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
                                                          Dec 13 2012, 9:13 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:

KRISTIN A. MULHOLLAND                            GREGORY F. ZOELLER
Office of the Public Defender                    Attorney General of Indiana
Crown Point, Indiana

                                                 MICHAEL GENE WORDEN
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

URIAH S. SWELFER,                                )
                                                 )
        Appellant-Defendant,                     )
                                                 )
               vs.                               )    No. 45A05-1205-CR-260
                                                 )
STATE OF INDIANA,                                )
                                                 )
        Appellee-Plaintiff.                      )


                       APPEAL FROM THE LAKE SUPERIOR COURT
                          The Honorable Clarence D. Murray, Judge
                               Cause No. 45G02-0902-FB-16


                                      December 13, 2012

            MEMORANDUM DECISION – NOT FOR PUBLICATION
BARNES, Judge
                                    Case Summary

       Uriah Swelfer appeals his seven-year sentence for two counts of Class C felony

battery and one count of Class D felony criminal mischief. We affirm.

                                          Issue

       Swelfer raises one issue, which we restate as whether his seven-year executed

sentence is inappropriate.

                                          Facts

       On September 27, 2008, Swelfer was at his home with his brother, Aaron Swelfer,

and several other people, including Colleen Hanley. Jonathan Cox and Jonathan Jatho

went to the Swelfer home to pick up Hanley. Cox and Aaron got into an argument and

began to fight. Eventually, all of the men present, including Swelfer, got into a fight.

During the fight, Aaron knocked Jatho unconscious, and Swelfer kicked and stomped

Jatho in the head multiple times as he lay on the ground. Swelfer hit Cox’s vehicle with a

hammer, damaging the hood, trunk, and taillights.

       Swelfer was charged with one count of Class B felony aggravated battery, five

counts of Class C felony battery, and one count of Class D felony criminal mischief. On

February 16, 2002, Swelfer agreed to plead guilty to one count of Class C felony battery

relating to Jatho, one count of Class C felony battery relating to Cox, and one count of

Class D felony criminal mischief. The plea agreement called for the sentences to be

served concurrently and for the State to dismiss the remaining charges.

       After a sentencing hearing, the trial court found Swelfer’s criminal history and

violent personality to be aggravators and his guilty plea to be a mitigator. Although the

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trial court considered his guilty plea as a mitigator, it declined to consider Swelfer’s

mental health issues as mitigating. The trial court sentenced him to seven years on each

of the Class C battery charges and to two years on the Class D felony criminal mischief

charge. The trial court ordered the sentences to be served concurrently for a total

sentence of seven years, and the sentence was statutorily required to be served

consecutively to another unrelated sentence. Swelfer now appeals.

                                                Analysis

        Swelfer argues that his sentence is inappropriate in light of the nature of the

offense and his character.1 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



1
   The State suggests that Swelfer challenges his sentence as an abuse of discretion and as being
inappropriate. We believe, however, that Swelfer’s assessment of the weight that should be given to his
mental health and criminal history are in the context of our review of his sentence for appropriateness and
not a separate challenge to the trial court’s exercise of its discretion.
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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

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

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

       Swelfer argues that his character does not warrant the seven-year sentence namely

because of his mental health issues and because his criminal history is mostly unrelated to

the current offense. We are not persuaded. Although the pre-sentence investigation

report indicates that Swelfer was diagnosed with “[a]djustment disorder with depressed

mood” after a 2007 fight that left him blind in one eye, in the same report, Swelfer denied

suffering from any mental health conditions. App. Vol. II p. 96. The report also

indicates that therapy sessions were discontinued because Swelfer did not keep scheduled

appointments or respond to letters.      Further, as the trial court pointed out at the

sentencing hearing, no expert testimony was offered at the sentencing hearing linking

Swelfer’s purported depression to the commission of this offense. As such, contrary to

Swelfer’s assertion, we cannot conclude that Swelfer’s mental condition should be



                                            4
considered a significant mitigating circumstance in evaluating the appropriateness of his

sentence.

          Likewise, we are not persuaded that Swelfer’s criminal history reflects positively

on his character. Swelfer’s criminal history includes multiple juvenile adjudications and

misdemeanor convictions and three felony convictions. Even if much of his criminal

history is alcohol-related, his criminal history apparently involved the battery of two

police officers. At the very least, Swelfer’s criminal history shows a repeated disregard

for the law and does not reflect positively on his character. Finally, although Swelfer did

plead guilty, several charges, including a Class B felony battery charge, were dismissed

in exchange for his guilty plea. In sum, Swelfer has not convinced us that his character

warrants revision of his sentence.

          Moreover, the nature of this offense is particularly egregious. Swelfer kicked and

stomped on Jatho multiple times as he lay unconscious on the ground. According to

Jatho’s mother’s testimony at the sentencing hearing, Jatho’s face was “no longer

attached to his skull,” and he had to undergo a seven and half-hour surgery during which

five titanium plates were placed in his face permanently. Tr. p. 7. Based on the nature of

the offense and Swelfer’s character, he has not established that the seven-year executed

sentence for two counts of Class C felony battery and one count of Class D felony

criminal mischief is inappropriate.

                                         Conclusion

          Swelfer has not established that his seven-year sentence is inappropriate. We

affirm.

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      Affirmed.

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




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