MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                                    FILED
regarded as precedent or cited before any                                   Jun 27 2019, 8:26 am

court except for the purpose of establishing                                        CLERK
                                                                                Indiana Supreme Court
the defense of res judicata, collateral                                            Court of Appeals
                                                                                     and Tax Court
estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
John A. Kindley                                          Curtis T. Hill, Jr.
South Bend, Indiana                                      Attorney General of Indiana

                                                         Benjamin J. Shoptaw
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Darrell L. Berry,                                        June 27, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-2916
        v.                                               Appeal from the St. Joseph
                                                         Superior Court
State of Indiana,                                        The Honorable Elizabeth C.
Appellee-Plaintiff.                                      Hurley, Judge

                                                         Trial Court Cause No.
                                                         71D08-1803-F5-49



Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2916 | June 27, 2019                           Page 1 of 4
                                          Case Summary
[1]   Darrell Berry pled guilty to Level 5 felony battery and was sentenced to a four-

      year term in community corrections. On appeal, Berry contends that his four-

      year sentence is inappropriate. We affirm.



                            Facts and Procedural History
[2]   On March 2, 2018, Berry touched C.P. in a rule, insolent, or angry manner. On

      March 7, 2018, the State charged Berry with Count I – Class B misdemeanor

      battery, Count II – Class A misdemeanor resisting law enforcement, and Count

      III – Level 5 felony battery. In charging Berry with this elevated battery charge,

      the State alleged that in 2016, Berry was convicted of Class A misdemeanor

      domestic battery, with C.P. as his victim. On September 24, 2018, Berry pled

      guilty to the Level 5 felony battery charge. In exchange, the State agreed to

      drop Counts I and II. The trial court accepted Berry’s guilty plea and, on

      November 2, 2018, sentenced him to a four-year term to be served in St. Joseph

      County Community Corrections.



                                 Discussion and Decision
[3]   Berry contends that his four-year sentence is inappropriate in light of the nature

      of his offense and his character. Specifically, Berry argues that “there is nothing

      about this case and nothing cited by the judge that would indicate that a

      sentence higher than the advisory was appropriate.” Appellant’s Br. p. 5. We

      disagree.
      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2916 | June 27, 2019   Page 2 of 4
[4]   Indiana Appellate Rule 7(B) provides that “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.” In analyzing such claims, we “concentrate

      less on comparing the facts of [the case at issue] to others, whether real or

      hypothetical, and more on focusing on the nature, extent, and depravity of the

      offense for which the defendant is being sentenced, and what it reveals about

      the defendant’s character.” Paul v. State, 888 N.E.2d 818, 825 (Ind. Ct. App.

      2008) (internal quotation omitted). The defendant bears the burden of

      persuading us that his sentence is inappropriate. Sanchez v. State, 891 N.E.2d

      174, 176 (Ind. Ct. App. 2008).


[5]   With respect to the nature of Berry’s offense, the record reveals that Berry’s

      criminal act of battering C.P. was elevated to a Level 5 felony because he had

      previously been convicted of battering C.P. The record further reveals that in

      addition to the prior conviction noted in the charging information for the

      elevated battery charge, Berry has another unrelated conviction for battering

      C.P. Berry’s act of battering C.P. was not an isolated event as his criminal

      record reveals a pattern of Berry victimizing C.P.


[6]   In addition to his convictions involving violence against C.P., Berry’s criminal

      history includes misdemeanor convictions for operating a vehicle while

      intoxicated and leaving the scene of an accident. He has also committed

      numerous probation violations. In sentencing Berry, the trial court noted that

      while Berry’s criminal history “might not be the worst criminal history, the

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2916 | June 27, 2019   Page 3 of 4
      repeated type of crime, nature of crime … gives me a lot of pause, a lot of

      concern.” Tr. Vol. II p. 19. We share the trial court’s concern. Berry’s actions

      have demonstrated a disregard for both C.P.’s well-being and for the laws of

      this state.


[7]   Further, to the extent that Berry claims his guilty plea reflects well on his

      character, we have previously held that a guilty plea does not automatically

      signify a positive character trait, especially in cases where, as here, the

      defendant has received a benefit from the plea or “where the evidence against

      him is such that the decision to plead guilty is merely a pragmatic one.” See

      Wells v. State, 836 N.E.2d 475, 479 (Ind. Ct. App. 2005), trans. denied. In this

      case, Berry pled guilty after viewing the exhibits that the State planned to

      introduce into trial and in exchange for other charges being dropped. As such,

      we conclude that Berry’s decision to plead guilty was more of a pragmatic

      decision rather than a display of positive character. Berry has failed to convince

      us that his four-year sentence is inappropriate.


[8]   The judgment of the trial court is affirmed.


      Crone, J., and Tavitas, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2916 | June 27, 2019   Page 4 of 4
