      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                                  FILED
      regarded as precedent or cited before any                                        Aug 24 2020, 9:35 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.


      ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
      Ryan D. Washburn                                         Curtis T. Hill, Jr.
      Brigitte L. Washburn                                     Attorney General of Indiana
      Kentland, Indiana
                                                               George P. Sherman
                                                               Supervising Deputy Attorney
                                                               General
                                                               Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Matthew L. McClain II,                                   August 24, 2020
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               20A-CR-449
              v.                                               Appeal from the Newton Superior
                                                               Court
      State of Indiana,                                        The Honorable Daniel J. Molter,
      Appellee-Plaintiff.                                      Judge
                                                               Trial Court Cause No.
                                                               56D01-1912-F6-1254



      Mathias, Judge.


[1]   Following a jury trial in Newton Superior Court, Matthew L. McClain II

      (“McClain”) was convicted of Level 6 felony intimidation and determined to be

      Court of Appeals of Indiana | Memorandum Decision 20A-CR-449 | August 24, 2020         Page 1 of 13
      an habitual offender. The trial court sentenced McClain to two and one-half

      years on the Level 6 felony conviction, to which it added a six-year habitual

      offender enhancement. McClain appeals and presents two arguments, which we

      restate as: (1) whether the trial court erred by relying on psychological

      evaluations of McClain taken in prior cases, and (2) whether the trial court

      improperly sentenced McClain. Concluding that McClain failed to preserve the

      first issue and that McClain’s sentence is not improper, we affirm.


                                 Facts and Procedural History
[2]   On September 17, 2019, McClain was in the Newton County Jail serving a

      sentence for his previous conviction for Level 6 felony intimidation. Newton

      County Jail Commander David Kessler (“Commander Kessler”) decided to

      move McClain from one part of the jail to another. Commander Kessler told

      McClain about the move, to which McClain replied, “I’m not moving.” Tr. p.

      29. Anticipating resistance, Commander Kessler requested the assistance of

      other jail officers. Commander Kessler and two other officers then went back to

      McClain’s cell and again told him that he would have to move. McClain

      repeatedly said that he would not move. Commander Kessler grabbed McClain

      by the arm, and he and the two other officers took McClain from the bunk

      room of his cell to the “day room” of the cell. Tr. p. 16. There, they placed

      McClain against the wall to handcuff him. They then took McClain to an

      isolation cell for a few minutes for him to cool off.


[3]   Some minutes later, Commander Kessler and the others returned to the

      isolation cell, where they observed that McClain had been able to move his
      Court of Appeals of Indiana | Memorandum Decision 20A-CR-449 | August 24, 2020   Page 2 of 13
      cuffed hands from behind his back to his front. They placed McClain near the

      wall and told him they were going to remove the cuffs. McClain said to

      Commander Kessler, “You have the blood of my family on your hands and I’m

      going to cut your head off.” Tr. p. 32.


[4]   As a result of this incident, the State charged McClain on December 11, 2019,

      with Level 6 felony intimidation and also alleged that McClain was an habitual

      offender. At the initial hearing set on December 30, 2019, the trial court advised

      McClain of his constitutional rights and the nature of the charges against him.

      In the court’s order entered following the initial hearing, the court noted:


              The Defendant enters a plea of not guilty and advises the Court
              [that] counsel stipulate to the psychological reports submitted to the
              Court under a separate cause deeming the Defendant competent to stand
              trial. The Court having been so advised orders the psychological
              reports made part of the record, marking same as confidential[]
              and sets this cause for trial with intervention of jury commencing
              January 27, 2020 at 10:00 A.M., at which time the Defendant is
              ordered to appear.


      Appellant’s App. p. 16 (emphasis added).


[5]   A jury trial was held on January 27, 2020. McClain did not argue that he was

      incompetent to stand trial, nor did he claim that he was not guilty by reason of

      insanity. The jury found him guilty as charged and determined that he was an

      habitual offender. At the sentencing hearing, McClain’s counsel stated:


              Judge, I would like to direct the Court’s attention to the issue
              that’s been raised regarding Mr. McClain’s mental health,
              understandably that doctors have determined he’s competent, he’s
      Court of Appeals of Indiana | Memorandum Decision 20A-CR-449 | August 24, 2020   Page 3 of 13
              competent to stand trial and that he was not insane at the time of the
              offense. But clearly there are some underlying mental health
              issues. Maybe not so much rising to where it would affect his
              ability to understand what is going on but doctors did indicate
              that there are some underlying diagnoses and some issues with
              that. Your Honor, it is my understanding, my belief that this
              instant proceeding, along with his former proceedings are []
              someway related to the mental health aspect. . . . I would ask that
              the Court consider the alternatives, consider the fact that some
              mental health treatment would be beneficial to Mr. McClain and
              ask that the Court sentence on the lighter end of the sentencing
              spectrum to allow Mr. McClain to pay for the crime that he
              committed but then also be able to seek some form of mental
              health treatment.


      Tr p. 63. At the conclusion of the hearing, the trial court sentenced McClain to

      the maximum sentence of two and one-half years, to which it added a six-year

      habitual offender enhancement, for an aggregate sentence of eight and one-half

      years. McClain now appeals.


                                     I. Prior Psychological Evaluations

[6]   McClain first argues that the trial court improperly relied on psychological

      evaluations that were performed in late 2018 and early 2019 to determine that

      McClain was competent to stand trial and was not insane at the time of the

      offense.


[7]   McClain appears to conflate the issue of competency to stand trial with the

      defense of insanity. The former addresses the question of “whether the

      defendant ‘has sufficient present ability to consult with defense counsel with a

      reasonable degree of rational understanding, and whether the defendant has a

      Court of Appeals of Indiana | Memorandum Decision 20A-CR-449 | August 24, 2020   Page 4 of 13
      rational as well as a factual understanding of the proceedings against him.’”

      Gross v. State, 41 N.E.3d 1043, 1047 (Ind. Ct. App. 2015) (quoting State v. Davis,

      898 N.E.2d 281, 285 (Ind. 2008)). The latter addresses the question of whether

      the defendant suffers from a mental illness that rendered him unable to

      appreciate the wrongfulness of his conduct at the time of the offense. Galloway

      v. State, 938 N.E.2d 699, 708 (Ind. 2010) (citing Ind. Code § 35-41-3-6(a)).

      These are two separate inquiries, and a defendant may be competent to stand

      trial but be not guilty by reason of insanity; conversely, a defendant may have

      been sane at the time of the offense but incompetent to stand trial. With this in

      mind, we address McClain’s arguments.


[8]   McClain argues that the trial court erred in relying on the reports of the

      previous psychological evaluations to determine his ability to understand his

      actions at the time of the offense. McClain, however, did not present an

      insanity defense at trial. “Indiana has long held that a defendant may not

      submit evidence relating to mental disease or defect except through an insanity

      defense.” Marley v. State, 747 N.E.2d 1123, 1128 (Ind. 2001). A felony

      defendant who intends to interpose a defense of insanity must file a notice of

      that intent with the trial court no later than twenty days before the omnibus

      date. Ind. Code § 35-36-2-1(1).1 Here, there is no indication that McClain ever

      filed any such notice, nor did he argue insanity at trial. In fact, as noted above,




      1
       “However, in the interest of justice and upon a showing of good cause, the court may permit the filing to be
      made at any time before commencement of the trial.” Id.

      Court of Appeals of Indiana | Memorandum Decision 20A-CR-449 | August 24, 2020                   Page 5 of 13
       his trial counsel admitted at sentencing that McClain was not insane at the time

       the offense was committed. Accordingly, we cannot say that the trial court

       erred in relying on the prior psychological evaluations when considering the

       issue of McClain’s sanity because McClain did not present an insanity defense.


[9]    McClain also argues that the trial court erred in relying on the reports of the

       prior psychological evaluations to determine his fitness to stand trial. Again,

       there is no indication that McClain ever claimed to the trial court that he was

       incompetent to stand trial. To the contrary, McClain’s own defense counsel

       stipulated that the previous psychological evaluations established that McClain

       was competent to stand trial—a position defense counsel reiterated at

       sentencing. Appellant’s App. p. 16; Tr. p. 63. At the very least, McClain has

       waived his claim that he was incompetent to stand trial by failing to present this

       claim to the trial court. See McManus v. State, 814 N.E.2d 253, 260 (Ind. 2004)

       (“[A]lleged errors in determination of competency are subject to the usual rules

       of appellate review, and are waived if the defendant proceeds to trial without

       objection.”); Stolarz v. State, 445 N.E.2d 114, 117 (Ind. Ct. App. 1983) (holding

       that defendant waived issue of competency where he made no motion regarding

       his competency and the trial court was not otherwise appraised of the issue).


[10]   Furthermore, by stipulating to the reports, McClain’s counsel invited any error

       in the trial court’s reliance thereon. It is well settled that a party may not take

       advantage of an error that he invites. Hall v. State, 137 N.E.3d 279, 284 (Ind. Ct.

       App. 2019) (citing Brewington v. State, 7 N.E.3d 946, 975 (Ind. 2014)); see also

       Durden v. State, 99 N.E.3d 645, 651 (Ind. 2018) (holding that invited error

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-449 | August 24, 2020   Page 6 of 13
       forbids a party from “taking advantage of an error that she commits, invites, or

       which is the natural consequence of her own neglect or misconduct”). Because

       McClain invited any error in the trial court’s reliance on the prior psychological

       evaluations, he cannot now take advantage of this alleged error.


                                                  II. Sentencing

[11]   McClain also argues that the trial court abused its discretion in sentencing him

       and that his eight-and-one-half-year sentence is inappropriate. As these are

       distinct arguments, we address them separately.

       A. Abuse of Discretion

[12]   As we summarized in Grimes v. State:


               Sentencing decisions are within the purview of the trial court’s
               sound discretion and are reviewed on appeal only for an abuse of
               discretion. An abuse of discretion occurs 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. There are several ways
               a trial court may abuse its discretion, including failing to enter a
               sentencing statement at all, articulating reasons in a sentencing
               statement that are not supported by the record, omitting reasons
               in a sentencing statement that are clearly supported by the
               record, or articulating reasons that are improper as a matter of
               law.


       84 N.E.3d 635, 643–44 (Ind. Ct. App. 2017) (citing Anglemyer v. State, 868

       N.E.2d 482, 490–91 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218) (internal

       quotations omitted), trans. denied.


       Court of Appeals of Indiana | Memorandum Decision 20A-CR-449 | August 24, 2020   Page 7 of 13
[13]   McClain contends that the trial court abused its discretion by failing to

       “properly” consider his mental illness as a mitigating factor. A trial court is not

       obligated to accept the defendant’s arguments as to what constitutes a

       mitigating factor, nor is the court required to give the same weight to proffered

       mitigating factors as does the defendant. Belcher v. State, 138 N.E.3d 318, 328

       (Ind. Ct. App. 2019) (citing Comer v. State, 839 N.E.2d 721, 728 (Ind. Ct. App.

       2005), trans. denied), trans. denied.


[14]   The trial court here explicitly considered McClain’s mental health issues when

       imposing sentencing, stating from the bench as follows:

               There is no doubt that there is some mental counseling needed, there’s
               some mental flaw that we can’t figure out. I would love to see [you]
               go that route. But I have presided in so many of these cases and
               you have been given so many opportunities over the years to
               make changes. And I recall the one prior case Prosecutor Drinski
               made the remark if you are on your medication, there’s no
               problem, you’re a pretty decent person. But you have a horrible
               record, you really do. You’ve been given every break in the book.
               And given your present mental condition, together with these
               crimes seem to be accelerating in seriousness; clearly you have
               finally reached the pinnacle of the worst of the worst, Matthew. I
               hate to say that but you really have. And at this point, given your
               record, together with your total lack of cooperation in trying to
               help you rehabilitate yourself shows that the interests of society
               far outweigh your individual needs. The Court finds that you
               should be sentenced to the maximum possible sentence in this
               instance. So, the Court is going to impose a sentence of two and
               a half years’ incarceration on the underlying charge of
               intimidation, and that sentence will be enhanced by an additional
               six years for a total of eight and half years I guess. None of which
               is to be able to be suspended but you are to be given credit for

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-449 | August 24, 2020   Page 8 of 13
                time served awaiting disposition. I hope and I would so recommend
                to the Department of Correction that you be afforded any and all
                opportunities to undergo any kind of mental health counseling that could
                be deemed appropriate, including if they so choose to a mental health
                facility. In the event that there be testimony down the road that
                you are cured—never totally cured—but to the point where you
                can be released back into society, I would love the opportunity to
                do so.


       Tr. pp. 64–65 (emphasis added). Thus, to the extent McClain argues that the

       trial court wholly failed to consider his mental illness, he is incorrect.


[15]   McClain’s argument can only be construed as being that the trial court failed to

       give this mitigator the proper weight. However, the relative weight or value

       assignable to properly found mitigators and aggravators is no longer subject to

       review for an abuse of discretion. Jackson v. State, 973 N.E.2d 1123, 1131 (Ind.

       Ct. App. 2012) (quoting Anglemyer, 868 N.E.2d at 491), trans. denied. Here, the

       trial court considered McClain’s mental illness but declined to give it mitigating

       weight. Post-Anglemyer, this is a decision that we may no longer review.2 See id.


       B. Appropriateness of McClain’s Sentence

[16]   McClain also argues that his eight-and-one-half-year sentence is inappropriate.

       Indiana Appellate Rule 7(B) provides that we “may revise a sentence




       2
         Assuming arguendo that the trial court abused its discretion by failing to properly consider McClain’s mental
       health issues as a mitigator, this would not require us to remand for resentencing. Even if a trial court has
       abused its discretion in sentencing, the court on appeal need not remand for resentencing if the sentence
       imposed is not inappropriate. Shelby v. State, 986 N.E.2d 345, 370 (Ind. Ct. App. 2013), trans. denied; Williams
       v. State, 997 N.E.2d 1154, 1165 (Ind. Ct. App. 2013) (citing Windhorst v. State, 868 N.E.2d 504, 507 (Ind.
       2007)). As explained below, McClain’s eight-and-one-half-year sentence is not inappropriate.

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-449 | August 24, 2020                     Page 9 of 13
       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.”


[17]   Although we may revise a sentence on appeal, we still exercise deference to a

       trial court’s sentencing decision because Appellate Rule 7(B) requires us to give

       “due consideration” to that decision, and because we understand and recognize

       the unique perspective a trial court brings to its sentencing decisions. Trainor v.

       State, 950 N.E.2d 352, 355 (Ind. Ct. App. 2011), trans. denied. Thus, “[t]he

       principal role of appellate review should be to attempt to leaven the outliers,

       and identify some guiding principles for trial courts and those charged with

       improvement of the sentencing statutes, but not to achieve a perceived ‘correct’

       result in each case. Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008).

       Moreover, our review under Appellate Rule 7(B) “should focus on the forest—

       the aggregate sentence—rather than the trees—consecutive or concurrent,

       number of counts, or length of the sentence on any individual count.” Id. And

       the question is not whether another sentence is more appropriate but whether

       the sentence imposed is inappropriate. Rose v. State, 36 N.E.3d 1055, 1063 (Ind.

       Ct. App. 2015).


[18]   On appeal, it is the defendant’s burden to persuade us that the sentence

       imposed by the trial court is inappropriate. Id. (citing Childress v. State, 848

       N.E.2d 1073, 1080 (Ind. 2006)). When we review the appropriateness of a

       sentence, we consider “the culpability of the defendant, the severity of the



       Court of Appeals of Indiana | Memorandum Decision 20A-CR-449 | August 24, 2020   Page 10 of 13
       crime, the damage done to others, and myriad other factors that come to light

       in a given case.” Cardwell, 895 N.E.2d at 1224).


[19]   McClain was convicted of a Level 6 felony and found to be an habitual

       offender. The sentencing range for a Level 6 felony is one-half to two and one-

       half years, with the advisory sentence being one year. Ind. Code § 35-50-2-7(b).

       A trial court must sentence a person who is convicted of a Level 6 felony and

       found to be an habitual offender to an additional fixed term between two and

       six years. Ind. Code § 35-50-2-8(i)(2). Thus, the trial court sentenced McClain

       to the maximum sentence for a Level 6 felony and imposed the maximum

       habitual offender enhancement.


[20]   In general, maximum sentences are reserved for the worst offenders and

       offenses. Townsend v. State, 934 N.E.2d 118, 132 (Ind. Ct. App. 2010) (citing

       Johnson v. State, 830 N.E.2d 895, 898 (Ind. 2005)), trans. denied. “Although the

       maximum possible sentences are generally most appropriate for the worst

       offenders, this rule is not an invitation to determine whether a worse offender

       could be imagined, as it is always possible to identify or hypothesize a

       significantly more despicable scenario, regardless of the nature of any particular

       offense and offender. Kovats v. State, 982 N.E.2d 409, 416 (Ind. Ct. App. 2013)

       (citing Simmons v. State, 962 N.E.2d 86, 92 (Ind. Ct. App. 2011)). Instead, “by

       stating that maximum sentences are ordinarily appropriate for the worst

       offenders, we refer generally to the class of offenses and offenders that warrant

       the maximum punishment, and this encompasses a considerable variety of

       offenses and offenders.” Id. (citing Simmons, 962 N.E.2d at 92–93).

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-449 | August 24, 2020   Page 11 of 13
[21]   There is nothing about the nature of McClain’s offense, such as “restraint,

       regard, [or] lack of brutality,” that persuades us that his sentence is

       inappropriate. Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015). To the

       contrary, McClain escalated a simple request into a violent encounter requiring

       the jail officers to restrain him. While resisting the officers, McClain threatened

       one of them with a particularly violent manner of death—beheading.


[22]   McClain’s character, as revealed by his extensive criminal history, does nothing

       to persuade us that his sentence is inappropriate. From 2010 through 2019,

       McClain accumulated seven misdemeanor convictions and three felony

       convictions.3 He was also arrested for and charged with numerous other crimes

       that were dismissed as a result of various plea agreements. More concerning is

       that two of McClain’s prior felony convictions were for intimidation: the very

       offense for which he was again convicted in the present case. Thus, his prior

       convictions, as they relate to the current offense, reflect very poorly on his

       character. See Simmons, 962 N.E.2d at 93 (holding that defendant’s prior

       convictions for drunken driving reflected very poorly on his character as it

       related to his current offense of operating a vehicle while intoxicated) (citing




       3
         The presentence investigation report (“PSIR”) included in the record before us does not include McClain’s
       most recent convictions for which he was in jail at the time of the instant offense. We take judicial notice of
       the resolution of these charges from the chronological case summary for these cases, which is available
       publicly on Indiana’s electronic case-management system. State v. McClain, No. 56D01-1706-F6-083,
       available at: http://mycase.in.gov [https://perma.cc/EB7S-D72D]; see also Horton v. State, 51 N.E.3d 1154,
       1162 (Ind. 2016) (holding that court records in Indiana’s statewide electronic case management system are
       presumptively sources of facts that cannot reasonably be questioned and are therefore the proper subject of
       judicial notice and taking judicial notice of trial court docket in related case showing that defendant had
       previously been convicted of Class A misdemeanor battery).

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-449 | August 24, 2020                    Page 12 of 13
       Wooley v. State, 716 N.E.2d 919, 929 n.4 (Ind. 1999) (noting that a prior

       conviction for operating a vehicle while intoxicated would be a significant

       aggravator in a subsequent alcohol-related offense)).


                                                 Conclusion
[23]   As did the trial court, we recognize that McClain suffers from mental health

       issues. We also take judicial notice of the fact that McClain is currently

       incarcerated in the New Castle Psychiatric Unit, where we hope he is receiving

       appropriate treatment for his mental health issues.4 However, under these facts

       and circumstances, McClain has not met his appellate burden of demonstrating

       that his eight-and-one-half-year sentence is inappropriate in light of the nature

       of his offense and his character as an offender. Accordingly, we affirm the

       judgment of the trial court.


[24]   Affirmed.


       Bradford, C.J., and Najam, J., concur.




       4
        See Indiana Offender Database Search, available at https://www.in.gov/apps/indcorrection/ofs/
       ofs?lname=mcclain&fname=matthew&search1.x=0&search1.y=0 [https://perma.cc/JFS3-GRHG].

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-449 | August 24, 2020           Page 13 of 13
