MEMORANDUM DECISION
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                               Dec 23 2015, 9:20 am

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Kimberly A. Jackson                                     Gregory F. Zoeller
Indianapolis, Indiana                                   Attorney General of Indiana
                                                        Indianapolis, Indiana

                                                        Paula J. Beller
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Charles E. Nichols,                                     December 23, 2015
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        24A01-1505-CR-401
        v.                                              Appeal from the Franklin Circuit
                                                        Court
State of Indiana,                                       The Honorable Clay M.
Appellee-Plaintiff                                      Kellerman, Judge
                                                        Trial Court Cause No.
                                                        24C02-1404-FD-239, 24C02-1412-
                                                        CM-1454, and 24C02-1501-CM-2



Altice, Judge.




Court of Appeals of Indiana | Memorandum Decision 24A01-1505-CR-401 | December 23, 2015      Page 1 of 12
                                                   Case Summary


[1]   Charles E. Nichols pled guilty to class D felony Domestic Battery,1 class D

      felony Strangulation,2 and two counts of class A misdemeanor Invasion of

      Privacy.3 The trial court sentenced him to an aggregate term of five years in

      prison, with 180 days suspended to probation. On appeal, Nichols contends

      that the trial court abused its discretion with regard to finding mitigating and

      aggravating circumstances. He also challenges his sentence as inappropriate.


[2]   We affirm.


                                          Facts & Procedural History


[3]   On February 20, 2014, Nichols was convicted of battering his wife, D.N. He

      was sentenced to 365 days in jail with 305 days suspended to probation for this

      domestic battery. Accordingly, he would have been released to probation in

      late March of that year. As a condition of probation, Nichols was ordered to

      complete anger management counseling.


[4]   Within two weeks of his release, Nichols attacked D.N. again. This time he

      grabbed her by the hair and then put his hands around her neck and began




      1
       Ind. Code § 35-42-2-1.3. Effective July 1, 2014, this offense was reclassified as a Level 6 felony. Because
      Nichols committed the offense prior to that date, it retains its prior classification as a class D felony.
      2
       I.C. § 35-42-2-9(b)(1). Effective July 1, 2014, this offense was reclassified as a Level 6 felony. Because
      Nichols committed the offense prior to that date, it retains its prior classification as a class D felony.
      3
          Ind. Code § 35-46-1-15.1.


      Court of Appeals of Indiana | Memorandum Decision 24A01-1505-CR-401 | December 23, 2015             Page 2 of 12
      choking her until she was unable to breathe. Her neck was bruised as a result of

      the force Nichols used to choke her. The abuse was not reported to police until

      April 9, 2014, when one of D.N.’s coworkers noticed the injuries and

      intervened.


[5]   The State charged Nichols, in cause number 24C02-1404-FD-239 (FD-239),

      with domestic battery and strangulation, both as class D felonies. He was

      arrested on April 11, 2014, and subsequently ordered by the trial court to have

      no contact with D.N. On June 10, 2014, Nichols bonded out of jail.


[6]   Despite the no contact order, Nichols and D.N. attempted reconciliation

      following his release. They divorced, however, in July 2014. Nichols

      continued to violate the no contact order by calling and coming over to D.N.’s

      home “all the time.” Transcript at 19. He refused to leave on several occasions,

      despite pleas from D.N. On December 17, 2014, police arrested Nichols when

      he refused to leave D.N.’s trailer. He bonded out of jail and returned to her

      trailer the next day, leaving only when she called 911.


[7]   These two incidents resulted in separate charges for invasion of privacy filed

      under cause numbers 24C02-1412-CM-1454 (CM-1454) and 24C02-1412-CM-

      1455 (CM-1455). On December 31, 2014, the State moved to revoke Nichols’s

      bond in FD-239 as a result of the violations.


[8]   Undeterred, Nichols returned to D.N.’s trailer on January 2, 2015, while still

      out on bond. D.N. went to a neighbor’s home and called 911. Nichols was

      again arrested, resulting in a third charge for invasion of privacy filed under

      Court of Appeals of Indiana | Memorandum Decision 24A01-1505-CR-401 | December 23, 2015   Page 3 of 12
       cause number 24C02-1501-CM-2 (CM-2). Nichols continued to call D.N. from

       jail after his arrest, but she refused his calls.


[9]    At the bond revocation hearing on January 29, 2015, D.N. testified regarding

       Nichols’s history of violence toward her. She also indicated that he had made

       recent threats against her and that she feared for her safety and was “terrified of

       him.” Id. at 28. Accordingly, the court revoked bond in FD-239.


[10]   On March 11, 2015, the State filed a motion for leave to amend the information

       in FD-239 to include a habitual offender count. The State explained in the

       motion that it had not sought to charge Nichols as a habitual offender earlier

       due to plea negotiations that included an offer by the State to forego such a

       filing. With Nichols’s jury trial on the horizon, the State indicated that a plea

       agreement now appeared unlikely. The court granted the State’s motion for

       leave to amend the information. The State, however, did not file the

       amendment before Nichols decided to plead guilty to the FD-239 charges of

       domestic battery and strangulation on April 2, 2015.


[11]   Thereafter, on April 23, 2015, combined plea and sentencing hearings were

       conducted in FD-239, CM-1454, CM-1455, and CM-2. Pursuant to a plea

       agreement, Nichols pled guilty to the invasion of privacy charges in CM-1454

       and CM-2. The State agreed to dismiss CM-1455 in exchange. The trial court

       sentenced Nichols to one year executed on each of the two misdemeanor

       convictions. The court ordered these sentences to be served consecutively

       because the offenses were committed while Nichols was out on bond. In FD-


       Court of Appeals of Indiana | Memorandum Decision 24A01-1505-CR-401 | December 23, 2015   Page 4 of 12
       239, the court sentenced Nichols on each count to three years in prison with

       180 days suspended to probation. The court ordered these sentences to be

       served concurrently with each other but consecutively to the misdemeanor

       sentences.


                                           Discussion & Decision


[12]   Nichols challenges his sentence on two grounds. First, he contends that the

       trial court abused its discretion in its determination of aggravating and

       mitigating circumstances. Second, he argues that his aggregate sentence of five

       years with all but 180 days executed is inappropriate in light of the nature of his

       offenses and his character. We will address each in turn.


                                           1. Abuse of Discretion


[13]   Sentencing decisions rest within the sound discretion of the trial court and are

       reviewed by this court only for an abuse of discretion. Sandleben v. State, 29

       N.E.3d 126, 135 (Ind. Ct. App. 2015), trans. denied. An abuse of discretion

       occurs if the trial court’s 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. When imposing a sentence for a felony,

       a trial court must enter a sentencing statement including reasonably detailed

       reasons for imposing a particular sentence. Id. A trial court abuses its

       discretion when it fails to issue a sentencing statement, gives reasons for

       imposing a sentence that are not supported by the record, omits reasons clearly



       Court of Appeals of Indiana | Memorandum Decision 24A01-1505-CR-401 | December 23, 2015   Page 5 of 12
       supported by the record and advanced for consideration, or considers reasons

       that are improper as a matter of law. Id.


[14]   The trial court issued the following sentencing statement with respect to the

       felony convictions:


               [S]everal things concern me about this case. Number 1, it, it was
               a very violent act, um, to someone you purport to, to love.
               That’s concerning. Um, you had multiple aggravators in this
               case, an extensive criminal history, a presentence investigation
               indicates that you have a very high risk to reoffend. There’s
               substance abuse issues. Um, and another thing that concerns me
               a little bit is all I keep hearing is blame. You’re blaming her for
               this. Or, you know what really happened. Or, almost blaming
               the Court or the system for not providing you the help or the
               resources. I look at your criminal history, you’ve been a [sic]
               probation a lot. And you recognize that you have a drug and
               alcohol problem but I can’t see that you’ve ever taken any
               ownership in it and said, “I’m going to do something about it.” I
               can’t make you not drink. The prosecutor can’t do that. That’s
               solely up to you. … [Y]ou said, “I don’t know what the Court
               wants me to do.” Well, I can tell you what this Court wants you
               to do. Don’t be here anymore. You know, don’t commit…any
               criminal offenses. Don’t strangle somebody that you say you
               love. That’s what I’m asking you to do as a Court. Um, so, the
               Court’s best option that I can find to help you, help yourself,
               would be to place you in the Department of Corrections [sic] and
               make you eligible for Purposeful Incarceration so hopefully,
               whatever programs are available…you take advantage of.


       Transcript at 72-73.


[15]   Nichols initially challenges the portion of the trial court’s statement indicating

       that he was blaming the victim for his crimes. There is ample support in the
       Court of Appeals of Indiana | Memorandum Decision 24A01-1505-CR-401 | December 23, 2015   Page 6 of 12
       record for the court’s statement in this regard. The most brazen example is the

       following from Nichols’s testimony at the sentencing hearing:


               [Nichols]: I’m sorry. I’m sorry that I hurt her. I’m sorry that I –
                     I hurt myself more than I hurt her. ‘Cause I’m the one in
                     jail. She ain’t in jail. She’s still running around, uh, doing
                     whatever she wants to do.


                                                      ****


               [State]: What does anything of that have to do with smacking
                      her around?


               [Nichols]: Well, the truth know, your Honor, er Sir, Jesus Christ
                     and me and her knows what happened. And she knows
                     that she wasn’t smacked around. It was hickeys on her
                     neck. She knows that. And she – karma will come around
                     and she knows what happened and so do I. Yes, I got a
                     temper. Yes I do. I admit that. I admit it. Just like I
                     admit I love her with all my heart still today. Even though
                     I did two hundred and some days in jail. Maybe I deserve
                     it. Maybe that’s the reason why Jesus Christ put me on
                     this Earth for was to go to prison.


       Id. at 69-70. The trial court did not err in recognizing Nichols’s attempts to

       blame the victim.


[16]   Nichols also argues that the trial court abused its discretion by noting that he

       committed an act of violence against a woman he purported to love. He claims

       this amounts to the improper use of an element of the domestic battery offense

       as an aggravating circumstance.


       Court of Appeals of Indiana | Memorandum Decision 24A01-1505-CR-401 | December 23, 2015   Page 7 of 12
[17]   It is clear that a trial court may not rely on a material element of the offense

       when imposing a sentence greater than the advisory absent something unique

       about the circumstances that would justify deviating from the advisory

       sentence. See Gomillia v. State, 13 N.E.3d 846, 852-53 (Ind. 2014). What is not

       clear here is that the trial court utilized Nichols’s marital status with the victim

       as an aggravating circumstance. The trial court’s reference to Nichols harming

       someone he purported to love appears to be in direct response to Nichols’s

       testimony at the sentencing hearing. Moreover, the trial court made this brief

       observation and then turned to the aggravating circumstances it found, which

       did not include their domestic relationship. We find no error in this regard.


[18]   Finally, with respect to his abuse of discretion argument, Nichols argues that

       the trial court failed to consider his guilty plea as a mitigating circumstance.

       Nichols asserts that he received no benefit for his guilty plea in FD-2394 and,

       therefore, it should have been given substantial mitigating weight.


[19]   A defendant who pleads guilty deserves to have at least some mitigating weight

       extended in return. Lavoie v. State, 903 N.E.2d 135, 143 (Ind. Ct. App. 2009).

       “But an allegation that the trial court failed to identify or find a mitigating

       factor requires the defendant to establish that the mitigating evidence is not only

       supported by the record but also that the mitigating evidence is significant.”




       4
         Nichols also argues this mitigating circumstance with respect to the misdemeanor cases, CM-1454 and CM-
       2. This is a perplexing argument given the fact that a trial court is not required to enter a sentencing
       statement when imposing a sentence for a misdemeanor offense.

       Court of Appeals of Indiana | Memorandum Decision 24A01-1505-CR-401 | December 23, 2015      Page 8 of 12
       Anglemyer v. State, 875 N.E.2d 218, 220-21 (Ind. 2007) (opinion on rehearing).

       The extent to which a guilty plea is mitigating will vary from case to case, and a

       plea will not necessarily constitute a significant mitigating circumstance in

       every case. Lavoie, 903 N.E.2d at 143. Specifically, “a guilty plea does not rise

       to the level of significant mitigation where the defendant has received a

       substantial benefit from the plea or where the evidence against him is such that

       the decision to plead guilty is merely a pragmatic one.” Wells v. State, 836

       N.E.2d 475, 479 (Ind. Ct. App. 2005), trans. denied.


[20]   Even though the State had not filed its amended information adding the

       habitual offender count, it is clear that Nichols avoided this significant

       sentencing enhancement by pleading guilty. He did so shortly after the trial

       court granted the State leave to file the amendment. Consequently, Nichols

       received a substantial benefit as a result of the plea, and he has not

       demonstrated that his guilty plea was a significant mitigating circumstance. We

       therefore conclude that the trial court did not abuse its discretion by omitting

       reference to the plea when imposing sentence.


                                     2. Appropriateness of Sentence


[21]   Pursuant to Ind. Appellate Rule 7, we may revise a sentence “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.” Inman v. State, 4 N.E.3d 190, 203 (Ind. 2014) (quoting App. R. 7).

       Our review in this regard is “very deferential” to the trial court. See Conley v.


       Court of Appeals of Indiana | Memorandum Decision 24A01-1505-CR-401 | December 23, 2015   Page 9 of 12
       State, 972 N.E.2d 864, 876 (Ind. 2012). “Such deference should prevail unless

       overcome by compelling evidence portraying in a positive light the nature of the

       offense (such as accompanied by restraint, regard, and lack of brutality) and the

       defendant’s character (such as substantial virtuous traits or persistent examples

       of good character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015).


[22]   “The principal role of such review is to attempt to leaven the outliers.”

       Chambers v. State, 989 N.E.2d 1257, 1259 (Ind. 2013). It is not our goal in this

       endeavor to achieve the perceived “correct” sentence in each case. Knapp v.

       State, 9 N.E.3d 1274, 1292 (Ind. 2014). Accordingly, “the question under

       Appellate Rule 7(B) is not whether another sentence is more appropriate; rather,

       the question is whether the sentence imposed is inappropriate.” King v. State,

       894 N.E.2d 265, 268 (Ind. Ct. App. 2008) (emphasis in original). Nichols bears

       the burden of persuading us that his sentence is inappropriate. See Conley, 972

       N.E.2d at 876.


[23]   Here, the trial court imposed the maximum sentence of one year executed for

       both of the class A misdemeanor convictions. See Ind. Code § 35-50-3-2. The

       court also imposed the maximum term for both of the class D felonies – three

       years in prison – but suspended 180 days and ordered the sentences to be served

       concurrently with each other. See I.C. § 35-50-2-7(a) (class D felonies carry a

       sentencing range of six months to three years, with an advisory sentence of one

       and one-half years). The misdemeanor sentences were statutorily required to be

       served consecutively to one another and to the FD-239 sentence because he

       committed them while out on bond. See I.C. § 35-50-1-2(e)(2)(B).

       Court of Appeals of Indiana | Memorandum Decision 24A01-1505-CR-401 | December 23, 2015   Page 10 of 12
[24]   We turn first to the nature of the offenses. On appeal, Nichols makes excuses

       for his multiple violations of the no contact order and argues that D.N. had no

       lasting injury as a result of the battery and strangulation. His arguments are not

       persuasive. Our review of the evidence reveals a complete lack of restraint by

       Nichols. Shortly after being released to probation, Nichols went back to

       battering his wife; this time in a particularly violent attack that left visible

       injuries to her that lasted over a week. Then, while out on bond in FD-239, he

       violated the no contact order multiple times – even after the victim pleaded for

       him to leave her residence and after being arrested for violating that same order.

       In sum, Nichols has failed to provide even the slightest evidence, much less

       compelling evidence, portraying the nature of his offenses in a positive light.


[25]   His character is even less helpful to his cause. As discussed previously, despite

       entering guilty pleas, Nichols exhibited no genuine remorse or acceptance of

       responsibility for his offenses. Further, his criminal history is aggravating with

       eight felony convictions, eleven misdemeanor convictions, and two probation

       violations. While many of his past crimes appear to be related to substance

       abuse, the trial court aptly observed that Nichols has taken no ownership of his

       drug and alcohol problems. Nor has he addressed his anger issues. As a result,

       Nichols remains exceedingly likely to reoffend.


[26]   Sentencing revision is not supported by the nature of the offenses or Nichols’s

       character. Accordingly, we do not find his five-year, partially suspended

       sentence inappropriate.



       Court of Appeals of Indiana | Memorandum Decision 24A01-1505-CR-401 | December 23, 2015   Page 11 of 12
[27]   Judgment affirmed.


[28]   Riley, J. and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 24A01-1505-CR-401 | December 23, 2015   Page 12 of 12
