MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                            FILED
this Memorandum Decision shall not be                        Dec 21 2016, 7:39 am
regarded as precedent or cited before any                         CLERK
court except for the purpose of establishing                  Indiana Supreme Court
                                                                 Court of Appeals
the defense of res judicata, collateral                            and Tax Court


estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
John L. Tompkins                                        Gregory F. Zoeller
Brown Tompkins Lory & Mastrian                          Attorney General of Indiana
Indianapolis, Indiana
                                                        Paula J. Beller
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Christopher Clark,                                      December 21, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        33A04-1605-CR-974
        v.                                              Appeal from the Henry Circuit
                                                        Court
State of Indiana,                                       The Honorable Kit C. Dean Crane,
Appellee-Plaintiff                                      Judge
                                                        Trial Court Cause No.
                                                        33C02-1411-FB-21



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 33A04-1605-CR-974| December 21, 2016   Page 1 of 8
                                          Case Summary
[1]   Christopher Clark pled guilty to causing the death of his son and the serious

      bodily injury of his daughter while operating a vehicle with marijuana in his

      system. The trial court sentenced him to serve seven years in prison followed

      by one year of probation. On appeal, Clark argues that the trial court erred by

      failing to find certain mitigating factors and that his sentence is inappropriate

      and should be reduced under Indiana Appellate Rule 7(B). We affirm.



                            Facts and Procedural History
[2]   In April 2013, Clark was driving with his two-year-old son and his six-year-old

      daughter when he failed to yield the right-of-way at an intersection and collided

      with a van, resulting in the death of his son and serious injuries to his daughter.

      The investigation of the incident revealed that Clark’s blood contained 3.0

      ng/mL of THC and 34 ng/mL of THCA, two chemicals found in marijuana.

[3]   The State charged Clark with two counts of operating a vehicle with a schedule

      I controlled substance in his body, one a Class B felony for causing death, see

      Ind. Code Ann. § 9-30-5-5(b)(2) (West 2012), and the other a Class D felony for

      causing serious bodily injury, see Ind. Code Ann. § 9-30-5-4(a)(2) (West 2012).

      The Class B felony carried with it a sentencing range of six to twenty years and

      an advisory sentence of ten years, see Ind. Code Ann. § 35-50-2-5 (West 2012),

      and the Class D felony a range of six months to three years with an advisory

      sentence of one-and-a-half years, see Ind. Code Ann. § 35-50-2-7 (West 2012).


      Court of Appeals of Indiana | Memorandum Decision 33A04-1605-CR-974| December 21, 2016   Page 2 of 8
      Facing up to twenty-three years in prison, Clark entered into a plea agreement

      that (1) capped his sentence on the death count at eight years and (2) provided

      that his sentence on the serious-bodily-injury count would run concurrent with

      the sentence on the death count but (3) otherwise left sentencing to the

      discretion of the trial court.

[4]   In sentencing Clark, the trial court found two aggravating factors—Clark’s

      victims were less than twelve years old and were in Clark’s care, custody, or

      control. It also found one mitigating factor—Clark had no history of

      delinquency or criminal activity. With those factors in mind, the court

      sentenced Clark to eight years with one year suspended to probation on the

      death count and a concurrent term of two years on the serious-bodily-injury

      count. The court ordered that Clark serve his seven years in the Department of

      Correction (“DOC”).

[5]   Clark now appeals his sentence.



                                Discussion and Decision
[6]   Clark contends that the trial court should have found additional mitigating

      factors and, in the alternative, that his sentence is inappropriate and should be

      reduced pursuant to Indiana Appellate Rule 7(B).


                                      I. Mitigating Factors
[7]   Clark asked the trial court to find six mitigating factors, but the court found

      only one: Clark’s lack of criminal history. He argues that the court erred by not

      Court of Appeals of Indiana | Memorandum Decision 33A04-1605-CR-974| December 21, 2016   Page 3 of 8
      finding the other five. Our trial courts enjoy broad discretion in finding

      mitigating (and aggravating) factors, and we will reverse only for an abuse of

      that discretion. Coy v. State, 999 N.E.2d 937, 946 (Ind. Ct. App. 2013). “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.1


[8]   Clark first asserts that the trial court should have found that his crime was the

      result of circumstances unlikely to recur and that he is unlikely to commit

      another crime. See Ind. Code § 35-38-1-7.1(b)(2), (8). The trial court

      considered these mitigators but rejected them because of Clark’s admission that

      he continued to use marijuana after this incident and Clark’s “troubling”

      driving record, which includes eleven traffic citations from both before and after

      the incident. Tr. p. 50. The trial court acted well within its discretion in this

      respect.

[9]   Next, Clark argues that the trial court should have assigned mitigating weight to

      the fact that he paid $1100 in restitution to his son’s mother at the sentencing

      hearing. See I.C. § 35-38-1-7.1(b)(9). In rejecting this mitigator, the court noted

      that the total restitution to be paid was $3496.47, meaning that Clark was




      1
        Clark also purports to challenge the weight that the trial court assigned to the aggravators and the mitigator
      that it did find. However, our Supreme Court has made clear that a trial court’s weighing of aggravators and
      mitigators is no longer subject to review for abuse of discretion. Anglemyer v. State, 868 N.E.2d 482, 491 (Ind.
      2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007); see also Gellenbeck v. State, 918 N.E.2d 706, 712 (Ind. Ct.
      App. 2009).

      Court of Appeals of Indiana | Memorandum Decision 33A04-1605-CR-974| December 21, 2016                Page 4 of 8
       paying only about a third of what he owed. While a third is certainly better

       than nothing, we cannot say that the trial court abused its discretion in this

       regard.


[10]   We do think the trial court probably should have accepted Clark’s other two

       proposed mitigators. First, Clark’s imprisonment will “result in undue

       hardship” to his daughter. See I.C. § 35-38-1-7.1(b)(10). The daughter’s mother

       testified that Clark’s relationship with their daughter “has become

       unimaginable” since the incident, that “[t]hey share something none of us can

       quite understand because we were not in that accident with them,” and that

       their daughter “turns to her daddy for strength when she’s having a bad day or

       night.” Tr. p. 37. She also testified that Clark “works six (6) days a week with

       overtime” and is their “sole financial provider.” Id. Second, the probation

       department wrote in its pre-sentence investigation report that Clark is “likely to

       respond affirmatively to probation or short term imprisonment.” See I.C. § 35-

       38-1-7.1(b)(7). The State did not argue against this mitigator at sentencing, and

       the trial court did not provide an explanation for rejecting it.

[11]   That said, we will remand for resentencing only if “we cannot say with

       confidence that the trial court would have imposed the same sentence had it

       properly considered reasons that enjoy support in the record.” Anglemyer, 868

       N.E.2d at 491. Here, we are entirely confident that the trial court would have

       imposed the same sentence even if it had found all of the mitigators proposed

       by Clark. Significant mitigation was built into the plea agreement. The eight-

       year cap was well below the potential maximum sentence of twenty-three years

       Court of Appeals of Indiana | Memorandum Decision 33A04-1605-CR-974| December 21, 2016   Page 5 of 8
       and also below the ten-year advisory sentence for the death count. There is

       nothing in the record before us suggesting that the trial court would choose a

       different sentence on remand, even in light of additional mitigators.


                                        II. Appropriateness
[12]   Clark also asks us to exercise our authority under Indiana Appellate Rule 7(B),

       which provides that an appellate court “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.” “Whether a sentence is inappropriate ultimately

       turns on the culpability of the defendant, the severity of the crime, the damage

       done to others, and a myriad of other factors that come to light in a given case.”

       Thompson v. State, 5 N.E.3d 383, 391 (Ind. Ct. App. 2014) (citing Cardwell v.

       State, 895 N.E.2d 1219, 1224 (Ind. 2008)). Because we generally defer to the

       judgment of trial courts in sentencing matters, defendants have the burden of

       persuading us that their sentences are inappropriate. Schaaf v. State, 54 N.E.3d

       1041, 1044-45 (Ind. Ct. App. 2016). Clark has not met that burden in this case.

[13]   Clark focuses on the nature of his offense, noting that the amount of THC and

       THCA in his blood at the time of the collision was small, that there is no

       evidence that he was impaired at the time, and that the loss of his son and the

       injuries to his daughter have caused and will continue to cause him a great




       Court of Appeals of Indiana | Memorandum Decision 33A04-1605-CR-974| December 21, 2016   Page 6 of 8
       amount of personal suffering beyond any sentence imposed.2 But even if we

       accept all of these things as true, they do not justify a sentence reduction.

       Again, Clark’s sentence was capped well below his total exposure of twenty-

       three years and also below the ten-year advisory sentence on the death count,

       and the trial court ultimately ordered him to serve seven years, just one year

       more than the minimum sentence under the plea agreement. Given that Clark’s

       victims were, as the trial court emphasized, his own young children who were

       helpless to protect themselves, a sentence slightly longer than the minimum is

       by no means inappropriate.


[14]   As for Clark’s argument that he should serve his time on home detention, work

       release, or community corrections instead of in the DOC, we first note that our

       trial courts are in a far better position than this Court to determine the feasibility

       and appropriateness of particular placements in particular communities. See

       King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008). Moreover, the issue for

       us is whether the chosen placement is inappropriate, not whether an alternative

       placement would be “more appropriate.” Id.


[15]   In light of Clark’s failure to properly care for his children, and the tragic

       consequences of that failure, we cannot say that requiring him to serve his near-




       2
        There is evidence that Clark was sending and receiving text messages in the minutes leading up to the
       collision, a fact on which the State places a great deal of emphasis. We agree with the State that texting-and-
       driving is disturbing behavior. However, the State has not directed us to any evidence that Clark was driving
       when he was texting, let alone evidence that he was using or looking at his phone as he approached or
       entered the intersection. Perhaps for these reasons, the trial court did not mention the texting when imposing
       Clark’s sentence.

       Court of Appeals of Indiana | Memorandum Decision 33A04-1605-CR-974| December 21, 2016              Page 7 of 8
       minimum sentence in prison is inappropriate. The purpose of Rule 7(B) review

       is to “leaven the outliers.” Cardwell, 895 N.E.2d at 1225. The sentence

       imposed here is not an outlier.

[16]   Affirmed.

       Bradford, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 33A04-1605-CR-974| December 21, 2016   Page 8 of 8
