MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                              FILED
regarded as precedent or cited before any
                                                                           Jul 31 2020, 9:19 am
court except for the purpose of establishing
the defense of res judicata, collateral                                            CLERK
                                                                               Indiana Supreme Court
estoppel, or the law of the case.                                                 Court of Appeals
                                                                                    and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Justin R. Wall                                            Curtis T. Hill, Jr.
Wall Legal Services                                       Attorney General of Indiana
Huntington, Indiana
                                                          Benjamin J. Shoptaw
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Brent C. Scheiber,                                        July 31, 2020
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          20A-CR-388
        v.                                                Appeal from the Wells Circuit
                                                          Court
State of Indiana,                                         The Honorable Kenton W. Kiracofe,
Appellee-Plaintiff.                                       Judge
                                                          Trial Court Cause No.
                                                          90C01-1901-MR-1



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A-CR-388 | July 31, 2020                           Page 1 of 6
                                           Case Summary
[1]   Following the death of a young child in his care, Brent C. Scheiber (“Scheiber”)

      pleaded guilty to Aggravated Battery, as a Level 1 felony,1 and was sentenced to

      thirty-five years in the Indiana Department of Correction. On appeal, he raises

      the single, restated issue of whether his sentence is inappropriate in light of the

      nature of the offense and his character. We affirm.



                                Facts and Procedural History
[2]   On January 7, 2019, Scheiber was caring for his girlfriend’s eighteen-month-old

      daughter, K.P, while his girlfriend was at work. Shortly after 8:00 a.m.,

      Scheiber called 9-1-1 and reported that K.P was having trouble breathing.

      When emergency medical services and law enforcement arrived, K.P. was in an

      unresponsive or semi-responsive state. Scheiber stated that he had briefly left

      K.P. in her crib and when he returned, K.P. was on the floor, apparently having

      fallen out.


[3]   K.P. was taken by ambulance to the hospital. On arrival, K.P. was semi-

      responsive, had bruising on her forehead, and her pupils were fixed and dilated.

      Medical tests revealed that K.P. suffered from a very large subdural hematoma,

      circular in shape and roughly the size of a fist, under significant pressure; a skull

      fracture; a torn frenulum inside her upper lip; and multiple retinal hemorrhages




      1
          Ind. Code § 35-42-2-1.5.


      Court of Appeals of Indiana | Memorandum Decision 20A-CR-388 | July 31, 2020   Page 2 of 6
      in both eyes. The on-call neurosurgeon opined that, based on its shape, the

      skull fracture likely was caused by blunt force trauma, rather than from a fall

      from a crib onto a carpeted floor, and likely occurred within hours of K.P.’s

      arrival at the hospital. The treating ophthalmologist opined the retinal

      hemorrhaging was most consistent with a violent shaking injury and unlikely to

      have been caused by a single fall.


[4]   K.P. died on January 12. A preliminary autopsy report indicated the cause of

      death was a subdural hematoma due to blunt force injury to the head.


[5]   On January 16, 2019, Scheiber was charged with Murder, a felony;2 Neglect of

      a Dependent Resulting in Death, as a Level 1 felony;3 and Aggravated Battery,

      as a Level 1 felony.


[6]   On December 11, 2019, Scheiber pleaded guilty to aggravated battery, and the

      remaining charges were dismissed. Under the plea agreement, sentencing was

      left to the trial court’s discretion. Following a sentencing hearing held February

      6, 2020, the trial court sentenced Scheiber to thirty-five years in the DOC, with

      no portion of the sentence suspended. Scheiber now appeals.




      2
          I.C. § 35-42-1-1(1).
      3
          I.C. §§ 35-46-1-4(a)(1) & (b)(3).


      Court of Appeals of Indiana | Memorandum Decision 20A-CR-388 | July 31, 2020   Page 3 of 6
                                   Discussion and Decision
[7]   Article 7, Section 6 of the Indiana Constitution grants this Court authority to

      review and revise sentences imposed by the trial court. To implement this grant

      of authority, Indiana Appellate Rule 7(B) provides: “The 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.” The analysis is not whether

      another sentence is more appropriate, but whether the sentence imposed is

      inappropriate. Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012). The principal

      role of our review is to leaven the outliers, and our review is very deferential to

      the trial court. Id. The defendant bears the burden of persuading the appellate

      court that his or her sentence is inappropriate. Id.


[8]   Scheiber pleaded guilty to aggravated battery, as a Level 1 felony.4 The

      sentencing range for a Level 1 felony is twenty to forty years, with an advisory

      sentence of thirty years. I.C. § 35-50-2-4(b). Thus, Scheiber’s thirty-five-year

      sentence, with no portion suspended, was above the advisory sentence. On

      appeal, Scheiber asks this Court to impose a sentence at or below the advisory

      sentence with a portion of the sentence suspended.




      4
         “A person who knowingly or intentionally inflicts injury on a person that creates a substantial risk of death
      . . . commits aggravated battery, a Level 3 felony. However, the offense is a Level 1 felony if it results in the
      death of a child less than fourteen (14) years of age and is committed by a person at least eighteen (18) years
      of age.” I.C. § 35-42-2-1.5.

      Court of Appeals of Indiana | Memorandum Decision 20A-CR-388 | July 31, 2020                          Page 4 of 6
[9]    As to the nature of the offense, Scheiber knowingly inflicted injury carrying a

       substantial risk of death on an eighteen-month-old child in his sole care. K.P.

       suffered a subdural hematoma, skull fracture, torn frenulum, and multiple

       retinal hemorrhages. She spent six days in the hospital and endured an

       emergency craniotomy and additional surgery to relieve brain swelling before

       succumbing to her injuries.


[10]   Regarding the severity of the injury inflicted and K.P.’s tender age, Scheiber

       posits there is nothing egregious about his offense “that is not already

       accounted for by the Aggravated Battery statute.” (Appellant’s Br. 17.) As to

       the severity of the injury, the record does not reveal specifically how Scheiber

       inflicted harm on K.P. At the change of plea hearing, Scheiber admitted only

       to knowingly inflicting an injury on K.P. that created a substantial risk of death

       and that did eventually lead to her death, as charged. Thus, while we cannot

       say the battery was particularly egregious, neither can we conclude it was not.

       Nevertheless, the victim’s age may be considered when evaluating whether a

       sentence is inappropriate, even where the victim’s age elevates the level of the

       offense. See Hamilton v. State, 955 N.E.2d 723, 727 (Ind. 2011) (noting that “the

       victim’s age also suggests a sliding scale in sentencing, as younger ages of

       victims tend to support harsher sentences. . . . The younger the victim, the

       more culpable the defendant’s conduct.”). In light of K.P.’s tender age, the

       nature of the offense does not suggest the sentence is inappropriate.


[11]   As to Scheiber’s character, he points to multiple factors that portray his

       character in a positive light, including, inter alia: (1) his lack of criminal history,

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-388 | July 31, 2020   Page 5 of 6
       (2) that he took responsibility for his actions and apologized to K.P.’s family,

       (3) that he called 9-1-1 shortly after the injury, (4) his record of honorable

       military service, (5) his strong support network of family and friends, and (6)

       that the Indiana Risk Assessment System Community Supervision Tool

       indicated he is at low risk to reoffend.


[12]   Nevertheless, Scheiber was K.P.’s sole caregiver on the morning of January 7,

       2019, and he violated that position of trust when he knowingly inflicted severe

       injury on her. Further, when medical personnel and law enforcement arrived,

       Scheiber lied about the circumstances of K.P.’s injury to minimize his

       responsibility. Scheiber’s commission of an unprovoked act of violence on a

       helpless and vulnerable child in his care does not speak well of his character.


[13]   Having reviewed the nature of the offense and his character, we are not

       persuaded that Scheiber’s thirty-five-year sentence for aggravated battery is

       inappropriate.


[14]   Affirmed.


       Baker, J., and Vaidik, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A-CR-388 | July 31, 2020   Page 6 of 6
