MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                      FILED
this Memorandum Decision shall not be
                                                                       Jan 15 2019, 9:08 am
regarded as precedent or cited before any
court except for the purpose of establishing                                CLERK
                                                                        Indiana Supreme Court
the defense of res judicata, collateral                                    Court of Appeals
                                                                             and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Devon M. Sharpe                                          Curtis T. Hill, Jr.
Jenner & Pattison                                        Attorney General of Indiana
Madison, Indiana
                                                         Henry A. Flores, Jr.
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Donald J. Howard,                                        January 15, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-1736
        v.                                               Appeal from the
                                                         Jefferson Circuit Court
State of Indiana,                                        The Honorable
Appellee-Plaintiff.                                      Darrell M. Auxier, Judge
                                                         Trial Court Cause No.
                                                         39C01-1612-F3-1132



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1736 | January 15, 2019                Page 1 of 7
[1]   Donald J. Howard (“Howard”) pleaded guilty to battery resulting in serious

      bodily injury1 as a Level 3 felony and was sentenced to nine years, with six

      years executed in the Indiana Department of Correction (“DOC”) and three

      years suspended to probation. He now appeals, contending that his sentence is

      inappropriate in light of the nature of the offense and his character.


[2]   We affirm.


                                       Facts and Procedural History
[3]   Howard and B.C. (“Mother”) are the parents of Z.H. On November 12, 2016,

      Mother, Howard, and Howard’s parents took then six-week-old Z.H. to Riley

      Hospital for treatment of her torn frenulum.2 Dr. Tara Harris examined Z.H.

      and said, “This is the worst injury of this type that I’ve seen in my career.” Tr.

      Vol. II at 13. Dr. Harris also noted that Z.H. had bruises on her arms, jaw,

      cheek, thigh, and knees, plus abrasions on her left knee and ankle, and on her

      back. Id. at 11-12. X-rays revealed that Z.H. had a broken clavicle and had

      suffered many broken ribs, five on the left side and three on the right. Id. at 14-

      17. Z.H. also had hairline fractures to her left arm, wrist, and femur. Id. at 18-

      21, 28. Dr. Harris concluded that Z.H.’s injuries were sustained over time and

      were not the result of an accident. Id. at 11, 12, 14-18. Dr. Harris concluded

      that the injuries were characteristic of severe physical abuse and would have




      1
          See Ind. Code § 35-42-2-1(c)(1), (j).
      2
          The frenulum is the “little piece of tissue that connects the upper lip to the gums.” Tr. Vol. II at 12.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1736 | January 15, 2019                          Page 2 of 7
      been extremely painful when sustained. Id. at 30-31. The hospital alerted the

      police to Z.H.’s injuries.


[4]   Thereafter, the State charged Howard with Count I, Level 3 felony battery

      resulting in serious bodily injury to a child under fourteen years of age, and

      Count II, Level 3 felony neglect of a dependent resulting in serious bodily

      injury. Pursuant to a written agreement, Howard pleaded guilty to Count I,

      with sentencing left to the discretion of the trial court, and the State agreed to

      dismiss Count II. Appellant’s Conf. App. at 55-56. During the pendency of the

      action, and in connection with these charges, Howard was involved in a Child

      in Need of Services (“CHINS”) proceeding in Jefferson County. Id. at 28.


[5]   At the sentencing hearing, Dr. Harris testified for the State regarding Z.H.’s

      extensive injuries. The defense presented the testimony of Howard, Mother,

      and four individuals who had provided services pertaining to the CHINS

      proceeding. When asked whether he could remember the events that caused

      Z.H.’s injuries, Howard said, “There was a couple of times that I may have

      squeezed her too hard.” Tr. Vol. II at 105-06. Even so, Howard denied any

      knowledge that he had harmed Z.H. Id.


[6]   At the close of the sentencing hearing, the trial court accepted Howard’s guilty

      plea and set forth the following aggravating circumstances: (1) Z.H. was less

      than twelve years old and was in Howard’s care and custody; (2) Z.H. was

      severely abused on several occasions; (3) damage to her upper lip was the worst

      such injury Dr. Harris had ever seen; (4) the injuries were the result of severe


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1736 | January 15, 2019   Page 3 of 7
      physical abuse; and (5) Howard, claiming that he was unsure how the injuries

      occurred, had not accepted full responsibility for his actions. Id. at 11-21, 30-

      31. Regarding mitigating factors, the trial court found: (1) Howard has

      minimal criminal history and has successfully completed community

      supervision in the past; and (2) Howard has taken substantial steps to address

      his problem. Explaining that the aggravating factors and the mitigating factors

      “balance each other out,” the trial court sentenced Howard to nine years, with

      three years suspended to probation. Id. at 176. Howard now appeals.


                                     Discussion and Decision
[7]   Howard contends that his sentence is inappropriate. Pursuant to Indiana

      Appellate Rule 7(B), this court “may revise a sentence authorized by statute if,

      after due consideration of the trial court’s decision, the [c]ourt finds that the

      sentence is inappropriate in light of the nature of the offense and the character

      of the offender.” “In conducting our review, we may consider all aspects of the

      penal consequences imposed by the trial court in sentencing, i.e., whether it

      consists of executed time, probation, suspension, home detention, or placement

      in community corrections, and whether the sentences run concurrently or

      consecutively.” Davidson v. State, 926 N.E.2d 1023, 1025 (Ind. 2010). Our

      Supreme Court has explained that the principal role of appellate review should

      be to attempt to leaven the outliers, “not to achieve a perceived ‘correct’ result

      in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008); Yoakum v.

      State, 95 N.E.3d 169, 176 (Ind. Ct. App. 2018), trans. denied.



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1736 | January 15, 2019   Page 4 of 7
[8]    We independently examine the nature of Howard’s offense and his character

       under Appellate Rule 7(B) with substantial deference to the trial court.

       Satterfield v. State, 33 N.E.3d 344, 355 (Ind. 2015). “[W]e do not look to see

       whether the defendant’s sentence is appropriate or if another sentence might be

       more appropriate; rather, the test is whether the sentence is ‘inappropriate.’”

       Barker v. State, 994 N.E.2d 306, 315 (Ind. Ct. App. 2013), trans. denied. Whether

       a sentence is inappropriate ultimately depends upon “the culpability of the

       defendant, the severity of the crime, the damage done to others, and a myriad

       of other factors that come to light in a given case.” Cardwell, 895 N.E.2d at

       1224. Howard bears the burden of persuading us that his sentence is

       inappropriate in light of the nature of the offense and his character. Id.


[9]    We begin by noting that Howard sets out his entire argument regarding the

       nature of the offense by saying: “Howard argues the sentence ordered by the

       trial court was inappropriate and seeks any revised sentence this court finds to

       be appropriate based on the facts and circumstances of this case. Howard

       respectfully requests this Court exercise its power to revise his sentence . . . .”

       Appellant’s Br. at 10-11. The State maintains that Howard has not set forth an

       analysis for the nature of the offense and that this failure to argue both prongs

       of Rule 7(B) results in waiver of his inappropriateness claim. Appellee’s Br. at 8.

       As we explain below, whether by waiver or on the merits, we conclude that

       Howard’s sentence was not inappropriate.


[10]   “The nature of the offense is found in the details and circumstances of the

       commission of the offense and the defendant’s participation.” Croy v. State, 953

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1736 | January 15, 2019   Page 5 of 7
       N.E.2d 660, 664 (Ind. Ct. App. 2011). Howard admits, “It is incontrovertible

       that the crime of battery on a person under the age of 14 is a serious one, with

       sometimes lasting consequences on victims.” Appellant’s Br. at 10. We find that

       statement particularly true under the facts here. Howard battered Z.H. over a

       period of time. Z.H., who was at that time only six weeks old, suffered

       substantial injuries, including more than ten broken bones, a number of

       contusions and abrasions, and a tear of her frenulum, which was the most

       serious tear Dr. Harris had seen in her career. Tr. Vol. II at 11-31. Z.H. was

       Howard’s child and was in his care at the time the crimes were committed.


[11]   “The ‘character of the offender’ portion of the standard refers to the general

       sentencing considerations and the relevant aggravating and mitigating

       circumstances.” Reis v. State, 88 N.E.3d 1099, 1104-05 (Ind. Ct. App. 2017).

       Howard claims his good character arises from the fact that he is at moderate

       risk to reoffend, he accepted responsibility for his actions, he pleaded guilty, he

       cooperated with the CHINS proceeding, and he has a limited criminal history.

       Appellant’s Br. at 13. We are not persuaded that a moderate risk to reoffend

       reflects an exemplary character, and we agree with the trial court that Howard’s

       statement that he may have squeezed Z.H. suggests that Howard has not

       accepted full responsibility for his actions. Tr. Vol. II at 105-06. While

       cooperating in the CHINS proceeding is commendable, that cooperation does

       not necessarily reflect good character regarding Howard’s repeated battery

       toward Z.H. Finally, regarding criminal history, the trial court did not find that




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1736 | January 15, 2019   Page 6 of 7
       Howard had no criminal history. Instead, it found that he had minimal

       criminal history. Id. at 176.


[12]   “The advisory sentence is the starting point to determine the appropriateness of

       a sentence.” Eisert v. State, 102 N.E.3d 330, 334 (Ind. Ct. App. 2018) (citing

       Anglemyer v. State, 868 N.E.2d 482, 494 (Ind. 2007), clarified on reh’g, 878 N.E.2d

       218 (Ind. 2007)), trans. denied. By entering into the written agreement, Howard

       agreed to plead guilty to one Level 3 felony battery resulting in serious bodily

       injury to a child under fourteen years of age, and in exchange, the State

       dismissed a second Level 3 felony neglect of a dependent resulting in serious

       bodily injury. The sentencing range for a Level 3 felony is between three years

       and sixteen years, with the advisory being nine years. Ind. Code § 30-50-2-5(b).

       Based on the nature of the offense and Howard’s character, we cannot say that

       the advisory sentence of nine years, of which three were suspended to

       probation, is inappropriate


[13]   Affirmed.


       Riley, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1736 | January 15, 2019   Page 7 of 7
