      MEMORANDUM DECISION
                                                                       May 11 2015, 10:49 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
      Mark S. Lenyo                                           Gregory F. Zoeller
      South Bend, Indiana                                     Attorney General of Indiana

                                                              Lyubov Gore
                                                              Deputy Attorney General
                                                              Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Harlan T. Praul,                                        May 11, 2015

      Appellant-Defendant,                                    Court of Appeals Case No.
                                                              71A03-1412-CR-422
              v.                                              Appeal from the St. Joseph Superior
                                                              Court

      State of Indiana,                                       The Honorable Roland W.
      Appellee-Plaintiff                                      Chamblee, Jr., Judge

                                                              Cause No. 71D08-1107-MR-008




      Friedlander, Judge.

[1]   Harlan T. Praul appeals the sentence he received as a result of his plea of guilty

      to the offense of murder. Praul presents the following restated issues for review:




      Court of Appeals of Indiana | Memorandum Decision71A03-1412-CR-422 |May 11, 2015         Page 1 of 9
              1.      Did the trial court abuse its discretion in its identification
                      of mitigating circumstances?
              2.      Is Praul’s sentence inappropriate in light of the offense and
                      his character?
[2]   We affirm.


[3]   The facts are that in late May or early June 2011, Praul began dating Christine

      Freeman. On June 9 of that year, the two were drinking inside a home in

      South Bend, Indiana. After drinking seven or eight beers, Praul and Freeman

      began to argue about a previous relationship, and Praul struck Freeman in the

      face. Freeman attempted to leave and Praul followed her outside. When

      Freeman expressed a desire to call 911, Praul became enraged. He picked her

      up by the throat and threw her to the pavement, causing Freeman to lose

      consciousness. At that point, Praul tried to suffocate Freeman with an article of

      clothing and she stopped breathing. Praul stopped choking Freeman because

      he believed she was dead. When a subsequent gasp for air revealed that she

      was still alive, Praul began striking and kicking her in the head and body.

      Freeman coughed up a large amount of blood and began convulsing before she

      again stopped breathing. Once again believing that Freeman had died, Praul

      left the scene, walked to a nearby church, and called 911. He told the operator

      that he had killed Freeman and left her lying on the street.

[4]   Officers from the South Bend Police Department responded, arriving at the

      scene at 1:30 a.m. When they arrived, they observed Freeman lying on the

      ground. They detected no vital signs. The officers and paramedics who had

      arrived on the scene began life-saving efforts, after which Freeman began

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      breathing again. She was transported to Memorial Hospital. An examination

      revealed that Freeman had suffered multiple fractures to her face and ribs, and

      severe blunt-force trauma to her head and torso. Doctors performed an

      emergency tracheotomy to restore Freeman’s breathing.

[5]   Officers found Praul sitting on the steps of the church. He waived his rights and

      confessed that he had tried to kill Freeman and that he had kicked and choked

      her. Praul was placed under arrest and initially charged with aggravated battery

      as a class B felony and attempted murder, as a class A felony.

[6]   After several weeks in the hospital, and despite around-the-clock care, Freeman

      died of her injuries on July 4, 2011. An autopsy revealed that she had died as a

      result of blunt-force injuries to her head and chest.

[7]   Following Freeman’s death, the pending charges against Praul were dismissed,

      and he was charged with murder. On October 11, three weeks before the

      scheduled trial date, Praul pleaded guilty to murder without the benefit of a plea

      agreement. At the guilty plea hearing, Praul admitted that he knowingly

      “picked [Freeman] up by the throat and … slammed her to the ground.”

      Petitioner’s Exhibit 1 at 14.      He also admitted that while Freeman was on the

      ground he “kicked her and the like” and that such resulted in her death. Id.

      The trial court sentenced Praul to sixty-five years imprisonment, which is the

      maximum sentence for murder.

                                                       1.



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[8]    Praul contends the trial court abused its discretion in failing to identify several

       mitigating circumstances. Specifically, Praul claims the trial court failed to find

       as mitigators: (1) the fact that he called 911 to report what he had done; (2) the

       fact that he confessed and accepted responsibility for his actions; (3) his history

       of mental illness; and (4) the fact that he pleaded guilty.

[9]    The identification of mitigating circumstances at sentencing rests within the

       sound discretion of the trial court. Anglemyer v. State, 868 N.E.2d 482 (Ind.

       2007), clarified on reh’g, 875 N.E.2d 218. “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.’” Id. at 491 (quoting K.S. v. State, 849 N.E.2d 538, 544 (Ind. 2006)).

       A trial court may abuse its sentencing discretion in several ways, including the

       failure to cite significant mitigating factors. Anglemyer v. State, 868 N.E.2d 482.

       To prevail on a claim pertaining to mitigators, a defendant must establish that

       the excluded mitigating circumstances are both significant and clearly

       supported by the record. Id. A sentencing court is not obligated to find a

       circumstance to be mitigating merely because it is advanced as such by the

       defendant, nor is it required to explain why it chose not to make a finding of

       mitigation. Healey v. State, 969 N.E.2d 607 (Ind. Ct. App. 2007), trans. denied.

       Also, a trial court does not abuse its discretion in failing to find a mitigating

       factor that is highly disputable in nature, weight, or significance. Id.


[10]   There is no question that the trial court was aware of the facts that Praul

       contends should have been cited as mitigating circumstances. In fact, the court

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       stated that it had “gone back and forth between trying to figure out how much

       credit I give to you in terms of your having made that 911 call.” Petitioner’s

       Exhibit 2 at 12. The court expressed similar deliberations with respect to Praul’s

       claim of remorse and his plea of guilty. The court also stated that it took “into

       account” Praul’s history of mental illness, which it explained “can cut both

       ways[.]” Id. at 13.


[11]   The trial court’s remarks could plausibly be interpreted as reflecting either that

       it found these facts to be mitigating but accorded them little weight, or that it

       declined to find them as mitigating at all. If it was the former meaning, we

       cannot review it. Under the current statutory sentencing scheme, the relative

       weight assigned to an aggravating or mitigating factor is not subject to review

       for an abuse of discretion. Cardwell v. State, 895 N.E.2d 1219 (Ind. 2008); see

       also Anglemyer v. State, 868 N.E.2d at 491 (“[b]ecause the trial court no longer

       has any obligation to ‘weigh’ aggravating and mitigating factors against each

       other when imposing a sentence, … a trial court cannot now be said to have

       abused its discretion in failing to ‘properly weigh’ such factors”).1

[12]   On the other hand, if we interpret the court’s remarks as a rejection of these

       proffered mitigators, such would not constitute an abuse of discretion if they

       were highly disputable in nature, weight, or significance. See Healey v. State, 969

       N.E.2d 607. In view of the brutality of the attack upon the victim, and the



       1
         This principle applies as well to defeat Praul’s claim that “the trial court failed to properly balance
       aggravating and mitigating circumstances”. Appellant’s Brief at 8.

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       benefit that Praul derived from his guilty plea (i.e., the State would forego filing

       a habitual offender enhancement), the trial court did not abuse its discretion in

       failing to cite these as mitigating factors, if indeed its statements may be

       interpreted as having declined to find them as such. The trial court did not

       abuse its discretion in the finding of mitigating circumstances.

                                                        2.

[13]   Praul contends his sentence “should be revised under Indiana Appellate Rule

       7(B) as inappropriate because the trial court failed to properly weigh mitigating

       circumstances.” Appellant’s Brief at 13. 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, 1292 (Ind. 2014), cert. denied, 135

       S.Ct. 978 (2015). Pursuant to App. R. 7, the Supreme Court authorized this

       court to perform the same task. Cardwell v. State, 895 N.E.2d 1219. 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). In order to challenge a sentence on these

       grounds, however, it is incumbent upon a defendant to present arguments on

       both elements, i.e., character and the nature of the offense. Gilliam v. State, 901

       N.E.2d 72 (Ind. Ct. App. 2009). Praul has not offered any argument

       concerning the nature of his offense and how that renders the maximum

       sentence inappropriate. Therefore, the argument is waived. Waiver

       notwithstanding, however, we proceed to review his claim.

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[14]   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

       “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). Ultimately, we “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.


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

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

       was convicted of murder, for which the advisory sentence is fifty-five years,

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       which lies midway between the maximum (sixty-five) and minimum (forty-five)

       sentences for this offense. Praul received the maximum sentence.

[16]   We next consider the nature of Praul’s offense. “In considering the nature of

       the offense we recognize the advisory sentence is the starting point the

       Legislature selected as appropriate for the crime committed.” Fuller v. State, 9

       N.E.3d 653, 657 (Ind. 2014). The trial court imposed a sentence based upon its

       finding of aggravating and mitigating circumstances. We are not limited to

       those mitigators and aggravators, however, in analyzing a claim under App. R.

       7(B). Fuller v. State, 9 N.E.3d 653.


[17]   Praul murdered the woman with whom he had very recently begun a romantic

       relationship. The nature and circumstances of the murder are particularly

       brutal. After slamming Freeman to the ground, Praul strangled her until he

       thought he had killed her. When a subsequent gasp for air revealed that she

       was still alive, Praul commenced beating her and kicking her in the head and

       body with such violence that she began convulsing and coughing up a large

       amount of blood. It was the injuries sustained during the beating – a beating

       administered while Freeman was incapacitated from having been strangled

       almost to death – that ultimately were the cause of her death. We agree with

       the trial court’s characterization of the facts and circumstances of this murder as

       “gruesome”. Petitioners Exhibit at 12.


[18]   Turning now to Praul’s character, it is true that he pleaded guilty. The decision

       was likely a pragmatic one, however, in view of the strength of the evidence


       Court of Appeals of Indiana | Memorandum Decision71A03-1412-CR-422 |May 11, 2015   Page 8 of 9
       against him and the benefit he received by pleading guilty. The record reveals

       that Praul has an extensive criminal history. Since 1992, Praul has been

       arrested approximately sixty-nine times in five different states. He has

       accumulated approximately eight previous felony convictions, eighteen

       misdemeanor convictions, and twenty-nine driving violations. At least nine of

       those previous convictions involved some type of threat to or assault upon

       others. Previous attempts at leniency have been unsuccessful, in that he has

       violated probation on at least three previous occasions and has been discharged

       from probation unsatisfactorily at least twice. Moreover, while jailed for the

       present offense, he committed another felony, i.e., threatening to kill a jail

       nurse. In view of the brutal nature of Freeman’s murder and Praul’s long-term

       pattern of criminal behavior, we are not persuaded that the sixty-five-year

       sentence imposed by the trial court is inappropriate.

[19]   Judgment affirmed.


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




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