MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                        FILED
regarded as precedent or cited before any
                                                                        Aug 28 2019, 9:21 am
court except for the purpose of establishing
the defense of res judicata, collateral                                      CLERK
                                                                         Indiana Supreme Court
estoppel, or the law of the case.                                           Court of Appeals
                                                                              and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Jerry T. Drook                                           Curtis T. Hill, Jr.
Grant County Public Defender’s Office                    Attorney General of Indiana
Marion, Indiana
                                                         Michael Vo Sherman
                                                         Certified Legal Intern

                                                         Megan M. Smith
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Ronald L. Poling, Jr.,                                   August 28, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-672
        v.                                               Appeal from the Grant Superior
                                                         Court
State of Indiana,                                        The Honorable Dana J.
Appellee-Plaintiff.                                      Kenworthy, Judge
                                                         The Honorable Brian F. McLane,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         27D02-1801-F5-5



Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-672 | August 28, 2019                   Page 1 of 6
                                       Statement of the Case
[1]   Ronald L. Poling, Jr. appeals his sentence following his guilty plea to domestic

      battery, as a Level 5 felony. He raises one issue for our review, namely,

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


[2]   We affirm.


                                 Facts and Procedural History
[3]   On the morning of January 7, 2018, Poling and his wife, M.P., began to argue.

      The argument “escalated,” and Poling “shoved” M.P., which caused “pain” to

      her shoulder. Appellant’s App. Vol. II at 18. The argument woke up Kara

      Poling, another resident of the home, and Kara went to see what was

      happening. Kara witnessed Poling “push” M.P. Kara then informed her

      husband, William Poling, that Poling “was putting hands on” M.P. again. Id.

      William confronted Poling, and Poling “attacked” William, “putting him in a

      headlock.” Id. Kara then called the police, and Poling fled. Officers later

      located and detained Poling.


[4]   The State charged Poling with two counts of domestic battery. For Count I, the

      State charged Poling with domestic battery, as a Class A misdemeanor, based

      on the allegation that Poling had hit and/or shoved M.P. The State then

      elevated that charge to a Level 5 felony because Poling had previously been

      convicted of domestic battery against M.P. For Count II, the State charged

      Poling with domestic battery, as a Class A misdemeanor, based on the

      allegation that Poling had grabbed, hit, or shoved William.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-672 | August 28, 2019   Page 2 of 6
[5]   On January 7, 2019, the parties filed a plea agreement. Pursuant to that

      agreement, Poling agreed to plead guilty to Count I, and the State agreed to

      dismiss Count II. The parties also agreed to a sentence of four years, with a

      maximum of two years executed. That same day, the trial court held a hearing

      on Poling’s guilty plea. During the hearing, Poling admitted that he had

      knowingly touched M.P. in a rude, insolent, or angry manner by “hitting

      and/or shoving her.” Tr. Vol. II at 8. He further admitted that he had

      previously been convicted of domestic battery against M.P. The trial court took

      Poling’s guilty plea under advisement.


[6]   On February 25, the trial court held a sentencing hearing. At the conclusion of

      the hearing, the trial court entered judgment of conviction against Poling for

      Count I, and the court dismissed Count II. The court then sentenced Poling as

      follows: “I’m going to sentence [you] to the two years executed and two years

      suspended. Um, I know that you do have substantial—well you do have [a]

      criminal history and, uh, note that one of those was also Domestic Battery with

      a Spouse.” Id. at 17.


[7]   That same day, the trial court issued a written sentencing order in which it

      identified aggravating factors. Specifically, the trial court found that Poling

      “has a history of criminal and/or delinquent activity.” Appellant’s App. Vol. II

      at 59. The court also found that Poling “showed no remorse for his actions”

      and that he “minimized and gave excuses for the incident.” Id. The court

      found that both of those factors were “strong aggravators.” Id. (emphasis in

      original). The court found that there were no mitigating factors. Accordingly,

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-672 | August 28, 2019   Page 3 of 6
       the court reiterated Poling’s sentence of four years, with two years executed and

       two years suspended to probation. Id. This appeal ensued.


                                      Discussion and Decision
[8]    Poling contends that the trial court abused its discretion when it sentenced him.

       Sentencing decisions lie within the sound discretion of the trial court. Cardwell

       v. State, 895 N.E.2d 1219, 1222 (Ind. 2008). An abuse of discretion occurs if the

       decision is “clearly against the logic and effect of the facts and circumstances

       before the court, or the reasonable, probable, and actual deductions to be drawn

       therefrom.” Gross v. State, 22 N.E.3d 863, 869 (Ind. Ct. App. 2014) (citation

       omitted), trans. denied.


[9]    A trial court abuses its discretion in sentencing if it does any of the following:


               (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.”


       Id. (quoting Anglemyer v. State, 868 N.E.2d 482, 490-491 (Ind.), clarified on reh’g

       other grounds, 875 N.E.2d 218 (Ind. 2007)).


[10]   Here, Poling pleaded guilty to domestic battery, as a Level 5 felony. The

       sentencing range for a Level 5 felony is one year to six years, with an advisory

       sentence of three years. Ind. Code § 35-50-2-6(b) (2019). Following a


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-672 | August 28, 2019   Page 4 of 6
       sentencing hearing, the trial court sentenced Poling to an enhanced sentence of

       four years, with two years executed and two years suspended to probation.


[11]   On appeal, Poling contends that the trial court abused its discretion when it

       sentenced him because it used “a material element of the offense” as an

       aggravating factor to enhance his sentence. Appellant’s Br. at 8 (emphasis

       removed). Specifically, Poling contends that the court relied on his previous

       conviction for domestic battery against M.P. when it imposed an enhanced

       sentence even though the State had used that conviction to enhance his charge

       from a Class A misdemeanor to a Level 5 felony.


[12]   Poling is correct that, “[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.’”

       Gomilla v. State, 13 N.E.3d 846, 852-23 (Ind. 2014) (quoting Anglemeyer, 868

       N.E.2d at 491). However, while the trial court mentioned Poling’s previous

       domestic battery conviction at the sentencing hearing, it did so to “note” that

       that conviction was only “one of” the convictions in his criminal history. Tr.

       Vol. II at 17. Further, in its written sentencing statement, the trial court

       specifically identified as aggravating factors Poling’s lack of remorse and his

       entire criminal history, which includes three felony convictions, four

       misdemeanor convictions, and three prior probation violations. Accordingly, it

       is clear that the trial court did not rely solely on Poling’s prior domestic battery



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-672 | August 28, 2019   Page 5 of 6
       conviction when it imposed a sentence above the advisory. We therefore

       cannot say that the trial court abused its discretion when it sentenced him.


[13]   Affirmed.


       Bailey, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-672 | August 28, 2019   Page 6 of 6
