MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any                             Nov 22 2017, 5:46 am
court except for the purpose of establishing
the defense of res judicata, collateral                                    CLERK
                                                                       Indiana Supreme Court
                                                                          Court of Appeals
estoppel, or the law of the case.                                           and Tax Court




ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Carlos I. Carrillo                                      Curtis T. Hill, Jr.
Greenwood, Indiana                                      Attorney General of Indiana

                                                        Tyler G. Banks
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Brandon C. Staggs,                                      November 22, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        79A02-1705-CR-1152
        v.                                              Appeal from the Tippecanoe
                                                        Superior Court
State of Indiana,                                       The Honorable Randy J. Williams,
Appellee-Plaintiff                                      Judge
                                                        Trial Court Cause No.
                                                        79D01-1608-F1-13



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 79A02-1705-CR-1152 | November 22, 2017       Page 1 of 15
                                             Case Summary
[1]   Brandon C. Staggs was the subject of a no-contact order concerning his three-

      week-old baby. Notwithstanding the order, he became intoxicated with illegal

      drugs and then slept with the baby, who died from positional asphyxiation.

      Faced with a seven-count criminal information, Staggs agreed to plead guilty to

      level 1 felony neglect of a dependent resulting in death, level 5 felony narcotics

      possession, and level 6 felony maintaining a common nuisance, in exchange for

      the dismissal of the remaining counts. Per the plea agreement, sentencing was

      left to the trial court’s discretion. The court ultimately sentenced Staggs to an

      aggregate thirty-nine-year term. In this appeal, Staggs raises several issues,

      most of which are unavailable to him either because of his guilty plea or

      because they are proper for postconviction proceedings rather than direct

      appeal. He also challenges the trial court’s application of aggravating factors

      during sentencing as well as the appropriateness of his sentence. Finding that

      the trial court acted within its discretion in its identification of aggravators and

      that Staggs has failed to meet his burden of demonstrating that his sentence is

      inappropriate, we affirm.


                                 Facts and Procedural History
[2]   In 2002, Staggs slept with his two-month-old baby, who died of positional

      asphyxiation. He had two other children with his now ex-wife. In 2013, his

      child K.S. was paralyzed following an accident in which Staggs was the driver

      and for which Staggs was investigated concerning intoxication. Staggs’s ex-



      Court of Appeals of Indiana | Memorandum Decision 79A02-1705-CR-1152 | November 22, 2017   Page 2 of 15
      wife eventually gained full custody of K.S. and the couple’s other surviving

      child.


[3]   In early June 2016, Staggs and Sara Martin had a baby boy, Z.S. Because of his

      entanglements with the Department of Child Services (“DCS”) in children in

      need of services (“CHINS”) proceedings, Staggs was under a no-contact order

      regarding Z.S. On June 27, 2016, Martin had Z.S. in her care while she cleaned

      out the home of her recently deceased mother. She took Z.S. with her to buy

      heroin and then injected herself once at her mother’s house and then at Staggs’s

      house. She overdosed, and Jason Vanhorn, a friend of both Staggs and Martin,

      drove her, Staggs, and Z.S. to the hospital. An attending physician later told

      police that Staggs appeared to be under the influence of drugs while at the

      hospital.


[4]   After a few hours, the group left Martin at the hospital and went to Staggs’s

      house. Initially, Vanhorn watched Z.S. while Staggs slept on the sofa. Later,

      Vanhorn awakened Staggs and informed him that he was leaving. Staggs took

      Z.S. from Vanhorn and slept with him. Several hours later, another friend,

      “T.J.,” entered Staggs’s living room and found Staggs sitting on the sofa,

      asleep. He found Z.S. between the cushions, bluish in color and totally

      nonresponsive. T.J. attempted to arouse Staggs but described Staggs as largely

      nonresponsive and apparently under the influence of drugs. Shortly thereafter,

      emergency personnel arrived and Z.S. was pronounced dead. An autopsy

      revealed that he died of positional asphyxiation. Police found heroin in a lunch

      box underneath Staggs’s sofa. Later that day, Staggs tested positive for

      Court of Appeals of Indiana | Memorandum Decision 79A02-1705-CR-1152 | November 22, 2017   Page 3 of 15
      amphetamine, methamphetamine, benzodiazepenes, cocaine, morphine, and

      marijuana.


[5]   The State charged Staggs with level 1 felony neglect of a dependent resulting in

      death, level 5 felony narcotics possession (in the presence of a child under age

      eighteen), level 6 felony possession of a controlled substance, class B

      misdemeanor marijuana possession, class A misdemeanor possession of

      paraphernalia, level 6 felony maintaining a common nuisance, and class A

      misdemeanor marijuana possession. Via an open plea agreement, Staggs pled

      guilty to neglect of a dependent causing death, narcotics possession, and

      maintaining a common nuisance, in exchange for the dismissal of the

      remaining four counts.


[6]   At the guilty plea hearing, the State established a factual basis, which the trial

      court found sufficient. The court explained the applicable sentencing ranges,

      and accepted Staggs’s guilty plea. During sentencing, the court heard testimony

      from several witnesses and identified as aggravating circumstances Staggs’s

      significant history of substance abuse, the significant extent of the harm, injury,

      and loss suffered by the victim beyond the elements of the offenses, the victim’s

      young age, Staggs’s criminal history and previous probation and rehabilitation

      failures, and the fact that he was out on bond and was in violation of a no-

      contact order when he committed the current offenses. The court identified as

      mitigating circumstances Staggs’s guilty plea, cooperation, sense of

      responsibility, and support of family and friends. The trial court sentenced

      Staggs to thirty-four years for level 1 felony neglect, five years for level 5 felony

      Court of Appeals of Indiana | Memorandum Decision 79A02-1705-CR-1152 | November 22, 2017   Page 4 of 15
      narcotics possession, and two years for level 6 felony maintaining a common

      nuisance, with the last two terms to run concurrent with each other and

      consecutive to the first felony. His thirty-nine-year aggregate sentence

      comprised thirty-seven years executed, with thirty-five years in the Department

      of Correction (“DOC”), two years in community corrections, and two years

      suspended to probation.


[7]   Staggs now appeals. Additional facts will be provided as necessary.


                                     Discussion and Decision

          Section 1 – Because he pled guilty by plea agreement in
       exchange for the dismissal of four counts, Staggs is precluded
        from attacking his convictions on double jeopardy grounds.
[8]   Maintaining that his convictions for neglect, narcotics possession, and

      maintaining a common nuisance were all based on the same evidence, Staggs

      claims that his convictions for the lesser offenses of neglect and nuisance must

      be vacated on double jeopardy grounds. “To find a double jeopardy violation

      under the actual evidence test, we must conclude that there is ‘a reasonable

      possibility that the evidentiary facts used by the factfinder to establish the

      essential element of one offense may also have been used to establish the

      essential elements of a second challenged offense.’” Garrett v. State, 992 N.E.2d

      710, 719 (Ind. 2013) (quoting Richardson v. State, 717 N.E.2d 32, 53 (Ind.

      1999)). However, “defendants who plead guilty to achieve favorable outcomes

      give up a plethora of substantive claims and procedural rights, such as

      challenges to convictions that would otherwise constitute double jeopardy.”
      Court of Appeals of Indiana | Memorandum Decision 79A02-1705-CR-1152 | November 22, 2017   Page 5 of 15
       Lee v. State, 816 N.E.2d 35, 40 (Ind. 2004) (quoting Davis v. State, 771 N.E.2d

       647, 649 n.4 (Ind. 2002)).


[9]    Here, Staggs faced a seven-count information and pled guilty by plea agreement

       to three counts, in exchange for the dismissal of four counts (one felony and

       three misdemeanors). He clearly received a benefit from his plea agreement,

       and we are unpersuaded by his labored attempts to characterize his plea

       agreement to the contrary. Staggs is precluded from raising double jeopardy in

       this appeal.1


         Section 2 – Staggs waived any challenge to the trial court’s
       decision to allow the State to amend the charging information.
[10]   Staggs next asserts that the trial court erred in allowing the State to amend the

       charging information. At sentencing, the State verbally requested an

       amendment to the narcotics possession charge to change “knowingly and

       intentionally” to “knowingly or intentionally.” Appellant’s App. Vol. 2 at 9;

       Tr. Vol. 2 at 12. Staggs was present in person and by counsel, and when the

       trial court asked Staggs whether he understood the amendment, he answered

       affirmatively. As such, he had the opportunity to be heard. Yet, he neither

       objected nor requested a continuance. As such, he has waived consideration of




       1
         We note that a double jeopardy violation under the actual evidence test presupposes the development of an
       evidentiary record such that the factfinder (jury or trial court) uses the same evidentiary facts to convict the
       defendant on multiple counts. Here, the record was developed only to the extent necessary to establish a
       factual basis for Staggs’s guilty plea as to each count. Moreover, we note that Staggs has cited no authority
       for his proposition that the fundamental error doctrine rescues a double jeopardy claim that is otherwise
       precluded by a beneficial plea agreement.

       Court of Appeals of Indiana | Memorandum Decision 79A02-1705-CR-1152 | November 22, 2017           Page 6 of 15
       this issue on appeal. See Absher v. State, 866 N.E.2d 350, 355 (Ind. 2007) (failure

       to object to amendment to charging information waives issue for review unless

       fundamental error occurred).


[11]   Waiver notwithstanding, Indiana Code Section 35-34-1-5(a)(5) allows the State

       on motion at any time to amend the charging information because of “any

       immaterial defect, including … the use of alternate or disjunctive allegations to

       the acts, means, intents, or results charged.” Here, the State requested the

       amendment simply to correct a clerical error in the mens rea element for the

       narcotics possession charge by changing the conjunctive to the disjunctive.

       Thus, the amendment was clearly within the dictates of the statute, and the trial

       court properly granted the State’s request.


        Section 3 – Staggs’s challenge to the sufficiency of the factual
          basis to support his guilty plea is not reviewable on direct
                                     appeal.
[12]   Staggs also contends that the State failed to establish a factual basis to support

       his pleas of guilty to narcotics possession and maintaining a common nuisance.

       Because this argument amounts to an attack on his convictions, he is precluded

       from raising it on direct appeal and must instead raise it in a petition for

       postconviction relief. See Stanley v. State, 849 N.E.2d 626, 630 (Ind. Ct. App.

       2006) (error premised on insufficiency of factual basis for guilty plea must be

       brought by petition for postconviction relief).




       Court of Appeals of Indiana | Memorandum Decision 79A02-1705-CR-1152 | November 22, 2017   Page 7 of 15
             Section 4 – The trial court did not err in advising Staggs
                 concerning all aspects of his potential sentence.
[13]   Staggs also submits that the trial court failed to properly advise him concerning

       the possibility of fines and consecutive sentencing. He essentially argues that

       proper advisements would have affected his decision to plead guilty.2 In so

       arguing, he attacks the voluntariness of his plea, which he may not do on direct

       appeal. See M.Y. v. State, 681 N.E.2d 1178, 1179 (Ind. Ct. App. 1997) (criminal

       defendant is prohibited from challenging validity of his guilty plea by direct

       appeal, but must instead raise issue via petition for postconviction relief) (citing

       Tumulty v. State, 666 N.E.2d 394, 395-96 (Ind. 1996)). That said, we briefly

       note that the trial court did not ultimately impose a fine as part of Staggs’s

       sentence but nevertheless advised him at the guilty plea hearing that he could be

       subject to a fine of up to $10,000. Tr. Vol. 2 at 15. As for the possibility of

       consecutive sentencing, the trial court did not use the word “consecutive,” but it

       properly and specifically addressed his maximum sentence exposure for each

       offense as well as the maximum aggregate sentence exposure, which as a matter

       of mathematics included a potential consecutive sentencing component. See id.

       at 13-15 (trial court’s statement of intent to sentence Staggs to somewhere

       between twenty and forty-two years, which could exceed maximum for level 1

       felony).




       2
         We note that these arguments are phrased in terms similar to those applicable to proving the prejudice
       prong of an ineffective assistance of counsel claim. Staggs did not raise ineffective assistance of counsel in
       this direct appeal.

       Court of Appeals of Indiana | Memorandum Decision 79A02-1705-CR-1152 | November 22, 2017             Page 8 of 15
          Section 5 – The trial court acted within its discretion in its
             treatment of aggravating factors during sentencing.
[14]   Staggs also challenges the trial court’s treatment of aggravating factors during

       sentencing. Sentencing decisions rest within the sound discretion of the trial

       court, and so long as a sentence is within the statutory range, it is subject to

       review only for an abuse of discretion. Anglemyer v. State, 868 N.E.2d 482, 490

       (Ind. 2007), clarified on reh’g, 875 N.E.2d 218. An abuse of discretion occurs

       where the trial court’s decision is clearly against the logic and effect of the facts

       and circumstances before it, or the reasonable, probable, and actual deductions

       to be drawn therefrom. Sloan v. State, 16 N.E.3d 1018, 1026 (Ind. Ct. App.

       2014). One of the ways in which a trial court may abuse its discretion is if the

       sentencing statement identifies aggravating factors that “are improper as a

       matter of law.” Anglemyer, 868 N.E.2d at 491.


[15]   Staggs maintains that the trial court improperly designated elements of his

       neglect and narcotics offenses as aggravators. A trial court may not use a

       material element of the offense as an aggravating factor, but it may find the

       nature and particularized circumstances surrounding the offense to be an

       aggravating factor. Caraway v. State, 959 N.E.2d 847, 850 (Ind. Ct. App. 2011),

       trans. denied (2012). In other words, “[w]here a trial court’s reason for imposing

       a sentence greater than the advisory sentence includes material elements of the

       offense, absent something unique about the circumstances that would justify

       deviating from the advisory sentence, that reason is ‘improper as a matter of

       law.’” Gomillia v. State, 13 N.E.3d 846, 852-53 (Ind. 2014) (quoting Anglemyer,

       Court of Appeals of Indiana | Memorandum Decision 79A02-1705-CR-1152 | November 22, 2017   Page 9 of 15
       868 N.E.2d at 491). “Even if the trial court relied on an improper factor under

       this aggravating circumstance, the sentence may be upheld so long as [t]he

       remaining components of that aggravator were proper.” Id. at 853 (quoting

       McCann v. State, 749 N.E.2d 1116, 1120 (Ind. 2001)).


[16]   Staggs specifically challenges the trial court’s use of Z.S.’s age as an aggravator

       pertaining to his narcotics offense where the circumstance elevating the offense

       from a level 6 to a level 5 felony involved “the person committ[ing] the offense

       in the physical presence of a child less than eighteen (18) years of age, knowing

       that the child was present and might be able to see or hear the offense.” Ind.

       Code § 35-48-1-16.5(6). Staggs argues that Z.S.’s tender age of three weeks

       should work to his advantage since the child, though present, seeing, and

       hearing, was too young to understand and carry with him any lasting

       impressions of his father’s narcotics use. However, in reviewing the sentencing

       order, we do not read this aggravator as having been applied specifically to the

       narcotics offense. Rather, the trial court merely listed it among the other

       aggravators and did not specify that it was attaching Z.S.’s age to any particular

       count. The court simply used the phrase, “the victim was under twelve years of

       age.” Appellant’s App. Vol. 2 at 43. This language tracks Indiana Code

       Section 35-38-1-7.1(a)(3), which directly addresses aggravating factors that the

       court may consider, including that “[t]he victim of the offense was less than

       twelve (12) years of age.” (Emphasis added.) Cf. Ind. Code § 35-48-1-16.5

       (setting threshold age of less than eighteen years as basis for elevating

       defendant’s narcotics offense to level 5 felony). In short, Z.S.’s tender age left


       Court of Appeals of Indiana | Memorandum Decision 79A02-1705-CR-1152 | November 22, 2017 Page 10 of 15
       him particularly dependent and vulnerable to harm, whether it be due to

       Staggs’s neglect,3 drug use, or running a drug house. The trial court acted

       within its discretion in identifying Z.S.’s age as an aggravating factor.


[17]   Staggs also cites as an improper aggravator “that the harm, injury, or loss

       suffered by the victim was significant and greater than the elements necessary to

       prove the commission of the offense.” Appellant’s App. Vol. 2 at 42.

       Presumably, though not specifically stated, the trial court was referencing the

       neglect of a dependent offense. See Ind. Code § 35-38-1-7.1(a)(1), -(a)(3) (in

       determining what sentence to impose, trial court may consider as aggravating

       circumstances that harm, injury, loss, or damage suffered by victim was

       significant and greater than elements necessary to prove offense and that victim

       was under age twelve). Staggs argues that the elevated version of the neglect

       offense makes the victim’s “death” a material element and that the extent of

       harm, injury, and loss suffered by the victim could not exceed death. However,

       this case involves not only the tragic death of an infant due to careless sleeping

       arrangements and a parent’s drug-induced stupor but also the unique

       circumstance of Staggs being under an order from the CHINS court that

       prohibited him from being in Z.S.’s presence under any circumstances. In

       short, Z.S. never should have been in such perilous hands. The trial court did

       not abuse its discretion in its treatment of aggravating circumstances.



       3
         In many neglect of a dependent cases, this Court has affirmed the trial court’s use of a victim’s tender age
       as an aggravating factor. See, e.g., Edwards v. State, 842 N.E.2d 849, 855 (Ind. Ct. App. 2006) (fifteen-month-
       old victim); Kile v. State, 729 N.E.2d 211, 214 (Ind. Ct. App. 2000) (six-year-old victim); Mallory v. State, 563
       N.E.2d 640, 647-48 (Ind. Ct. App. 1990) (six-year-old victim), trans. denied (1991).

       Court of Appeals of Indiana | Memorandum Decision 79A02-1705-CR-1152 | November 22, 2017 Page 11 of 15
            Section 6 – Staggs has failed to meet his burden of
       demonstrating that his sentence is inappropriate in light of the
                 nature of the offenses and his character.
[18]   Finally, Staggs asks that we review and revise his sentence pursuant to Indiana

       Appellate Rule 7(B), which states that we “may revise a sentence authorized by

       statute if, after due consideration of the trial court’s decision, [this] Court finds

       that the sentence is inappropriate in light of the nature of the offense and the

       character of the offender.” When a defendant requests appellate review and

       revision of his sentence, we have the power to affirm or reduce the sentence.

       Akard v. State, 937 N.E.2d 811, 813 (Ind. 2010). In conducting our review, we

       may consider all aspects of the penal consequences imposed by the trial court in

       sentencing, i.e., whether it consists of executed time, probation, suspension,

       home detention, or placement in community corrections, and whether the

       sentences run concurrently or consecutively. Davidson v. State, 926 N.E.2d

       1023, 1025 (Ind. 2010). We do not look to see whether the defendant’s

       sentence is appropriate or if another sentence might be more appropriate; rather,

       the test is whether the sentence is “inappropriate.” Fonner v. State, 876 N.E.2d

       340, 344 (Ind. Ct. App. 2007). A defendant bears the burden of persuading this

       Court that his sentence meets the inappropriateness standard. Anglemyer, 868

       N.E.2d at 490.


[19]   In considering the nature of Staggs’s offenses, “the advisory sentence is the

       starting point the Legislature has selected as an appropriate sentence.” Id. at

       494. When determining the appropriateness of a sentence that deviates from an


       Court of Appeals of Indiana | Memorandum Decision 79A02-1705-CR-1152 | November 22, 2017 Page 12 of 15
       advisory sentence, we consider whether there is anything more or less egregious

       about the offense as committed by the defendant that “makes it different from

       the typical offense accounted for by the legislature when it set the advisory

       sentence.” Holloway v. State, 950 N.E.2d 803, 807 (Ind. Ct. App. 2011).


[20]   The sentencing range for a level 1 felony is twenty to forty years, with an

       advisory term of thirty years. Ind. Code § 35-50-2-4(b). A level 5 felony carries

       a sentencing range of one to six years, with a three-year advisory term, and a

       level 6 felony carries a range of six months to two and one-half years, with a

       one-year advisory term. Ind. Code §§ 35-50-2-6(b); -7(b). Staggs’s thirty-nine-

       year aggregate sentence comprises a thirty-four-year term for level 1 felony

       neglect, a five-year term for level 5 felony narcotics possession, and a two-year

       term for level 6 felony maintaining a common nuisance, with the last two to run

       concurrent to each other and consecutive to the first. The court executed thirty-

       seven years (thirty-five years in the DOC and two years in community

       corrections), followed by two years’ probation.


[21]   The nature of Staggs’s offenses is more egregious than typical offenses in those

       classifications. As discussed, three-week-old Z.S. died from sleeping with

       Staggs, but even this was not a garden-variety case of asphyxiation. Rather,

       Staggs was in such a drug-induced stupor that he did not (and could not) even

       detect any positional changes that Z.S. had made, let alone make any

       potentially life-saving positional adjustments. He was passed out, and the baby

       was eventually found between the sofa cushions. He took drugs at his home

       and then helped inject Martin, who had already injected drugs and had to be

       Court of Appeals of Indiana | Memorandum Decision 79A02-1705-CR-1152 | November 22, 2017 Page 13 of 15
       taken to the hospital shortly thereafter due to an overdose. Both Staggs and

       Martin used drugs while Z.S. was present and despite the CHINS court’s no-

       contact order. Staggs was not supposed to be in Z.S.’s presence under any

       circumstances, yet he violated that order and the consequences were

       devastating. The circumstances surrounding Staggs’s offenses support a

       sentence above the advisory.


[22]   Similarly, Staggs’s character does not merit a shorter sentence. We conduct our

       review of his character by engaging in a broad consideration of his qualities.

       Aslinger v. State, 2 N.E.3d 84, 95 (Ind. Ct. App. 2014), clarified on other grounds on

       reh’g, 11 N.E.3d 571. Based on our review of the record, we find Staggs to be a

       serial drug user and traffic violator who has an extremely poor record of

       responding to lenient sentencing options. His criminal record spans decades,

       and as a juvenile, he had three true findings for theft, one for burglary, and one

       for criminal mischief. As a young adult, he had several convictions for

       underage consumption of alcohol and a felony conviction for maintaining a

       common nuisance. He has numerous misdemeanor traffic offenses, which

       eventually led to a felony conviction for operating as a habitual traffic violator.

       He also has a felony domestic battery conviction and two felony drug-related

       convictions. His criminal record is peppered with entries for failure to appear,

       probation violations, and revocations from probation and/or community

       corrections. He has demonstrated no regard for court orders, and as discussed,

       his violation of the CHINS court’s no-contact order had tragic consequences.




       Court of Appeals of Indiana | Memorandum Decision 79A02-1705-CR-1152 | November 22, 2017 Page 14 of 15
[23]   Staggs has expressed remorse and love for his family. He indicates that he

       believes he can be successful in cleaning up his life. Yet, he has continued to

       abuse drugs and has not successfully completed the rehabilitation programs

       offered in the past. He has failed to learn from previous tragic instances

       involving his other children, with one baby having died from sleeping with him

       in 2002 and another child being confined to a wheelchair due to his driving left

       of center and causing a serious auto accident.


[24]   Simply put, Staggs has failed to demonstrate that his sentence is inappropriate

       in light of the nature of the offenses and his character. Accordingly, we affirm

       his sentence.


[25]   Affirmed


       Vaidik, C.J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 79A02-1705-CR-1152 | November 22, 2017 Page 15 of 15
