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                                  Jul 08 2014, 9:58 am
of establishing the defense of res
judicata, collateral estoppel, or the law
of the case.




ATTORNEY FOR APPELLANT:                              ATTORNEYS FOR APPELLEE:

MITCHELL A. PETERS                                   GREGORY F. ZOELLER
Merrillville, Indiana                                Attorney General of Indiana

                                                     LARRY D. ALLEN
                                                     Deputy Attorney General
                                                     Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

WILLIAM ROBERT TYLER,                                )
                                                     )
        Appellant-Defendant,                         )
                                                     )
               vs.                                   )     No. 64A04-1402-CR-71
                                                     )
STATE OF INDIANA,                                    )
                                                     )
        Appellee-Plaintiff.                          )


                      APPEAL FROM THE PORTER SUPERIOR COURT
                          The Honorable Roger C. Bradford Judge
                             Cause No. 64D01-1203-FC-2507


                                            July 8, 2014

                 MEMORANDUM DECISION – NOT FOR PUBLICATION

BARNES, Judge
                                      Case Summary

        William Tyler appeals his sentence for Class C felony battery. We affirm.

                                           Issues

        Tyler raises one issue, which we revise as:

               I.     whether the trial court abused its discretion when it
                      sentenced him; and

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

                                            Facts

        On March 12, 2012, Marco Tomich was playing baseball with friends at a park in

Valparaiso. Tyler approached a nearby fence and started yelling at Tomich to drop the

baseball bat and come to him because Tomich allegedly owed $400 to Tyler for a drug

debt.    Tomich started walking home, but Tyler and his friends followed.              Tyler

confronted Tomich, knocked the baseball bat out of his hand, and stabbed him in the

chest. Tyler then bragged to his friends that he had “stabbed the mother f***er in the

neck.” App. p. 17. The State charged Tyler with Class C felony battery, Class D felony

criminal recklessness, and Class A misdemeanor battery.

        Tyler pled guilty but mentally ill to Class C felony battery, and the State dismissed

the remaining charges. Under the plea agreement, the executed sentence was capped at

six years. At the sentencing hearing, the trial court found Tyler’s history of delinquent

behavior and the fact that he was on bond at the time of the arrest as aggravating factors.

The trial court found Tyler’s mental health issues as a mitigating factor. However, the


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trial court concluded that the aggravating factors outweighed the mitigating factors and

sentenced Tyler to eight years with two years suspended to probation. Tyler filed a

motion to correct error, arguing that the trial court failed to give enough weight to his

mental health, but the trial court denied the motion. Tyler now appeals.

                                          Analysis

                           I. Sentencing – Abuse of Discretion

       Tyler 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. The weight given to those reasons, i.e. to particular

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

       Tyler argues that the trial court failed to give proper weight to the mitigating factor

of his mental health. However, our supreme court in Anglemyer clearly held that the

weight given to particular aggravators or mitigators is not subject to review on appeal.

Consequently, we cannot review the weight given to Tyler’s mental health as a mitigator.

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See J.S. v. State, 928 N.E.2d 576, 579 (Ind. 2010) (refusing to review the weight given to

a defendant’s LSI-R score).

                           II. Sentencing – Inappropriateness

       Although Tyler claims in his issue statement that his sentence is inappropriate

under Indiana Appellate Rule 7(B) and includes the proper standard of review in his

brief, Tyler makes no specific argument concerning the nature of the offense and the

character of the offender. Consequently, Tyler has waived this issue. See Ind. Appellate

Rule 46(A)(8) (requiring argument to be supported by cogent reasoning).            Waiver

notwithstanding, we will address whether Tyler’s sentence is inappropriate under

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).

       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

                                            4
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). 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).

         The nature of the offense is that Tyler pursued Tomich because of an alleged $400

drug debt. Although Tomich walked away when Tyler confronted him, Tyler followed,

knocked a baseball bat out of Tomich’s hand, and stabbed Tomich in the chest. Tyler

then bragged to his friends about the stabbing. During his presentence investigation

interview, Tyler attempted to minimize his actions by stating, “everybody out to get my

money or my stuff.” App. p. 69.

         Our review of the character of the offender reveals that, other than the instant

offense, twenty-six-year-old Tyler already had seven misdemeanor convictions and one

felony conviction. In 2006, Tyler pled guilty to Class A misdemeanor possession of

paraphernalia and Class B misdemeanor visiting a common nuisance.              Tyler was

sentenced to probation, which he violated, and probation was terminated unsatisfactorily.

In 2007, he pled guilty to Class D felony aiding theft. In 2010, he pled guilty to Class A

misdemeanor resisting law enforcement. In 2010, he pled guilty to Class A misdemeanor

trespassing, and he violated his probation.       In 2011, he pled guilty to Class A

                                             5
misdemeanor possession of paraphernalia. In 2011, he also twice pled guilty to Class A

misdemeanor possession of marijuana. Tyler also had pending charges for Class A

misdemeanor operating a vehicle while intoxicated endangering a person, Class C

misdemeanor never received a valid driver’s license, and Class A misdemeanor

possession of paraphernalia. Tyler was on bond at the time of this offense. Tyler is also

unable to conform his behavior while incarcerated. Tyler incurred at least twenty-five

incident reports in 2011, fifteen incident reports in 2012, and fifteen incident reports in

2013.

        Tyler underwent a court-ordered competency examination.              He was found

competent to stand trial. However, Tyler was born with fetal alcohol syndrome and has

been diagnosed with schizoaffective disorder, bipolar disorder, and ADHD. He has had

at least two psychiatric hospitalizations and has been on many psychiatric medications.

He was repeatedly expelled from schools and did not complete high school. In 2005, he

was hit by a car, suffered a frontal brain injury, and was in a coma for one and one-half

months. As a result of the accident, he has been diagnosed with neurocognitive disorder,

which affects his impulse control, increases his paranoia, and increases his irritability.

        Tyler also admits to having abused illicit substances. He began drinking alcohol

when he was twelve years old. Over the years, he has abused or experimented with many

different drugs. At the time of this offense, he was under the influence of alcohol and

Xanax. He has never participated in substance abuse treatment.

        On appeal, Tyler argues that his mental health “creates significant permanent

problems with his normal functioning and is clearly implicated in the crime he

                                              6
committed.” Appellant’s Br. p. 21. We acknowledge that Tyler has significant mental

health issues. However, we must also give due regard, as the trial court did, to Tyler’s

criminal history. Prior leniency has not resulted in changes to Tyler’s behavior; rather,

his crimes have escalated.        Further, Tyler has failed to address his long-standing

substance abuse issues. The plea agreement capped Tyler’s executed time at six years,

which is the executed time that the trial court imposed. Given the circumstances here, we

conclude that the trial court’s sentence of eight years with two years suspended to

probation is not inappropriate.

                                         Conclusion

       Tyler may not challenge the weight given to his mental health issues, and the

sentence imposed by the trial court is not inappropriate. We affirm.

       Affirmed.

BAKER, J., and CRONE, J., concur.




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