MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                       FILED
this Memorandum Decision shall not be                                   Jan 30 2018, 8:32 am
regarded as precedent or cited before any                                    CLERK
court except for the purpose of establishing                             Indiana Supreme Court
                                                                            Court of Appeals
the defense of res judicata, collateral                                       and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Timothy P. Broden                                        Curtis T. Hill, Jr.
Lafayette, Indiana                                       Attorney General of Indiana

                                                         Caroline G. Templeton
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Scott Thomas Barry,                                      January 30, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         79A02-1709-CR-2074
        v.                                               Appeal from the Tippecanoe
                                                         Superior Court
State of Indiana,                                        The Honorable Steven P. Meyer,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause Nos.
                                                         79D02-1611-F5-154
                                                         79D02-1612-F6-1071



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 79A02-1709-CR-2074 | January 30, 2018          Page 1 of 6
                                       Statement of the Case
[1]   Scott Thomas Barry appeals his sentence following his convictions for two

      counts of battery, as Level 6 felonies, and his adjudication as a habitual

      offender pursuant to a guilty plea. Barry presents a single issue for our review,

      namely, whether his sentence is inappropriate in light of the nature of the

      offenses and his character. We affirm.


                                 Facts and Procedural History
[2]   On November 2, 2016, while incarcerated in the Tippecanoe County Jail, Barry

      spat on two corrections officers. Accordingly, on November 10, the State

      charged Barry with three counts of battery, as Level 5 felonies, under Cause

      Number 79D02-1611-F5-154 (“No. F5-154”). In particular, the State alleged

      that Barry, knowing he has hepatitis C, placed his bodily waste on the

      corrections officers, which, if proven, would be Level 5 felonies under Indiana

      Code Section 35-42-2-1(h) (2017). Then, on November 23, while still

      incarcerated, Barry spat on a third corrections officer. The State charged Barry

      with one count of battery, as a Level 6 felony, under Cause Number 79D02-

      1612-F6-1071 (“No. F6-1071”).


[3]   On June 23, 2017, Barry pleaded guilty but mentally ill to one count of battery,

      as a Level 6 felony, and he admitted to being a habitual offender in No. F5-154.

      Barry also pleaded guilty but mentally ill to battery, as a Level 6 felony, in No.

      F6-1071. In exchange for his pleas, the State dismissed the remaining counts in

      F5-154, as well as charges in three additional causes. Barry’s plea agreement


      Court of Appeals of Indiana | Memorandum Decision 79A02-1709-CR-2074 | January 30, 2018   Page 2 of 6
      provided that his sentences would run consecutively, but otherwise left

      sentencing to the trial court’s discretion. Following a guilty plea hearing, the

      trial court sentenced Barry to seven years executed in F5-154 and two years,

      with one year suspended to probation, in F6-1071, for a total aggregate sentence

      of nine years, with one year suspended to probation. This appeal ensued.


                                     Discussion and Decision
[4]   Barry contends that his sentence is inappropriate in light of the nature of the

      offenses and his character. As we have explained:


              Indiana Appellate Rule 7(B) permits an Indiana appellate court
              to “revise a sentence authorized by statute 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.” We assess the trial court’s
              recognition or nonrecognition of aggravators and mitigators as an
              initial guide to determining whether the sentence imposed was
              inappropriate. Gibson v. State, 856 N.E.2d 142, 147 (Ind. Ct.
              App. 2006). The principal role of appellate review is to “leaven
              the outliers.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.
              2008). A defendant must persuade the appellate court that his or
              her sentence has met the inappropriateness standard of review.
              Roush v. State, 875 N.E.2d 801, 812 (Ind. Ct. App. 2007).


      Robinson v. State, 61 N.E.3d 1226, 1228 (Ind. Ct. App. 2016).


[5]   Here, the trial court identified the following aggravating factors when it

      imposed the sentences: Barry’s criminal history, which includes eight felonies

      and six misdemeanors, as well as a history of juvenile adjudications; the fact

      that he was on probation and incarcerated at the time of the instant offenses;

      Court of Appeals of Indiana | Memorandum Decision 79A02-1709-CR-2074 | January 30, 2018   Page 3 of 6
      the repetitive nature of the offenses; and prior attempts at rehabilitation have

      failed. The trial court identified the following mitigating circumstances:

      Barry’s mental illness; his guilty plea and acceptance of responsibility; and his

      difficult childhood and adult life. The court found that the aggravators

      outweighed the mitigators.


[6]   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. And

      Indiana Code Section 35-50-2-8 (2015) provides that the court shall sentence a

      person convicted of a Level 6 felony and found to be a habitual offender to an

      additional fixed term that is between two and six years. Accordingly, the trial

      court imposed a five-year sentence with an additional two-year sentence for the

      habitual offender adjudication in No. F5-154 and ordered that sentence to run

      consecutive to the two-year sentence, with one year suspended to probation, in

      No. F6-1071. Thus, the court imposed an aggregate term of nine years, with

      one year suspended to probation.


[7]   Barry asserts that his sentence is inappropriate in light of the nature of the

      offenses because the bodily waste involved was saliva and not urine or fecal

      matter and, while he is infected with hepatitis C, it is, as the State conceded,

      difficult to transmit hepatitis C through saliva. Barry also maintains that the

      battery alleged in No. F6-1071 did not involve “conduct beyond that necessary

      to establish the essential elements of that offense.” Appellant’s Br. at 7. But the

      State points out that Barry spit into one of the officer’s eyes and said, “I hope

      you have fun with Hep C.” Appellant’s App. Vol. 2 at 63. And, at that time,

      Court of Appeals of Indiana | Memorandum Decision 79A02-1709-CR-2074 | January 30, 2018   Page 4 of 6
      Barry expressed his intention to spit on all of the corrections officers at the jail.

      We cannot say that Barry’s sentence is inappropriate in light of the nature of the

      offenses given his express desire to transmit hepatitis C to the corrections

      officers.


[8]   Barry also maintains that his sentence is inappropriate in light of his character.

      He “concedes that he has had a number of prior contacts with the criminal

      justice system, both as a juvenile and as an adult.” Appellant’s Br. at 7. But

      Barry asserts that “the significance of his criminal history is somewhat

      diminished because a number of his prior convictions are already embodied in

      the habitual offender count.” Id. at 8. And he states that all of his prior

      convictions “are for either misdemeanor, Class D[,] or Level 6 felonies.” Id.

      Also, while not alleging that the trial court abused its discretion at sentencing,

      Barry contends that “the remaining aggravating factors identified by the trial

      court are essentially extensions of his criminal history.” Id. Finally, Barry

      urges us to give “considerable mitigating weight” to his long history of mental

      illness. Id. at 10.


[9]   But, as the State points out, Barry’s criminal history is both extensive and

      diverse. His juvenile history dates back to 1997, and his adult criminal history

      began in 2008. Barry’s misdemeanor convictions include conversion, public

      intoxication, driving while license suspended, and battery. And his prior felony

      convictions include strangulation, four thefts, automobile theft, unlawful

      possession or use of a legend drug or precursor, and battery by bodily waste. In

      addition, the State has previously filed thirty-three petitions to revoke Barry’s

      Court of Appeals of Indiana | Memorandum Decision 79A02-1709-CR-2074 | January 30, 2018   Page 5 of 6
       probation, and there were twelve such petitions pending at the time of

       sentencing in this case. Barry was on probation and incarcerated at the time of

       the instant offenses. The trial court gave Barry’s mental illness mitigating

       weight at sentencing, and we cannot say that, given the nature and extent of

       Barry’s criminal history, his mental illness deserves even more mitigating

       weight.1 We hold that Barry’s sentence is not inappropriate in light of his

       character.


[10]   Affirmed.


       Mathias, J., and Barnes, J., concur.




       1
         To the extent Barry asks us to reweigh the aggravators and mitigators on appeal, that we cannot do.
       Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), modified on other grounds on reh’g, 875 N.E.2d 218 (Ind.
       2007).

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