05 (Ind. Ct. App. 2017).
Howard claims his good character arises from the fact that he is at moderate
risk to reoffend, he accepted responsibility for his actions, he pleaded guilty, he
cooperated with the CHINS proceeding, and he has a limited criminal history.
Appellant’s Br. at 13. We are not persuaded that a moderate risk to reoffend
reflects an exemplary character, and we agree with the trial court that Howard’s
statement that he may have squeezed Z.H. suggests that Howard has not
accepted full responsibility for his actions. Tr. Vol. II at 105-06. While
cooperating in the CHINS proceeding is commendable, that cooperation does
not necessarily reflect good character regarding Howard’s repeated battery
toward Z.H. Finally, regarding criminal history, the trial court did not find that
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1736 | January 15, 2019 Page 6 of 7
Howard had no criminal history. Instead, it found that he had minimal
criminal history. Id. at 176.
[12] “The advisory sentence is the starting point to determine the appropriateness of
a sentence.” Eisert v. State, 102 N.E.3d 330, 334 (Ind. Ct. App. 2018) (citing
Anglemyer v. State, 868 N.E.2d 482, 494 (Ind. 2007), clarified on reh’g, 878 N.E.2d
218 (Ind. 2007)), trans. denied. By entering into the written agreement, Howard
agreed to plead guilty to one Level 3 felony battery resulting in serious bodily
injury to a child under fourteen years of age, and in exchange, the State
dismissed a second Level 3 felony neglect of a dependent resulting in serious
bodily injury. The sentencing range for a Level 3 felony is between three years
and sixteen years, with the advisory being nine years. Ind. Code § 30-50-2-5(b).
Based on the nature of the offense and Howard’s character, we cannot say that
the advisory sentence of nine years, of which three were suspended to
probation, is inappropriate
[13] Affirmed.
Riley, J., and Robb, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1736 | January 15, 2019 Page 7 of 7