Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not

                                                                      FILED
be regarded as precedent or cited
before any court except for the purpose
of establishing the defense of res                                 Jan 16 2013, 9:10 am
judicata, collateral estoppel, or the law
of the case.
                                                                           CLERK
                                                                         of the supreme court,
                                                                         court of appeals and
                                                                                tax court




ATTORNEY FOR APPELLANT:                           ATTORNEYS FOR APPELLEE:

RANDY M. FISHER                                   GREGORY F. ZOELLER
Leonard Hammond Thomas & Terrill                  Attorney General of Indiana
Fort Wayne, Indiana

                                                  JOSEPH Y. HO
                                                  Deputy Attorney General
                                                  Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

PABLO GARCIA-GOMEZ,                               )
                                                  )
        Appellant-Defendant,                      )
                                                  )
               vs.                                )       No. 02A04-1206-CR-290
                                                  )
STATE OF INDIANA,                                 )
                                                  )
        Appellee-Plaintiff.                       )


                      APPEAL FROM THE ALLEN SUPERIOR COURT
                           The Honorable Frances C. Gull, Judge
                              Cause No. 02D06-1202-FB-26


                                       January 16, 2013

                 MEMORANDUM DECISION – NOT FOR PUBLICATION

BARNES, Judge
                                      Case Summary

      Pablo Garcia-Gomez appeals his three-year sentence for Class D felony domestic

battery. We affirm.

                                           Issues

      Garcia-Gomez raises two issues, which we restate as:

             I.       whether the trial court abused its discretion in
                      sentencing him; and

             II.      whether his sentence is inappropriate.

                                           Facts

      On February 7, 2012, Garcia-Gomez went to the home of P.H., with whom he had

a three-week-old son. P.H. unsuccessfully tried to prevent Garcia-Gomez from entering

the home, and when he got inside, he slapped a bowl out her hands, causing it to shatter,

took her cell phone, and punched her in the back of the head. When P.H. ran upstairs,

Garcia-Gomez grabbed her by the back of the head and pulled her down the stairs. The

two struggled until P.H. went to console the crying infant. Garcia-Gomez followed P.H.

and continued to physically batter her by punching her in the head several times. P.H.’s

three other children were also home during the incident.

      On February 13, 2012, the State charged Garcia-Gomez with Class B felony rape,

Class B felony criminal deviate conduct, Class D felony domestic battery, and Class A

misdemeanor interference with the reporting of a crime. From jail, Garcia-Gomez called

P.H. approximately thirty-five times and urged her not to come to court. A jury found

Garcia-Gomez guilty of the Class D felony battery charge.


                                             2
       At the sentencing hearing, Garcia-Gomez argued that the trial court should

consider as mitigating that a lengthy period of incarceration would be a hardship on his

six children, that he has been employed, that he had a difficult childhood, and that an

extended incarceration would be a hardship on taxpayers because of his pending

deportation.   The trial court rejected these proposed mitigators and found Garcia-

Gomez’s criminal history and failed attempts at rehabilitation to be aggravating. The trial

court sentenced Garcia-Gomez to three years. He now appeals.

                                          Analysis

                                  I. Abuse of Discretion

       Garcia-Gomez first argues the trial court abused its discretion when it sentenced

him. We evaluate a sentence under the current “advisory” sentencing scheme pursuant to

Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007), clarified on reh’g by Anglemyer v.

State, 875 N.E.2d 218 (Ind. 2007). The trial court must issue a sentencing statement that

includes “reasonably detailed reasons or circumstances for imposing a particular

sentence.” Anglemyer, 868 N.E.2d at 491. The reasons or omission of reasons given for

choosing a sentence are reviewable on appeal for an abuse of discretion. Id. “The

relative weight or value assignable to reasons properly found or those which should have

been found is not subject to review for abuse.” Id.

       Garcia-Gomez claims that the trial court abused its discretion by failing to find

any of his proposed mitigators as mitigating. According to Garcia-Gomez, all of the

proposed mitigators were significant and clearly supported by the record, implying that

the trial court failed to properly consider them.

                                              3
       In sentencing Garcia-Gomez, the trial court acknowledged several of the proposed

mitigators and explained why it did not find them persuasive. For example, the trial court

remarked during the sentencing hearing that Garcia-Gomez had six children with four

different women and had not been ordered to pay child support. The trial court also

questioned Garcia-Gomez’s ability to support the children given his sporadic

employment.     The trial court also rejected Garcia-Gomez’s troubled childhood as a

mitigator because it was unrelated to his conduct in this offense.          These proposed

mitigators were not overlooked by the trial court and, to the extent Garcia-Gomez is

asking us to review the mitigating weight, or lack thereof, given to the proposed

mitigators, such a claim is not available on appeal. See id.

       As for the argument that the trial court failed to find that an extended period of

incarceration would be a hardship on taxpayers as a mitigator, Garcia-Gomez has not

established that the trial court overlooked a significant mitigator that was clearly

supported by the record. See Anglemyer, 875 N.E.2d at 220-21 (opinion on reh’g) (“But

an allegation that the trial court failed to identify or find a mitigating factor requires the

defendant to establish that the mitigating evidence is not only supported by the record but

also that the mitigating evidence is significant.”). We presume the legislature considered

the cost of incarceration when it determined the sentencing ranges for each class of

felony. Because the costs of incarceration generally are not reflective of the nature of this

particular offense or of Garcia-Gomez’s character, he has not shown that the trial court

overlooked a significant mitigator. Garcia-Gomez has not established that the trial court

abused its discretion in assessing his proposed mitigators.

                                              4
                                   II. Inappropriateness

       Garcia-Gomez also argues that his sentence is inappropriate in light of the nature

of the offense and his character. Indiana Appellate Rule 7(B) permits us to 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 offenses and the

character of the offender. Although Rule 7(B) does not require us to be “extremely”

deferential to a trial court’s sentencing decision, we still must give due consideration to

that decision. Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007). We also

understand and recognize the unique perspective a trial court brings to its sentencing

decisions. Id. “Additionally, a defendant bears the burden of persuading the appellate

court that his or her sentence is inappropriate.” Id.

       The principal role of Rule 7(B) review “should be to 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). We “should 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. Whether a sentence is

inappropriate ultimately 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. Id. at 1224. When reviewing the appropriateness of a sentence under Rule 7(B),

we may consider all aspects of the penal consequences imposed by the trial court in



                                              5
sentencing the defendant, including whether a portion of the sentence was suspended.

Davidson v. State, 926 N.E.2d 1023, 1025 (Ind. 2010).

       Regarding his character, Garcia-Gomez directs us to two letters showing his good

character and suggests that the hardship on his six children, his employment, his difficult

childhood, and the hardship on taxpayers warrant the reduction of his sentence. The

record suggests that Garcia-Gomez’s children all lived with their mothers, that he had not

been ordered to pay child support, that he did not have a steady employment history, and

that he was leaving to return to Mexico on the night he committed the offense. Neither

his purported support of his children nor his claims of employment reflect positively on

his character. Further, although the presentence investigation report (“PSI”) suggests a

difficult childhood, Garcia-Gomez points to no connection between his childhood and the

commission of this offense. Finally, we are not convinced that the cost of incarceration is

a relevant consideration when reviewing the appropriateness of a sentence.

       Moreover, Garcia-Gomez’s criminal history reflects poorly on his character. His

criminal history includes misdemeanor convictions for battery, three counts of disorderly

conduct, two counts of invasion of privacy, and illegal entry. It also includes other

arrests, the failure to appear for a court date in another state, and seven pending felony

charges. Garcia-Gomez has repeatedly shown a disregard for the law, and his character

does not warrant a reduction of his sentence.

       As for the nature of the offense, Garcia-Gomez suggests that P.H.’s refusal to

participate in the trial, subjecting her to a ten-day jail sentence, her refusal to provide a

victim impact statement, and her failure to testify at the sentence hearing “speak volumes

                                             6
as to the nature of the offense.” Appellant’s Br. p. 14. We decline to speculate why P.H.,

a domestic violence victim, who was subjected to repeated requests not to testify by

Garcia-Gomez from jail, refused to participate in these criminal proceedings, and we

reject Garcia-Gomez’s suggestion that her failure to participate somehow reduces the

seriousness of the offense.

       Garcia-Gomez went into P.H.’s house without permission, took her phone, and

struck her repeatedly in the presence of their three-week-old son and her three other

young children. Nothing about the nature of the offense suggests that the three-year

sentence was inappropriate.

       Garcia-Gomez also argues that his sentence is inappropriate because he is not the

“worst of the worst” offenders. Although the maximum possible sentences are generally

most appropriate for the worst offenders, this is not an invitation to determine whether a

worse offender could be imagined, “as it is always possible to identify or hypothesize a

significantly more despicable scenario, regardless of the nature of any particular offense

and offender.”    Wells v. State, 904 N.E.2d 265, 274 (Ind. Ct. App. 2009) (citing

Buchanan v. State, 767 N.E.2d 967, 973 (Ind. 2002)), trans. denied. “We concentrate less

on comparing the facts of this case to others, whether real or hypothetical, and more on

focusing on the nature, extent, and depravity of the offense for which the defendant is

being sentenced, and what it reveals about the defendant’s character.” Id. Thus, in light

of the nature of the offense and Garcia-Gomez’s character, we believe that the three-year

sentence is appropriate.



                                            7
                                       Conclusion

      Garcia-Gomez has not established that the trial court abused its discretion in its

consideration of his proposed mitigators or that his three-year sentence is inappropriate.

We affirm.

      Affirmed.

BAKER, J., and RILEY, J., concur.




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