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                              Aug 13 2013, 7:26 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT:                             ATTORNEYS FOR APPELLEE:

THOMAS W. VANES                                     GREGORY F. ZOELLER
Office of the Public Defender                       Attorney General of Indiana
Crown Point, Indiana
                                                    RICHARD C. WEBSTER
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana


                                IN THE
                      COURT OF APPEALS OF INDIANA

THOMAS E. STEVENS,                                  )
                                                    )
        Appellant-Defendant,                        )
                                                    )
                vs.                                 )       No. 45A05-1301-CR-6
                                                    )
STATE OF INDIANA,                                   )
                                                    )
        Appellee-Plaintiff.                         )


                        APPEAL FROM THE LAKE SUPERIOR COURT
                           The Honorable Clarence D. Murray, Judge
                                Cause No. 45G02-1206-FB-49


                                          August 13, 2013

                 MEMORANDUM DECISION – NOT FOR PUBLICATION

BARNES, Judge
                                      Case Summary

       Thomas Stevens appeals his five-year sentence for Class C felony battery resulting in

serious bodily injury. We affirm.

                                            Issue

       The sole issue before us is whether Stevens’s five-year sentence is inappropriate.

                                            Facts

       On May 31, 2012, fifty-two-year-old Stevens attacked his eighty-year-old father, John

Stevens, with a heavy wooden tray while John was watching television. The attack occurred

in John’s home in Hammond; Stevens had lived with and been dependent on John most of his

life. Although John begged Stevens to stop, he continued to strike John about the head and

body until John lost consciousness. Stevens, apparently intoxicated, then went to another

room and fell asleep. After John regained consciousness, he called 911 and was taken to the

hospital. As a result of the attack, John suffered bleeding on the brain, lacerations and

contusions to his head, a laceration on his arm, a swollen ear, and broken ribs.

       The State charged Stevens with Class B felony aggravated battery and two counts of

Class C felony battery resulting in serious bodily injury. Stevens agreed to plead guilty to

one count of Class C felony battery resulting in serious bodily injury, and the State dismissed

the other two counts. On December 4, 2012, the trial court sentenced Stevens to a term of

five years executed. Stevens now appeals.

                                          Analysis

       Stevens’s sole claim is that his sentence is inappropriate under Indiana Appellate Rule


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7(B) in light of his character and the nature of the offense. See Anglemyer v. State, 868

N.E.2d 482, 491 (Ind. 2007). He requests that we reduce his sentence to four years, the

advisory for a Class C felony. See Ind. Code § 35-50-2-6(a). Although Rule 7(B) does not

require us to be “extremely” deferential to a trial court’s sentencing decision, we still must

give due consideration to that decision. Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct.

App. 2007). We also understand and recognize the unique perspective a trial court brings to

its sentencing decisions. Id. “Additionally, a defendant bears the burden of persuading the

appellate court that his or her sentence is inappropriate.” Id.

       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 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. Whether a sentence is inappropriate

ultimately turns on 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. Id. at 1224.

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).

       Regarding the nature of the offense, this crime was especially heinous. Stevens was

                                              3
living with John, his elderly father, who had supported Stevens for most of his life, despite

the lack of any disability on Stevens’s part. Without any indication of provocation, Stevens

brutally attacked John, refusing to stop despite John’s pleas for mercy, until John lost

consciousness. Stevens did not seek any assistance for his battered father, who fortunately

regained consciousness and was able to call 911 and seek medical treatment. John’s injuries

were multiple and severe, especially for an elderly man.

       Turning to Stevens’s character, he first directs us to his guilty plea. Although guilty

pleas generally reflect favorably upon a defendant’s character, their mitigating weight when

considering the propriety of a sentence may be reduced “where the defendant receives

substantial benefit from the plea or where evidence against the defendant is so strong that the

decision to plead guilty is merely pragmatic.” Amalfitano v. State, 956 N.E.2d 208, 212 (Ind.

Ct. App. 2011), trans. denied. Here, the State agreed not to pursue a conviction against

Stevens for Class B felony aggravated battery in exchange for his guilty plea. We previously

have noted the significant overlap between the type of proof need to convict someone of

Class B felony aggravated battery and Class C felony battery resulting in serious bodily

injury. See Mann v. State, 895 N.E.2d 119, 123-24 (Ind. Ct. App. 2008). Also, the evidence

against Stevens appears to have been strong and undisputed. Stevens received a significant

benefit from the plea when the State agreed not to attempt to convict him of Class B felony

aggravated battery, the minimum sentence for which is one year more than the five-year

sentence he received. See I.C. § 35-50-2-5.

       Stevens also notes that he has no prior criminal convictions. It is true that a complete

                                              4
lack of criminal history may be significantly mitigating, especially when a person obtains his

or her first conviction relatively late in life, as Stevens did. See Cloum v. State, 779 N.E.2d

84, 91 (Ind. Ct. App. 2002). However, in a victim impact letter John wrote to the court, he

described an incident from the 1980s in which Stevens stabbed him in the stomach, requiring

surgery and hospitalization.     In his statement to the probation officer preparing the

presentence report, Stevens apparently acknowledged this “battery incident” and that it

resulted in psychological and alcohol abuse treatment for Stevens. App. p. 41. Although that

incident did occur approximately thirty years ago, and it apparently did not result in any

criminal charges being filed, it is troubling that the current incident is not the first in which

Stevens violently attacked his father.

       Stevens attempts to downplay this attack because it was described by his father in a

victim impact statement. He cites Cloum, where we stated:

              when a victim impact statement strays from the effect that a
              crime had upon the victim and others and begins delving into
              substantive, unsworn, and otherwise unsupported allegations of
              other misconduct or poor character on the part of the defendant,
              caution should be used in assessing the weight to be given to
              such allegations, especially where the defendant is not provided
              an opportunity to respond directly to them.

Cloum, 779 N.E.2d at 93. Here, however, Stevens did have the opportunity to dispute the

accuracy of John’s letter at the sentencing hearing if he had so desired, but he did not do so.

And, unlike the victim impact statement in Cloum, which related numerous hearsay

statements and multiple general allegations of poor character on the part of the defendant,

which conflicted with other evidence in the record and would have been difficult to respond

                                               5
to, John’s letter related just one distinct incident of which he and Stevens had personal

knowledge and was uncontradicted. We conclude that Stevens’s lack of prior convictions is

not as positive a reflection on his character as it might have been, given the undisputed

previous attack on John.

                                         Conclusion

       Given the egregiousness of the offense and that there are reasons to discount the

weightiness of Stevens’s guilty plea and lack of criminal history, we cannot say that his five-

year sentence is inappropriate.

       Affirmed.

CRONE, J., and PYLE, J., concur.




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