MEMORANDUM DECISION                                                         FILED
                                                                        Mar 20 2017, 8:57 am
Pursuant to Ind. Appellate Rule 65(D),
                                                                            CLERK
this Memorandum Decision shall not be                                   Indiana Supreme Court
                                                                           Court of Appeals
regarded as precedent or cited before any                                    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
Christopher L. Clerc                                     Curtis T. Hill, Jr.
Columbus, Indiana                                        Attorney General of Indiana

                                                         Matthew R. Elliott
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Kenneth Wilson,                                          March 20, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         03A01-1608-CR-1963
        v.                                               Appeal from the Bartholomew
                                                         Circuit Court
State of Indiana,                                        The Honorable Stephen R.
Appellee-Plaintiff.                                      Heimann, Judge
                                                         Trial Court Cause No.
                                                         03C01-1602-F5-847



Barnes, Judge.




Court of Appeals of Indiana | Memorandum Decision 03A01-1608-CR-1963 | March 20, 2017           Page 1 of 7
                                             Case Summary
[1]   Kenneth Wilson appeals his sentence for Level 6 felony strangulation. We

      affirm.


                                                    Issues
[2]   Wilson raises two issues, which we restate as:


                      I.       whether the trial court abused its discretion in
                               sentencing him; and

                      II.      whether his sentence is inappropriate in light
                               of the nature of the offense and the character
                               of the offender.

                                                     Facts
[3]   After an altercation with his girlfriend, the State charged Wilson with: Count 1,

      Level 5 felony battery by means of a deadly weapon; Count II, Level 6 felony

      criminal recklessness; Count III, Level 6 felony pointing a firearm; and Count

      IV, Class A misdemeanor domestic battery. Wilson entered into a plea

      agreement and pled guilty to an amended Count I, Level 6 felony strangulation.

      The State dismissed the remaining charges.


[4]   At the sentencing hearing, the trial court found no mitigating circumstances.

      The trial court found three aggravating factors—Wilson’s significant criminal

      history, prior probation violations, and the fact that he has been offered

      treatment previously. The trial court sentenced Wilson to two years in the

      Bartholomew County Jail. Wilson now appeals.



      Court of Appeals of Indiana | Memorandum Decision 03A01-1608-CR-1963 | March 20, 2017   Page 2 of 7
                                                  Analysis
                                          I. Abuse of Discretion

[5]   Wilson argues that the trial court abused its discretion when it sentenced him.

      Sentencing decisions are within the sound discretion of the trial court.

      Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d

      218. However, a trial court may be found to have abused its sentencing

      discretion in a number of ways, including: (1) failing to enter a sentencing

      statement at all; (2) entering a sentencing statement that explains reasons for

      imposing a sentence where the record does not support the reasons; (3) entering

      a sentencing statement that omits reasons that are clearly supported by the

      record and advanced for consideration; and (4) entering a sentencing statement

      in which the reasons given are improper as a matter of law. Id. at 490-91. The

      reasons or omission of reasons given for choosing a sentence are reviewable on

      appeal for an abuse of discretion. Id. at 491. The weight given to those reasons,

      i.e. to particular aggravators or mitigators, is not subject to appellate review. Id.


[6]   Wilson argues that the trial court improperly failed to identify significant

      mitigating circumstances. A trial court is not obligated to accept a defendant’s

      claim as to what constitutes a mitigating circumstance. Rascoe v. State, 736

      N.E.2d 246, 249 (Ind. 2000). A claim that the trial court failed to find a

      mitigating circumstance requires the defendant to establish that the mitigating

      evidence is both significant and clearly supported by the record. Anglemyer, 868

      N.E.2d at 493.



      Court of Appeals of Indiana | Memorandum Decision 03A01-1608-CR-1963 | March 20, 2017   Page 3 of 7
[7]   Wilson first argues that the trial court failed to identify his mental illness as a

      mitigating factor. We note that Wilson did not argue at the sentencing hearing

      that his mental illness was a mitigating factor. “‘If the defendant does not

      advance a factor to be mitigating at sentencing, this Court will presume that the

      factor is not significant and the defendant is precluded from advancing it as a

      mitigating circumstance for the first time on appeal.’” Hollin v. State, 877

      N.E.2d 462, 465 (Ind. 2007) (quoting Spears v. State, 735 N.E.2d 1161, 1167

      (Ind. 2000)). Waiver notwithstanding, Wilson presented no documentation

      regarding his mental illness or how it was connected to the current offense.

      Wilson very briefly testified that he had been diagnosed with bi-polar disorder

      and that he took Xanax for anxiety. Wilson’s argument is not clearly supported

      by the record, and the trial court did not abuse its discretion when it did not

      consider it as a mitigating factor.


[8]   Next, Wilson argues that the trial court should have considered his guilty plea

      as a mitigating factor. Our supreme court has held:

              [A] defendant who pleads guilty deserves “some” mitigating
              weight be given to the plea in return. But an allegation that the
              trial court failed to identify or find a mitigating factor requires the
              defendant to establish that the mitigating evidence is not only
              supported by the record but also that the mitigating evidence is
              significant. And the significance of a guilty plea as a mitigating
              factor varies from case to case. For example, a guilty plea may
              not be significantly mitigating when it does not demonstrate the
              defendant's acceptance of responsibility . . . or when the
              defendant receives a substantial benefit in return for the plea.



      Court of Appeals of Indiana | Memorandum Decision 03A01-1608-CR-1963 | March 20, 2017   Page 4 of 7
       Anglemyer, 875 N.E.2d at 220-21 (internal citations omitted). Wilson received a

       substantial benefit in return for his guilty plea. The State dismissed several

       charges and amended the count to which he pled guilty from a Level 5 felony to

       a Level 6 felony. Wilson has failed to demonstrate that his guilty plea was a

       significant mitigating factor. The trial court did not abuse its discretion when it

       sentenced Wilson.


                                        II. Inappropriate Sentence

[9]    Wilson argues that his two-year sentence is inappropriate under Indiana

       Appellate Rule 7(B). Appellate Rule 7(B) provides that we may revise a

       sentence authorized by statute if, after due consideration of the trial court’s

       decision, we find that the sentence is inappropriate in light of the nature of the

       offenses and the character of the offender. When considering whether a

       sentence is inappropriate, we need not be “extremely” deferential to a trial

       court’s sentencing decision. Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct.

       App. 2007). Still, we must give due consideration to that decision. Id. We also

       understand and recognize the unique perspective a trial court brings to its

       sentencing decisions. Id. Under this rule, the burden is on the defendant to

       persuade the appellate court that his or her sentence is inappropriate. Childress

       v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).


[10]   The principal role of Rule 7(B) 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.
       Court of Appeals of Indiana | Memorandum Decision 03A01-1608-CR-1963 | March 20, 2017   Page 5 of 7
       2008). We “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. When reviewing the appropriateness of

       a sentence under Rule 7(B), we may consider all aspects of the penal

       consequences imposed by the trial court in sentencing the defendant, including

       whether a portion of the sentence was suspended. Davidson v. State, 926 N.E.2d

       1023, 1025 (Ind. 2010).


[11]   The nature of the offense reveals that Wilson strangled his girlfriend during a

       domestic dispute. The altercation left his victim with a red neck and upper

       chest, scratch marks on her neck, swelling and bruising on her jaw, and missing

       clumps of hair on her head.


[12]   As for the character of the offender, Wilson has a lengthy criminal history,

       which includes a 1995 conviction for Class A misdemeanor battery, a 1997

       conviction for Class A misdemeanor intimidation, 1997 convictions for

       residential entry and battery, a 1997 conviction in Kentucky for Second Degree

       criminal abuse, a 1998 conviction in Kentucky for Second Degree escape, a

       2002 conviction for Class C misdemeanor operating a motor vehicle while

       intoxicated, a 2003 conviction for Class D felony operating a motor vehicle

       while intoxicated, a 2004 conviction for domestic battery, a 2005 conviction for

       public intoxication, a 2012 conviction in Kentucky for Second Degree

       possession of a controlled substance, 2012 convictions in Kentucky for Fourth

       Degree assault domestic violence with minor injury and Second Degree wanton

       endangerment, a 2014 conviction for Class D felony criminal recklessness, and

       Court of Appeals of Indiana | Memorandum Decision 03A01-1608-CR-1963 | March 20, 2017   Page 6 of 7
       a 2013 conviction in Kentucky for wanton endangerment. Wilson blamed his

       twenty-year criminal history on his failure to take his medication “like [he] was

       supposed to.” Tr. p. 26. Wilson has twice participated in anger management

       classes, but he continues to batter women. As the State notes, Wilson appeared

       to have little insight into why he continues to batter women and has made little

       effort to correct his behavior. Given Wilson’s significant criminal history and

       failure to correct his behavior despite multiple opportunities to do so, the two-

       year sentence imposed by the trial court is not inappropriate.


                                                 Conclusion
[13]   The trial court did not abuse its discretion when it sentenced Wilson, and his

       two-year sentence is not inappropriate. We affirm.


[14]   Affirmed.


       Kirsch, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 03A01-1608-CR-1963 | March 20, 2017   Page 7 of 7
