                                                             FILED
Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                      Dec 31 2012, 11:45 am
any court except for the purpose of
establishing the defense of res judicata,
                                                                  CLERK
collateral estoppel, or the law of the                          of the supreme court,
                                                                court of appeals and
                                                                       tax court
case.

ATTORNEY FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

MARK A. BATES                                   GREGORY F. ZOELLER
Office of the Lake County Public Defender       Attorney General of Indiana
 Appellate Division
Crown Point, Indiana                            MICHELLE BUMGARNER
                                                Deputy Attorney General
                                                Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

JOSEPH LAICH, III,                              )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )        No. 45A03-1205-CR-206
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                      APPEAL FROM THE LAKE SUPERIOR COURT
                          The Honorable Salvador Vasquez, Judge
                               Cause No. 45G01-1101-FA-2



                                     December 31, 2012


                MEMORANDUM DECISION - NOT FOR PUBLICATION


BROWN, Judge
       Joseph Laich, III, appeals his sentence for aggravated battery as a class B felony.

Laich raises two issues which we revise and restate as:

       I.        Whether the trial court abused its discretion in sentencing Laich; and

       II.       Whether Laich’s sentence is inappropriate in light of the nature of
                 the offense and the character of the offender.

We affirm.

       The relevant facts from the stipulated factual basis follow. On or about January

19, 2011, Laich was at the home of his eighty-one-year-old grandmother Carlene

McGaha in Hammond, Indiana. Laich and McGaha “got into an argument over her dog

when [Laich] punched [McGaha] knocking her to the floor.” Appellant’s Appendix at

33. Laich then took the dog’s leash, wrapped it around McGaha’s neck, and choked her

until she was unconscious. While McGaha was unconscious, Laich turned on the gas

burner on the stove and left the house. Laich “gave a statement to police admitting to the

above acts, though he stated he did not remember turning the gas on, but that he could

have.” Id. The injuries sustained by McGaha from Laich’s actions created a substantial

risk of death.

       On January 21, 2011, the State charged Laich with Count I, attempted murder;

Count II, robbery as a class A felony; Count III, criminal confinement as a class B felony;

Count IV, criminal confinement as a class B felony; Count V, criminal confinement as a

class C felony; Count VI, battery as a class C felony; Count VII, intimidation as a class D

felony; and Count VIII, theft as a class D felony.




                                                2
        On April 5, 2011, Laich’s counsel filed a motion for examination to determine

competency and sanity. On August 12, 2011, the court held a hearing, recognized that

Dr. Douglas Caruana and Dr. Prasad found that Laich was competent to stand trial, and

the court found Laich competent.1

        On February 15, 2012, Laich entered into a plea agreement with the State pursuant

to which the State agreed to file an amended information adding Count IX, aggravated

battery as a class B felony, and dismiss the remaining charges and a theft charge under

another cause number, and Laich agreed to plead guilty to the amended charge. The

agreement also provided that the parties would be free to “fully argue their respective

positions as to the sentence to be imposed by the Court.” Id. at 31.

        On April 2, 2012, the court held a sentencing hearing. The court admitted a letter

dated May 24, 2011, from Dr. Caruana to the trial court which stated:

        [Laich] reported a birth date of 10/26/88 and correct age of 22 years. He
        presented as alert, oriented, and responsive in clear speech. No confusion
        or acute intense emotional distress was noted or reported.

        Mr. Laich recalls most of the day in question in clear terms. He does not
        describe having experienced any severe psychiatric symptoms on the day in
        question, and describes relatively routine psychological experiences and
        behavior management leading up to the incident and shortly after the
        incident. He describes having a “blackout” associated with the actual
        incident and credits this to his abuse of Xanax on the day in question. He
        recalls a similar Xanax “blackout” in December 2010, indicating that he
        had no memory of what he had done and with whom he had spoken.

        Mr. Laich reports that he has been diagnosed with Bipolar Disorder, and
        indicates that he experiences intense episodes of anger, followed by periods
        of depression. He denies having experienced hallucinations or delusions,

        1
         As mentioned below, the record contains a letter from Dr. Caruana to the trial court which was
admitted at the sentencing hearing, but our review of the record does not reveal any letter or report from
Dr. Prasad.
                                                    3
       and in particular, does not report any extreme psychiatric disturbance
       earlier in the day in question and immediately prior to his “black out”
       period. He indicates that he had run out of his medications for mood
       control one to two weeks prior to the incident.

       Data generated in this evaluation do not support a finding of insanity, as
       defined by statue [sic]. He does meet criteria for mentally ill, as defined by
       statute.

Defendant’s Exhibit 2.

       James McGaha, Laich’s uncle and the son of Carlene McGaha, testified that Laich

lived with his grandmother “off and on” and had issues with her in the past including

hitting her and stealing money from her. Transcript at 33. James also testified that the

violence Laich exhibited towards his grandmother increased over time. Laich stated: “I

just want to apologize for what I done. I know it was wrong for what I done. If I could

take it back, I would.” Id. at 53.

       At the sentencing hearing, the court stated: “Do I think you need help?

Absolutely. But there’s not much more that the system can do for you unless you’re

willing to do it for yourself.” Id. at 57. The court found the fact that Laich pled guilty

and admitted responsibility as mitigators. The court found the following aggravators:

Laich’s criminal history, the age of the victim, the lack of a deterrent effect by prior

leniency, the fact that Laich was on probation for a felony at the time of the offense, and

the fact that Laich turned on the stove gas burner and left the home after choking his

grandmother. The court found that each aggravating factor, standing alone, outweighed

any mitigating factor. The court sentenced Laich to seventeen years in the Department of

Correction.


                                             4
                                               I.

       The first issue is whether the court abused its discretion in sentencing Laich. A

trial court abuses its discretion if it: (1) fails “to enter a sentencing statement at all;” (2)

enters “a sentencing statement that explains reasons for imposing a sentence – including a

finding of aggravating and mitigating factors if any – but the record does not support the

reasons;” (3) enters a sentencing statement that “omits reasons that are clearly supported

by the record and advanced for consideration;” or (4) considers reasons that “are

improper as a matter of law.” Anglemyer v. State, 868 N.E.2d 482, 490-491 (Ind. 2007),

clarified on reh’g, 875 N.E.2d 218 (Ind. 2007). However, the relative weight or value

assignable to reasons properly found, or those which should have been found, is not

subject to review for abuse of discretion. Id. at 491.

       Where, as here, the trial court’s reason for imposing a sentence includes a finding

of aggravating and mitigating factors, they must be supported by the record and

consistent with what our courts have traditionally deemed as either aggravators or

mitigators. McDonald v. State, 868 N.E.2d 1111, 1113-1114 (Ind. 2007). “If the factors

are not supported by the record or have been previously determined to be improper, then

‘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. at 1114 (quoting Anglemyer,

868 N.E.2d at 491).




                                               5
A.     Aggravator

       Laich appears to argue that the trial court abused its discretion when it found that

he choked his grandmother and left the home after turning on the gas burner as an

aggravator because it relied upon the facts needed to prove the elements of the crime.

Laich quotes the portion of the trial court’s sentencing order which stated: “[t]he nature

and circumstance of the crime committed are as follows: pursuant to the stipulated factual

basis for the plea agreement.” Appellant’s Brief at 10 (quoting Appellant’s Appendix at

38). Laich points out that the stipulated factual basis indicated that he choked her until

she was unconscious and then left the home after turning on the gas burner. The State

argues that the court did not abuse its discretion because the act of choking his

grandmother to the point of unconsciousness was the act that created a substantial risk of

death required for the aggravated battery charge and that “[i]t can be reasonably inferred

that the trial court viewed his subsequent attempt to fill the house with toxic gas as part of

the nature and circumstances of the offense.” Appellee’s Brief at 5.

       A material element of a crime may not be used as an aggravating factor to support

an enhanced sentence.2 McElroy v. State, 865 N.E.2d 584, 589 (Ind. 2007). However,


       2
         The offense of aggravated battery as a class B felony is governed by Ind. Code § 35-42-2-1.5
which provides:

       A person who knowingly or intentionally inflicts injury on a person that creates a
       substantial risk of death or causes:

               (1)     serious permanent disfigurement;

               (2)     protracted loss or impairment of the function of a bodily member
                       or organ; or

               (3)     the loss of a fetus;
                                                  6
when evaluating the nature of the offense, the trial court may properly consider the

particularized circumstances of the factual elements as aggravating factors. Id. The trial

court must then detail why the defendant deserves an enhanced sentence under the

particular circumstances. Id.

        We observe that the court’s sentencing order states:

        SENTENCING CONSIDERATIONS: 1. The nature and circumstance
        of the crime committed are as follows: pursuant to the stipulated factual
        basis for the plea agreement.

        MITIGATING CIRCUMSTANCES: . . . .

        AGGRAVATING CIRCUMSTANCES: . . . .

                                               *****

        6.      After choking his grandmother with a dog leash, [Laich] turned the
                stove gas burner on and left the home.

Appellant’s Appendix at 38-39. Given that the court mentioned the stipulated factual

basis for the plea agreement separate from the list of the aggravating circumstances, we

cannot say that the court relied upon all of the facts in the stipulated factual basis as

aggravators. Further, the court appeared to emphasize the fact that Laich turned on the

gas burner and left the home following his act of choking his grandmother when it stated:

“[a]fter choking his grandmother with a dog leash, the defendant turned the stove gas

burner on and left the home.” Id. at 39 (emphasis added). We conclude that the trial



        commits aggravated battery, a Class B felony.

The charging information related to Count IX, aggravated battery as a class B felony, alleged that Laich
“did knowingly or intentionally inflict injury on Carlene McGaha that created a substantial risk of death,
contrary to I.C. 35-42-2-1.5, and against the peace and dignity of the State of Indiana.” Appellant’s
Appendix at 29.
                                                    7
court considered the fact that Laich turned on the stove gas burner and left the home not

as a material element of the crime but as the nature and circumstances of the offense.

Consequently, the trial court did not abuse its discretion by considering the nature and

circumstances as an aggravating factor. See Sipple v. State, 788 N.E.2d 473, 482 (Ind.

Ct. App. 2003) (holding that the trial court’s explanation was significantly more than the

mere recitation of the elements of the offense, and adequately supported the finding of

the aggravating circumstance); Armstrong v. State, 742 N.E.2d 972, 981 (Ind. Ct. App.

2001) (holding that the trial court’s sentencing statement “makes clear that it was not the

pointing or shooting of the handgun that was the aggravating circumstance but the

manner in which those offenses were committed” and “[t]his was a proper use of the

nature and circumstances of the crimes committed as an aggravating factor”).

B.     Mitigators

       Laich argues that the trial court abused its discretion by failing to find his remorse

and mental illness as mitigators. The determination of mitigating circumstances is within

the discretion of the trial court. Rogers v. State, 878 N.E.2d 269 (Ind. Ct. App. 2007),

trans. denied. The trial court is not obligated to accept the defendant’s argument as to

what constitutes a mitigating factor, and a trial court is not required to give the same

weight to proffered mitigating factors as does a defendant. Id.

       Laich argues that the trial court failed to acknowledge his remorse. The State

argues that Laich’s expression of remorse was a mere three sentences spoken at his

sentencing hearing and the trial court did not abuse its discretion in failing to find this

brief expression of remorse to be a mitigating factor.

                                             8
       A trial court’s determination of a defendant’s remorse is similar to a determination

of credibility. Pickens v. State, 767 N.E.2d 530, 534-535 (Ind. 2002). Without evidence

of some impermissible consideration by the court, we accept its determination of

credibility.   Id.   The trial court is in the best position to judge the sincerity of a

defendant’s remorseful statements. Stout v. State, 834 N.E.2d 707, 711 (Ind. Ct. App.

2005), trans. denied.

       At sentencing, Laich apologized, stating that he knew it was wrong and that “[i]f

[he] could take it back, [he] would.” Transcript at 53. The court was able to consider

Laich’s statements, and based upon our review of the sentencing transcript and record we

cannot say that the trial court abused its discretion by not finding Laich’s alleged remorse

to be a mitigating circumstance.        See Stout, 834 N.E.2d at 711 (addressing the

defendant’s argument that the trial court had overlooked his remorse as a mitigating

factor and holding that the court did not err in not finding the defendant’s alleged remorse

to be a mitigating factor). To the extent that Laich argues that the trial court improperly

assessed the weight to be assigned to his guilty plea and admission of responsibility, we

note that such an argument is, in essence, a request for this court to reweigh those factors,

which we may not do. See Anglemyer, 868 N.E.2d at 490-491.

       Laich also argues that the trial court abused its discretion by acknowledging that

there was a history of mental illness but failing to find that it was a mitigating factor. The

State argues that no formal diagnosis of mental illness was presented to the trial court and

although counsel credits Laich’s mental illness for his frequent contact with law

enforcement, no clear nexus is established, nor is one supported by the record. In his

                                              9
reply brief, Laich argues that his mental illness was “acknowledged by all, even if it had

not been properly diagnosed.” Appellant’s Reply Brief at 3.

       “[M]ental illness at the time of the crime may be considered a significant

mitigating factor.” Castor v. State, 754 N.E.2d 506, 509 (Ind. 2001). The Indiana

Supreme Court has held that there is a need for “a high level of discernment when

assessing a claim that mental illness warrants mitigating weight.” Covington v. State,

842 N.E.2d 345, 349 (Ind. 2006). The following considerations are relevant when the

trial court determines the significance of a defendant’s mental illness for sentencing: (1)

the extent of the defendant’s inability to control his or her behavior due to the disorder or

impairment; (2) overall limitations on functioning; (3) the duration of the mental illness;

and (4) the extent of any nexus between the disorder or impairment and the commission

of the crime. Weeks v. State, 697 N.E.2d 28, 30 (Ind. 1998). A trial court is not required

to consider allegations of mental illness as a mitigator. James v. State, 643 N.E.2d 321,

323 (Ind. 1994).

       The presentence investigation report reveals that Laich stated that he was deemed

bipolar in 2009 or 2010 by a psychologist while he was incarcerated in the Westville

Correctional Facility and was prescribed medication. The letter from Dr. Caruana to the

trial court stated that Laich had reported that he had been diagnosed with bipolar

disorder. The record reveals a diagnostic formulation which indicates that Laich had

been hospitalized for “ADHD” and had received prior mental health counseling or

treatment for “SAA.”       Defendant’s Exhibit 3.       Under current mental status, the

formulation indicates that Laich’s thought form was coherent, his thought of content was

                                             10
appropriate, his insight was good, and his behavior was appropriate. The record does not

reveal evidence regarding the overall limitations on Laich due to his mental health issues

or the extent of any nexus between the disorder or impairment and the commission of the

crime. We cannot say that the trial court abused its discretion by failing to recognize

Laich’s mental health as a mitigator. See, e.g., Wooley v. State, 716 N.E.2d 919, 931

(Ind. 1999) (holding that the trial court did not abuse its discretion by determining that

the defendant’s mental illness was not a mitigating factor), reh’g denied.

                                                     II.

        The next issue is whether Laich’s sentence is inappropriate in light of the nature of

the offense and the character of the offender.3 Indiana Appellate Rule 7(B) provides that

this court “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 offense and the character of the offender.” 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).

        Laich argues that “there is nothing that suggests this crime is particularly

egregious or elevates it beyond a typical or ‘garden variety’ offense.” Appellant’s Brief

at 15. Laich contends that his mental illness played a great part in committing the

        3
           Laich cites Article 1, Section 18 of the Indiana Constitution and argues that “[t]he principles of
reformation will be met even if this Court revises the term of years to the advisory term of
imprisonment.” Appellant’s Brief at 18. To the extent that Laich suggests that his sentence violates
Article 1, Section 18 of the Indiana Constitution, which provides that “[t]he penal code shall be founded
on the principles of reformation, and not of vindictive justice,” we note that the Indiana Supreme Court
has held that “particularized, individual applications are not reviewable under Article 1, Section 18
because Section 18 applies to the penal code as a whole and does not protect fact-specific challenges.”
Ratliff v. Cohn, 693 N.E.2d 530, 542 (Ind. 1998), reh’g denied.

                                                    11
offense. Laich also argues that his criminal history is not causally connected to the

elements of the instant offense, that he pled guilty, and that he cooperated with the police.

The State argues that his sentence is not inappropriate given the serious nature of the

crime, Laich’s poor character, and prior attempts at leniency.

       Our review of the nature of the offense reveals that Laich argued with his eighty-

one-year-old grandmother, punched her, knocking her to the floor, wrapped a dog leash

around her neck, and choked her until she was unconscious. Laich then turned on the gas

burner on the stove and left the house.

       Our review of the character of the offender reveals that Laich stated that he was

deemed bipolar. The presentence investigation report reveals that Laich has a history of

substance abuse. Laich started using Xanax when he was seventeen years old which

evolved into a daily routine. Laich admitted to having an addiction, but has never sought

or received substance abuse treatment.

       Laich pled guilty to aggravated battery as a class B felony, and the State dismissed

charges of attempted murder, robbery as a class A felony, two counts of criminal

confinement as class B felonies, criminal confinement as a class C felony, battery as a

class C felony, intimidation as a class D felony, theft as a class D felony, and a theft

charge under another cause number.        Laich cooperated with the police by giving a

statement. Laich has convictions for invasion of privacy in 2007, invasion of privacy in

2008, and escape in 2009. Between 2007 and 2010, Laich was charged with multiple

counts of invasion of privacy, battery, criminal mischief, theft, and multiple counts of

invasion of privacy. Laich was provided the benefit of probation on both of his felony

                                             12
convictions, but violated probation in 2007 and 2008, and was on probation at the time of

the offense. At the sentencing hearing, the court stated: “Any attempt to try to give you

leniency absolutely has not worked.” Transcript at 57. After due consideration, we

conclude that Laich has not sustained his burden of establishing that his sentence of

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

       For the foregoing reasons, we affirm Laich’s sentence for aggravated battery as a

class B felony.

       Affirmed.

BAILEY, J., and VAIDIK, J., concur.




                                             13
