                                                                         Oct 17 2013, 5:52 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
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:

EARL MCCOY                                      GREGORY F. ZOELLER
CHAD MONTGOMERY                                 Attorney General of Indiana
McCoy & Montgomery Law Office
Lafayette, Indiana                              JODI KATHRYN STEIN
                                                Deputy Attorney General
                                                Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

DARREN ENGLERT,                                 )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )       No. 79A04-1302-CR-88
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                    APPEAL FROM THE TIPPECANOE SUPERIOR COURT
                          The Honorable Randy J. Williams, Judge
                               Cause No. 79D01-1107-MR-3



                                     October 17, 2013

               MEMORANDUM DECISION – NOT FOR PUBLICATION

BAKER, Judge
          After torturing and brutally murdering Jeremy Gibson, appellant-defendant Darren

Englert was convicted following a jury trial of Conspiracy to Commit Murder,1 a class A

felony; Conspiracy to Commit Criminal Confinement,2 a class B felony; Criminal

Confinement,3 a class D felony; Conspiracy to Commit Battery,4 a class C felony;

Battery,5 a class C felony; and Possession of Marijuana,6 a class A misdemeanor. Englert

now appeals and argues that the evidence was insufficient to support his convictions, his

convictions violate the Double Jeopardy Clause of the Indiana Constitution, the

prosecutor engaged in misconduct, and the trial court erred in sentencing him. Finding

that because the trial court entered a judgment of conviction on all convictions and that it

should have vacated the convictions that it merged for sentencing purposes, we vacate

Englert’s convictions for conspiracy to commit murder, criminal confinement, and

conspiracy to commit battery, and affirm the remaining convictions and sentence.

                                                    FACTS

          Gibson and Carolann Clear began a romantic relationship in May 2011. Shortly

thereafter, Clear and her mother, Joanne, moved into Gibson’s one bedroom apartment in

1
    Ind. Code § 35-41-5-2; Ind. Code § 35-42-1-1.
2
    I.C. § 35-41-5-2; I.C. § 35-42-3-3.
3
    I.C. § 35-42-3-3.
4
    I.C. § 35-41-5-2; I.C. § 35-42-2-1.
5
    I.C. § 35-42-2-1.
6
    Ind. Code § 35-48-4-11.
                                                      2
Lafayette. Gibson, the father of two young children that did not live with him, was

employed as a dishwasher at a local restaurant. Neither Clear nor her mother was

employed. In June 2011, Gibson and Clear met Englert and Antonio Williams at a party.

Both men were unemployed. Shortly thereafter, Gibson invited Englert and Williams to

move into his apartment. The two men accepted Gibson’s invitation and agreed to help

Gibson pay for food and rent. Problems began immediately. Although Clear apparently

still considered Gibson to be her boyfriend, she and Englert became involved in a sexual

relationship, and Gibson asked Joanne to move out, which angered Clear.

       At approximately 2:00 a.m. on July 6, 2011, less than a week after they moved

into Gibson’s apartment, Englert and Williams attacked Gibson in the kitchen when he

returned home from work. Williams was apparently angry because he believed Gibson

had “disrespected” Clear. Tr. p. 463. The two men hit Gibson with their fists and kicked

him. Gibson, who was much smaller than his attackers, was unable to defend himself.

After beating Gibson, Englert and Williams removed Gibson’s clothing, hog-tied his

wrists and ankles with a dog collar and belt, threw him in a cold shower, and left him

there for ten to fifteen minutes to rinse off his blood.

       While Gibson was in the shower, Englert, Williams, and Clear sat in the living

room and discussed what to do with Gibson. Clear suggested killing him. Englert and

Williams dragged Gibson out of the shower, untied him, and told him to get dressed.

Gibson was in no condition to resist at that point, and Williams announced that they were

                                               3
all going for a ride in Joanne’s roach-infested compact-sized car. Williams got into the

driver’s seat, and Gibson was placed in the front seat with a belt around his neck. Englert

sat directly behind Gibson and restrained him with the belt. Clear sat next to Englert and

taunted Gibson while performing oral sex on Englert.

        Williams drove to an acquaintance’s house and took a pick axe, a hatchet, a

shovel, and a gas can out of the acquaintance’s garage. Englert, Williams, and Clear

discussed digging a six foot by six foot hole, beating Gibson, and burying him. Williams

then drove out to County Road 500 North in Tippecanoe County. During the drive,

Gibson pleaded for his life. He told Englert and Williams that he didn’t want to die

because he had babies, and that they could have Clear and his SNAP food stamp benefits

card.

        At some point, Williams stopped the car on the county road, removed Gibson from

the vehicle, and placed a plastic bag over his head. Clear removed the tools from the car,

and Englert dug a shallow hole next to a corn field. Williams shoved Gibson into the

hole, and Englert handed Williams the pick axe. Both Williams and Englert beat Gibson

with the tools until he was dead and then removed his bloody clothing. They left the belt

around Gibson’s neck. Because the hole Englert dug wasn’t deep enough to bury Gibson,

Englert and Williams put Gibson in a fetal position and covered his body with dirt and

corn stalks from a nearby cornfield. Englert and Williams discussed burning Gibson’s

body, but Clear told them that the nearby trees would catch fire.

                                             4
      Immediately after leaving the scene, Englert, Williams, and Clear drove to a

bridge and threw the shovel, pick axe, and hatchet into the Wabash River. They threw

Gibson’s shoes into a dumpster, and returned to Gibson’s apartment to clean up the

bloody kitchen. They hid the bloody clothes that Gibson was wearing when he died

under the stove. About 7:00 a.m., Englert and Clear used Gibson’s SNAP card to

purchase soda and snacks at the Village Pantry. Clear telephoned the restaurant that

employed Gibson and asked for his paycheck.

      Later that day, Englert and Williams drove Joanne’s car to an Ace Hardware store

where Williams stole a large bag of mulch and a bottle of hydrochloric acid. The two

men returned to Gibson’s gravesite and poured acid on Gibson to destroy evidence. They

also covered Gibson’s body with the mulch. The men left the mulch bag and acid bottle

in Joanne’s car. When they returned to Gibson’s apartment, Joanne cleaned out her car

and threw the mulch bag and acid bottle in the front yard.

      That night, Clear told a friend that Englert and Williams had killed Gibson. The

friend called the Lafayette Police Department and reported that Gibson was missing.

Lafayette Police Department Officer Shana Wainscott responded to the call at

approximately 1:00 a.m. on July 7 and spoke with Clear’s friend, who took the officer to

Gibson’s apartment. Officer Wainscott observed the mulch bag and acid bottle in the

front yard. She and Officer Jacob Daubenmeir knocked on the front door, and Joanne

invited them in to look around the apartment. The officers noticed Gibson’s wallet on the

                                            5
living room floor and asked Joanne to contact Clear. Shortly thereafter, the officers

noticed Clear, Williams, and Englert walking down the middle of the street towards the

apartment. Although initially cooperative, they all became agitated and aggressive when

questioned about Gibson. They eventually refused to answer additional questions and

returned to Gibson’s apartment. As the officers continued their investigation in the front

yard, Englert and Williams came out of the apartment and taunted the officers about

failing to arrest them. Later that morning, Officer Daubenmier arrested Englert for minor

consumption of alcohol. Marijuana was found in Englert’s wallet. When questioned at

the police station, Englert gave several false statements as to where Gibson might be.

When asked about the cuts and other injuries to his hands, arm, and neck, Englert became

agitated and said he injured himself while peeling potatoes.

       Officers at Gibson’s apartment found Gibson’s blood in the shower and on the

kitchen floor. The dog collar used to hog-tie Gibson was found on the bathroom floor

between the toilet and the shower. Gibson’s blood was also found on the rubber seal on

the trunk of Joanne’s car. Officers were eventually able to locate Gibson’s burial site

with Williams’ help.    The officers found a blood-stained plastic bag at the side of

Gibson’s grave. As the officers slowly excavated the burial site by removing the corn

stalks, mulch, and dirt, their eyes began to burn from the hydrochloric acid. Williams

also directed the officers to the Wabash River where they recovered the pick axe, shovel,

and hatchet.

                                            6
         The State charged Englert with Count I, conspiracy to commit murder as a class A

felony; Count II, murder; Count III, conspiracy to commit confinement as a class B

felony; Count IV, confinement as a class B felony; Count V, conspiracy to commit

battery as a class C felony; Count VI, battery as a class C felony; Count VII, conspiracy

to commit fraud as a Class D felony; Counts VIII and IX, two counts of fraud as a class D

felony; and Count X, possession of marijuana as a class A misdemeanor. Following

amendments to the charging information, Englert pleaded guilty to murder in March

2012. He proceeded to trial on the remaining nine counts in November 2012.

         The evidence at trial revealed that Gibson sustained injuries consistent with both a

hatchet and the pick side of a pick axe. His body also showed a pour pattern from the

hydrochloric acid. Specifically, the injuries consistent with the hatchet were a five-inch

laceration to the left side of his neck that severed his carotid artery and jugular vein, and a

five-inch laceration to the right side of his head and neck that cut through his ear,

fractured his cervical vertebra, and severed his spinal cord. The wound to the spinal cord

was fatal. The injuries consistent with the pick side of the pick axe were circular wounds

that fractured his jaw, knocked out his teeth, entered his brain, and entered the belt that

had been cinched around his neck and pushed it into his neck. Gibson also sustained a

laceration to his upper lip and bruises on the top of his head, his left ankle, and right

thigh.



                                              7
       The jury found Englert guilty of Count I, conspiracy to commit murder; Count III,

conspiracy to commit confinement; Count IV, confinement; Count V, conspiracy to

commit battery; Count VI, battery, and Count X, possession of marijuana. Englert was

found not guilty of the three fraud related charges. The trial court entered judgment of

conviction in the Chronological Case Summary on all six counts.

       At the sentencing hearing, the trial court found four aggravating factors: 1) the

harm, injury, and loss or damage suffered by Gibson was significant and greater than the

elements necessary to prove the commission of the offense; 2) Englert’s criminal history;

3) Englert’s substance abuse history; and 4) the seriousness and nature of the crime. The

trial court found no mitigating factors and expressly rejected Englert’s proffered

mitigators of his age, mental health, and hardship to his child.

       Also at the sentencing hearing, the trial court merged several of the convictions.

Specifically, the trial court merged the convictions for conspiracy to commit murder and

conspiracy to commit battery with the murder conviction. The trial court also merged the

criminal confinement conviction with the conviction for conspiracy to commit criminal

confinement. After merging the convictions, the trial court sentenced Englert to sixty-

one years for murder, eighteen years for conspiracy to commit criminal confinement, one

year for battery, and one year for possession of marijuana. The trial court ordered the

eighteen-year sentence for conspiracy to commit criminal confinement to run consecutive

with the sixty-one year sentence for murder. The court further ordered the one-year

                                              8
sentences for battery and possession of marijuana to run concurrent with each other and

consecutive with the murder and conspiracy convictions for a total executed sentence of

eighty years. Englert now appeals his convictions and sentence.

                            DISCUSSION AND DECISION

       At the outset we note that the trial court entered a judgment of conviction on each

of Englert’s convictions for conspiracy to commit murder, conspiracy to commit criminal

confinement, criminal confinement, conspiracy to commit battery, battery, and

possession of marijuana. For sentencing purposes, the trial court merged the convictions

for conspiracy to commit murder and conspiracy to commit battery with Englert’s murder

conviction, and the criminal confinement conviction with the conspiracy to commit

criminal confinement conviction.     However, if the trial court enters a judgment of

conviction on a jury’s guilty verdict, then simply merging the offenses is insufficient and

vacation of the offenses is required. Kovats v. State, 982 N.E.2d 409, 414-15 (Ind. Ct.

App. 2013). We therefore vacate Englert’s convictions for conspiracy to commit murder,

conspiracy to commit battery, and criminal confinement. The only convictions available

for review in this appeal are conspiracy to commit criminal confinement, battery, and

possession of marijuana.

                              I. Sufficiency of the Evidence

       Englert argues that there is insufficient evidence to support his convictions for

conspiracy to commit murder, conspiracy to commit criminal confinement, and

                                            9
conspiracy to commit battery. Because we have just vacated Englert’s convictions for

conspiracy to commit murder and conspiracy to commit battery, the sole issue is whether

there is sufficient evidence to support Englert’s conviction for conspiracy to commit

criminal confinement.

       Our standard of review for sufficiency claims is well settled. We neither reweigh

the evidence nor judge the credibility of the witnesses. Perrey v. State, 824 N.E.2d 372,

373 (Ind. Ct. App. 2005). We only consider the evidence most favorable to the judgment

and the reasonable inferences to be drawn therefrom. Id. Where there is substantial

evidence of probative value to support the judgment, it will not be set aside. Id.

       To convict Englert of conspiracy to commit criminal confinement, the State had to

prove that while having the intent to commit criminal confinement, Englert, Williams

and/or Clear entered into an agreement to commit criminal confinement, and either

Englert, Williams, or Clear performed an overt act in furtherance of the agreement. See

Weida v. State, 778 N.E.2d 843, 846 (Ind. Ct. App. 2002). Criminal confinement is

defined in Indiana Code section 35-42-3-3, which provides:

       A person who knowingly or intentionally:

       (1) confines another person without the other person’s consent; or

       (2) removes another person, by fraud, enticement, force, or threat of force,
           from one (1) place to another;




                                            10
       Here, Englert argues that there is insufficient evidence that he, Williams, and/or

Clear entered into an agreement. The State is not required to establish the existence of a

formal express agreement to prove a conspiracy. Weida, 778 N.E.2d at 847. It is

sufficient if the minds of the parties meet understandingly to bring about an intelligent

and deliberate agreement to commit the offense. Id. An agreement can be inferred from

the circumstantial evidence, which may include the overt acts of the parties in furtherance

of the criminal act. Id.

       Our review of the evidence reveals that after Williams took the shovel and tools

from his acquaintance’s garage, he, Englert, and Clear discussed digging a hole, beating

Gibson and burying him. During the conversation, Gibson was restrained in the car with

a belt around his neck. This evidence supports Englert’s conviction for conspiracy to

commit criminal confinement.

                                   II. Double Jeopardy

       Englert also argues that his convictions for conspiracy to commit murder,

conspiracy to commit criminal confinement, and conspiracy to commit battery violate the

Double Jeopardy Clause of the Indiana Constitution and the one conspiracy, one

conviction rule. However, we have just vacated Englert’s convictions for conspiracy to

commit murder and conspiracy to commit battery, leaving only the conspiracy to commit

criminal confinement conviction available for appellate review. Thus, there is no double

jeopardy violation.

                                            11
                              III. Prosecutorial Misconduct

       Englert next argues that the prosecutor engaged in misconduct when she

“improperly argued to the jury that [it] should convict Englert of Conspiracy to Commit

Murder, Conspiracy to Commit Criminal Confinement . . . and Conspiracy to Commit

Battery . . . under an accomplice liability theory. Tr. 770-71 and 780-81.” Appellant’s

Br. p. 25. As previously discussed, the sole conviction left for review is the conspiracy to

commit criminal confinement. Thus we address only whether the prosecutor engaged in

misconduct when she improperly argued to the jury that it should convict Englert of

conspiracy to commit criminal confinement under an accomplice liability theory.

       Englert has waived appellate review of this issue for two reasons. First, it is the

responsibility of the appellant to support his argument with appropriate legal authorities

as well as appropriate sections of the record. Badelle v. State, 754 N.E.2d 510, 541 (Ind.

Ct. App. 2001). Without both, we cannot consider the merits of the claim and thus

consider the issued waived. Id. Here, as the State points out, Englert has “cite[d]

generally to transcript page numbers 770-771 and 780-781 [and] does not identify what

language he claims was error.” Appellee’s Br. p. 29. The State is correct that the

prosecutor “made more than one statement over the span of these pages and touched on

more than one topic and piece of evidence.” Id. We are not inclined to peruse these

transcript pages in search of support for Englert’s argument. See Badelle, 754 N.E.2d at



                                            12
541 (stating that where appellant fails to support his argument with citation to the record

or case law, we are not inclined to do so for him).

       Further, when an improper argument is alleged to have been made, the correct

procedure is to request the trial court to admonish the jury. Hand v. State, 863 N.E.2d

386, 394 (Ind. Ct. App. 2007). If the party is not satisfied with the admonishment, then

he should move for a mistrial. Id. Failure to request an admonishment or move for a

mistrial results in waiver. Id. Where a claim of prosecutorial misconduct has not been

properly preserved, our standard of review is different from that of a properly preserved

claim. Id. Specifically, the defendant must establish not only the grounds for the

misconduct but also the additional grounds for fundamental error. Id. Fundamental error

is an extremely narrow exception that allows a defendant to avoid waiver of an issue. Id.

It is error that makes a fair trial impossible or constitutes clearly blatant violations of

basic and elementary principles of due process presenting an undeniable and substantial

potential for harm. Id.

       Here, Englert neither requested an admonishment nor moved for a mistrial.

Englert has therefore waived this argument and must show that any misconduct resulted

in fundamental error to succeed on appeal. This he has failed to do because he has not

established that a fair trial was impossible or that the error constitutes a clearly blatant

violation of basic due process principles. Thus, we find no error.



                                            13
                                       IV. Sentencing

                                   A. Standard of Review

         The determination of a defendant’s sentence is within the trial court’s discretion,

and we review sentences only for an abuse of that discretion. Newman v. State, 719

N.E.2d 832, 838 (Ind. Ct. App. 1999). 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. Guzman v. State, 985

N.E.2d 1125, 1132 (Ind. Ct. App. 2013). One way in which a court may abuse its

discretion is failing to enter a sentencing statement at all. Id. Other examples include

finding aggravating or mitigating factors unsupported by the record, omitting mitigating

factors clearly supported by the record and advanced for consideration, or giving reasons

that are improper as a matter of law. Brock v. State, 983 N.E.2d 636, 640 (Ind. Ct. App.

2013).

                                   B. Aggravating Factors

         Englert first argues that the trial court abused its discretion by considering the

following improper aggravating factors: 1) the harm, injury, and loss or damage suffered

by Gibson was significant and greater than the elements necessary to prove the

commission of the offense; 2) Englert’s prior criminal history; 3) Englert’s substance

abuse history; and 4) the seriousness of the nature of the crime. We address each of his

contentions in turn.

                                             14
       Englert argues that the aggravator that the harm, injury and loss or damage

suffered by Gibson was significant and greater than the elements necessary to prove the

offense was a mere generalized reference to the nature and circumstances of the offense

without any evidence that Gibson suffered greater harm than the elements necessary to

prove the commission of the offenses. The trial court may assign aggravating weight to

the harm, injury, loss or damage suffered by the victim if such harm was significant and

greater than the elements necessary to prove the commission of the offense. Sharkey v.

State, 967 N.E.2d 1074, 1078 (Ind. Ct. App. 2012). Here, in finding this aggravator, the

trial court explained that this murder involved torture and was a calculated and personal

killing. The trial court also explained that it couldn’t imagine what was going through

Gibson’s head during the trip out to 500 North after he had already been beaten and was

pleading for his life because he had babies. We find no abuse of the trial court’s

discretion.

       Englert further contends that his criminal history was not a proper aggravating

factor. Specifically, Englert appears to believe that his prior criminal history was so

minor as to be insignificant. He is correct that the significance of criminal history varies

based on the gravity, nature, and number of prior offenses in relation to the current

offense. Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct. App. 2007). However,

progressively more violent conduct is a valid aggravating circumstance. Rawson v. State,

865 N.E.2d 1049, 1056 (Ind. Ct. App. 2007). Here, the trial court pointed out at the

                                            15
sentencing hearing that although Englert was only twenty years old at the time he

committed these offenses, he had an informal adjustment in 2006 at age 15, and an

adjudication as a delinquent child in 2008. In addition, motions for modification were

filed because of Englert’s marijuana use. He was subsequently placed on house arrest

and then in secure detention. Englert was on a diversion for criminal trespass in May

2011 at the time he committed these offenses. The trial court did not err in considering

Englert’s criminal history to be an aggravating factor.

       Englert also argues that the trial court erred in considering his substance abuse

history as an aggravating factor. Specifically, he appears to argue that the trial court

abused its discretion in considering this factor because it demonstrated criminal activity

and thus should not be considered separate from his criminal history. However, a history

of substance abuse may constitute a valid aggravating factor. Iddings v. State, 772

N.E.2d 1006, 1018 (Ind. Ct. App. 2002). Here, the presentence investigation report

reveals that Englert began using alcohol at age fourteen and drugs at age sixteen. He has

used marijuana up to four times a day, synthetic marijuana, mushrooms, ecstasy, lortab,

and Adderall. The night he murdered Gibson, he took several vicodin and klonopin.

Based on this history of substance abuse, the trial court did not err in finding Englert’s

substance abuse history to be an aggravating factor.

       In addition, Englert argues that the trial court erred in finding the seriousness of

the nature of the crime as an aggravating factor. The nature and circumstances of the

                                            16
crime as well as the manner in which the crime is committed is a valid aggravating factor.

Bethea v. State, 983 N.E.2d 1134 (Ind. 2013). Here, the trial court found that on July 5

and 6, 2011, Englert was the “worst of the worst.” Tr. p. 893. Specifically, the trial court

observed that Englert “participated in a sadistic, systematic, torture, and execution of

Jeremy Gibson, followed by the subsequent mutilation in an attempt to destroy his

identity.” Tr. p. 893. The trial court did not consider improper aggravating factors. We

find no error.

                                   C. Mitigating Factors

       Englert further argues that there are four factors that the trial court should have

considered as mitigating factors in determining his sentence: 1) the fact that he pleaded

guilty; 2) his mental health; 3) his age; and 4) the hardship on his infant daughter.

Although a sentencing court must consider all evidence of mitigating factors offered by a

defendant, the finding of mitigating factors rests within the court's discretion. Henderson

v. State, 769 N.E.2d 172, 179 (Ind. 2002). A court does not err in failing to find

mitigation when a mitigation claim is highly disputable in nature, weight, or significance.

Id. The trial court is not obligated to explain why it did not find a factor to be

significantly mitigating. Sherwood v. State, 749 N.E.2d 36, 38 (Ind. 2001). Furthermore,

while Indiana law mandates that the trial judge not ignore facts in the record that would

mitigate an offense, and a failure to find mitigating factors that are clearly supported by

the record may imply that the trial court failed to properly consider them, an allegation

                                            17
that the trial court failed to find a mitigating factor requires the defendant to establish that

the mitigating evidence is both significant and clearly supported by the record. Carter v.

State, 711 N.E.2d 835, 838 (Ind.1999).

       Englert first claims that the trial court abused its discretion because it did not

consider his guilty plea to be a mitigating circumstance.          Where the State reaps a

substantial benefit from the defendant’s plea, the defendant deserves to have a substantial

benefit returned. Comer v. State, 839 N.E.2d 721, 728 (Ind. Ct. App. 2005). However, a

guilty plea is not automatically a significant mitigating factor. Id. The plea may also be

considered less significant if there was substantial admissible evidence of the defendant’s

guilt and the decision to plead guilty is merely a pragmatic one. Caraway v. State, 959

N.E.2d 847, 853 (Ind. Ct. App. 2011). Here, Englert pleaded guilty to murder, one of ten

counts, and went to trial on the other nine.         There was also substantial admissible

evidence of Englert’s guilt on that count. Under these circumstances, we find no abuse of

the trial court’s discretion.

       Englert also argues that the trial erred in failing to consider age and mental health

as a mitigating factor because he was “twenty (20) years of age and suffered from a

dependent personality disorder and was unable to function adequately on his own, lacked

self-confidence, and chose to follow the lead of other people when it came to what he

should be doing and what he should be thinking.” Appellant’s Br. p. 37. Age is neither a

statutory nor a per se mitigating factor. Monegan v. State, 756 N.E.2d 499, 504 (Ind.

                                              18
2001). The Indiana Supreme Court has observed that there are both relatively old

offenders who seem “clueless” and relatively young offenders who appear “hardened and

purposeful.” Ellis v. State, 736 N.E.2d 731, 736 (Ind. 2000). Further, this Court has

previously outlined the following factors that bear on the weight, if any, that should be

given to mental illness in sentencing: 1) the extent of the defendant’s inability to control

his or her behavior due to the disorder or impairment; 2) overall limitations on

functioning; 3) the duration of the mental illness; and 4) the extent of any nexus between

the disorder or impairment and the commission of the crime. Biehl v. State, 738 N.E.2d

337, 340 (Ind. Ct. App. 2000). Here, the trial court rejected Englert’s age as a mitigating

factor because of the nature of the offense and Englert’s mental health because it did not

see a “Svengali like hold to assist in the commission of the offenses . . . .” Tr. p. 895.

We find no abuse of the trial court’s discretion.

       Englert further argues that the trial court erred in failing to consider the hardship to

his dependent infant daughter as a mitigating factor.           We note that the relevant

consideration is whether incarceration will impose an undue hardship. Jones v. State, 790

N.E.2d 536, 540 (Ind. Ct. App. 2003). Additionally, the Indiana Supreme Court has

noted that many 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).



                                              19
Englert has not asserted any special circumstances here, and we again find no abuse of

the trial court’s discretion.

                                 D. Inappropriate Sentence

       Lastly, Englert argues that his eighty-year executed sentence is inappropriate.

Pursuant to Indiana Appellate Rule 7(B), we may revise a sentence authorized by statute

if, after due consideration of the trial court’s decision, the Court finds that the sentence is

inappropriate in light of the nature of the offense and the character of the offender. Reid

v. State, 876 N.E.2d 1114, 1116 (Ind. 2007). The defendant has the burden of persuading

us that his sentence is inappropriate. Id.

       With regard to the nature of the offenses, Englert beat Gibson in Gibson’s

apartment, hog-tied him and placed him in the shower, removed him from the shower, led

him to the car, held a belt around his neck in the car while Gibson’s girlfriend performed

a sexual act on him, removed Gibson from the car, placed a bag over his head, dug his

grave, beat him to death with a hatchet while Williams beat him with a pick axe, removed

his clothes, covered his body with cornstalks and dirt, and disposed of the murder

weapons in the Wabash River. Englert cleaned up Gibson’s bloody kitchen, and returned

to the murder site with mulch and hydrochloric acid, which he poured on Gibson’s body

to destroy evidence. Englert returned to Gibson’s home and used Gibson’s SNAP card to

purchase soda and snacks at Village Pantry.



                                              20
       With regard to the character of the offender, twenty-year-old Englert brutally and

sadistically murdered Gibson just days after Gibson invited Englert to live in his home.

Englert has a criminal history that includes the adjudication of a delinquent act. While on

probation, Englert continued to violate the law and was eventually placed in secure

detention. In addition, Englert was on a diversion for criminal trespass at the time he

murdered Gibson.      His prior contacts with the law have not caused him to reform

himself.

       Based on the foregoing, we cannot say that Englert’s eighty-year sentence is

inappropriate in light of the nature of the offenses and his character. We therefore

decline to revise Englert’s sentence.

       Englert’s convictions for conspiracy to commit murder, criminal confinement, and

conspiracy to commit battery are vacated. His remaining convictions and sentence are

affirmed.

FRIEDLANDER, J., and VAIDIK, J., concur.




                                            21
