 Pursuant to Ind.Appellate Rule 65(D),                           FILED
                                                              Jan 31 2013, 9:17 am
 this Memorandum Decision shall not be
 regarded as precedent or cited before any
 court except for the purpose of                                      CLERK
                                                                    of the supreme court,
 establishing the defense of res judicata,                          court of appeals and
                                                                           tax court
 collateral estoppel, or the law of the case.


ATTORNEY FOR APPELLANT:                              ATTORNEYS FOR APPELLEE:

MARK EVERETT WATSON                                  GREGORY F. ZOELLER
Watson Law Office                                    Attorney General of Indiana
Terre Haute, Indiana
                                                     JONATHAN R. SICHTERMANN
                                                     Deputy Attorney General
                                                     Indianapolis, Indiana



                                IN THE
                      COURT OF APPEALS OF INDIANA

JOSEPH J. RHEUBOTTOM, JR.,                           )
                                                     )
       Appellant-Defendant,                          )
                                                     )
                vs.                                  )       No. 84A01-1205-CR-244
                                                     )
STATE OF INDIANA,                                    )
                                                     )
       Appellee-Plaintiff.                           )


                        APPEAL FROM THE VIGO SUPERIOR COURT
                            The Honorable John T. Roach, Judge
                              Cause No. 84D01-1012-FB-4060


                                          January 31, 2013

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

FRIEDLANDER, Judge
          Joseph J. Rheubottom, Jr. pleaded guilty to one count of Neglect of a Dependent, 1 a

class B felony, and appeals from the trial court’s sentencing order for that conviction.

Rheubottom raises the following issues for our review:

          1.      Did the trial court abuse its discretion when imposing Rheubottom’s
                  sentence?

          2.      Is Rheubottom’s sentence inappropriate in light of the nature of the
                  offense and the character of the offender?

          We affirm.

          In June of 2004, James Cliff moved in with his half-brother, Rheubottom,

Rheubottom’s wife, Melissa, and Rheubottom’s step-son. Cliff, who was a paraplegic,

required assistance for his care, including care for a few bed sores he had when he moved

into Rheubottom’s home. Initially, both Rheubottom and his wife were the primary

caregivers for Cliff. When Rheubottom suffered a heart attack and took a disability leave of

absence from his employment, Rheubottom became Cliff’s primary caregiver while Melissa

worked forty to fifty hours per week outside of the home to support the family.

          During the nearly one and one-half years Rheubottom served as Cliff’s primary

caregiver, the existing sores worsened and he developed new ones. Rheubottom treated the

sores with ointment and bandages, but over the course of several months they worsened to

the point they became infected with sepsis, the flesh around the sores began to rot, and Cliff

developed pneumonia. Underlying bone could be seen through some of the sores. On

December 4, 2010, Rheubottom called 911 because Cliff had suffered a heart attack.


1
    Ind. Code Ann. § 35-46-1-4 (West, Westlaw current through 2012 2nd Reg. Sess.).

                                                     2
Although hospital personnel were able to revive Cliff from his cardiac arrest, he ultimately

died.

        Adult Protective Services and the coroner’s office reported to authorities the nature

and number of wounds that were observed on Cliff’s body. The coroner noted that Cliff had

multiple wounds on his body and that the infection from those wounds caused Cliff to

contract pneumonia, which ultimately caused his death. The State charged Rheubottom with

neglect of a dependent resulting in serious bodily injury and he pleaded guilty to the charge.

The trial court held a sentencing hearing after accepting Rheubottom’s guilty plea and

sentenced him to the advisory term of ten years executed in the Department of Correction.

Rheubottom now appeals from this sentence.

                                              1.

        Rheubottom contends that the trial court abused its discretion when sentencing him.

In particular, he argues that that the trial court improperly weighed the aggravating and

mitigating factors it found and ignored two mitigating factors, alternative forms of placement

and the guilty plea, which he claims were clearly supported by the record.

        Trial courts are required to enter sentencing statements whenever a sentence for a

felony offense is imposed. Anglemyer v. State, 868 N.E.2d 482 (Ind. 2007), clarified on

reh’g, 875 N.E.2d 218. That statement must include a reasonably detailed recitation of the

reasons for imposing the particular sentence selected. Id. If there is a finding of aggravating

and mitigating circumstances, the statement must identify all significant mitigating and




                                              3
aggravating circumstances with an explanation of the characterization of the circumstances

as either aggravating or mitigating. Id.

       Sentencing decisions are reviewed only for an abuse of discretion except for the

review and revise power provided for in Indiana Appellate Rule 7(B). Id. As long as the

sentence is within the statutory range for the particular offense, we must determine only if

there was an abuse of discretion. An abuse of discretion exists 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.

       Of the ways in which a trial court can abuse its discretion in sentencing, the examples

relevant to our inquiry here include entering a sentencing statement that explains the reasons

for imposing a sentence accompanied by the finding of aggravating and mitigating factors

that are not supported by the record, entering a sentencing statement that omits reasons

clearly supported by the record and advanced for consideration, or citing reasons that are

improper as a matter of law. Id. We will remand the matter for resentencing if we cannot

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

considered the omitted reasons that are clearly supported by the record for sentencing. Id. A

trial court cannot be said to have abused its discretion by improperly weighing aggravating

and mitigating factors because the trial court no longer has an obligation to do so when

sentencing a defendant. Id.

       Rheubottom was sentenced for the commission of a class B felony offense. The

sentencing range for a class B felony is a fixed term of between six years and twenty years


                                               4
with an advisory sentence of ten years. Ind. Code Ann. § 35-50-2-5 (West, Westlaw current

through 2012 2nd Reg. Sess.). Rheubottom was sentenced to a term of ten years executed in

the Department of Correction, so his sentence clearly falls within the statutory range for the

offense.

       Although Rheubottom casts the first part of this argument as an improper weighing of

aggravating and mitigating circumstances, he appears to argue that the trial court relied upon

improper aggravating circumstances, which ultimately led to the imposition of the advisory

sentence instead of a lesser sentence within the statutory range. When the trial court

sentenced Rheubottom, it found the following aggravating circumstances: 1) The harm

suffered by Cliff was greater than that necessary to establish the charged offense; 2)

Rheubottom had a criminal history; and 3) Cliff was disabled. The trial court found the

following mitigating circumstances: 1) The crime was unlikely to recur; 2) Rheubottom was

genuinely remorseful; and 3) Rheubottom had lived a life free of crime for a period of time.

The trial court explicitly rejected Rheubottom’s tendered mitigating factor that Cliff had

induced the injuries by requiring Rheubottom to promise not to place him in a nursing home

or force him to seek medical treatment.

       Rheubottom challenges the aggravating factor regarding the nature of the harm Cliff

endured. Indiana Code Ann. § 35-38-1-7.1(a)(1) (West, Westlaw current through 2012 2nd

Reg. Sess.) provides that it is appropriate for a trial court to consider as an aggravating

circumstance that the harm suffered by the victim of the offense was significant and greater

than the elements necessary to prove the commission of the offense. Indeed, case law


                                              5
supports the consideration of the serious nature of a victim’s injuries as a proper aggravator.

McCann v. State, 749 N.E.2d 1116 (Ind. 2001). Rheubottom appears to argue that the trial

court did nothing more than make a cursory reference to that aggravator without evidentiary

support for the finding. We disagree.

         While a material element of a crime may not be used as an aggravating factor to

support an enhanced sentence, the trial court is permitted to evaluate the particularized

circumstances of the elements as aggravating factors. McElroy v. State, 865 N.E.2d 584 (Ind.

2007). The following is a portion of the trial court’s written sentencing order relevant to this

issue:

         [Rheubottom] pled guilty to neglecting his [half-]brother, James Cliff, and
         causing serious bodily injury by his neglect. The evidence established that the
         victim was taken from defendant’s home on December 3, 2010 in cardiac
         arrest. He was taken to the hospital where he was revived, but subsequently
         died after being taken off life support. The victim had extreme injuries in the
         form of pressure sores, according to the coroner, with some of them going
         through to the underlying bone. The death was listed as a homicide resulting
         from pneumonia and infections. While the court does not find the subsequent
         death of the victim to be an aggravating factor, there is evidence that the victim
         suffered under inhumane conditions, for a significant period of time, with
         wounds and ailments that progressively worsened over time. According to the
         coroner, Dr. Kohr, some of the wounds, shown in the autopsy photographs,
         would have progressed over several months, not merely days. . . .

Appellant’s Appendix at 29. This sentencing statement more than adequately expresses the

particularized nature of the circumstances of the offense and is more than a cursory reference

to that statutory consideration.

         Rheubottom further argues that the trial court impermissibly made reference to the

state of the living conditions in his home with respect to that aggravating factor. The trial


                                                 6
court, in its oral statement at the close of the sentencing hearing made the following

comments about the statutory aggravating factor and the living conditions:

       With respect to the statutory aggravating factor that the State wants me to find
       in terms of the harm, injury, loss [or] damage suffered by the victim. I’m
       finding that factor has been established, but probably for different reasons than
       took up the majority of the argument. I’m not finding the death itself is an
       aggravating factor. Unlike an aggravated Battery charge in which the risk of
       death is contemplated by the statute, I find that the charge here was the most
       serious charge, and I’m not going to punish you because death resulted. I’m
       also not convinced beyond a reasonable doubt that the death resulted from
       what bodily injury was proved to me by the evidence, however, I am allowed
       to take into consideration as an aggravating factor, the nature and
       circumstances of the offense. I found it significant that Doctor Kohr testified
       to an ongoing process, and that these wounds themselves would have been
       serious at one point, but they were made more serious by your neglect. The
       conditions that existed in that house are deplorable. They’re inhuman. Most
       of us wouldn’t allow our animals to live in such conditions. At some point you
       had a responsibility, and you didn’t fulfill that responsibility, but it went
       beyond that. These circumstances were deplorable. I find that the injury and
       harm and loss suffered by your half brother was not only significant and
       greater than the necessary elements to prove the charge of serious bodily
       injury. At some point he did have serious bodily injury, and he continued that.
       So, I’m finding that as a statutory aggravating factor.

Transcript at 86-87. We disagree with Rheubottom’s contention that the trial court’s

reference was improper or erroneous. The conditions of Rheubottom’s home were relevant

to the ongoing and worsening nature of Cliff’s injuries and are particularized to the nature

and circumstances of the offense.

       Rheubottom also challenges the trial court’s finding of his criminal history, which

consists of a 1978 conviction for class B felony robbery, as an aggravating factor. A trial

court is permitted to find as an aggravating circumstance the defendant’s history of criminal

or delinquent behavior. I.C. Ann. § 35-38-1-7.1(a)(2). Under the advisory sentencing


                                              7
scheme, we no longer review the weight given to aggravating circumstances. Anglemyer v.

State, 868 N.E.2d 482. Instead, we assess a defendant’s criminal history as a measurement of

the number of prior convictions and their gravity, their proximity or distance from the offense

currently under review, and by any similarity or dissimilarity to the offense under review.

Bryant v. State, 841 N.E.2d 1154 (Ind. 2006).

       Although Rheubottom’s prior conviction certainly is not minor, it is his only prior

conviction. Furthermore, we acknowledge that it is not proximate or similar to the

conviction currently under review. Nonetheless, our Supreme Court has held that a minor

and non-related criminal history, although not a significant aggravating factor, is not an

improper aggravator. See Taylor v. State, 840 N.E.2d 324, 341 (Ind. 2006) (“[w]hile

Taylor’s prior criminal history is a valid aggravating circumstance, it would not support a

maximum sentence because the crimes were not particularly grave or related to his murder

conviction.”). The trial court did not abuse its discretion by finding this aggravating

circumstance.

       The trial court also found as an aggravating factor that Cliff was disabled.

Rheubottom contends that the trial court improperly found his position of trust with Cliff as

an aggravating factor, but the record reveals that the trial court mentioned that position of

trust in the sentencing order as a factor differentiating the sentence imposed on Rheubottom’s

conviction from the sentence imposed on Melissa’s conviction. Appellant’s Appendix at 37-

38. We conclude that the trial court did not abuse its discretion by finding Cliff’s disability

and infirmity as an aggravating factor especially since it is an enumerated statutory


                                              8
consideration in sentencing. I.C. Ann. § 35-38-1-7.1(a)(7). It is undisputed that Cliff was

required to use a wheelchair because he had almost no use of his legs.

       Rheubottom also challenges the trial court’s sentencing order on the ground that it

overlooked the significant mitigating factors concerning alternative forms of placement and

the guilty plea. A trial court can abuse its discretion in sentencing if it overlooks a mitigating

factor that is supported by the record. Anglemyer v. State, 868 N.E.2d 482. When a

defendant alleges that the trial court failed to identify or find a mitigating factor, the

defendant bears the burden of establishing that the mitigating factor is supported by the

record and is significant. Id. Rheubottom has failed to meet this burden.

       It is true that a defendant who pleads guilty deserves some mitigating weight to be

given to the plea in return. Id. Nonetheless, the significance of a guilty plea as a mitigating

circumstance varies from case to case. Id. In this case, the trial court acknowledged

Rheubottom’s remorse to be genuine and explicitly found his remorse as a mitigating factor.

On the other hand, the State possessed overwhelming admissible evidence of his guilt,

making his decision to plead guilty a pragmatic one as well. Based on the record before us

we remain unconvinced that his guilty plea was a significant mitigating circumstance. The

trial court did not abuse its discretion by omitting a reference to the guilty plea when

imposing Rheubottom’s sentence.

       The argument presented as a failure to find alternative placement options as a

mitigating factor is more akin to a direct challenge of Rheubottom’s placement in the

Department of Correction. Review of this challenge is more appropriately conducted under


                                                9
our Appellate Rule 7(B) analysis and is not subject to review for an abuse of discretion. King

v. State, 894 N.E.2d 265 (Ind. Ct. App. 2008). Thus, we will consider this portion of

Rheubottom’s argument in that context.

                                               2.

       Article VII, sections 4 and 6 of the Indiana Constitution authorize independent

appellate review and revision of sentences through Appellate Rule 7(B), which provides that

a 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.” Reid v. State, 876 N.E.2d 1114, 1116 (Ind. 2007)

(citing Anglemyer, 868 N.E.2d at 491). The defendant has the burden of persuading us that

his sentence is inappropriate. Id.

       With regard to Rheubottom’s argument about alternative placement, we note that our

review under App. R. 7(B) focusses on whether the sentence imposed is inappropriate, rather

than whether another sentence is more appropriate. King v. State, 894 N.E.2d 265. The

defendant must convince us that the placement ordered is inappropriate. Id. Rheubottom has

failed to meet his burden here. Although he claims that the trial court erred, he fails to

support that claim in a manner in compliance with App. R. 46(A)(8)(a) and the argument is

waived. Smith v. State, 822 N.E.2d 193 (Ind. Ct. App. 2005). This rule requires the

appellant to support his or her contentions with cogent reasoning with supporting citations to

authorities, statutes, the appendix, or portions of the record.




                                               10
       Waiver notwithstanding, Rheubottom presented the argument to the trial court during

the sentencing hearing that he wished to serve his sentence on home detention. The one

person with whom Rheubottom could live testified that she could not afford to pay for the

costs for the installation of the monitoring box or to keep her telephone functioning. The

trial court noted that during the sentencing hearing that it was uncertain that Rheubottom,

who was on a disability leave, could afford to pay for the costs related to home detention or

had a place to stay. Consequently, Rheubottom has failed to meet his burden.

       Regarding the nature of the offense, we observe that Cliff, who was physically

disabled, sustained wounds such that it was evident he had suffered for an extended period of

time. He suffered from malnutrition, dehydration, kidney failure, muscle wasting, poor

wound healing resulting in the rotting away of his flesh and sepsis. We cannot say that the

imposition of an advisory sentence was inappropriate on this basis.

       Regarding the character of the offender, we observe that Rheubottom applied

bandages and ointment to wounds that were severe enough that underlying bone was exposed

in some places. Rheubottom attempted to justify his inaction by claiming that he was

honoring his promise to his half-brother not to place him in a nursing home or force medical

care upon him. The trial court flatly rejected this contention and we do as well.

       The advisory sentence “is the starting point the Legislature has selected as an

appropriate sentence for the crime committed.” Childress v. State, 848 N.E.2d 1073, 1081

(Ind. 2006). That is precisely the sentence the trial court imposed here. Based upon our




                                             11
review, we are unpersuaded that the sentence is inappropriate in light of the nature of the

offense and the character of the offender.

       Judgment affirmed.

NAJAM, J., and BRADFORD, J., concur.




                                             12
