      MEMORANDUM DECISION
                                                                             FILED
      Pursuant to Ind. Appellate Rule 65(D),                            Sep 16 2016, 6:11 am

      this Memorandum Decision shall not be                                  CLERK
                                                                         Indiana Supreme Court
      regarded as precedent or cited before any                             Court of Appeals
                                                                              and Tax Court
      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
      Zachary A. Witte                                         Gregory F. Zoeller
      Locke & Witte                                            Attorney General of Indiana
      Fort Wayne, Indiana                                      Caryn N. Szyper
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana


                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Lindsey P. Smith,                                        September 16, 2016
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               02A03-1603-CR-652
              v.                                               Appeal from the Allen Superior
                                                               Court
      State of Indiana,                                        The Honorable Wendy W. Davis,
      Appellee-Plaintiff                                       Judge
                                                               Trial Court Cause No.
                                                               02D05-1508-F6-731



      Mathias, Judge.


[1]   Lindsey P. Smith (“Lindsey”) pleaded guilty in Allen Superior Court to

      domestic battery in the presence of a child. The sentencing court sentenced


      Court of Appeals of Indiana | Memorandum Decision 02A03-1603-CR-652 | Septmeber 16, 2016   Page 1 of 9
      Lindsey to one-and-a-half years’ incarceration in the Department of Correction,

      all suspended to probation, but conditioned upon her execution of thirty days’

      confinement in the Allen County jail. Lindsey appeals this sentence as

      inappropriate.

[2]   We affirm.

                                        Facts and Procedural History


[3]   Late in the evening of August 3, 2015, detectives of the Fort Wayne Police

      Department were called to the apartment home of Lindsey and her then-

      husband Heath Smith (“Heath”) by a report of domestic battery. Heath met the

      officers at the door, teary eyed and red faced, complaining of pain in his face

      and back. Lindsey and Heath had argued and come to blows, because Heath

      had chosen to visit his mother and brother rather than take Lindsey to her first

      day of work. Specifically, Heath reported that Lindsey struck his face and back

      repeatedly in the presence of one or both of Lindsey’s young sons, aged five and

      eight at the time of sentencing.1 Lindsey admitted the truth of Heath’s

      accusations to the detectives, adding that, if she could get through the detectives

      to hit Heath again, she “damn well sure would.” Ex. Vol., State’s Ex. 15.




      1
       The detectives reported only the presence of Lindsey’s younger son on the scene at the time of the
      argument, but both children were present in the apartment at the time of the detectives’ interview with Heath
      and Lindsey, and Lindsey affirmed at sentencing, in response to questioning by the court, that both children
      were “upstairs while all that was [going on].” Tr. p. 15.

      Court of Appeals of Indiana | Memorandum Decision 02A03-1603-CR-652 | Septmeber 16, 2016          Page 2 of 9
[4]   Lindsey was charged with domestic battery in the presence of a child. Unable to

      reach a plea agreement with the State, Lindsey pleaded guilty without the

      benefit of an agreement two days before her scheduled trial on February 2,

      2016. The court ordered a presentence investigation report and heard evidence

      and argument at Lindsey’s sentencing hearing on March 11, 2016. The court

      sentenced Lindsey to 548 days in the Department of Correction, all suspended

      but conditioned on thirty days in the Allen County jail. This appeal followed.

                           Whether Lindsey’s Sentence Is Inappropriate


[5]   Two avenues to relief are open to a convicted offender wishing to challenge her

      sentence, one substantive and one procedural. Anglemyer v. State, 868 N.E.2d

      482, 491 (Ind. 2007), modified on other grounds on reh’g, 875 N.E.2d 218 (Ind.

      2007). The Indiana Constitution and Indiana Rules of Appellate Procedure

      authorize substantive appellate review and revision of any sentence in a

      criminal case. Ind. Const. art. VII, § 6; Ind. Appellate Rule 7(B). This

      constitutional power of revision is independent of the power, grounded in

      statute, to review procedurally the exercise of the sentencing court’s discretion

      in fashioning a sentence. Anglemyer, 868 N.E.2d at 491; Ind. Code § 35-38-1-

      7.1(d) (court “may impose” any sentence consistent with statute and the

      Constitution).

[6]   A reviewing court invited to exercise its power of revision will do so only if,

      “after due consideration of the trial court’s decision,” the court finds the

      sentence to be “inappropriate in light of the nature of the offense and the


      Court of Appeals of Indiana | Memorandum Decision 02A03-1603-CR-652 | Septmeber 16, 2016   Page 3 of 9
      character of the offender.” App. R. 7(B). We are reluctant to substitute our

      judgment for that of the sentencing court. Hunter v. State, 854 N.E.2d 342, 344

      (Ind. 2006). The question before us is not whether some other sentence might

      be “more appropriate,” but rather whether the sentence as pronounced is

      inappropriate. Barker v. State, 994 N.E.2d 306, 315 (Ind. Ct. App. 2013), trans.

      denied.


[7]   The defendant bears the burden of persuading the appellate court that she has

      been inappropriately sentenced. King v. State, 894 N.E.2d 265, 267 (Ind. Ct.

      App. 2008). This burden is a heavy one. “[C]onsiderable deference” is due the

      sentence pronounced below, Hines v. State, 30 N.E.3d 1216, 1225 (Ind. 2015), in

      view of the sentencing courts’ “special expertise” in the fact-intensive

      sentencing decision, Scott v. State, 840 N.E.2d 376, 381 (Ind. Ct. App. 2006),

      trans. denied, and such deference ordinarily “should prevail unless overcome by

      compelling evidence portraying [the offense and the offender] in a positive

      light.” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015).


[8]   We examine the sentence in its totality as it is actually to be served. Cardwell v.

      State, 895 N.E.2d 1219, 1224 (Ind. 2008). The aggregate term of years, id., the

      time suspended and executed, Davidson v. State, 926 N.E.2d 1023, 1025 (Ind.

      2010), the placement called for in the sentence, King, 894 N.E.2d at 267, and

      any other penal consequences, Davidson, 926 N.E.2d at 1025, are examined in

      light of the defendant’s culpability, the severity of the crime, the harm done to

      others, and any other relevant facts of the individual case. Cardwell, 895 N.E.2d

      at 1224. We undertake such review guided by its primary purpose of
      Court of Appeals of Indiana | Memorandum Decision 02A03-1603-CR-652 | Septmeber 16, 2016   Page 4 of 9
       “leaven[ing] the outliers,” that is, promoting consistency and uniformity in

       sentencing by restraining extraordinarily harsh or lenient sentences. Id. at 1225.


[9]    Lindsey pleaded guilty without benefit of a plea agreement to a Level 6 felony.

       The sentencing range for a Level 6 felony is between six months and two and

       one-half years, with an advisory sentence of one year, plus a fine of up to

       $10,000. I.C. § 35-50-2-7(b). See Abbot v. State, 961 N.E.2d 1016, 1019 (Ind.

       2012) (identifying advisory sentence as the “starting point” of inappropriateness

       review). Lindsey’s one-and-one-half-year sentence is thus both longer and

       shorter than the advisory sentence: the aggregate term being six months longer,

       but the executed time eleven months shorter, near the midpoint of the statutory

       range. We now examine whether this sentence is inappropriate in light of the

       nature of Lindsey’s offense and of Lindsey’s character.


[10]   As to the nature of her offense, Lindsey argues that her conduct was not

       “particularly egregious or severe” so as to justify deviation from the advisory

       sentence, Appellant’s Br. at 12, and, in effect, that the sentencing court

       improperly weighed the underlying elements of the offense in aggravation of

       her sentence, usually referred to as “double enhancement.” She argues

       particularly that Heath’s injuries were no greater than the minimum required to

       satisfy the bodily-injury element of domestic battery, I.C. § 35-42-2-1.3(a)

       (2015),2 and that her “offense has already been enhanced” from a misdemeanor



       2
        Simple domestic battery no longer requires bodily injury. Compare I.C. § 35-42-2-1.3(a)(1) (2016) with I.C. §
       35-42-2-1.3(a) (2015).

       Court of Appeals of Indiana | Memorandum Decision 02A03-1603-CR-652 | Septmeber 16, 2016           Page 5 of 9
       to a felony by the presence of her children at the time of the battery. Appellant’s

       Br. at 12. Compare I.C. § 35-42-2-1.3(a) (2015) (simple domestic battery) with id.

       at (b)(2) (domestic battery in presence of a child under age sixteen).


[11]   We find these arguments unpersuasive for three reasons. First, the advisory

       sentence must be understood as the legislature does, as a “guideline sentence

       that the court may voluntarily consider,” I.C. § 35-50-2-1.3(a) (emphasis added),

       not as a presumptive sentence by another name. Since the legislature

       abandoned presumptive sentences, our supreme court has consistently held

       that, “[b]ecause the sentencing statute no longer requires a trial court to impose

       a presumptive sentence except when deviating from it on the basis of

       aggravating or mitigating [factors], the correlation between those factors and a

       given sentence will not be as close” as under the previous scheme. Hamilton v.

       State, 955 N.E.2d 723, 726 (Ind. 2011). So long as the sentencing court provides

       a sentencing statement as required by statute, “which may or may not include

       the existence of aggravating and mitigating factors, [the court] may then impose

       any sentence” permitted by statute and the Constitution. Sharkey v. State, 967

       N.E.2d 1074, 1078 (Ind. Ct. App. 2012) (emphasis added). Defendants like

       Lindsey wishing to challenge their sentences may not argue that a sentencing

       court must justify “deviation” from a preset default.


[12]   Second, it is well settled that a sentencing court evaluating aggravators and

       mitigators may properly consider the particular circumstances of the offense as

       aggravators. McElroy v. State, 865 N.E.2d 584, 589–90 (Ind. 2007). The only fact

       required to enhance domestic battery by the presence of a child is that the child

       Court of Appeals of Indiana | Memorandum Decision 02A03-1603-CR-652 | Septmeber 16, 2016   Page 6 of 9
       be capable of sensing the battery. Boyd v. State, 889 N.E.2d 321, 325 (Ind. Ct.

       App. 2008), trans. denied. The sentencing court thus did not twice weigh the

       presence of Lindsey’s children at the scene of the battery when it found as an

       aggravator the children’s actual exposure to Lindsey’s coarse language and her

       “punching, scratching, [and] whatever [else Lindsey] could do to get to

       [Heath].” Tr. pp. 14–15.


[13]   Similarly, Lindsey mischaracterizes the evidence below as to Heath’s injuries.

       Lindsey argues that Heath “did not sustain any damage other tha[n] redness to

       his face,” Appellant’s Br. at 12, but Heath insisted otherwise in his victim

       impact statement. Appellant’s App. p. 67 (reporting continuing physical and

       mental pain as the result of Lindsey’s battery). In any event, the statute requires

       even less: any physical impairment, including any degree of physical pain. Bailey

       v. State, 979 N.E.2d 133, 138 (Ind. 2012) (pain caused by repeated “pokes” to

       the forehead is bodily injury within the domestic battery statute). It was thus

       within the sound discretion of the sentencing court to find any additional

       circumstance as an aggravator. Anglemyer, 868 N.E.2d at 491.


[14]   Finally, to the extent that claims for double enhancement survived the

       legislature’s 2005 sentencing revisions, see Pedraza v. State, 887 N.E.2d 77 (Ind.

       2008), such claims, in their nature procedural, are properly brought as claims

       for abuse of discretion. Gomillia v. State, 13 N.E.3d 846, 852 (Ind. 2014)

       (locating surviving double-enhancement claims in the “improper as a matter of

       law” prong of abuse-of-discretion analysis (Anglemyer, 868 N.E.2d at 491)).

       Lacking additional, substantive cogency, Lindsey’s double-enhancement

       Court of Appeals of Indiana | Memorandum Decision 02A03-1603-CR-652 | Septmeber 16, 2016   Page 7 of 9
       arguments are not cognizable in Rule 7(B) review. As we have discussed above,

       however, Lindsey’s arguments would fail on the merits even had they been

       properly raised.


[15]   As to her character, Lindsey focuses on her previously unblemished criminal

       record and her quick acceptance of responsibility. These facts were presented as

       mitigators at Lindsey’s sentencing and were considered by the court on the

       record. In contrast, the sentencing court found Lindsey’s utter lack of remorse

       for her conduct “extremely aggravating.” Tr. p. 14.


[16]   Lindsey argues that her lack of remorse “was not so egregious as to outweigh

       all other mitigating circumstances.” Appellant’s Br. at 13. Her argument is thus

       with the relative weight the sentencing court assigned to the aggravators and

       mitigators in her case. Again, however, the weighing of recorded aggravators

       and mitigators is within the sound discretion of the sentencing court, Anglemyer,

       868 N.E.2d at 491, and Lindsey’s argument amounts simply to request for a

       “more appropriate” sentence. However, this is not our task. Barker, 994 N.E.2d

       at 315.


[17]   Though the factual record is fairly sparse, it is clear that Lindsey repeatedly and

       violently struck her then-husband Heath on the face and back in retaliation for

       his deliberate failure to transport her to her first day of work at a new job, and,

       possibly, for verbal provocation by Heath. Lindsey exposed her two sons, aged

       five and eight, to her violent conduct and violent language as they sat in an

       upstairs room of their shared home.


       Court of Appeals of Indiana | Memorandum Decision 02A03-1603-CR-652 | Septmeber 16, 2016   Page 8 of 9
[18]   While Lindsey had no prior criminal record and was found to present a low risk

       of re-offense, she reported to her presentence report investigator having “some

       criminal peers” with whom she will continue to associate. Appellant’s App. p.

       94. When asked at sentencing whether her battery of Heath had been a “one-

       time event,” Lindsey refused to answer. Tr. p. 13. Most damningly, she

       repeatedly asserted that Heath deserved the treatment he received from her,

       both to the on-scene detective, Ex. Vol., State’s Ex. 15, and to her presentence

       report investigator, Appellant’s App. p. 95; and she suggested as much again at

       sentencing. Tr. pp. 12–13.


[19]   In light of the nature of Lindsey’s offense and her character, we cannot say that

       her sentence is inappropriate.3


[20]   Affirmed.


       Robb, J., and Brown, J., concur.




       3
        The decision rendered in this opinion does not excuse Heath’s deliberate choice not to transport Lindsey to
       her first and most important day of work, a particularly inconsiderate decision at a time when work is hard to
       come by.	

       Court of Appeals of Indiana | Memorandum Decision 02A03-1603-CR-652 | Septmeber 16, 2016           Page 9 of 9
