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
                                                            FILED
                                                          Feb 25 2013, 9:43 am
establishing the defense of res judicata,
collateral estoppel, or the law of the                           CLERK
                                                               of the supreme court,
case.                                                          court of appeals and
                                                                      tax court




ATTORNEY FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

KRISTIN A. MULHOLLAND                           GREGORY F. ZOELLER
Office of the Public Defender                   Attorney General of Indiana
 Appellate Division
Crown Point, Indiana                            JONATHAN R. SICHTERMANN
                                                Deputy Attorney General
                                                Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

MICHAEL T. IVY,                                 )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )        No. 45A03-1207-CR-331
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                      APPEAL FROM THE LAKE SUPERIOR COURT
                       The Honorable Thomas P. Stefaniak, Jr., Judge
                             Cause No. 45G04-1106-FA-29



                                     February 25, 2013


                MEMORANDUM DECISION - NOT FOR PUBLICATION


BROWN, Judge
       Michael T. Ivy appeals his sentence for battery as a class A felony. Ivy raises one

issue which we revise and restate as whether his 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 June 25, 2011, Ivy,

who was born on February 23, 1988, his daughter McKenzie Smalley, who was born on

April 1, 2011, McKenzie’s mother Dyane Smalley,1 and McKenzie’s two sisters resided

in an apartment in Lake County. Ivy wanted to smoke some “gas station weed” in his

bedroom while he watched television.2 Appellant’s Appendix at 48. McKenzie was in

her bouncer in the bedroom, and Ivy moved the bouncer into the living room. McKenzie

would not stop crying in the living room, and Ivy became angry at her for crying. Ivy

crouched down in front of McKenzie and placed his right knee hard into her stomach.

The pressure of Ivy’s knee caused McKenzie to defecate in her diaper, and the

“defecation oozed out of the diaper far up her back.” Id. Ivy saw McKenzie raise up her

arm and gasp for air after he kneed her, and her eyes rolled back into her head. Ivy then

cleaned McKenzie, placed her in the bouncer and continued to smoke weed for another

twenty to thirty minutes in his bedroom while McKenzie remained in the living room.

Ivy returned to the living room, found McKenzie unresponsive, and violently shook her.

As a result of the above acts, McKenzie suffered extensive head injuries with massive

intracranial hemorrhages, right epidural hemorrhage at the right frontal area, contusion

hemorrhages over the right and left side of the cerebrum and cerebellum, fresh

       1
           The PSI spells Dyane Smalley’s name as Deonna.
       2
         At the sentencing hearing, Ivy’s counsel indicated that “gas station weed” was synthetic
marijuana. Transcript at 27.
                                                  2
hemorrhages in the soft tissue along the optic nerve of the posterior aspect of the right

and left eyeball, contusions over the chest wall, and rib fractures. She died as a result of

her injuries.

       On June 29, 2011, the State charged Ivy with Count I, battery as a class A felony;

Count II, neglect of a dependent as a class A felony; Count III, aggravated battery as a

class B felony; and Count IV, neglect of a dependent as a class B felony. On July 27,

2011, Ivy pled not guilty. On September 20, 2011, in addition to the foregoing charges,

the State charged Ivy with murder, and Ivy pled not guilty.

       In October 2011, Ivy declined the setting of a jury trial three times. On November

4, 2011, Ivy filed a pro se motion to dismiss Counts I, II, III, and IV, and argued that the

charges against him were false.       The court refused the motion because Ivy was

represented by counsel. On November 30, 2011, Ivy filed a verified motion to suppress

evidence and argued that “all evident [sic] and miscellaneous documents in the State of

Indiana, Discovery is without merit.” Id. at 39.

       At a December 6, 2011 hearing, Ivy’s counsel moved to withdraw his appearance

which the court granted. The court then appointed a public defender. Ivy filed a pro se

motion to suppress evidence then withdrew the motion in open court indicating that he

wished to speak with his public defender prior to proceeding on the motion. On January

4, 2012, the court scheduled a jury trial for June 11, 2012, and Ivy was advised of the

State’s right to trial in absentia.

       On May 3, 2012, Ivy pled guilty to Count I, battery as a class A felony, and the

State dismissed the remaining charges. The plea agreement stated that the parties agreed

                                             3
that they would be able to fully argue their respective positions but that the sentence

would be capped at forty years in the Department of Correction. The court accepted the

plea agreement.

       At the sentencing hearing, Ivy acknowledged that McKenzie’s sleeping mother

was present in the house and that she did not wake up when McKenzie was crying. 3 Ivy

also stated:

       I want to apologize for the things that I said and the things that I did. And I
       apologize to my family and I want to – I will do anything, anything to get
       another chance to show to the State and to you, Your Honor, and my family
       that I’m not this bad parent.

Transcript at 29. When asked by the trial court how often he smoked marijuana, Ivy

stated “like every blue moon.” Id. When asked to clarify, he said that he smoked “out of

a week like three days out of the week that I smoked gas station marijuana . . . .” Id. Ivy

also indicated that he was used to smoking synthetic marijuana.

       The court found the facts that Ivy pled guilty and accepted responsibility as

mitigators. The court expressly rejected the “mitigating factor proffered by the defense

that [Ivy] has no criminal history and has lead a law-abiding life for a substantial period

before the commission of this crime, because [Ivy] has admitted to regular marijuana

usage.” Id. at 34. The court found Ivy’s position of trust as a significant aggravating

factor. Specifically, the court stated:

       In aggravation, the Court finds that [Ivy], as the father of this child, this
       eleven week old child known as McKenzie Small[e]y, was in a position of
       trust as the father, and had the care and custody of this child at a time in

       3
          The prosecutor read a letter from McKenzie’s mother which read in part: “Knowing she’d be
here if you would have cared enough to just wake me up.” Transcript at 20. A letter from McKenzie’s
grandmother asked: “Why didn’t [Ivy] wake up [McKenzie’s mother]?” Id. at 22.
                                                4
        Mr. Ivy’s life, where he was already the father of five other children; had
        experience with the care of these children and chose to consume gas station
        weed or synthetic marijuana at a time after he had been arrested for two
        past regular marijuana charges and at a time after he went to rehab, as
        ordered by a Judge at the Hammond City Court. This position of trust is a
        significant aggravating factor because an eleven week old child is incapable
        of doing anything for herself and relies solely on others to survive.

Id. at 35. The court found that the aggravating factor substantially outweighed the

mitigating factor and sentenced Ivy to forty years in the Department of Correction.

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

offense and the character of the offender. Ind. 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 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).

        Ivy argues that his “lack of a criminal record demonstrates that he has been

leading a law-abiding life up until this time” and that “[t]his should be considered as a

favorable factor in evaluating his character.” Appellant’s Brief at 7. Ivy also points out

that he pled guilty.4 With respect to the nature of the offense, he states merely that the

battery of McKenzie falls within the statutory definition of the crime and that the

sentence for a crime of this class is a term between twenty and fifty years with an

        4
          Ivy also argues that he “deserves to have mitigating weight extended to his guilty plea.”
Appellant’s Brief at 7. As previously mentioned, the court found the facts that Ivy pled guilty and
accepted responsibility as mitigators. To the extent that Ivy argues that the trial court improperly assessed
the weight to be assigned to his guilty plea as a mitigating circumstance, we note that the argument is, in
essence, a request for this court to reweigh that factor, which we may not do. See Anglemyer v. State,
868 N.E.2d 482, 490-491 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007).

                                                     5
advisory sentence of thirty years. Ivy also appears to argue that given the nature of the

offense, the maximum sentence under the plea agreement was inappropriate. The State

argues that Ivy’s sentence is not inappropriate in light of the brutal attack and his poor

character.

       Our review of the nature of the offense reveals that Ivy wanted to smoke some

“gas station weed” in his bedroom while he watched television. Appellant’s Appendix at

48. Ivy became angry with his daughter, McKenzie, who was less than three months old,

when she would not stop crying. While McKenzie’s sleeping mother was present in the

residence, Ivy placed his right knee hard into McKenzie’s stomach causing her to

defecate in her diaper. McKenzie raised her arm, gasped for air, and her eyes rolled back

into her head. Ivy then left McKenzie in the living room and smoked marijuana for

twenty to thirty minutes. When Ivy returned to the living room and found McKenzie

unresponsive, he violently shook her. As a result of these acts, McKenzie suffered

extensive injuries and died.

       Our review of the character of the offender reveals that Ivy pled guilty to battery

as a class A felony ten months after the initial charges were filed, and the State dismissed

four other charges including murder.             Ivy apologized at the sentencing hearing.

However, the following exchange also occurred:

       Q.     How do you feel knowing that you killed your daughter?

       A.     Oh, it hurts me to death, Your Honor. It hurts me.

       Q.     Sure doesn’t seem like it. . . .



                                                 6
Transcript at 33. The presentence investigation report (the “PSI”) indicates that Ivy used

marijuana two years ago and that he had never tried any other illicit substances.

According to the stipulated factual basis, Ivy smoked “gas station weed.” Appellant’s

Appendix at 48. At the sentencing hearing, Ivy admitted to using synthetic marijuana

three days a week, that he had been smoking it for “probably like two months,” and that

he was used to smoking it. Transcript at 29. He testified that he had to attend rehab after

he was arrested for marijuana possession in 2009.

       The PSI indicates that Ivy does not have a juvenile history or adult convictions.

He was charged with minor in possession, illegal consumption of an alcoholic beverage,

possession of “Marijuana/Hash Oil/Hashish,” disregarding a stop sign, and driving while

suspended, but these charges were dismissed. Appellant’s Appendix at 59. Ivy was also

charged with possession of “Marijuana/Hash Oil/Hashish” and received a conditional

discharge.   Id.   Ivy has five other children by three different women.        After due

consideration, we cannot say that the sentence imposed by the trial court is inappropriate

in light of the nature of the offense and the character of the offender.

       For the foregoing reasons, we affirm Ivy’s sentence for battery as a class A felony.

       Affirmed.

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




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