MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                  Nov 20 2015, 8:44 am

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
Anthony S. Churchward                                   Gregory F. Zoeller
Deputy Public Defender                                  Attorney General of Indiana
Fort Wayne, Indiana
                                                        Ian McLean
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Kenneth D. Robinson,                                    November 20, 2015
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        02A03-1505-CR-286
        v.                                              Appeal from the Allen Superior
                                                        Court
State of Indiana,                                       The Honorable Frances C. Gull,
Appellee-Plaintiff                                      Judge.
                                                        Trial Court Cause No.
                                                        02D05-1412-F5-161



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 02A03-1505-CR-286 | November 20, 2015       Page 1 of 5
[1]   Kenneth Robinson appeals the sentence he received for Level 5 Felony Battery.1

      He asks us to revise his sentence. Finding his sentence not inappropriate, we

      affirm.


                                                    Facts
[2]   On December 23, 2014, Robinson got angry with his girlfriend, Saundra

      Taylor. He struck her face with a closed fist, knocking her to the ground. He

      then knelt on her chest, immobilizing her, and struck her jaw approximately ten

      more times.


[3]   When police officers found her, Taylor was bleeding heavily from her mouth.

      She was crying and appeared to be in agony. She was taken to the hospital

      where doctors found multiple fractures of her jaw, in addition to a fractured

      tooth. Successful treatment required oral surgery and wiring her jaw shut.


[4]   On December 31, 2014, the State charged Robinson with Level 5 felony battery

      and Class A misdemeanor domestic battery.2 He pleaded guilty to both charges

      on March 13, 2015.


[5]   On April 10, 2015, the trial court held a sentencing hearing. At that hearing,

      the trial court heard evidence regarding Robinson’s criminal history. He has

      thirty-three prior misdemeanor convictions and seven prior felony convictions.

      His convictions include two driving while intoxicated convictions, six criminal


      1
          Ind. Code § 35-42-2-1.
      2
          I.C. 35-42-2-1.3.

      Court of Appeals of Indiana | Memorandum Decision 02A03-1505-CR-286 | November 20, 2015   Page 2 of 5
      conversion convictions, three resisting law enforcement convictions, two

      operating with a suspended license convictions, and a criminal trespass

      conviction—and all of these were before 2000, only halfway through his thirty-

      year criminal history.


[6]   The trial court found Robinson’s extensive criminal background and failed

      efforts at rehabilitation to be aggravating factors. It found his acceptance of

      responsibility and remorse to be mitigating factors. The trial court entered

      judgment on the felony battery charge, vacated the conviction of domestic

      battery on double jeopardy grounds, and sentenced Robinson to six years

      imprisonment. Robinson now appeals his sentence.


                                   Discussion and Decision
[7]   Robinson has one argument on appeal; he posits his willingness to plea guilty in

      a timely manner, without the benefit of a plea agreement, “to be a substantial

      mitigating circumstance which should have balanced the aggravating

      circumstances found by the trial court. . . .” Appellant’s Br. 9. However, we no

      longer review the balancing of aggravators and mitigators. See Angelmeyer v.

      State, 868 N.E.2d 482, 491 (Ind. 2007). Robinson is correct that his willingness

      to plead guilty, his acceptance of responsibility, and his remorse deserve some

      weight. Precisely how much weight these factors deserve, however, is to be

      decided by the trial court, not by us.


[8]   Indiana Appellate Rule 7(B) provides the following: “The Court may revise a

      sentence authorized by statute if, after due consideration of the trial court’s

      Court of Appeals of Indiana | Memorandum Decision 02A03-1505-CR-286 | November 20, 2015   Page 3 of 5
       decision, the Court finds that the sentence is inappropriate in light of the nature

       of the offense and the character of the offender.” The principal role of such

       review is to attempt to leaven the outliers, but not to achieve a perceived

       “correct” sentence. Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008).

       Sentencing is principally a discretionary function in which the trial court’s

       judgment should receive considerable deference. Id. at 1222. “Such deference

       should prevail unless overcome by compelling evidence portraying in a positive

       light the nature of the offense (such as accompanied by restraint, regard, and

       lack of brutality) and the defendant’s character (such as substantial virtuous

       traits or persistent examples of good character).” Stephenson v. State, 29 N.E.3d

       111, 122 (Ind. 2015).


[9]    The sentence prescribed for a Level 5 felony is “imprison[ment] for a fixed term

       of between one (1) and six (6) years, with the advisory sentence being three (3)

       years.” Ind. Code § 35-50-2-6(b). The trial court sentenced Robinson to a

       maximum term of six years.


[10]   Turning to our Rule 7(B) review, as to the nature of the offense, Robinson

       committed a brutal act of battery. This was not a single swing; rather,

       Robinson knocked his victim to the floor, knelt on her chest, and struck her ten

       more times. She had multiple jaw fractures, experienced severe pain, and had

       to have her jaw wired shut. Thus, the nature of Robinson’s offense gives us no

       reason to reduce his sentence.




       Court of Appeals of Indiana | Memorandum Decision 02A03-1505-CR-286 | November 20, 2015   Page 4 of 5
[11]   Neither does his character. Robinson has been convicted of thirty-three

       misdemeanors and seven felonies. His convictions are spread evenly through a

       thirty-year criminal career. This battery was no aberration. In sum, we do not

       find the six-year sentence imposed by the trial court to be inappropriate in light

       of the nature of Robinson’s offense and his character.


[12]   The judgment of the trial court is affirmed.


       Bailey, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 02A03-1505-CR-286 | November 20, 2015   Page 5 of 5
