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:

DAVID M. ZENT                                   GREGORY F. ZOELLER
Leonard Hammond Thomas & Terrill                Attorney General of Indiana
Fort Wayne, Indiana
                                                IAN McLEAN
                                                Deputy Attorney General
                                                Indianapolis, Indiana
                                                                              FILED
                                                                          Dec 20 2012, 9:14 am

                               IN THE
                                                                                  CLERK
                    COURT OF APPEALS OF INDIANA                                 of the supreme court,
                                                                                court of appeals and
                                                                                       tax court




KEVIN W. BLACK,                                 )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )       No. 02A03-1205-CR-209
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                     APPEAL FROM THE ALLEN SUPERIOR COURT
                         The Honorable Wendy W. Davis, Judge
                            Cause No. 02D05-1202-FD-205


                                    December 20, 2012

               MEMORANDUM DECISION – NOT FOR PUBLICATION

RILEY, Judge
                              STATEMENT OF THE CASE

       Appellant-Defendant, Kevin W. Black (Black), appeals his sentence for battery, a

Class D felony, Ind. Code § 35-42-2-1; and resisting law enforcement, a Class A

misdemeanor, I.C. § 35-44.1-3-1.

       We affirm.

                                           ISSUE

       Black raises one issue on appeal, which we restate as: Whether Black’s sentence

is appropriate in light of his character and the nature of his crime.

                        FACTS AND PROCEDURAL HISTORY

       At approximately 11:45 p.m. on February 3, 2012, forty-eight year old Black

assaulted his sixty-seven year old mother, Shirley Harper (Mother), in her residence.

Black kneed his Mother in her left rib cage, punched her in the right eye, and twisted her

right wrist to the point she was afraid it was broken. During the assault, Mother managed

to call the police. When Officer Souther of the Fort Wayne Police Department arrived at

Mother’s home, he noticed swelling to Mother’s right eye and right wrist. Mother’s

glasses were bent and she had a red mark on the left bridge of her nose. Mother told the

officer that Black had “threatened to kill her and blamed her for sending him to prison”

because she had reported a previous battery. (Appellant’s App. p. 11).

       Officers Crowder and Buffenbarger located Black one block east of Mother’s

residence and arrested him. Because Black smelled of alcoholic beverages and was

unsteady on his feet, the Officers transported him to St. Joseph’s Hospital for medical



                                              2
clearance. During the transport, Black threatened to kill Officer Crowder, stating “I’ll

kill you when I get the hell out of this lying mess.” (Appellant’s App. p. 11). He also

mentioned his “connections with the Outlaw motorcycle gang.” (Appellant’s App. p 11).

After the hospital gave Black a medical clearance, Black forcefully pulled away from

Officer Crowder when the Officer attempted to handcuff him again.

       On February 8, 2012, the State filed an Information, charging Black with Count I,

battery, a Class D felony,1 I.C. § 35-42-2-1; and Count II, resisting law enforcement, a

Class A misdemeanor, I.C. § 35-44.1-3-1. On March 28, 2012, Black pled guilty as

charged without the benefit of a plea agreement.            On April 30, 2012, during the

sentencing hearing, the trial court considered:

       the following circumstances are aggravating: [c]riminal history includes 20
       misdemeanors; 6 felonies, probation revoked 3 times; 4 sentences modified;
       revoked from work release; revoked from parole twice; 4 battery
       convictions; facts and circumstances of this case; prior attempts at
       rehabilitation have failed.
       Mitigator: [p]lea of guilty; taken responsibility.

(Appellant’s App. p. 36). At the close of the hearing, the trial court sentenced Black to

three years executed for his battery conviction and 1 year executed on his resisting arrest

conviction, with sentences to run concurrently.

       Black now appeals. Additional facts will be provided as necessary.

                              DISCUSSION AND DECISION

       Black contends that his sentence is inappropriate in light of his character and

nature of the offenses. A person who commits a Class D felony shall be imprisoned for a

1
  Although the State originally filed the battery as a Class A misdemeanor, Black’s prior battery
conviction against the same victim made the offense a Class D felony.


                                               3
fixed term of between six months and three years, with the advisory sentence being one

and one half years. I.C. § 35-50-2-7. A person who commits a Class A misdemeanor

shall be imprisoned for a fixed term of not more than one year. Here, the trial court

imposed the maximum sentence under the statute.

       As long as the sentence is within the statutory range, it is subject to review only

for an abuse of discretion. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), aff’d on

reh’g, 875 N.E.2d 218 (Ind. 2007). Although a trial court may have acted within its

lawful discretion in determining a sentence, Appellate Rule 7(B) provides that the

appellate court may revise a sentence authorized by statute if the appellate court finds that

the sentence is inappropriate in light of the nature of the offense and the character of the

offender. Id.

       With respect to the nature of Black’s crime, we note that Black assaulted his sixty-

seven year old Mother who provided him with a place to live while he was out of prison.

He kneed her in the ribs and struck her in the eye. Despite the seriousness of this offense,

this was not the first time Black had assaulted his Mother; rather, this was the fourth

assault and this time, he blamed her for sending him to prison for the previous assault. In

addition, Black threatened to kill the police officers who came to his Mother’s aid.

       Turning to his character, Black reveals to have an extensive criminal history. His

life of crime spans nearly three decades ranging from public intoxication to battery.

Specifically, Black has multiple convictions for public intoxication, driving while

intoxicated, possession of marijuana, resisting law enforcement, and four battery

convictions. Despite restrictions imposed during Black’s numerous periods of probation,


                                             4
he continued to abuse alcohol and illegal drugs. Although he received substance abuse

treatment on four different occasions, none of these treatments were successful.

       Claiming that he does not fit in the category of “worst of the worst” offenders,

Black now asserts that a reviewing court “should concentrate less on comparing the facts

of this case to others, whether real or hypothetical, and more on focusing on the nature,

extent, and depravity of the offense for which the defendant is being sentenced and what

it reveals about the defendant’s character.” (Appellant’s Br. p. 11, quoting Brown v.

State, 760 N.E.2d 243, 247 (Ind. Ct. App. 2002), trans. denied). Accepting Black’s

invitation, we fail to see how a son beating his sixty-seven year old mother for the fourth

time is anything but immoral and depraved. As the trial court stated at the sentencing

hearing: “I saw the photographs of what you did to your mother and with your history of

battery, I don’t know, I kind of look at that and I think at some point, when are you going

to really hurt someone and kill them ‘cause I’m sure you’re stronger than she is with her

age.” (Transcript p. 14).

       We affirm the trial court’s imposition of Black’s sentence.

                                      CONCLUSION

   Based on the foregoing, we conclude that Black’s sentence is appropriate in light of

his character and the nature of the crime.

       Affirmed.

BAKER, J. and BARNES, J. concur




                                             5
