Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any                  Nov 12 2014, 10:08 am
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:

JOHN L. GRANNAN                                    GREGORY F. ZOELLER
Special Public Defender                            Attorney General of Indiana
Jeffersonville, Indiana
                                                   KATHERINE MODESITT COOPER
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana




                               IN THE
                     COURT OF APPEALS OF INDIANA

KENDRA D. PHILLIPS,                                )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )    No. 10A01-1310-CR-446
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                        APPEAL FROM THE CLARK CIRCUIT COURT
                           The Honorable Vicki L. Carmichael, Judge
                                Cause No. 10C04-1206-FC-133



                                       November 12, 2014


                MEMORANDUM DECISION - NOT FOR PUBLICATION


CRONE, Judge
                                      Case Summary

       Kendra D. Phillips appeals her six-year executed sentence for class C felony neglect

of a dependent causing bodily injury. Finding that she has failed to meet her burden of

establishing that her sentence is inappropriate in light of the nature of the offense and her

character, we affirm.

                              Facts and Procedural History

       On May 4, 2012, Scott Woods hired Phillips to babysit his two-year-old daughter

C.W. at Phillips’s home. Phillips had babysat C.W. numerous times in the past, at the behest

of the child’s mother (Woods’s ex-wife). Around 9:30 p.m., Woods returned to Phillips’s

house to retrieve C.W., who ran out of the house. When he lifted the child into his vehicle,

she began to cry. Upon a closer look, he observed bruising from the top of her left eye to the

bottom of her cheek. He turned on the interior lights and saw a hand-shaped mark on C.W.’s

face. When he asked the child what happened, she said, “[Phillips] slapped me for peeing in

my diaper.” Tr. at 27.

       Meanwhile, Phillips had come outside and approached the vehicle. Woods asked her

if she had slapped C.W., and a heated exchange ensued. Woods phoned the police, who

arrived shortly thereafter. Phillips underwent a portable breath test, which registered at .26.

Woods took C.W. to the hospital, where the emergency room personnel examined her and

found contusions and hand-shaped bruises on her face, buttocks, and thighs.

       On June 5, 2012, the State charged Phillips with class C felony neglect of a dependent

resulting in bodily injury, two counts of class D felony neglect of a dependent, class D felony


                                              2
battery, and class B misdemeanor public intoxication. Phillips sought and was granted

pretrial placement in a community corrections program with daily reporting. In August 2013,

the State filed a petition to revoke Phillips’s pretrial community corrections placement. One

week before her scheduled trial date, Phillips entered a plea agreement pursuant to which she

pled guilty to class C felony neglect of a dependent with bodily injury in exchange for

dismissal of the four remaining counts. The sentence was left open, subject to a six-year cap

on the executed portion.

       At sentencing, the trial court found Phillips’s lack of prior convictions to be the sole

mitigating factor. The court identified three aggravating factors—the victim’s age, the

position of trust and care, and the harm suffered by the victim—and sentenced Phillips to a

six-year executed term. Phillips now appeals her sentence. Additional facts will be provided

as necessary.

                                   Discussion and Decision

       Phillips asks that we reduce her sentence pursuant to Indiana Appellate Rule 7(B),

which states that we “may revise a sentence authorized by statute if, after due consideration

of the trial court’s decision, [this] Court finds that the sentence is inappropriate in light of the

nature of the offense and the character of the offender.” When a defendant requests appellate

review and revision of her sentence, we have the power to affirm or reduce the sentence.

Akard v. State, 937 N.E.2d 811, 813 (Ind. 2010). In conducting our review, we do not look

to see whether the defendant’s sentence is appropriate or if another sentence might be more

appropriate; rather, the test is whether the sentence is “inappropriate.” Fonner v. State, 876


                                                 3
N.E.2d 340, 344 (Ind. Ct. App. 2007). A defendant bears the burden of persuading this Court

that her sentence meets the inappropriateness standard. Anglemyer v. State, 868 N.E.2d 482,

490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218. “A defendant’s conscious choice to

enter a plea agreement that limits the trial court’s discretion to a sentence less than the

statutory maximum should usually be understood as strong and persuasive evidence of

sentence reasonableness and appropriateness.” Childress v. State, 848 N.E.2d 1073, 1081

(Ind. 2006) (Dickson, J., concurring).

       In considering the nature of a defendant’s offense, “the advisory sentence is the

starting point the Legislature has selected as an appropriate sentence.” Anglemyer, 868

N.E.2d at 494. While Phillips repeatedly characterizes her six-year executed sentence as the

maximum allowable term, we note that she is correct only to the extent that her plea

agreement contained a six-year cap. Her sentence is two years below the maximum

allowable term for a class C felony. See Ind. Code § 35-50-2-6(a) (2005) (stating that a

person who commits a class C felony “shall be imprisoned for a fixed term of between two

(2) and eight (8) years, with the advisory sentence being four (4) years.”).

       Phillips pled guilty to class C felony neglect of a dependent. Indiana Code Section 35-

46-1-4 (2012) states in pertinent part, “A person having the care of a dependent, whether

assumed voluntarily or because of a legal obligation, who knowingly or intentionally …

places the dependent in a situation that endangers the dependent’s life or health … commits

neglect of a dependent, … a Class C felony if it … results in bodily injury.” Indiana Code

Section 35-46-1-1 defines “dependent” as “an unemancipated person who is under eighteen


                                              4
(18) years of age.”

       Here, Phillips’s two-year-old victim was significantly younger than the threshold

required for the offense. C.W. told her father that Phillips struck her because she had peed in

her diaper. This behavior was simply a normal occurrence for an untrained two-year-old,

who presumably wears a diaper for that very purpose. However, Phillips reacted by

forcefully and repeatedly striking the toddler, leaving hand-shaped bruises on her face,

buttocks, and thighs. The bruises took a month to heal. C.W.’s hospital emergency room

chart describes her facial injury as “a baseball size bruise with dark red marks over her left

cheek bone, under [patient’s] left eye as well.” State’s Ex. 1. The chart further lists her

injuries as contusions to the face and thighs and describes the bruising as “4 fingered

patterned bruising” to the face and posterior thigh and “2 fingered pattern” to the lateral thigh

below the hip. Id. “All patterns are that of open human hand.” Id. Phillips did not merely

place C.W. in danger in a passive, inattentive way; rather, she was the active source of the

danger. Simply put, she has failed to persuade us that the nature of her offense merits a

shorter sentence.

       With respect to Phillips’s character, we first note that she was acting as C.W.’s

babysitter when she committed the offense. As such, she was in a position of trust. Because

she routinely babysat for C.W., there was an established relationship between the caregiver

and the child. While Phillips was entrusted with the care of a toddler, she made a decision to

consume alcohol. She became so inebriated that shortly after the assault, her portable breath

test registered at .26. Essentially, she punished a two-year-old for doing what two-year-olds


                                               5
do. She added injury to insult by striking C.W. so vigorously as to leave her imprint on the

toddler’s face and body. Her attempts to downplay C.W.’s injuries are both unbecoming and

unconvincing.

       Likewise, we are unpersuaded by Phillips’s apology and guilty plea and find them

more indicative of pragmatism than remorse. In exchange for her guilty plea, she received a

significant benefit in the form of dismissal of the four remaining charges against her.

Moreover, she pled guilty one week before her scheduled trial date and only after the State

had filed a petition to revoke her pretrial community corrections placement for

noncompliance. While she correctly points out that none of her previous arrests have

resulted in a conviction, she nevertheless has failed to demonstrate that her character merits a

shorter sentence. Accordingly, we affirm.

       Affirmed.

MATHIAS, J., concurs.

RILEY, J., dissents with opinion.




                                               6
                              IN THE
                    COURT OF APPEALS OF INDIANA

KENDRA D. PHILLIPS,                                )
                                                   )
       Appellant-Defendant,                        )
                                                   )
              vs.                                  )    No. 10A01-1310-CR-446
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


RILEY, Judge, dissenting

       I respectfully disagree with the majority’s decision to affirm the trial court’s

imposition of a six year sentence. Here, pursuant to the terms of her plea agreement, Phillips

pled guilty to a Class C felony neglect of a dependent in exchange for “open” sentencing

“subject to a six-year cap in the executed portion.” Slip Op. p. 3.

       Without disregarding the severity of the incident, I would revise Phillips’ sentence to

four years executed, the advisory sentence for a Class C felony. See I.C. § 35-50-2-6(a).

Despite the fact that Phillips has been arrested before, none of these arrests ever resulted in

convictions, thus presenting this court with a non-existent criminal history. See Cotto v.

State, 829 N.E.2d 520, 526 (Ind. 2005) (A record of arrest, without more, does not establish

the historical fact that a defendant committed a criminal offense and may not be properly

considered as evidence of criminal history). Furthermore, although characterized by the

                                              7
majority as “pragmatism,” Phillips’ remorse and apology cannot have been easy. See Slip

Op. p. 6. She was forced to recognize her mistake while faced with the child and the child’s

father during the sentencing hearing. Based on these factors, I would lower her sentence to

the advisory sentence for a Class C felony.




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