 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,
                                                                      FILED
                                                                   Mar 13 2012, 9:30 am
 collateral estoppel, or the law of the case.
                                                                           CLERK
                                                                         of the supreme court,
                                                                         court of appeals and
                                                                                tax court




ATTORNEY FOR APPELLANT:                              ATTORNEYS FOR APPELLEE:

MICHAEL FRISCHKORN                                   GREGORY F. ZOELLER
Frischkorn Law LLC                                   Attorney General of Indiana
Fortville, Indiana
                                                     JOSEPH Y. HO
                                                     Deputy Attorney General
                                                     Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

MICHAEL JONES,                                       )
                                                     )
       Appellant-Defendant,                          )
                                                     )
               vs.                                   )      No. 30A01-1108-CR-378
                                                     )
STATE OF INDIANA,                                    )
                                                     )
       Appellee-Plaintiff.                           )


                     APPEAL FROM THE HANCOCK SUPERIOR COURT
                            The Honorable Terry K. Snow, Judge
                              Cause No. 30D01-1011-FB-213


                                           March 13, 2012

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

VAIDIK, Judge
                                      Case Summary

       Michael Jones appeals his eighteen-year sentence with three years suspended to

probation for scalding and permanently scarring the hands of his girlfriend’s two-year-old

daughter. Jones argues that the trial court erred in finding three of the five aggravators

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

Although the trial court found two improper aggravators, we can say with confidence that

the court would have imposed the same sentence even without them. In addition, in light

of the two-year-old’s serious injuries and the fact that Jones had been recently released

from probation for a prior neglect of a dependent conviction, he has failed to persuade us

that his sentence is inappropriate. We therefore affirm the trial court.

                              Facts and Procedural History

       On September 14, 2010, twenty-year-old Jones watched his then-girlfriend A.G.’s

twenty-seven-month-old daughter, B.C., in Greenfield, Indiana, while A.G. ran some

errands. At some point, Jones called A.G. to tell her that B.C.’s hands were “messed up”

and that she needed to come home. Appellant’s App. p. 11. When A.G. arrived, she

found the skin coming off of B.C.’s hands. Id. Jones explained that he had attempted to

wash ink from B.C.’s hands, but the water was too hot. Id. B.C. was taken to Riley

Hospital for Children. B.C. suffered second- and third-degree burns to the backs of her

hands, required a skin graft using skin from her leg and thigh, and has permanent

scarring. According to a doctor at Riley, B.C.’s burns were not accidental but rather were

intentionally inflicted.



                                              2
        About two and one-half months after the incident, the State charged Jones with

Class B felony battery, Class B felony neglect of a dependent, and Class A misdemeanor

intimidation (relating to A.G.).    Thereafter, Jones and the State entered into a plea

agreement whereby Jones would plead guilty to Class B felony neglect of a dependent,

the State would dismiss the remaining charges, and both sides would argue sentencing.

Id. at 79. The trial court accepted the plea agreement.

       At sentencing, evidence was presented concerning B.C.’s burns, skin graft,

permanent scarring, and need for future surgery. Evidence was also presented that Jones

had a prior conviction for neglect of a dependent. That is, in 2008 Jones was convicted,

in the very same court, of Class D felony neglect of a dependent. He was sentenced to

eighteen months, which was suspended to probation, and had his conviction reduced to a

Class A misdemeanor. Notably, Jones committed this offense “in a matter of months”

after being released from probation for his previous neglect of a dependent conviction.

Tr. p. 29. Jones was also arrested in Marion County for Class B misdemeanor disorderly

conduct after the offense in this case but before charges were filed. The State requested a

sentence of eighteen years, all executed. Defense counsel conceded that the event was

“tragic” and the photographs of B.C.’s injuries and scarring were “heart wrenching,” but

he argued that Jones had a poor upbringing himself. Id. at 29-30, 31. Defense counsel

asked for the presumptive sentence of ten years, with four years suspended to probation.

Id. at 33. Jones then testified that he was “truly sorry for th[e] horrible crime,” took “full

responsibility,” and “couldn’t tell you a reason why [he] did this.” Id. at 34, 35. Jones

also requested anger management classes.


                                              3
       The trial court sentenced Jones to eighteen years with three years suspended to

probation. The trial court orally explained its sentence as follows:

       Court finds the following aggravators:
       1. Defendant having previous criminal (inaudible) activity.
       2. That he is in need of rehabilitative treatment and this [can] be provided
       by commitment to a penal facility.
       3. In you (inaudible) appreciate the seriousness of the crime.
       4. Victim of the crime was less than 12 years of age. And finally, the
       Defendant was in a position of trust – however, position of trust is, only in
       this case because it was neglect of a depend[e]nt. The Court finds the
       mitigating factors to be, the Court commends admitting and accept[ing]
       responsibility for the crime. Court finds that the aggravators outweigh the
       mitigators. Quite honestly, I do – I’m making myself notes here, jockeying
       back and forth, for what the appropriate sentence in this case was. It
       appears that, in fact, you have a track record – the injury, abuse and neglect
       of a child that has been in his care. You seem – the Court’s consideration
       the last time around when you received alternate A Misdemeanor
       sentencing. I have accepted in being probation, so that (inaudible), but not
       only was the child less than 12, she was two years old which is
       substantially less than 12. Never have to (inaudible) statute for that but
       that’s something that has [to] be considered.

Id. at 36-37.

       Jones now appeals his sentence.

                                  Discussion and Decision

       Jones raises two issues on appeal. First, he contends that the trial court erred in

finding three aggravators. Second, he contends that his sentence is inappropriate in light

of the nature of the offense and his character.

                                   I. Abuse of Discretion

       The trial court found five aggravators, and Jones contends that three are them are

improper.       Sentencing decisions rest 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


                                              4
(Ind. 2007). So long as the sentence is within the statutory range, it is subject to review

only for an abuse of discretion. Id. An abuse of discretion will be found where the

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. Id.

       A trial court may abuse its discretion in a number of ways, including: (1) failing to

enter a sentencing statement at all; (2) entering a sentencing statement that includes

aggravating and mitigating factors that are unsupported by the record; (3) entering a

sentencing statement that omits reasons that are clearly supported by the record; or (4)

entering a sentencing statement that includes reasons that are improper as a matter of law.

Id. at 490-91. Because the trial court no longer has any obligation to weigh aggravating

and mitigating factors against each other when imposing a sentence, a trial court cannot

now be said to have abused its discretion in failing to properly weigh such factors. Id. at

491.   If a trial court abuses its discretion, “remand for resentencing may be the

appropriate remedy if we cannot say with confidence that the trial court would have

imposed the same sentence had it properly considered reasons that enjoy support in the

record.” Id.

       Jones first argues that the trial court erred in finding as an aggravator that he is in

need of rehabilitative treatment that is best provided by a penal facility because the court

failed to explain “why” he needs such treatment. Appellant’s Br. p. 4. To the contrary,

the trial court clearly explained that Jones had a “track record” of abusing and neglecting

children in his care and had already received the benefit of Class A misdemeanor




                                              5
sentencing for neglect of a dependent. Accordingly, the trial court did not abuse its

discretion in finding this aggravator.

       Jones next argues that the trial court erred in finding the third aggravator, “In you

(inaudible) appreciate the seriousness of the crime.” Although it is unclear from the

transcript of the sentencing hearing, Jones believes that the trial court found that a lesser

sentence would depreciate the seriousness of the crime, Appellant’s Br. p. 4 n.2, while

the State believes that the trial court meant to say Jones’s “inability to appreciate the

seriousness of the offense.” Appellee’s Br. p. 5 n.1. We note that neither party, however,

submitted statements of evidence pursuant to Appellate Rule 31 or asked for a correction

or modification of the transcript pursuant to Appellate Rule 32.

       In any event, we give Jones the benefit of the doubt and proceed as if the trial

court found that the imposition of a lesser sentence would depreciate the seriousness of

the offense. A trial court’s statement that the imposition of a reduced sentence would

depreciate the seriousness of the offense as an aggravating circumstance is generally

improper where the record does not suggest that a term less than the advisory sentence is

being considered. See Jones v. State, 780 N.E.2d 373, 380 (Ind. 2002); Eversole v. State,

873 N.E.2d 1111, 1114 n.1 (Ind. Ct. App. 2007) (“We note a finding that a lesser

sentence would depreciate the seriousness of the crime has application only when the trial

court is considering imposition of a sentence less than the advisory sentence.”), trans.

denied.1 Here, although Jones requested the advisory sentence (with some of the time



       1
          We note, however, that our Supreme Court has held that “it is not error to enhance a sentence
based upon the aggravating circumstance that a sentence less than the enhanced term would depreciate
the seriousness of the crime committed.” Mathews v. State, 849 N.E.2d 578, 590 (Ind. 2006) (emphasis
                                                  6
suspended to probation), there is no indication that the trial court was considering a term

less than the advisory. Accordingly, if the trial court found this aggravator, it abused its

discretion in doing so.

       Finally, Jones argues that the trial court erred in finding as an aggravator that he

was in a position of trust because it is an element of neglect of a dependent. “[H]aving

the care of a dependent, whether assumed voluntarily or because of a legal obligation,” is

an element of neglect of a dependent. Ind. Code § 35-46-1-4. Generally, a trial court

may not use a material element of a crime as an aggravating circumstance. McCann v.

State, 749 N.E.2d 1116, 1120 (Ind. 2001). Nevertheless, this Court has affirmed a trial

court’s finding of the position-of-trust aggravator in a neglect of a dependent case. See

Robinson v. State, 894 N.E.2d 1038, 1042-43 (Ind. Ct. App. 2008). In Robinson, we

found that the trial court “did not merely rely on an element of the crime” as an

aggravator but rather considered the particularized circumstances of the crime. Id. at

1043. That is, the trial court found that the defendant was in a position of care over a

completely defenseless and vulnerable newborn. Id.

       Here, however, the trial court used position of trust and having the care of a

dependent as one in the same. The trial court stated, “And finally, the Defendant was in a

position of trust – however, position of trust is, only in this case because it was neglect of

a depend[e]nt.” Because of this singular treatment, the trial court abused its discretion in

finding Jones’s position of trust as an aggravator.




added). But given the state of this record, we do not know what the trial court actually found to be
aggravating.
                                                 7
       In sum, we find that the trial court found three proper aggravators – Jones’s

criminal history, his need for rehabilitative treatment in a penal facility, and B.C. was

substantially less than twelve years old – and two improper aggravators. Given the

nature of twenty-seven-month old B.C.’s injuries and the fact that Jones had recently

been released from probation for neglect of a dependent, we can say with confidence that

the trial court would have imposed the same sentence regardless of the two improper

aggravators.

                               II. Inappropriate Sentence

       Jones also contends that his sentence is inappropriate in light of the nature of the

offense and his character. Our rules authorize revision of a sentence “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.” Ind.

Appellate Rule 7(B). “[A] defendant must persuade the appellate court that his or her

sentence has met this inappropriateness standard of review.” Childress v. State, 848

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

       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. 2008).             Whether a sentence is

inappropriate ultimately turns on the culpability of the defendant, the severity of the

crime, the damage done to others, and a myriad of other factors that come to light in a

given case. Id. at 1224. When reviewing the appropriateness of a sentence under Rule


                                             8
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).

       A person who commits a Class B felony shall be imprisoned for a fixed term

between six and twenty years, with the advisory sentence being ten years. Ind. Code §

35-50-2-5. Here, the trial court sentenced Jones to eighteen years and suspended three of

them to probation.

       The nature of the offense is horrendous. Jones, who by his own admission took

care of twenty-seven-month-old B.C. “every day for 10 months,” scalded B.C.’s hands

with hot water for no reason. Tr. p. 34, 35. B.C. sustained second- and third-degree

burns, stayed in Riley Hospital for at least twelve days, underwent painful and frequent

bandage changes and special baths which required drugs to keep her calm, and had a skin

graft using skin from her leg and thigh. The result of Jones’s actions is that B.C. has

permanent scarring, faces an additional surgery, and is self-conscious about her “boo-

boos.” Id. at 23. The pictures included in the record on appeal speak a thousand words.

       Jones’s character does not fare much better. Jones was twenty years old at the

time of this offense and had recently been released from probation for a prior neglect of a

dependent conviction. For the earlier offense, Jones received the benefit of alternate

Class A misdemeanor sentencing and probation. Even though Jones pled guilty in this

case and accepted responsibility for his actions, he has utterly failed to demonstrate that




                                            9
he is deserving of the leniency he requests.2 Accordingly, we conclude that Jones’s

eighteen-year sentence with three years suspended to probation is not inappropriate.

        Affirmed.

ROBB, C.J., and NAJAM, J., concur.




        2
          We note that Jones erroneously argues on appeal that his character “does not support the trial
court’s imposition of the maximum eight-year sentence for Class C felony conviction.” Appellant’s Br.
p. 6.
                                                  10
