MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                     FILED
this Memorandum Decision shall not be                                 Nov 01 2018, 8:51 am
regarded as precedent or cited before any
                                                                           CLERK
court except for the purpose of establishing                           Indiana Supreme Court
                                                                          Court of Appeals
the defense of res judicata, collateral                                     and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Michael Frischkorn                                      Curtis T. Hill, Jr.
Fortville, Indiana                                      Attorney General of Indiana

                                                        Henry A. Flores, Jr.
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Crosby Rayne Waller,                                    November 1, 2018
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A-CR-1401
        v.                                              Appeal from the Hamilton
                                                        Superior Court
State of Indiana,                                       The Honorable William J. Hughes,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        29D03-1710-F5-7768



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1401 | November 1, 2018               Page 1 of 6
                                       Statement of the Case
[1]   Crosby Rayne Waller appeals his sentence following his guilty plea to domestic

      battery, as a Level 6 felony. He raises a single issue for our review, namely,

      whether his sentence is inappropriate in light of the nature of the offense and his

      character.


[2]   We hold that, because Waller has failed to present any authority or analysis

      with respect to whether his sentence is inappropriate in light of the nature of his

      offense, he has waived appellate review of the inappropriateness of his sentence.

      However, his waiver notwithstanding, Waller has failed to persuade us that his

      sentence is inappropriate. Accordingly, we affirm.


                                 Facts and Procedural History
[3]   On October 24, 2017, Waller engaged in a physical altercation with his father,

      Stephen Waller. Waller’s mother witnessed the altercation, and she called the

      police. Officer Wade Burtron with the Westfield Police Department responded

      to the call. After Officer Burtron arrived at the scene, he took a report from

      Stephen. Stephen told Officer Burtron that Waller had punched him in the face

      and kicked and hit him multiple times. Officer Burtron was able to observe that

      Stephen had a cut on his forehead that was bleeding, a scrape on his elbow, and

      a cut on his knee. Officer Burtron arrested Waller and read him his Miranda

      rights. Waller admitted to Officer Burtron that he had punched Stephen in the

      head.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1401 | November 1, 2018   Page 2 of 6
[4]   On October 25, the State charged Waller with one count of domestic battery, as

      a Class A misdemeanor (“Count 1”); one count of domestic battery, as a Level

      6 felony (“Count 2”); and one count of domestic battery, as a Level 5 felony

      (“Count 3”). On March 1, 2018, the State and Waller entered into a plea

      agreement. Pursuant to the terms of the agreement, Waller agreed to plead

      guilty to Count 2, and the State agreed to dismiss Counts 1 and 3. The plea

      agreement left sentencing to the discretion of the trial court. After a hearing,

      the trial court accepted Waller’s guilty plea and sentenced him to 730 days

      executed in the Department of Correction. This appeal ensued.


                                     Discussion and Decision
[5]   On appeal, Waller asserts that his 730-day executed sentence is inappropriate in

      light of the nature of the offense and his character. However, the entirety of

      Waller’s argument on appeal is as follows:


              Mr. Waller immediately admitted to the offense at the time of the
              incident after being read his Miranda rights. He has saved the
              State the time and expense of going to trial. Also, Mr. Waller
              has a number of mental health issues that are set out at length in
              the Pre-Sentence Investigation Report. Mr. Waller has been
              diagnosed from an early age with high-functioning autism. Also,
              he has substance abuse issues and has had difficulties with his
              gender identity which led to bullying in school. During the
              interview, Mr. Waller ha[d] fresh cuts on his arms and a history
              of self-harm. Based on Mr. Waller’s history and mental health
              issues, an executed sentence is not appropriate.


      Appellant’s Br. at 6-7 (internal citations omitted). As such, Waller’s argument

      is that his executed sentence is inappropriate only in light of his character.
      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1401 | November 1, 2018   Page 3 of 6
      However, that argument, by itself, is not sufficient to invoke this court’s

      authority to revise a sentence under Indiana Appellate Rule 7(B).


[6]   As this court has recently explained:


              Article 7, Sections 4 and 6 of the Indiana Constitution
              “authorize[ ] independent appellate review and revision of a
              sentence imposed by the trial court.” Roush v. State, 875 N.E.2d
              801, 812 (Ind. Ct. App. 2007) (alteration original). This appellate
              authority is implemented through Indiana Appellate Rule 7(B).
              Id. Revision of a sentence under Rule 7(B) requires the appellant
              to demonstrate that his sentence is “inappropriate in light of the
              nature of his offenses and his character.” Ind. Appellate Rule
              7(B) (emphasis added). That language is clear: Rule 7(B) plainly
              requires, as this court has long acknowledged, “the appellant to
              demonstrate that his sentence is inappropriate in light of both the
              nature of the offenses and his character.” Williams v. State, 891
              N.E.2d 621, 633 (Ind. Ct. App. 2008) (emphasis original to
              Williams).


      Sanders v. State, 71 N.E.3d 839, 843-44 (Ind. Ct. App. 2017), trans denied.

      Because Waller’s argument on appeal does not address his sentence in relation

      to the nature of his offense, he has waived our review of the inappropriateness

      of his sentence. See id.


[7]   His waiver notwithstanding, Waller has failed to persuade us that his executed

      sentence is inappropriate. Indiana’s flexible sentencing scheme allows trial

      courts to tailor an appropriate sentence to the circumstances presented, and the

      trial court’s judgment “should receive considerable deference.” Cardwell, 895

      N.E.2d at 1222. Whether we regard a sentence as inappropriate at the end of


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1401 | November 1, 2018   Page 4 of 6
      the day 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.” Id. at 1224. The question is not whether another

      sentence is more appropriate, but rather whether the sentence imposed is

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

      Deference to the trial court “prevail[s] 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). Further, the location where a sentence

      is to be served is an appropriate focus of our review and revise authority. See

      Biddinger v. State, 868 N.E.2d 407, 414 (Ind. 2007).


[8]   Here, aside from providing no authority or analysis concerning the nature of his

      offense, Waller has not shown that his sentence is inappropriate in light of his

      character. “When considering the character of the offender, one relevant fact is

      the defendant’s criminal history.” Garcia v. State, 47 N.E.3d 1249, 1251 (Ind.

      Ct. App. 2015). Waller’s criminal history consists of four prior misdemeanor

      convictions and one prior felony conviction. And two of those prior offenses

      were similar in nature to the instance offense. Indeed, Waller had previously

      been convicted of two separate crimes of battery, one as a Class A

      misdemeanor and one as a Level 6 felony. Additionally, Waller was on

      probation for his felony battery conviction when he committed the instant

      battery offense. Waller’s criminal history reflects poorly on his character.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1401 | November 1, 2018   Page 5 of 6
      Further, the fact that Waller committed the instant offense against his own

      father also reflects poorly on his character. We cannot say that Waller’s 730-

      day executed sentence is inappropriate in light of the nature of the offense and

      his character. As such, we affirm Waller’s sentence.


[9]   Affirmed.


      Pyle, J., concurs.
      Crone, J., concurs in result.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1401 | November 1, 2018   Page 6 of 6
