      MEMORANDUM DECISION
                                                                     May 13 2015, 9:23 am
      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,
      collateral estoppel, or the law of the case.



      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Jeremy K. Nix                                            Gregory F. Zoeller
      Matheny, Hahn, Denman & Nix, L.L.P.                      Attorney General of Indiana
      Huntington, Indiana
                                                               Tyler G. Banks
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Nicholous L. Finton,                                     May 13, 2015

      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               35A02-1412-CR-840
              v.                                               Appeal from the Huntington
                                                               Superior Court
      State of Indiana,                                        The Honorable Jeffrey R.
      Appellee-Plaintiff                                       Heffelfinger, Judge

                                                               Case No. 35D01-1405-FD-124




      Crone, Judge.


                                               Case Summary
[1]   Nicholous L. Finton appeals the three-year sentence imposed by the trial court

      following his conviction for class D felony domestic battery. Finton contends


      Court of Appeals of Indiana | Memorandum Decision 35A02-1412-CR-840 | May 13, 2015     Page 1 of 8
      that the trial court abused its discretion during sentencing by failing to issue a

      sufficiently detailed sentencing statement. Finton also contends that his

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

      Finding no abuse of discretion and concluding that Finton has not met his

      burden to demonstrate that his sentence is inappropriate, we affirm.


                                 Facts and Procedural History
[2]   On May 10, 2014, Finton, his wife Nichole, and the couple’s two children

      attended a cookout at Finton’s mother’s house. After the cookout, the couple

      got into their vehicle to drive back to their apartment. The two children stayed

      with Finton’s mother. During the drive back to their apartment, Finton failed

      to “stop all the way” at an intersection, causing another vehicle to almost

      collide with the couple’s vehicle. Tr. 78. Finton became angry and began to

      follow the other vehicle. Nichole pleaded with Finton to “just stop so we [can]

      just go home. Just please turn the car around and go home.” Id. at 79. Finton

      ignored Nichole and followed the other vehicle to a campground and proceeded

      to share some confrontational words with the occupants of the vehicle. Nichole

      then said, “Let’s just go home and try to have a good night…. Just let them be.”

      Id. Finton drove away, but was extremely angry with Nichole, yelling at her

      that she should just keep her “mouth shut.” Id. at 80. Finton was especially

      angry and annoyed because he “wasn’t going to have her tell [him] what to do.”

      Id. at 118.




      Court of Appeals of Indiana | Memorandum Decision 35A02-1412-CR-840 | May 13, 2015   Page 2 of 8
[3]   Finton and Nichole argued as he drove toward their home. Nichole eventually

      got out of the car at a stoplight and walked the rest of the way home, arriving at

      the apartment at the same time as Finton. Once inside, the couple continued to

      argue for at least thirty minutes, with Finton walking around and “raging” at

      Nichole. Id. at 81. At one point, Finton grabbed an unopened can of beer from

      the refrigerator and threw it at Nichole’s face. The full can of beer struck

      Nichole in the right eye causing her pain and injury. Nichole telephoned her

      brother to come and get her. Finton was so angry at Nichole, the veins were

      “popping out of his neck.” Id. at 81-82. He grabbed Nichole by the mouth and

      squeezed tightly causing pain, and then shoved her away with such force that

      she fell and hit her head on a windowsill. Nichole gathered some personal

      items and fled the apartment. She reported the incident to police approximately

      six hours later.


[4]   The State charged Finton with class D felony domestic battery. 1 Following a

      trial, the jury found Finton guilty as charged. During sentencing, the trial court

      specifically noted Finton’s juvenile and adult criminal history as well as the fact

      that he had never “gone through probation one time without it being revoked.”

      Id. at 186. The trial court also noted Finton’s complete lack of remorse. At the




      1
       The version of Indiana Code Section 35-42-2-1.3 in effect at the time Finton committed the current offense
      provided that the crime of domestic battery becomes a class D felony if the person who committed the
      offense has a previous, unrelated conviction in which the elements of the crime for which the conviction was
      entered are substantially similar to the elements of domestic battery. The record indicates that Finton was
      previously convicted of domestic battery against Nichole on March 20, 2012.

      Court of Appeals of Indiana | Memorandum Decision 35A02-1412-CR-840 | May 13, 2015                Page 3 of 8
      conclusion of the hearing, the trial court sentenced Finton to three years’

      incarceration.2 This appeal ensued.


                                       Discussion and Decision

          Section 1 – The trial court’s sentencing statement is sufficient
                 and does not constitute an abuse of discretion.
[5]   Finton first asserts that the trial court abused its discretion during sentencing.

      Specifically, Finton asserts that the trial court’s sentencing statement is not

      sufficiently detailed to support the sentence imposed. Sentencing decisions rest

      within the sound discretion of the trial court and are reviewed on appeal 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 when the

      decision is clearly against the logic and effect of the facts and circumstances. Id.

      A trial court abuses its discretion during sentencing by: (1) failing to enter a

      sentencing statement, (2) entering a sentencing statement that explains reasons

      for imposing sentence but 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, or (4) considering reasons that are improper as

      a matter of law. Kimbrough v. State, 979 N.E.2d 625, 628 (Ind. 2012). When




      2
        It is worth noting that the trial court initially sentenced Finton to two years in the Indiana Department of
      Correction (“DOC”) and one year as a direct placement to community corrections. However, during the
      sentencing hearing, despite contrary advice from his counsel, Finton made a request to the trial judge that he
      “get all” of his time in the DOC. Tr. at 189. Clearly perplexed, the trial court granted the request and
      sentenced Finton to three years in the DOC.

      Court of Appeals of Indiana | Memorandum Decision 35A02-1412-CR-840 | May 13, 2015                 Page 4 of 8
      reviewing the sufficiency of the sentencing statement, we examine both the trial

      court’s written and oral statements. McElroy v. State, 865 N.E.2d 584, 589 (Ind.

      2007).


[6]   Although the trial court here did not list any aggravating factors in its written

      sentencing statement, Finton concedes that, in its oral statement, the trial court

      noted two statutory aggravating factors, namely his history of criminal and

      delinquent behavior and a recent violation of the conditions of probation. See

      Ind. Code § 35-38-1-7.1(a)(2), -(6). The trial court also specifically noted

      Finton’s complete lack of remorse as well as his prior refusals of all counseling

      and rehabilitative services offered. Moreover, the court acknowledged and

      expressed concern for Nichole’s safety based upon Finton’s history of violence

      against her. It is clear from the record that the trial court did not accept any of

      Finton’s proffered mitigating circumstances.3 In our view, the trial court’s oral

      sentencing statement was sufficiently detailed to support the imposition of the

      three-year sentence. Finton has shown no abuse of discretion.


          Section 2 – Finton has not met his burden to demonstrate that
                          his sentence is inappropriate.
[7]   Finton invites this Court to reduce his three-year sentence pursuant to Indiana

      Appellate Rule 7(B), which provides that we may revise a sentence authorized

      by statute if, after due consideration of the trial court’s decision, we find that the



      3
        During sentencing, Finton asserted Nichole’s desire for him not to serve any prison time as a mitigating
      factor.

      Court of Appeals of Indiana | Memorandum Decision 35A02-1412-CR-840 | May 13, 2015                 Page 5 of 8
      sentence “is inappropriate in light of the nature of the offense and the character

      of the offender.” The defendant bears the burden to persuade this Court that

      his or her sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080

      (Ind. 2006). “[W]hether we regard a sentence as appropriate at the end of the

      day turns on our sense of the culpability of the defendant, the severity of the

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

      in a given case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). We

      recognize that the “principal role of appellate review should be to attempt to

      leaven the outliers and to 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.” Id. at 1225. Indeed, “[t]he question

      under Appellate Rule 7(B) is not whether another sentence is more appropriate:

      rather, the question is whether the sentence imposed is inappropriate.” King v.

      State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008).


[8]   The sentencing range for a class D felony is between six months and three

      years, with the advisory sentence being one and one-half years. Ind. Code § 35-

      50-2-7. The trial court sentenced Finton to the maximum three-year sentence,

      which Finton claims is inappropriate based upon the nature of the offense and

      his character. We disagree.


[9]   As to the nature of the offense, the evidence established that Finton committed

      a battery against his wife for the second time in less than three years. The

      incident began after Finton embarked on an immature tirade against another

      motorist, which led to a heated argument with his wife because she tried to

      Court of Appeals of Indiana | Memorandum Decision 35A02-1412-CR-840 | May 13, 2015   Page 6 of 8
       defuse the situation. In his own words, he “wasn’t going to have her tell [him]

       what to do.” Tr. at 118. Finton flew into a rage and threw an unopened can of

       beer at his wife’s face, causing pain, bruising, and an injury to her eye. Finton

       then grabbed Nichole by the jaw and shoved her with such force that she hit her

       head on a window sill.


[10]   Finton argues that these facts do not justify a maximum sentence because

       Nichole did not seek medical attention for any injuries and she “delayed”

       reporting the battery to police. Appellant’s Br. at 9. We are not persuaded by

       these arguments. Lack of severe injury and a mere six-hour time span between

       the battery and the police report take away nothing from the egregiousness of

       Finton’s behavior.


[11]   As to the character of the offender, Finton has an extensive criminal history

       which began when he was a juvenile and continued to the present. This

       includes several misdemeanors as well as felony convictions for class D felony

       domestic battery in the presence of a child and two counts of class D felony

       intimidation. As noted by the trial court, he has been granted the grace of

       probation on numerous occasions only to have such probation revoked. This

       indicates that Finton does not wish to modify his behavior to conform with the

       law. Finton has denied all rehabilitative counseling and services offered and

       instead has continued to commit acts of violence against his wife. Under the

       circumstances, Finton has not met his burden to demonstrate that the three-year

       sentence imposed by the trial court is inappropriate based upon the nature of



       Court of Appeals of Indiana | Memorandum Decision 35A02-1412-CR-840 | May 13, 2015   Page 7 of 8
       the offense or his character.4 Accordingly, we affirm the sentence imposed by

       the trial court.


[12]   Affirmed.


       Brown, J., and Pyle, J., concur.




       4
         Finton maintains that neither his offense nor his character are “the worst type” for which the maximum
       sentence should be reserved. Appellant’s Br. at 10. While we may be able to imagine a worse offense and
       offender, that is not a relevant inquiry. See Buchanan v. State, 767 N.E.2d 967, 973 (Ind. 2002) (although
       maximum possible sentences are generally most appropriate for the worst offenders, that is not an invitation
       to determine whether a worse offender could be imagined; rather, we concentrate on the nature of the
       particular offense and offender).

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