MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                   FILED
regarded as precedent or cited before any                          Jun 29 2017, 8:32 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
Brandon E. Murphy                                        Curtis T. Hill, Jr.
Muncie, Indiana                                          Attorney General of Indiana
                                                         Chandra K. Hein
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Doralee A. Burress,                                      June 29, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         05A02-1606-CR-1398
        v.                                               Appeal from the Blackford Circuit
                                                         Court
State of Indiana,                                        The Honorable Dean A. Young,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         05C01-1505-F5-113



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 05A02-1606-CR-1398 | June 29, 2017]       Page 1 of 20
                                         Statement of the Case
[1]   Doralee A. Burress (“Burress”) appeals the trial court’s denial of her motion for

      a change of judge as well as the sentence the trial court imposed after she pled

      guilty to Level 6 felony neglect of a dependent.1 She argues that: (1) the trial

      court’s denial of her motion for change of judge was clearly erroneous; (2) the

      trial court abused its discretion in sentencing her because it identified improper

      aggravators; and (3) her sentence was inappropriate under Indiana Appellate

      Rule 7(B). Because we find no error or abuse of discretion as alleged, we affirm

      her conviction and sentence.


[2]   We affirm.


                                                     Issues
                 1. Whether the trial court erred when it denied Burress’s motion
                    for change of judge.

                 2. Whether the trial court abused its discretion when sentencing
                    Burress.

                 3. Whether Buress’s sentence was inappropriate under Indiana
                    Appellate Rule 7(B).

                                                     Facts
[3]   Burress is the mother of B.W., who was born in August 2014. According to the

      factual basis for Burress’s guilty plea, between B.W.’s birth in August 2014 and




      1
          IND. CODE § 35-46-1-4(a)(1).


      Court of Appeals of Indiana | Memorandum Decision 05A02-1606-CR-1398 | June 29, 2017]   Page 2 of 20
      October 2014, B.W. suffered multiple skull fractures, rib fractures, a fracture to

      his tibia, a fracture to his ankle, a lacerated liver, and bruising on his face. It is

      not clear exactly when each injury occurred. However, the probable cause

      affidavit describes that the bones were in “different stages of healing” when the

      injuries were discovered. (App. 18). Burress claimed she did not know how

      B.W. had received those injuries, but she admitted that she had noticed them

      and failed to seek medical treatment.


[4]   On May 4, 2015, the State charged Burress with Level 5 felony neglect of a

      dependent resulting in bodily injury.2 On January 4, 2016, Burress agreed,

      pursuant to a written plea agreement, to plead guilty to the charge. In exchange

      for Burress’s guilty plea, the State agreed that Burress’s sentence length would

      be left to the discretion of the trial court and that the sentence would be served

      on home detention.


[5]   Initially, the trial court set a change of plea hearing for Burress to plead guilty.

      However, before the hearing occurred, the trial court entered an order in which

      it stated that it had reviewed the pre-sentence investigation report (“PSI”) and

      was rejecting the plea agreement. As a basis for its rejection, the trial court

      found:


               8. That a condition of the Plea Agreement is that the Court
               would be restricted from ordering an executed sentence in the



      2
       The State also charged B.W.’s father, Joshua Walker, with neglect of a dependent, but his case is not a part
      of this appeal.

      Court of Appeals of Indiana | Memorandum Decision 05A02-1606-CR-1398 | June 29, 2017]            Page 3 of 20
        Indiana Department of Correction, which if the allegations in the
        charging instrument and affidavits supporting the charging
        instruments are true, is the only appropriate place for a defendant
        committing such acts to be sentenced.

        9. That the public’s confidence in the judicial system and their
        concepts of justice upon which that system relies would be
        severely lessened should the Court accept the Plea Agreement as
        tendered in this case.


(App. 93). The PSI that the trial court had relied upon included Burress’s

version of events, which she had written as follows:

        My son was hospitalized at Riley for injuries that we could not
        explain. I am his mother and felt that I had not provided him
        with the proper care and he got hurt because of it. I wish to
        move forward and be the best mother that I can for my two
        babies. I regret not being able to protect him and I am deeply
        sorry for any effects this has had on my family. I will do
        everything I can to prevent anything like this from happening
        again.[3]


(App. 63-64). The PSI also documented that Burress had made the following

statement to the probation officer:

        I have no idea how any of the injuries happened to [B.W.]. We
        took him to his doctor here in town. I read what the doctor had
        written. He said that [B.W.] had an abnormal head size. I then




3
  Pursuant to Indiana Administrative Rule 9(G)(2)(b) and INDIANA CODE § 35-38-1-13, the PSI must be
excluded from public access. However, in this case the information contained in the PSI “is essential to the
resolution” of Burress’s claim on appeal. Ind. Admin. Rule 9(G)(7)(a)(ii)(c). Accordingly, we have included
confidential information in this decision only to the extent necessary to resolve the appeal.

Court of Appeals of Indiana | Memorandum Decision 05A02-1606-CR-1398 | June 29, 2017]           Page 4 of 20
              called the doctor to see if we should be concerned. That is why I
              took him to Riley.


      (App. 64).


[6]   On March 22, 2016, Burress moved for, among other motions, a change of

      judge and for the trial court to reconsider its rejection of the plea agreement. In

      her motion for change of judge, she argued that the trial court was biased

      because it had relied on improper information and had rejected the plea

      agreement even though the agreement was reasonable. As for her allegations

      that the trial court judge was biased, Burress claimed that the trial court judge

      had “reference[d] information contained in a Pre-Sentence Investigation Report

      that was obtained in violation of established local practice, procedure[,] and

      custom in Blackford County, Indiana . . . .” (App. 104). She attached to her

      motion a memorandum sent from another judge of the Blackford Circuit Court

      to the Blackford County Criminal Defense Bar in which the judge explained

      that the policy of the court was to schedule one hearing for both a change of

      plea and sentencing when a PSI was required. The memorandum specified

      that, under this procedure, the trial court should receive the PSI prior to the

      combined hearing. In an affidavit Burress attached to her motion, the former

      Chief Probation Officer in Blackford County, Aaron Henderson, averred that

      one concern he had with this combined hearing process was asking defendants

      questions concerning the charged events or including defendants’ answers

      within the PSIs when a defendant had not yet formally offered her plea of guilty

      in the courtroom. He explained that: “To address that concern, [he] did not

      Court of Appeals of Indiana | Memorandum Decision 05A02-1606-CR-1398 | June 29, 2017]   Page 5 of 20
      include a Defendant’s version of events in [PSIs] when the combined change of

      plea and sentencing procedure was used.” (App. 112). Burress did not further

      explain how the trial court judge’s consideration of the PSI demonstrated the

      judge’s bias.


[7]   With respect to her allegation that her plea agreement was reasonable, Burress

      noted that the Probation Department had recommended in the PSI that the trial

      court accept the plea agreement. She also noted that she did not have a

      criminal history and that she had successfully completed Department of Child

      Services (“DCS”) services.


[8]   The trial court held a hearing on Burress’s motion for change of judge and

      motion to reconsider the plea agreement on April 13, 2016 and denied both. In

      its order on the motion for change of judge, the trial court specified that it had

      rejected the guilty plea “for a variety of reasons,” including:


              2. . . .

                         A. The injuries suffered by the child in this case were
                         heinous and ongoing.

                         B. That for the first two months of the child’s life the child
                         suffered continual physical abuse from one or more
                         persons.

                         C. The statements of the parents as set out in the Affidavit
                         of Probable Cause, as well as in the Presentence
                         Investigation Report indicate a lack of awareness or
                         understanding of the child’s injuries.


      Court of Appeals of Indiana | Memorandum Decision 05A02-1606-CR-1398 | June 29, 2017]   Page 6 of 20
                 D. That the Plea Agreement called for a fully suspended
                 sentence, as well as a reduction in the level of offense to
                 which the defendant would enter a plea of guilty in this
                 case such that the Court could not in good conscious [sic]
                 accept the Plea Agreement.

        3. That the Presentence Investigation Report did not include any
        information that was not required by Indiana law, nor did it
        violate any “established local practice” concerning the change of
        plea and sentencing procedure in the Blackford Circuit Court.

        4. That the plea was unreasonable as determined by the Court
        based upon all evidence before the Court including the detailed
        Affidavit of Probable Cause, this Court’s knowledge of the facts
        and circumstances presented to the Court as part of a companion
        CHINS proceeding involving the same parties, and information
        contained within the Presentence Investigation Report.

        5. That in support of the defendant’s Verified Motion for
        Change of Judge are certain exhibits, including Exhibits A and B
        which were prior communications between the Court and the
        Blackford County Defense Bar regarding combined guilty plea
        and sentencing hearings. The Court did indicate the Court’s
        preference of excluding probation officer recommendations
        regarding a possible sentence for reasons stated therein. Provided
        further, the Court did in no way direct any probation officer to
        exclude from the presentence investigation report the offender’s
        version of the offense.

        6. That attached Exhibit 4 to the Verified Motion for Change of
        Judge is an Affidavit signed by former Chief Probation Officer
        Aaron Henderson wherein Mr. Henderson stated that in
        presentence investigation reports he prepared he did not include a
        defendant’s version of events. If true, Mr. Henderson’s conduct
        may have been in derogation of the requirements of State statute,
        the presentence investigation report, and without the knowledge
        of the Blackford Circuit Court Judge. Mr. Henderson’s Affidavit

Court of Appeals of Indiana | Memorandum Decision 05A02-1606-CR-1398 | June 29, 2017]   Page 7 of 20
               specifically stated that his concern regarding including such
               information was discussed “either locally or with representatives
               of other counties using this procedure[.] . . .” The matter was
               never discussed with the Circuit Court Judge or directed to be
               implemented by the Circuit Court Judge as outlined in Mr.
               Henderson’s Affidavit. Provided further, the conduct of a
               probation officer does not bind a court with respect to the Court’s
               statutory and constitutional duty to bring criminal matters to a
               just conclusion.

               7. That the defendant has presented no legal basis to allege
               against the presiding judge nor has the defendant raised any facts
               or circumstances that would cause a reasonable person, aware of
               all the facts, to conclude that the presiding judge may have, or
               appear to have, any bias against this defendant.


       (App. 120-22).


[9]    On May 23, 2016, Burress entered into a second plea agreement with the State

       in which she agreed to plead guilty to an amended charge of Level 6 felony

       neglect of a dependent. This second plea agreement did not include a cap on

       her sentence or provide that she would serve her sentence on home detention.

       The trial court held a change of plea hearing and accepted Burress’s second plea

       agreement.


[10]   Subsequently, on June 13, 2016, the trial court held a joint sentencing hearing

       for Burress and B.W.’s father, Joshua Walker (collectively, “the Parents”). At

       the hearing, Michelle Coons (“CM Coons”), a case manager with DCS,

       testified that B.W. had been found a child in need of services (“CHINS”) and

       was taken from the Parents after his injuries had been discovered. However,


       Court of Appeals of Indiana | Memorandum Decision 05A02-1606-CR-1398 | June 29, 2017]   Page 8 of 20
       she said that the Parents had successfully completed the CHINS proceedings

       and regained custody of B.W. at DCS’s recommendation. CM Coons also

       testified that she was comfortable with B.W.’s placement with Burress.


[11]   Next, Buress’s probation officer testified and explained that she had

       recommended home detention in Burress’s first PSI due to the length of the

       sentence she had originally recommended—six years. However, she testified,

       she had “[thought] about the situation further” since her initial

       recommendation and had changed her recommendation for Burress’s second

       PSI, which was prepared for the sentencing hearing, to one (1) year of

       incarceration. (Tr. 25). The fact that the second plea agreement called for a

       lower sentencing range “played into” her recommendation. (Tr. 25).


[12]   At the conclusion of the hearing, the trial court sentenced Burress to two and

       one-half (2½) years executed and told her that it would consider a petition to

       modify her sentence after one (1) year of incarceration if she behaved well

       during incarceration and had residential and employment opportunities at that

       point. The court found that several mitigating factors supported this sentence,

       including Burress’s lack of criminal history; the hardship that incarceration

       would cause her family; Burress’s remorse; and the fact that the crime was

       unlikely to recur. However, the trial court also found certain aggravating

       factors that it concluded were especially significant. Specifically:

               [B.W.] was a totally defenseless, totally dependent child, who
               spent the first two months of his life and every day, every
               moment of the first two months of his life in great agony. He

       Court of Appeals of Indiana | Memorandum Decision 05A02-1606-CR-1398 | June 29, 2017]   Page 9 of 20
               was literally beaten up by somebody[,] and the two people that
               were responsible to [e]nsure that that would never occur to their
               child are deaf and dumb when it comes to the possible
               explanation as to why that happened. The injuries have been set
               out for the record many times before, but just for purposes of
               formulating the Court’s thoughts and the sentencing order in this
               case, it’s noteworthy that when he was first referred to Riley
               Hospital he had an unusually large head, [and] he wasn’t acting
               right. Once at Riley, they discovered multiple skull fractures and
               fluid on his brain. Many of the fractures [were] in various stages
               of healing[,] which means that it happened more than once.
               Multiple rib fractures, again, in various stages of healing, which
               indicate that it happened more than once. Possible fracture to
               the tibia and left ankle. He had a laceration or a cut on his liver.
               There was bruising to the left side of his face. Virtually every
               single moment of that child’s life[,] he was in great agony. The
               parents were equally responsible to keep that from happening
               and should it happen by others to seek medical treatment.
               Accordingly, they are both equally culpable. That child was put
               to more torture than if he w[ere] an Islamic Jihadist at
               Guantanamo, being tortured for information or for his crimes.
               He was abused every single day for two months. Every single
               day. Either physically beaten up or denied the medical care that
               his beatings required. And the parents are deer in headlights
               when it comes to what happened to that child. Anything other
               than the maximum sentence would seriously depreciate what
               happened to this child.


       (Tr. 42-44). Burress now appeals.


                                                   Decision
[13]   On appeal, Burress argues that: (1) the trial court erred when it denied her

       motion for change of judge; (2) the trial court abused its discretion when it

       sentenced her; and (3) her sentence was inappropriate under Indiana Appellate

       Court of Appeals of Indiana | Memorandum Decision 05A02-1606-CR-1398 | June 29, 2017]   Page 10 of 20
       Rule 7(B) in light of the nature of her offense and her character. We will

       address each of these issues in turn.


       1. Motion for Change of Judge

[14]   First, Burress argues that the trial court erred because its findings in its order

       denying her motion for change of judge and its rejection of her first plea

       agreement with the State indicated that the trial court judge was biased against

       her.


[15]   Indiana Criminal Procedure Rule 12(B) provides that:

               In felony and misdemeanor cases, the [S]tate or defendant may
               request a change of judge for bias or prejudice. The party shall
               timely file an affidavit that the judge has a personal bias or
               prejudice against the [S]tate or defendant. The affidavit shall state
               the facts and the reasons for the belief that such bias or prejudice
               exists, and shall be accompanied by a certificate from the
               attorney of record that the attorney in good faith believes that the
               historical facts recited in the affidavit are true. The request shall
               be granted if the historical facts recited in the affidavit support a
               rational inference of bias or prejudice.


       “‘Adjudicating a request for change of judge based on Rule 12(B) requires an

       objective, not subjective, legal determination by the judge, who is to examine

       the affidavit, treat the facts recited in the affidavit as true, and determine

       whether these facts support a rational inference of bias or prejudice.’” Lehman

       v. State, 55 N.E.3d 863, 867 (Ind. Ct. App. 2016) (quoting Voss v. State, 856

       N.E.2d 1211, 1216 (Ind. 2006)), trans. denied. The appropriate standard of

       review of a trial judge’s decision to grant or deny a motion for change of judge

       Court of Appeals of Indiana | Memorandum Decision 05A02-1606-CR-1398 | June 29, 2017]   Page 11 of 20
       under Indiana Criminal Rule 12 is whether the judge’s decision was clearly

       erroneous. Id. at 866. The law starts with the presumption that a judge is

       unbiased and unprejudiced. Zavodnik v. Harper, 17 N.E.3d 259, 269 (Ind. 2014).

       Reversal will require a showing that leaves us with a definite and firm

       conviction that a mistake has been made. Lehman, 55 N.E.3d at 866.


[16]   In support of her argument that the trial court judge was biased, Burress first

       asserts that the trial court judge “considered information that [was] not []

       permitted under local practice in pre-sentence investigation reports[.]”

       (Burress’s Br. 15). Specifically, she claims that the trial court appeared to reject

       the plea agreement because Burress was unable to explain how any of the

       injuries to B.W. had occurred. She contends that the trial court’s reference to

       her inability to explain how the injuries happened indicated that he was

       punishing her for her lack of explanation rather than for her failure to seek

       treatment for B.W., which was the element of her offense.


[17]   Notably, Burress did not explicitly raise this argument in her motion for change

       of judge or at the hearing on the motion. In Burress’s motion for change of

       judge, she argued that the trial court inappropriately considered her version of

       events that was documented in the pre-sentence investigation report. She did

       not claim that the trial court considered factors that were not elements of her

       crime as a result of considering that information in the PSI. In fact, Burress did

       not clarify in her motion for change of judge how the trial court’s consideration

       of her version of events in the PSI demonstrated the trial court’s bias. Because

       she, therefore, is raising a new argument on appeal, we conclude that she has

       Court of Appeals of Indiana | Memorandum Decision 05A02-1606-CR-1398 | June 29, 2017]   Page 12 of 20
       waived that argument for appellate review. See Hape v. State, 903 N.E.2d 977,

       997 (Ind. Ct. App. 2009) (stating that a party may not raise an argument for the

       first time on appeal), trans. denied.


[18]   Next, Burress argues that the trial court’s rejection of a “reasonable” plea

       agreement and its statements that “the Indiana Department of Corrections . . .

       is the only appropriate place for a defendant” committing the charged acts and

       that the Parents were “pathetic examples of parents” indicated that it was

       biased against her. (Burress’s Br. 15-16). We disagree because it is clear that

       the trial court’s rejection of the plea agreement and its statements regarding the

       Parents were based on its evaluation of the evidence, not its bias against the

       Parents.


[19]   Our supreme court has previously held that:


               A judge’s exposure to evidence through judicial sources is
               generally insufficient to establish bias. The fact that a litigant has
               appeared before a judge in prior cases does not establish bias or
               prejudice. Prejudice is not inferred from adverse judicial rulings.


       Zavodnik, 17 N.E.3d at 269.


[20]   Burress isolates the trial court’s statement that the Department of Correction is

       the only place for her from its context. In full, the trial court found:


               [A] condition of the Plea Agreement is that the Court would be
               restricted from ordering an executed sentence in the Indiana
               Department of Correction, which if the allegations in the charging
               instrument and affidavits supporting the charging instruments are true,

       Court of Appeals of Indiana | Memorandum Decision 05A02-1606-CR-1398 | June 29, 2017]   Page 13 of 20
                is the only appropriate place for a defendant committing such
                acts to be sentenced.


       (App. 93) (emphasis added). The full text of this finding emphasizes that the

       trial court’s statement that Burress belonged in the DOC was based on the

       allegations in the charging information and affidavits supporting the charging

       instruments. In the statement, the trial court recognizes that its conclusion is

       qualified by the conditional assumption that “the allegations . . . are true.”

       (App. 93). In other words, the trial court had not already decided that Burress

       belonged in DOC; it merely did not want to foreclose that option. 4

       Accordingly, this statement was not evidence of the trial court’s bias. See

       Zavodnik, 17 N.E.3d at 269 (“A judge’s exposure to evidence through judicial

       sources is generally insufficient to establish bias.”).


[21]   As for Burress’s argument that the trial court’s rejection of a reasonable plea

       agreement indicated its bias, we must note that the trial court has “wide

       discretion” to reject a plea agreement. Nybo v. State , 799 N.E.2d 1146, 1152

       (Ind. Ct. App. 2003). As stated above, prejudice is not inferred from adverse

       judicial rulings. See id. Burress has not provided any other facts showing that

       the trial court thought the plea agreement was reasonable and rejected it

       because of bias. Instead, it is clear from the record that the trial court rejected



       4
         The terms of a plea agreement between the State and the defendant are contractual in nature. State v. Smith,
       71 N.E.3d 368, 370 (Ind. 2017). When a trial court accepts a plea agreement, it is bound by its terms. Id.
       Therefore, if the trial court had accepted the plea agreement that provided that Burress would serve her
       sentence on home detention, it would have foreclosed its ability to sentence her to executed time in the
       Department of Correction.

       Court of Appeals of Indiana | Memorandum Decision 05A02-1606-CR-1398 | June 29, 2017]           Page 14 of 20
       the plea agreement because it did not think that the plea agreement was

       reasonable since it restricted the court’s sentencing discretion to home

       detention.5 The trial court had the discretion to determine that incarceration

       was more appropriate than home detention. See Million v. State, 646 N.E.2d

       998, 1001 (Ind. Ct. App. 1995) (“[P]lacement in a community corrections

       program is an alternative to commitment to the Department of Correction and

       made at the sole discretion of the trial court. . . . Therefore, a defendant is not

       entitled to serve his sentence in a community corrections program but, as with

       probation, placement in the program is a ‘matter of grace’ and a ‘conditional

       liberty that is a favor, not a right.’”). Therefore, the trial court’s exercise of this

       discretion, absent other evidence, was not evidence of bias.


[22]   For the foregoing reasons, we conclude that Burress did not present evidence

       that supports a rational inference of bias or prejudice. Thus, the trial court did

       not err when it denied Burress’s motion for change of judge.


       2. Sentencing

[23]   Next, Burress argues that the trial court abused its discretion when it sentenced

       her because it identified improper aggravating factors. Specifically, she




       5
        In support of her argument that the plea agreement was reasonable, Burress notes that the Probation
       Department recommended that the trial court accept the plea agreement. However, as stated above,
       Burress’s probation officer testified that even though she had originally recommended that the trial court
       accept the plea agreement, when she “[thought] about the situation further[,]” she recommended one (1) year
       of incarceration. (Tr. 25). Burress also overlooks that her probation officer originally recommended home
       detention for six years—a significantly longer sentence than the sentence the trial court imposed after its
       acceptance of her second plea agreement.

       Court of Appeals of Indiana | Memorandum Decision 05A02-1606-CR-1398 | June 29, 2017]         Page 15 of 20
       challenges the trial court’s comments that: (1) “the harm was caused by the

       defendant to a totally defenseless, newborn child[;]” (2) “the child was totally

       dependent upon the defendant[;]” (3) the abuse B.W. suffered was “daily” and

       like “torture[;]” and (4) “a lesser sentence would seriously depreciate the

       seriousness of the offense.” (App. 177, 178).


[24]   Sentencing decisions rest within the sound discretion of the trial court and are

       reviewed on appeal only for an abuse of discretion. Anglemyer v. State, 868

       N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007). 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. The trial court can abuse its

       discretion by: (1) issuing an inadequate sentencing statement; (2) finding

       aggravating or mitigating factors that are not supported by the record; (3)

       omitting factors that are clearly supported by the record and advanced for

       consideration; or (4) by finding factors that are improper as a matter of law.

       Gleason v. State, 965 N.E.2d 702, 710 (Ind. Ct. App. 2012).


[25]   First, Burress claims that the trial court abused its discretion when it found as

       aggravating factors that the harm was “caused by the defendant to a totally

       defenseless newborn child” and that “the child was totally dependent upon the

       defendant.” (App. 177). She claims that these factors were improper as a

       matter of law because it is an element of the offense of neglect of a dependent

       that the alleged victim is dependent upon the defendant.



       Court of Appeals of Indiana | Memorandum Decision 05A02-1606-CR-1398 | June 29, 2017]   Page 16 of 20
[26]   Burress is correct that it is improper as a matter of law to find that a material

       element of a crime is an aggravating circumstance. Gleason, 965 N.E.2d at 711.

       However, the nature and circumstances of an offense can be aggravators. Id. It

       is clear, here, that the trial court found B.W.’s particularized circumstances

       aggravating. Our Indiana Code defines “dependent” as “(1) an unemancipated

       person who is under eighteen (18) years of age; or (2) a person of any age who

       has a mental or physical disability.” I.C. § 35-46-1-1. Contrary to Burress’s

       argument, there is a significant difference in circumstances between a

       dependent who is eighteen years old and a two-month old infant. In both of the

       trial court’s statements, it was emphasizing the particularized circumstances of

       a two-month old infant. Unlike older individuals who can walk and talk, but

       still qualify legally as dependents, B.W. was entirely physically dependent upon

       Burress to seek treatment for his injuries. He could not talk or explain his

       injuries to others. He was, as the trial court emphasized, “totally defenseless.”

       (App. 177). Accordingly, we conclude that this particularized circumstance

       was not an element of the offense, and the trial court did not abuse its discretion

       in identifying it as an aggravating factor.


[27]   Next, Burress challenges the trial court’s conclusion that the abuse B.W.

       suffered was “daily” and equivalent to “torture.” (App. 178). She argues that

       these statements were not supported by the record and reflected the trial court’s

       attempts to hold her culpable for inflicting B.W.’s injuries herself, rather than

       for failing to seek treatment as she was charged. Again, we conclude that the

       trial court’s statements were based on the nature and circumstances of the


       Court of Appeals of Indiana | Memorandum Decision 05A02-1606-CR-1398 | June 29, 2017]   Page 17 of 20
       offense. The trial court was emphasizing that B.W.’s injuries were ongoing and

       severe, rather than a one-time occurrence. This conclusion was supported by

       the record as there was evidence that B.W.’s bones were in “different stages of

       healing.” (App. 18). As for the trial court’s analogy to torture, the trial court

       was commenting on the severity of B.W.’s injuries—and the impact that

       Burress’s failure to seek treatment therefore had on B.W.—not accusing Burress

       of inflicting the injuries herself.


[28]   Finally, Burress argues that the trial court’s statement that “a lesser sentence

       than the one the Court imposes would seriously depreciate the seriousness of

       the offense” was an improper aggravator. (App. 177). However, Burress does

       not quote the trial court’s entire statement. In full, the trial court found:

               that a lesser sentence than the one the Court imposes would
               seriously depreciate the seriousness of the offense and that but for
               the timely intervention of law enforcement and Child Protective
               Services the child would have suffered injury that may likely
               have resulted in the death of the child while in the care,
               custody[,] and control of both parents.


       (App. 177-78). In its full context, it is clear that the trial court was again

       referring to the nature and circumstances of the offense—the severity of B.W.’s

       injuries. As the nature and circumstances of an offense are not improper

       aggravators, we conclude that the trial court did not abuse its discretion.

       Gleason, 965 N.E.2d at 711.




       Court of Appeals of Indiana | Memorandum Decision 05A02-1606-CR-1398 | June 29, 2017]   Page 18 of 20
       3. Indiana Appellate Rule 7(B)

[29]   Next, Burress argues that her sentence was inappropriate under Indiana

       Appellate Rule 7(B) in light of the nature of her offense and her character.

       Indiana Appellate Rule 7(B) provides that we may revise a sentence authorized

       by statute if, after due consideration of the trial court’s decision, we find that the

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

       of the offender. The defendant bears the burden of persuading this Court that

       his sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind.

       2006). Whether we regard a sentence as inappropriate turns on 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.” Cardwell v. State, 895

       N.E.2d 1219, 1224 (Ind. 2008).


[30]   When determining whether a sentence is inappropriate, we acknowledge that

       the advisory sentence is the starting point the Legislature has selected as an

       appropriate sentence for the crime committed. Childress, 848 N.E.2d at 1081.

       The sentencing range for Level 6 felony neglect of a dependent is between six

       (6) months and two and one-half (2½) years, with an advisory sentence of one

       (1) year. I.C. § 35-50-2-7. Accordingly, Burress received the maximum

       sentence for a Level 6 felony.


[31]   Burress argues that this sentence was inappropriate because the maximum

       sentence should be reserved for the worst offenders, and she believes she is not

       the “very worst offender.” (Burress’s Br. 20). In support of this argument, she

       notes that she does not have a criminal history, has a solid work history, has

       Court of Appeals of Indiana | Memorandum Decision 05A02-1606-CR-1398 | June 29, 2017]   Page 19 of 20
       addressed her depression issues through therapy, showed remorse, and

       complied with court orders in her CHINS proceedings.


[32]   While these factors are positive evidence of Burress’s character, we conclude

       that her sentence was not inappropriate in light of the nature of her offense. As

       the trial court found, B.W. suffered severe and ongoing injuries at an extremely

       young and vulnerable age. Those injuries included multiple skull fractures, rib

       fractures, a fracture to his tibia, a fracture to his ankle, a lacerated liver, and

       bruising on his face. Burress did not do anything to help B.W. and failed to

       seek treatment for those serious injuries even though she admits that she

       noticed them. Thus, the nature of her offense was egregious—she failed to seek

       treatment for severe injuries to a helpless infant even though she was aware of

       the injuries. This failure to seek treatment is also a reflection of her poor

       character. In light of this evidence, we do not find that her sentence was

       inappropriate.


[33]   Affirmed.


       May, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 05A02-1606-CR-1398 | June 29, 2017]   Page 20 of 20
