MEMORANDUM DECISION
                                                                      Apr 17 2015, 9:56 am
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 establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Michael J. Spencer                                        Gregory F. Zoeller
Monroe Co. Public Defender                                Attorney General of Indiana
Bloomington, Indiana
                                                          Richard C. Webster
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Kenneth E. Aker, Jr.,                                     April 17, 2015

Appellant-Defendant,                                      Court of Appeals Case No.
                                                          53A01-1409-CR-411
        v.                                                Appeal from the Monroe Circuit
                                                          Court III

State of Indiana,                                         The Honorable Kenneth G. Todd,
Appellee-Plaintiff                                        Judge

                                                          Cause No. 53C03-1301-FB-106




Friedlander, Judge.




Court of Appeals of Indiana | Memorandum Decision 53A01-1409-CR-411 | April 17, 2015         Page 1 of 12
[1]   Kenneth Aker, Jr. appeals the sentence he received as a result of his plea of

      guilty to the offense of neglect of a dependent resulting in serious bodily injury,

      a class B felony.1 Aker presents the following restated issues for review:

               1.       Did the trial court abuse its discretion in its identification
                        of aggravating circumstances?
               2.       Did the trial court abuse its discretion in its identification
                        of mitigating circumstances?
               3.       Is Aker’s sentence inappropriate in light of the offense and
                        his character?
[2]   We affirm.

[3]   The facts supporting Aker’s conviction are that since 2001, he was employed as

      caregiver to T.W., who was fifty-three years old at the time of this offense.

      T.W. was afflicted with cerebral palsy and was unable to speak or care for

      herself. On January 26, 2013, T.W. was transported to Bloomington Hospital

      by emergency medical personnel after Aker called for assistance, reporting that

      T.W. was experiencing respiratory distress and became unresponsive. Upon

      her arrival, T.W. was examined by hospital personnel, who observed that she

      was in very poor health and had severe bedsores covering the lower half of her

      body. T.W. was pronounced dead shortly after her arrival.




      1
        The version of the governing statute, i.e., Ind. Code Ann. § 35-46-1-4(b)(2) (West, Westlaw 2013), in effect
      at the time this offense was committed classified it as a class B felony. This statute has since been revised and
      in its current form reclassifies this as a Level 3 felony. See I.C. § 35-46-1-4(b)(2) (West, Westlaw current with
      legislation of the 2015 First Regular Session of the 119th General Assembly effective through March 24,
      2015). The new classification, however, applies only to offenses committed on or after July 1, 2014. See id.
      Because this offense was committed before then, it retains the former classification.

      Court of Appeals of Indiana | Memorandum Decision 53A01-1409-CR-411 | April 17, 2015                Page 2 of 12
[4]   When questioned at the time, Aker claimed that T.W. had been afflicted with

      bedsores since he began caring for her in 2001, but that the sores normally

      healed after he applied topical medication. He claimed that in early January of

      2013, T.W.’s bedsores “got out of hand.” Transcript at 52. Although Aker

      admitted that he should have sought medical assistance because of T.W.’s

      condition, he failed to do so. He noted that in the week prior to her death,

      T.W. exhibited flulike symptoms and did not eat as much as she normally did.

      An autopsy performed on T.W. revealed she died of malnutrition and a partial

      bowel obstruction.

[5]   Aker was charged with neglect of a dependent resulting in serious bodily injury,

      as a class B felony. Aker entered into a plea agreement whereby he agreed to

      plead guilty to the charge, in exchange for which the State agreed to an eight-

      year cap on his sentence. Under the agreement, the trial court retained

      discretion to determine the sentence within the agreed-upon range. Following a

      hearing, the trial court sentenced Aker to eight years in the Department of

      Correction, all executed.

                                                        1.
[6]   Aker contends that the trial court abused its discretion in finding an element of

      the offense as an aggravating circumstance, i.e., that he neglected the care of a

      person who was unable to care for herself.

[7]   Trial courts must enter sentencing statements whenever a sentence for a felony

      offense is imposed. Anglemyer v. State, 868 N.E.2d 482 (Ind. 2007), clarified on


      Court of Appeals of Indiana | Memorandum Decision 53A01-1409-CR-411 | April 17, 2015   Page 3 of 12
      reh’g, 875 N.E.2d 218. The statement must include a reasonably detailed

      recitation of the reasons for imposing the particular sentence selected. Id. If

      there is a finding of aggravating and mitigating circumstances, the statement

      must identify all significant aggravating and mitigating circumstances with an

      explanation of the characterization of the circumstances as either aggravating or

      mitigating. Id.


[8]   We review sentencing decisions only for an abuse of discretion, except for the

      review-and-revise power provided for in Indiana Appellate Rule 7(B). Id. If the

      sentence is within the statutory range for the particular offense, we must

      determine only if there was an abuse of discretion. An abuse of discretion exists

      if the trial court’s 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. Id.


[9]   A trial court can abuse its discretion in sentencing in several ways, including

      entering a sentencing statement that explains the reasons for imposing a

      sentence accompanied by the finding of aggravating and mitigating factors that

      are not supported by the record, entering a sentencing statement that omits

      reasons clearly supported by the record and advanced for consideration, or

      citing reasons that are improper as a matter of law. Id. We will remand for

      resentencing if we cannot say with confidence that the trial court would have

      imposed the very same sentence had it considered the omitted reasons that are

      clearly supported by the record for sentencing. Id.



      Court of Appeals of Indiana | Memorandum Decision 53A01-1409-CR-411 | April 17, 2015   Page 4 of 12
[10]   Aker contends that the trial court relied upon an improper aggravating

       circumstance, which ultimately led to the imposition of two years less than the

       advisory sentence instead of a lesser sentence within the statutory range. When

       the trial court sentenced Aker, it found the following aggravating

       circumstances: 1) The amount of suffering endured by the victim; and 2) what

       Aker characterizes as the fact that the victim was incapable of caring for herself

       and entrusted her care to him. The trial court found several mitigating

       circumstances, including the following: 1) Aker presented a low risk of

       reoffending, and the crime was unlikely to recur; 2) Aker was genuinely

       remorseful; and 3) Aker’s criminal history was relatively mild and included “no

       related prior convictions or prior criminal history … [t]hat would have any

       bearing at all on his sentence in this case.” Transcript at 61.


[11]   Aker challenges the aggravating factor that he describes as the fact that the

       deceased victim was incapable of caring for herself and entrusted her care to

       him. According to Aker, this is an element of his offense (i.e. “[a] person

       having the care of a dependent, whether assumed voluntarily or because of a

       legal obligation, who knowingly or intentionally …”). I.C. § 35-46-1-4(a).

       Aker correctly observes that the trial court generally may not cite an element of

       the crime as an aggravator. Gomillia v. State, 13 N.E.3d 846 (Ind. 2014).


[12]   When articulating its findings of aggravating and mitigating circumstances, the

       trial court stated:

               the worst thing about this case Mr. Aker is that this is a person
               incapable of caring for themselves and entrusted to your care and

       Court of Appeals of Indiana | Memorandum Decision 53A01-1409-CR-411 | April 17, 2015   Page 5 of 12
        regardless of your, your life experiences or this past event that
        you say caused you to panic you did whatever your performance
        of duties prior to this time get to the point where you neglected
        the care of someone who was unable to care for themselves and
        allow them to perish in your, in your care due to neglect.
Transcript at 64. Read in isolation, the foregoing can arguably be interpreted as

a finding that the victim was incapable of caring for herself and entrusted her

care to Aker, which is an element of the offense of which Aker was convicted.

Read in context, however, we are inclined to view this as the final portion of the

court’s comments finding the nature and circumstances of the crime as an

aggravator. The comments immediately preceding those reproduced above

included the following:

        [O]n the other hand and by the way it is difficult to look at the autopsy
        report[.] … The autopsy report indicates that there this [sic] large, I
        can’t pronounce the word that Dr. Kohr uses, decubitus ulcer it says
        that there was a severe excoriation of the thighs and perineum no
        doubt related to the diarrhea that you described. He notes that in
        addition to that which I find to be of some interest is that there was the
        stomach contained only 50 milliliters of dark brown liquid and
        particular [sic] matter indicating no food. The bladder was empty and
        there was a large fecal impaction and then we have of course the sore.
        So however we got to this point in you saying, you describing this as
        things as getting out of hand and you panicking its apparent to the
        Court that at some point you became inattentive to her and that her
        last days on this earth were in fact painful and she couldn’t help but, I
        don’t see how you could say she could help but suffer.
Id. at 62-63. We conclude that the comments to which Aker objects were a part

of the court’s evaluation of the nature and circumstances of Aker’s offense,

which the court found to be aggravating. Of course, it is appropriate for a trial

court to consider as an aggravating circumstance that the harm suffered by the


Court of Appeals of Indiana | Memorandum Decision 53A01-1409-CR-411 | April 17, 2015   Page 6 of 12
       victim of the offense was significant and greater than the elements necessary to

       prove the commission of the offense. See Ind. Code Ann. § 35-38-1-7.1(a)(1)

       (West, Westlaw current with legislation of the 2015 First Regular Session of the

       119th General Assembly effective through March 24, 2015); Gomillia v. State, 13

       N.E.3d 846. The trial court did not err in its finding of aggravating

       circumstances.

                                                     2.
[13]   Aker contends that the trial court abused its discretion in omitting as a

       mitigating factor that Aker’s dependents would experience undue hardship as a

       result of his incarceration. As indicated above, the trial court’s sentencing order

       is reviewed for an abuse of discretion. Anglemyer v. State, 868 N.E.2d 482. An

       abuse of discretion occurs when a 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.” Id. at 490 (quoting

       K.S. v. State, 849 N.E.2d 538, 544 (Ind. 2006)). A trial court abuses its

       discretion when it omits significant mitigating factors that are clearly supported

       by the record and advanced for consideration. Anglemyer v. State, 868 N.E.2d.

       482. We note, however, that although a sentencing court must consider all

       evidence of mitigating factors presented by a defendant, it is not obligated to

       weigh or credit them in the manner a defendant suggests. Scott v. State, 840

       N.E.2d 376 (Ind. Ct. App. 2006), trans. denied. Also, a sentencing court “need

       not consider, and we will not remand for reconsideration of, alleged mitigating

       circumstances that are highly disputable in nature, weight, or significance.”


       Court of Appeals of Indiana | Memorandum Decision 53A01-1409-CR-411 | April 17, 2015   Page 7 of 12
       Creekmore v. State, 853 N.E.2d 523, 530 (Ind. Ct. App. 2006), clarified on reh’g,

       858 N.E.2d 238.

[14]   With respect to the significant mitigating circumstance that Aker contends the

       trial court omitted, our Supreme Court has stated, “[m]any persons convicted of

       serious crimes have one or more children and, absent special circumstances,

       trial courts are not required to find that imprisonment will result in an undue

       hardship.” Dowdell v. State, 720 N.E.2d 1146, 1154 (Ind. 1999). The only

       mention of Aker’s children in the context of mitigating circumstances came

       during counsel’s final argument at the sentencing hearing, where he stated as

       follows: “The other thing is he had two minor children that he had shared [sic]

       of and that is a mitigating factor he should be able to be out to help provide and

       support for those children.” Transcript at 60. The brief mention of Aker’s

       children alludes to no “special circumstances” at all, much less those that would

       compel the court to find as a mitigator that Aker’s incarceration would impose

       “undue hardship” within the meaning of Dowdell. The trial court did not err in

       the finding of mitigating circumstances.

                                                     3.
[15]   Aker contends that his sentence is inappropriate in light of the nature of his

       offense and his character. Article 7, section 4 of the Indiana Constitution grants

       our Supreme Court the power to review and revise criminal sentences. See

       Knapp v. State, 9 N.E.3d 1274 (Ind. 2014), cert. denied, 2015 WL 133288 (Jan.

       12, 2015). Pursuant to Ind. Appellate Rule 7, the Supreme Court authorized

       this court to perform the same task. Cardwell v. State, 895 N.E.2d 1219 (Ind.

       Court of Appeals of Indiana | Memorandum Decision 53A01-1409-CR-411 | April 17, 2015   Page 8 of 12
       2008). Per App. R. 7(B), we may revise a sentence “if after due consideration

       of the trial court’s decision, the Court finds that the sentence is inappropriate in

       light of the nature of the offense and the character of the offender.” Inman v.

       State, 4 N.E.3d 190, 203 (Ind. 2014) (quoting App. R. 7). “Sentencing review

       under Appellate Rule 7(B) is very deferential to the trial court.” Conley v. State,

       972 N.E.2d 864, 876 (Ind. 2012). Aker bears the burden on appeal of

       persuading us that his sentence is inappropriate. Conley v. State, 972 N.E.2d

       864.

[16]   The determination of whether we regard a sentence as appropriate “turns on

       our sense of 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.” Bethea v. State, 983 N.E.2d 1134, 1145 (Ind. 2013) (quoting Cardwell v.

       State, 895 N.E.2d at 1224). Moreover, “[t]he principal role of such review is to

       attempt to leaven the outliers.” Chambers v. State, 989 N.E.2d 1257, 1259 (Ind.

       2013). It is not our goal in this endeavor to achieve the perceived “correct”

       sentence in each case. Knapp v. State, 9 N.E.3d 1274. Accordingly, “the

       question under Appellate Rule 7(B) is not whether another sentence is more

       appropriate; rather, the question is whether the sentence imposed is

       inappropriate.” King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008)

       (emphasis in original). Our Supreme Court has indicated that when analyzing

       the appropriateness of a criminal sentence, there is “no right answer ... in any

       given case.” Brown v. State, 10 N.E.3d 1, 8 (Ind. 2014) (quoting Cardwell v. State,

       895 N.E.2d at 1224). Rather, appellate review and, where appropriate, revision

       Court of Appeals of Indiana | Memorandum Decision 53A01-1409-CR-411 | April 17, 2015   Page 9 of 12
       “ultimately boils down to the appellate court’s ‘collective sense of what is

       appropriate, not a product of a deductive reasoning process.’” Id. (quoting

       Cardwell v. State, 895 N.E.2d at 1225.


[17]   In order to assess the appropriateness of a sentence, we first look to the

       statutory ranges established for the classification of the relevant offenses. Aker

       was convicted of a class B felony – neglect of a dependent resulting in serious

       bodily injury. The advisory sentence for a class B felony is ten years, with the

       minimum and maximum sentence being six and twenty years, respectively.

       Aker was sentenced to two years less than the advisory term, i.e., eight years.

[18]   Regarding the nature of his offense, Aker was the paid custodian and caregiver

       of T.W., a woman with severe cerebral palsy who was entirely dependent upon

       him for her care. She was unable to speak or care for herself and was confined

       to a bed or wheelchair. Although it appears that Aker cared for her adequately

       for a period of years, at some point he began to neglect her care such that she

       developed severe bedsores covering the lower half of her body, one of which

       was large enough and deep enough that it ate deeply into the muscle beneath it.

       The photos of her injuries indicate that she almost surely suffered severe pain as

       a result. Although Aker claimed that he attempted to treat the bedsores, he

       acknowledged that they eventually “got out of hand”, which understates the

       severity of her condition as reflected in post-mortem photos. Transcript at 52.

       Yet, he failed to seek medical help until he perceived that she was having

       trouble breathing. Moreover, under Aker’s care, by the time he summoned

       medical assistance as a result of T.W.’s breathing difficulties, T.W. suffered

       Court of Appeals of Indiana | Memorandum Decision 53A01-1409-CR-411 | April 17, 2015   Page 10 of 12
       from extreme malnutrition and a bowel obstruction, with those conditions

       being severe enough to cause her death. In summary, a disabled woman who

       depended entirely upon Aker for her care and well-being died a premature and

       painful death entirely as a result of his extreme neglect.

[19]   As for Aker’s character, the trial court aptly noted that he has an almost

       inconsequential criminal history, consisting of a long-ago misdemeanor

       conviction of operating while intoxicated and a more recent charge of

       misdemeanor check deception, which was ultimately dismissed. The trial

       court’s finding that he is a low risk to reoffend is well grounded in the evidence

       in this case. It also appears that Aker provided adequate care, and perhaps

       better than adequate care, for T.W. for a number of years before the recent

       precipitous decline in care that led to her death. The trial court accepted Aker’s

       expression of remorse as genuine, and we see no reason to quibble with that

       finding. We cannot, however, ignore the way T.W.’s life ended and the role

       Aker played in her death. Not only did he cease providing adequate care, but

       he also ignored very obvious symptoms that would indicate to even a casual

       observer that T.W. was enduring great suffering. Moreover, he acknowledged

       that the reason he did not act more quickly on her behalf was rooted in his own

       self-interest, i.e., he was afraid he would be blamed for her poor condition. The

       decision to elevate his own self-interest above T.W.’s great suffering and even

       survival does not reflect well on his character. In the final analysis, we find no

       fault in the imposition of a sentence that, although the maximum permissible

       under the terms of the plea agreement, was nevertheless below the advisory


       Court of Appeals of Indiana | Memorandum Decision 53A01-1409-CR-411 | April 17, 2015   Page 11 of 12
       sentence for a class B felony. We do not believe that Aker’s character and the

       nature of his offense compel this court to conclude that an eight-year sentence is

       inappropriately long.


[20]   Judgment affirmed.

       Baker, J., and Najam, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 53A01-1409-CR-411 | April 17, 2015   Page 12 of 12
