MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                               Oct 31 2019, 6:54 am

court except for the purpose of establishing                                CLERK
the defense of res judicata, collateral                                 Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
P. Jeffrey Schlesinger                                   Curtis T. Hill, Jr.
Office of the Public Defender                            Attorney General of Indiana
Crown Point, Indiana
                                                         Benjamin J. Shoptaw
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Courtney Lamar Parker,                                   October 31, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-826
        v.                                               Appeal from the Lake Superior
                                                         Court
State of Indiana,                                        The Honorable Diane Ross
Appellee-Plaintiff                                       Boswell
                                                         Trial Court Cause No.
                                                         45G03-1712-F6-293



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-826 | October 31, 2019                 Page 1 of 10
[1]   Courtney Lamar Parker appeals his two-year sentence for Level 6 felony

      residential entry. 1 He argues the trial court abused its discretion by not

      recognizing as mitigating circumstances his medical problems and the hardship

      incarceration would have on his son. Additionally, Parker contends his two-

      year sentence is inappropriate given the nature of his offense and his character.

      We affirm.



                                Facts and Procedural History
[2]   Patricia Torres and Parker have a child together. Patricia lived with Parker and

      Parker’s girlfriend until April of 2017. She then moved in with her sister,

      Melissa Torres, and Melissa’s boyfriend, Alex Velasquez, in a house in

      Hammond, Indiana.


[3]   In the early morning hours of April 8, 2017, Melissa and Velasquez were woken

      up by a loud pounding on the door. Patricia was not at the house at the time.

      Melissa went downstairs, realized the knocking was coming from the back

      door, which separated the living areas from a mud room. 2 The mud room was

      separated from outside the house by a locked storm door. Melissa asked, “who

      is it [?], who is it [?]” (Tr. Vol. III at 123.)




      1
          Ind. Code § 35-43-2-1.5.
      2
       Melissa described the mud room as “like an inner porch, is what I would say, best – we lounge there during
      summertime from the mosquitos, because we have a screened door. So it’s an inside porch, is what I would
      consider it.” (Tr. Vol. III at 124.)

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-826 | October 31, 2019                Page 2 of 10
[4]   Parker identified himself and asked about Patricia’s location. Melissa also

      looked out a window and recognized Parker. Parker continued to knock on the

      door and demanded to talk with Patricia. Melissa informed Parker that Patricia

      was not at the house and asked him to leave. At some point, Parker went

      around to the front door. Melissa told Parker that she would shoot him with a

      shotgun if he did not leave, and Melissa called the police. Parker left before the

      police arrived. Melissa examined the house after Parker left and noticed the

      storm door was damaged. She testified the storm door “was pulled or pried

      open where it was yanked too hard where the lock no longer reaches to latch it,

      so it closes but it doesn’t no [sic] longer lock.” (Id. at 129.)


[5]   Throughout the day on April 8, 2017, Parker tried to contact Patricia by calling

      her between ten and twenty times, sending her text messages, and contacting

      her via Facebook. Between 10:00 pm and 11:00 pm, Patricia was in her room,

      lying on her bed, watching a movie on her laptop. Patricia’s bedroom was

      located toward the front of the house with windows facing the front yard and

      street. Patricia observed Parker arrive at the house and knock on the front

      door. She then saw Parker look at her through her bedroom window. Patricia

      notified Melissa that Parker was at the door, and Melissa yelled that she was

      calling the police. Parker then threw a rock from the front yard through

      Patricia’s bedroom window and ran away. Patricia testified that the rock

      landed on her foot and broken glass cut her forehead. Police apprehended

      Parker approximately ten minutes later outside a bar near the house.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-826 | October 31, 2019   Page 3 of 10
[6]   The State charged Parker with Level 6 felony residential entry for breaking and

      entering Melissa’s house in the early morning hours of April 8, 2017; Level 6

      felony attempted residential entry for attempting to enter the house in the

      evening; 3 Level 6 felony auto theft; 4 Level 6 felony criminal recklessness; 5 and

      Class B misdemeanor criminal mischief. 6 The State dismissed the auto theft

      count prior to trial. The court held a jury trial beginning on January 28, 2019.

      The jury returned a verdict of guilty on the Level 6 felony residential entry

      count and not guilty on the remaining counts, and the court entered judgment

      on the verdict.


[7]   The trial court held a sentencing hearing on March 15, 2019. Parker

      acknowledged reviewing the presentence investigation report and did not have

      any additions, corrections, deletions, or comments. In 2006, Parker had pled

      guilty to dealing in cocaine as a Class B felony. A portion of his sentence was

      to be served on probation, but Parker did not satisfactorily complete probation.

      He was also convicted of Class C felony intimidation in 2006 and Level 6

      felony theft in 2018. Neither Patricia Torres nor Melissa Torres testified at the

      sentencing hearing. As the deputy prosecutor explained, he spoke to them “and




      3
          Ind. Code § 35-43-2-1.5; Ind. Code § 35-41-5-1.
      4
          Ind. Code § 35-42-4-2.5.
      5
          Ind. Code § 35-42-2-2.
      6
          Ind. Code § 35-43-1-2.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-826 | October 31, 2019   Page 4 of 10
      their understanding was that with more trial dates upcoming, they were going

      to save their time off for those days[.]” (Tr. Vol. V at 5.)


[8]   Parker, proceeding pro se, described his seven-year-old son as “the victim in this

      situation.” (Tr. Vol. V at 12.) He had custody of his son prior to his

      incarceration. Parker noted that his elderly mother would have to take care of

      his son while he was incarcerated. He also stated that his son’s mother,

      Patricia, had not seen his son in over three years. In addition, Parker stated he

      had an eight-year-old daughter, and the pre-sentence investigation report

      indicated Parker had one other adult daughter. Parker also referenced his

      health issues. His cardiologist advised him to quit working due to a heart

      condition and Parker was pursuing disability benefits prior to his arrest. He

      asked the court to sentence him to the time he had already served awaiting

      sentencing. Further, the pre-sentence investigation report revealed Parker had

      been shot in the abdomen in 2005. He had two surgeries and took pain

      medication daily.


[9]   At sentencing, the State referenced Parker’s criminal history. The State

      emphasized that Parker committed felony theft while out on bond in the instant

      case and that Parker was facing another charge for later conduct against the

      Torres family. The State pointed out that Parker had received probation in the

      past and failed to successfully complete it and that Parker served time in the

      Indiana Department of Correction in the past. The State asked for an

      aggravated sentence of two and a half years.



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-826 | October 31, 2019   Page 5 of 10
[10]   The trial court imposed a two-year executed sentence and awarded Parker

       credit for 214 actual days served. The sentencing order identified no mitigating

       circumstances and listed Parker’s criminal history as an aggravating

       circumstance. 7



                                    Discussion and Decision
                                                 Abuse of Discretion

[11]   Sentencing decisions rest within the sound discretion of the trial court, and we

       review such decisions only for an abuse of discretion. Morrell v. State, 118

       N.E.3d 793, 796 (Ind. Ct. App. 2019), clarified on reh’g on other grounds, 121

       N.E.3d 577 (Ind. Ct. App. 2019), trans. denied. “An abuse of discretion occurs if

       the decision is clearly against the logic and effect of the facts and

       circumstances.” Allen v. State, 875 N.E.2d 783, 788 (Ind. Ct. App. 2007).

       When a trial court imposes a felony sentence, it is required to issue a sentencing

       statement “that includes a reasonably detailed recitation of the trial court’s

       reasons for the sentence imposed.” Anglemyer v. State, 868 N.E.2d 482, 484-85

       (Ind. 2007), clarified on reh’g on other grounds, 875 N.E.2d 218 (Ind. 2007). If the

       court finds aggravating or mitigating circumstances, “the statement must

       identify all significant mitigating and aggravating circumstances and explain




       7
         The order states Parker had four prior felony convictions, but this appears to be a scrivener’s error because,
       in pronouncing sentence, the trial court said: “The Court gives you an aggravated sentence due to your prior
       history of three felony convictions.” (Tr. Vol. V at 26.)




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-826 | October 31, 2019                     Page 6 of 10
       why each circumstance has been determined to be mitigating or aggravating.”

       Id. at 490. A trial court may abuse its discretion in imposing sentence by failing

       to enter a sentencing statement, identifying aggravating and mitigating factors

       the record does not support, omitting reasons clearly supported in the record

       and advanced for consideration, or stating reasons for a sentence that are

       improper as a matter of law. Id. at 490-91.


[12]   Parker argues the trial court abused its discretion by omitting from its

       sentencing statement reasons for a lighter sentence advanced by Parker,

       namely, the impact Parker’s incarceration will have on his son with Patricia and

       his health problems. Indiana Code Section 35-38-1-7.1(10) provides the court

       may consider as a mitigating circumstance the undue hardship imprisonment

       will cause to the person or the person’s dependent. As our Indiana Supreme

       Court has explained, “[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). Parker asserts the special circumstance in his

       case is that Patricia is not involved in their son’s life and Parker’s elderly

       mother would have to care for their son while Parker is incarcerated.


[13]   However, we do not find these to be special circumstances amounting to an

       undue hardship. The children of incarcerated individuals commonly stay with

       other family members. See, e.g., K.E. v. Ind. Dept. of Child Servs., 39 N.E.3d 641,

       644 (Ind. 2015) (child in care of paternal aunt while father was incarcerated); In

       re Adoption of S.W., 979 N.E.2d 633, 635 (Ind. Ct. App. 2012) (child in care of

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-826 | October 31, 2019   Page 7 of 10
       maternal grandparents while father was incarcerated). There is no indication

       Parker’s son will suffer any hardship by staying with Parker’s mother.

       Consequently, the trial court did not abuse its discretion by failing to consider

       this proposed mitigating circumstance. See Dowdell, 720 N.E.2d at 1154

       (holding trial court did not abuse discretion by failing to find as a mitigating

       circumstance the undue hardship a long prison term might have on the

       defendant’s young child).


[14]   Regarding Parker’s health issues, in Moyer v. State, we found the defendant’s

       cancer to be a significant mitigating circumstance. 796 N.E.2d 309, 314 (Ind.

       Ct. App. 2003). The defendant required treatment the jail could not regularly

       provide, and he needed constant medical attention. Id. Parker provided limited

       testimony regarding his health, and he failed to put forth any medical records or

       other documentary evidence of impairment. He did not demonstrate that he

       will not be able to receive the care he needs while incarcerated. Consequently,

       the trial court did not abuse its discretion by not considering Parker’s health

       issues to be a mitigating circumstance. See Henderson v. State, 848 N.E.3d 341,

       345 (Ind. Ct. App. 2006) (holding no error when defendant did not present

       evidence medical conditions were untreatable while incarcerated).


                                        Appropriateness of Sentence

[15]   We “may revise a sentence authorized by statute if, after due consideration of

       the trial court’s decision, [we find] the sentence is inappropriate in light of the

       nature of the offense and the character of the offender.” Ind. App. R. 7(B).

       Our role in reviewing a sentence pursuant to Appellate Rule 7(B) “should be to
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-826 | October 31, 2019   Page 8 of 10
       attempt to leaven the outliers, and identify some guiding principles for trial

       courts and those charged with improvement of the sentencing statutes, but not

       to achieve a perceived ‘correct’ result in each case.” Cardwell v. State, 895

       N.E.2d 1219, 1225 (Ind. 2008). “The defendant bears the burden of persuading

       this court that his or her sentence is inappropriate.” Kunberger v. State, 46

       N.E.3d 966, 972 (Ind. Ct. App. 2015). “Whether a sentence is inappropriate

       ultimately turns on 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.” Thompson v. State, 5 N.E.3d 383, 391 (Ind. Ct. App. 2014).


[16]   A Level 6 felony is punishable by imprisonment for a fixed term of between six

       months and two and one-half years, with an advisory sentence of one year.

       Ind. Code § 35-50-2-7(b). Thus, Parker’s two-year sentence falls within the

       statutory range. Parker argues the nature of his offense is minor. He notes he

       was convicted only of breaking the storm door and entering the mud room.

       The back door separated Parker from the living area of the house, and Parker

       did not break the back door. Nonetheless, the State notes Parker did not leave

       the house until Melissa threatened to call the police, and Parker broke the storm

       door’s lock. As a result, we cannot say the nature of the offense was less

       egregious than a standard breaking and entering offense.


[17]   A defendant’s criminal history is relevant in assessing his character. Johnson v.

       State, 986 N.E.2d 852, 857 (Ind. Ct. App. 2013). The significance of an

       offender’s criminal history varies depending on the gravity, nature, and number

       of prior offenses in relation to the instant offense. Id. Parker notes that two of

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-826 | October 31, 2019   Page 9 of 10
       his felony convictions were over twelve years old and that none of his previous

       felony convictions were for residential entry, burglary, or a related offense.

       However, Parker committed felony theft while out on bond for the instant

       offense. He has a long history of involvement with the criminal justice system.

       He accumulated three true delinquency adjudications as a juvenile and accrued

       numerous misdemeanor convictions as an adult. He previously served time in

       the Department of Correction, and he did not successfully complete probation

       in connection with his felony conviction for dealing in cocaine. He also faced

       pending charges at the time of sentencing for additional conduct against the

       Torres family. We cannot conclude an aggravated sentence in the instance case

       was inappropriate. See Sanders v. State, 71 N.E.3d 839, 845 (Ind. Ct. App. 2017)

       (holding defendant’s sentence was not inappropriate given his criminal history

       and refusal to take advantage of rehabilitative services), trans. denied.



                                               Conclusion
[18]   The trial court did not abuse its discretion by failing to consider as mitigating

       factors the impact Parker’s incarceration will have on his minor children or

       Parker’s health problems. Further, Parker’s two-year sentence for Level 6

       felony residential entry is not inappropriate given his lengthy criminal history.

       Accordingly, we affirm.


[19]   Affirmed.


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

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-826 | October 31, 2019   Page 10 of 10
