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, collateral estoppel, or the
law of the case.

ATTORNEY FOR APPELLANT:                           ATTORNEYS FOR APPELLEE:

MARK SMALL                                        GREGORY F. ZOELLER
Indianapolis, Indiana                             Attorney General of Indiana

                                                  AARON J. SPOLARICH
                                                  Deputy Attorney General
                                                  Indianapolis, Indiana

                                                                            Apr 04 2013, 9:15 am
                              IN THE
                    COURT OF APPEALS OF INDIANA

JAMES RICE,                                       )
                                                  )
       Appellant-Defendant,                       )
                                                  )
              vs.                                 )     No. 80A02-1208-CR-693
                                                  )
STATE OF INDIANA,                                 )
                                                  )
       Appellee-Plaintiff.                        )


                        APPEAL FROM THE TIPTON CIRCUIT COURT
                           The Honorable Thomas R. Lett, Jr., Judge
                               Cause No. 80C01-1103-FA-102




                                        April 4, 2013



                MEMORANDUM DECISION - NOT FOR PUBLICATION



ROBB, Chief Judge
                                Case Summary and Issues

       Following a guilty plea, James Rice was convicted of battery, a Class A felony,

and sentenced to fifty years. He now appeals, raising two restated issues for our review:

1) whether the trial court abused its discretion by failing to consider several mitigating

factors, and 2) whether his sentence is inappropriate in light of the nature of his offense

and character. Concluding that the trial court did not abuse its discretion and that his

sentence is not inappropriate, we affirm.

                               Facts and Procedural History

       On November 26, 2010, Rice called 911 and informed emergency personnel that

D.C., his then-fiancée’s four-year old son, was experiencing seizure-like symptoms while

in his care. D.C. was taken to the hospital where he died a short time later. Following an

autopsy, doctors discovered that D.C. died after a vertebral fracture caused a laceration of

the aorta in the heart. This type of spinal injury is caused by blunt force. Rice claimed

he gave D.C. one “slap” on his “left butt cheek” the morning he died. Transcript at 118-

19.

       Rice was charged with battery, a Class A felony; reckless homicide, a Class C

felony; and neglect of a dependent, a Class A felony. Rice ultimately entered into a plea

agreement with the State in which he pled guilty to the battery charge and the State

dropped the remaining two charges. Sentencing was left to the trial court’s discretion.

The trial court held a sentencing hearing on August 1, 2012, and heard extensive

testimony presented by both Rice and the State.          Dr. Tara Harris, a child abuse

pediatrician, testified that she had “never seen a child with a spinal injury this severe.”

Id. at 152. She further testified that a tremendous amount of force would have been
                                             2
required to cause the injury and that it could not have been caused by a spanking.

Finally, she gave her opinion that the injury probably occurred at least 15 to 20 minutes

prior to the 911 phone call, and that if 911 had been called immediately and Rice had told

emergency personnel what actually occurred,1 D.C. may have been saved.

         The trial court found the following aggravating factors: that the victim was less

than twelve years old;2 that it was a crime of violence knowingly committed in the

presence of a person less than eighteen years of age who was not the victim, Rice’s five-

year old son; and that Rice was in a position having care, custody, or control of the

victim. The trial court found as a mitigating factor Rice’s lack of criminal history. The

trial court noted that Rice was remorseful over D.C.’s death, but stated:

         I think that you’ve minimized your actions in this situation. [D.C.] didn’t
         die from being spanked. He died from being beaten, beaten by you . . . . I
         really feel – and maybe this will come with time – that until you fully admit
         what you did, that your remorse is hollow to me. To be fully remorseful,
         you must totally admit what you did to this helpless child, and as I said, I
         don’t believe you’ve done that. I don’t.

Id. at 236-37. The trial court concluded that the aggravating factors outweighed any

mitigating factors and sentenced Rice to a fifty-year term of imprisonment in the Indiana

Department of Correction. Rice now appeals his sentence.




         1
          Emergency personnel believed that D.C. was suffering from a possible overdose and did not know that he
had been struck by Rice.
         2
             The trial court did not rely on this factor in enhancing Rice’s sentence because it was an element of the
crime.
                                                           3
                                Discussion and Decision

                                 I. Abuse of Discretion

                                 A. Standard of Review

      Generally, sentencing determinations are within the trial court’s discretion.

McElroy v. State, 865 N.E.2d 584, 588 (Ind. 2007).          We review the trial court’s

sentencing decision for an abuse of that discretion. Id. An abuse of discretion has

occurred when the sentencing 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, 2) entering a sentencing statement that explains reasons for

imposing a sentence which the record does not support, 3) omitting reasons that are

clearly supported by the record and advanced for consideration, or 4) giving reasons that

are improper as a matter of law. Anglemyer v. State, 868 N.E.2d 482, 490-91 (Ind.

2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007). A trial court is not obligated to

explain why it has not found a factor to be mitigating. Id. at 493. When an allegation is

made that the trial court failed to find a mitigating factor, the defendant is required to

establish that the mitigating evidence is both significant and clearly supported by the

record. Id.

                             B. Potential Mitigating Factors


      Rice contends that the trial court erred by failing to find the following mitigating

factors: 1) that he will respond affirmatively to probation or short term imprisonment, 2)


                                            4
that he is unlikely to commit another crime, 3) that his imprisonment will result in undue

hardship to others,3 4) that he surrendered to authorities, 5) that he cooperated with

authorities, 6) his academic achievements, 7) his good character, 8) his good reputation,

and 9) his guilty plea.4 We will consider these factors in turn.

        Rice relies on the Presentence Investigation Report’s finding that he is at a low

risk to reoffend to argue that the trial court should have found that he is likely to respond

affirmatively to probation or short term imprisonment and he is unlikely to commit

another crime. Rice was convicted of a Class A felony for which the statutory sentencing

range is between twenty and fifty years imprisonment. Ind. Code § 35-50-2-4. Because

probation or short term imprisonment were not options for Rice, the trial court did not

abuse its discretion by not finding that Rice would respond affirmatively to them. See

Angleton v. State, 714 N.E.2d 156, 161 (Ind. 1999) (holding that the trial court did not err

by failing to find that defendant was likely to respond affirmatively to probation or short

term imprisonment because they were not options for a defendant convicted of murder

for which the minimum sentence at the time was thirty years), cert. denied, 529 U.S. 1132

(2000).

        And we do not agree that Rice’s “character and attitudes” indicate that he is

unlikely to commit another crime. See Ind. Code § 35-38-1-7.1(b)(8). The record

indicates that Rice had previously spanked D.C. hard enough to leave a hand-shaped

bruise on his buttocks. Further, Rice attempted to avoid responsibility for his crime. He
        3
            The first three proffered factors are statutory mitigating factors. See Ind. Code § 35-38-1-7.1(b)(7), (8),
(10).
        4
           Rice also mentions his family support and the fact that he has maintained employment throughout his life
as potential mitigating factors. However, he does so in one sentence in his brief, and does not cite to authority or
make a cogent argument as to those factors, so those issues are waived. See Smith v. State, 822 N.E.2d 193, 202-03
(Ind. Ct. App. 2005), trans. denied.
                                                           5
did not call 911 immediately after striking D.C., did not inform emergency personnel that

D.C. had been struck, and continued to claim, up through the sentencing hearing, that all

he did was give D.C. one slap on his bottom the day the child died. See Harlan v. State,

971 N.E.2d 163, 171 (Ind. Ct. App. 2012) (finding defendant’s “attempts to avoid

responsibility for his crimes” as an indication that he would not necessarily refrain from

committing similar crimes if presented with another opportunity). Thus, the trial court

did not abuse its discretion by failing to find that it was unlikely Rice would commit

another crime.

       Rice also argues that the trial court should have considered that his imprisonment

will result in undue hardship to others. To support this proposition he argues that “he

addressed the needs of his son” during the sentencing hearing and that testimony was

adduced that his mother has cerebral palsy and that he had assisted her in the past.

Appellant’s Brief at 9-10. However, as Rice himself acknowledges, with regards to his

biological son, termination proceedings were pending at the time of the sentencing

hearing. The record indicates that Rice did not intend to challenge those proceedings.

Further, the testimony regarding his mother was a brief statement made by his aunt.

Thus, Rice has failed to establish that the mitigating evidence is both significant and

clearly supported by the record, and therefore the trial court did not abuse its discretion

by not finding that his imprisonment will cause undue hardship.

       Rice also argues that the trial court should have considered as mitigating factors

that he surrendered to and cooperated with authorities. However, the record does not

support these claims. For one, Rice did not voluntarily go to the police station and

surrender to authorities. Even though he did not run away or evade police, he did not
                                            6
surrender until after police arrived at his mother’s home with a warrant for his arrest

several months after commission of the crime. See Harlan, 971 N.E.2d at 171 (stating

that the defendant’s cooperation with authorities may have been out of pragmatism

because he had denied any wrongdoing until the officer told him he had listened in on his

conversation with the victim). And while Rice voluntarily spoke to police, he continued

to maintain that all he did was give D.C. one slap on the buttocks despite the medical

evidence to the contrary. This is unlike the cases cited by Rice in which the defendants

actually admitted what they did. See Beason v. State, 690 N.E.2d 277, 283-84 (Ind.

1998) (finding that even though defendant fully confessed to police less than six hours

after committing the crimes, the trial court did not err when it did not place as much

mitigating weight on the confession as defendant wanted); Evans v. State, 598 N.E.2d

516, 519 (Ind. 1992) (finding that evidence that the defendant turned himself into police

immediately after the crime and then freely confessed and later testified and described

“the horrendous character of the onslaught upon the victim” was entitled to substantial

mitigating weight). Thus, the trial court did not abuse its discretion in not finding that

Rice surrendered to and cooperated with authorities.

       With regard to his academic achievements as a possible mitigator, Rice completed

multiple prison programs in bible studies and anger management while incarcerated.

However, testimony at the sentencing hearing indicated that Rice had attended church

from the time he was a young boy, well before commission of the crime. Rice also

testified that he was not “mad,” but merely “upset,” at the time he struck D.C. Tr. at 116,

128. So, it is unclear whether these courses addressed a condition for which Rice needed

rehabilitation, and thus the trial court did not abuse its discretion by failing to identify
                                             7
them as a mitigating factor. See Sharp v. State, 951 N.E.2d 282, 289 (Ind. Ct. App. 2011)

(finding no abuse of discretion when the trial court failed to identify the defendant’s

participation in jail programs as a mitigator because the programs did not correlate to the

crimes and did not address a condition for which the defendant needed rehabilitation),

aff’d on this ground, 970 N.E.2d 647, 648 (Ind. 2012).

       And with regard to his good character and good reputation, several family

members testified at Rice’s hearing and many more people wrote letters on Rice’s behalf.

They emphasized his good work ethic. The police officer who investigated the matter

stated that Rice was cooperative and respectful. Rice may be a respectful person with a

good work ethic, but the record indicates that he struck a four-year-old child placed in his

care with so much force the child died soon after. Thus, while there is evidence in the

record to support these mitigating factors, Rice does not explain how they are significant

under the circumstances. A trial court is not obligated to accept a defendant’s claim as to

what constitutes a mitigator. Id. at 288. The trial court did not abuse its discretion by

failing to find these mitigating factors.

       Finally, Rice argues that the trial court should have considered his guilty plea as a

mitigating factor. However, a guilty plea is not necessarily a mitigating factor where the

defendant receives a substantial benefit from the plea or where the evidence against the

defendant is so strong that the decision to plead guilty is merely pragmatic. Amalfitano

v. State, 956 N.E.2d 208, 212 (Ind. Ct. App. 2011), trans. denied. A plea’s significance is

also reduced if it is made on the eve of trial or if the circumstances indicate that the

defendant is not accepting responsibility for his actions. Caraway v. State, 959 N.E.2d

847, 853 (Ind. Ct. App. 2011), trans. denied.
                                             8
       In light of the fact that a four-year-old boy died after being struck by Rice, along

with the medical evidence in this case, it was pragmatic for him to plead guilty. With

regard to the benefit received, the State dropped both the reckless homicide and neglect

of a dependent charges in exchange for his plea. Rice argues that he did not benefit from

the State dropping the reckless homicide charge because it was based on the same facts as

the battery charge and would have no effect due to double jeopardy. However, Rice

ignores the neglect of a dependent charge, which was based on Rice’s failure to tell

emergency personnel what occurred, depriving D.C. of the necessary medical treatment

that may have saved his life. The neglect of a dependent charge was a Class A felony,

and, if proven guilty, carried the possibility of an additional twenty to fifty years

imprisonment. Thus, we find that Rice received a substantial benefit from his plea.

Finally, the plea was not made until a few days prior to trial, and circumstances indicate,

and the trial court found, that Rice did not fully admit what he had done. In sum, the trial

court did not abuse its discretion in failing to identify Rice’s guilty plea as a mitigator.

                                 II. Inappropriate Sentence


                                   A. Standard of Review


       This court has the authority 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.” Ind. Appellate Rule 7(B). The

“nature of the offense” portion of inappropriate sentence review concerns the advisory

sentence for the class of crimes to which the offense belongs; therefore, the advisory

sentence is the starting point in our sentence review. Anglemyer, 868 N.E.2d at 494.

                                               9
The “character of the offender” portion of the sentence review involves consideration of

the aggravating and mitigating circumstances and general considerations. Clara v. State,

899 N.E.2d 733, 736 (Ind. Ct. App. 2009).           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.”

Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). The defendant bears the burden of

persuading this court that his or her sentence is inappropriate. Childress v. State, 848

N.E.2d 1073, 1080 (Ind. 2006).

                       B. Nature of Rice’s Offense and Character


       Rice was convicted of a Class A felony. The sentencing range for a Class A

felony is between twenty and fifty years imprisonment, with an advisory sentence of

thirty years. Ind. Code § 35-50-2-4. Rice was sentenced to the maximum sentence of

fifty years, which he argues is inappropriate. We disagree.

       With regard to the nature of the offense, Rice argues that he is not one of the worst

offenders. Our supreme court has observed that “the maximum possible sentences are

generally most appropriate for the worst offenders.” Evans v. State, 725 N.E.2d 850, 851

(Ind. 2000). However, reading this observation literally “would reserve the maximum

punishment for only the single most heinous offense.” Brown v. State, 760 N.E.2d 243,

247 (Ind. Ct. App. 2002), trans. denied. Instead, a reviewing court should focus less on

comparing the facts of this case to others, but more on the nature, extent, and depravity of

the offense for which the defendant is being sentenced, and what it reveals about his or

her character. Id.


                                            10
       While it is not certain exactly what occurred here, the record indicates that Rice

struck a four-year child placed in his care—at least twice—with so much force the child

died soon after. Further, he did this in the presence of another young child, and then

failed to call 911 immediately or inform emergency personnel, when they did arrive, of

what had happened, which may have kept them from rendering necessary medical

treatment to save D.C.’s life. Thus, the nature of Rice’s offense was very serious. See

Washington v. State, 940 N.E.2d 1220, 1222 (Ind. Ct. App. 2011) (describing the

circumstances surrounding a battery as “brutal” when the defendant struck a defenseless

infant several times, causing her death, in the presence of other children, and then did not

tell anyone what he had done or seek medical attention for the victim), trans. denied.

       With regard to Rice’s character, he points to his lack of a criminal history, his

remorse, and the mitigating factors discussed above. As we have already concluded, the

trial court did not abuse its discretion by failing to find additional mitigating factors.

Also, the trial court considered Rice’s remorse but rejected it as “hollow.” Tr. at 237.

The trial court is in the best position to judge the sincerity of a defendant’s remorseful

statements. See Stout v. State, 834 N.E.2d 707, 711 (Ind. Ct. App. 2005) (noting that a

trial court’s determination of remorse is similar to a determination of credibility), trans.

denied. This leaves us with a lack of criminal history. Rice’s lack of a criminal history

reflects favorably on his character, and as our supreme court has stated, it deserves

“substantial mitigating weight.” See Loveless v. State, 642 N.E.2d 974, 976 (Ind. 1994).

However, weighed against it is the severe nature of the offense and surrounding

circumstances. Thus, Rice has not met his burden of persuading this court that the

maximum sentence he received was inappropriate.
                                            11
                                        Conclusion

       The trial court did not abuse its discretion by failing to find additional mitigating

factors, and Rice’s sentence is not inappropriate in light of the nature of his offense and

character. His sentence is therefore affirmed.

       Affirmed.

FRIEDLANDER, J., and CRONE, J., concur.




                                            12
