                                                                           FILED
                                                                     Jul 13 2016, 9:05 am

                                                                           CLERK
                                                                      Indiana Supreme Court
                                                                         Court of Appeals
                                                                           and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Ross G. Thomas                                             Gregory F. Zoeller
Indianapolis, Indiana                                      Attorney General of Indiana
                                                           Karl Scharnberg
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Jason L. Forshee,                                          July 13, 2016
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           16A05-1511-CR-1923
        v.                                                 Appeal from the
                                                           Decatur Superior Court
State of Indiana,                                          The Honorable
Appellee-Plaintiff.                                        Matthew D. Bailey, Judge
                                                           Trial Court Cause No.
                                                           16D01-1403-FA-192



Kirsch, Judge.




Court of Appeals of Indiana | Opinion 16A05-1511-CR-1923 | July 13, 2016                      Page 1 of 10
[1]   Jason L. Forshee (“Forshee”) pleaded guilty to Class C felony dangerous

      control of a child,1 and at the sentencing hearing, the trial court identified

      aggravating and mitigating circumstances and then sentenced Forshee to four

      years of incarceration, with six months suspended. Forshee appeals and raises

      the following restated issue: whether the trial court abused its discretion in

      sentencing Forshee because it considered as an aggravating circumstance that

      the victim was in Forshee’s “care, custody, or control,” which was an element

      of a dismissed charge.


[2]   We affirm.


                                   Facts and Procedural History2
[3]   In March 2014, Forshee resided in a home in Greensburg, Indiana with his

      fiancée, Amy (“Amy”), and their two children, six-year-old son A.F. and seven-

      year-old daughter N.F. Amy’s older son, C.R., who was then age 13, also lived

      at the home. In the early evening on March 11, all five of the family members

      were at home and were getting ready to attend a school banquet in recognition

      of C.R.’s academic achievements. During this time, and while waiting for the

      others, Forshee began to clean his Colt M4 rifle, which he had used for target

      shooting some days prior. Before beginning to clean it, he removed the




      1
       See Ind. Code § 35-47-10-7(1)(B). We note that this statute was amended, effective July 1, 2014, but we
      apply the statute in effect at the time Forshee committed the offense in March 2014.
      2
       As Forshee notes on appeal, the affidavit of probable cause was incorporated as part of the factual basis
      supporting his guilty plea. Appellant’s Br. at 5 n.2.

      Court of Appeals of Indiana | Opinion 16A05-1511-CR-1923 | July 13, 2016                          Page 2 of 10
      magazine and believed the rifle to be unloaded. Sometime during the cleaning

      process, Amy spoke to Forshee from the bathroom, but he could not hear her,

      so he set down the rifle on a coffee table and walked away to speak with her.

      Some seconds later, he heard a loud “pop” and turned to see A.F. holding the

      rifle. Sent. Tr. at 33. A cartridge inadvertently had been left in the rifle’s

      chamber, and A.F. had shot C.R., who died shortly thereafter at the hospital

      from the injuries.


[4]   The State charged Forshee with: Count I, Class A felony neglect of a

      dependent; and Count II, Class C felony dangerous control of a child. In

      exchange for the State’s dismissal of Count I, Forshee pleaded guilty to Count

      II, which read:

              The parent of [A.F.], age 6, did recklessly permit [A.F.] to
              possess a firearm, failing to make reasonable effort to prevent the
              use of the firearm by [A.F.] to commit a felony offense, to wit:
              Pointing a Firearm, [C]lass D felony and/or Reckless Homicide,
              Class C felony, inside the residence[.]


      Appellant’s App. at 11. The Plea Agreement (“Plea Agreement”) provided that

      sentencing “shall be left OPEN,” but with a cap of six years on the executed

      portion of the sentence. Id. at 15 (emphasis in original). It further stated, “The

      State will make no sentencing recommendation, but may present evidence and

      victim impact statements.” Id. (emphasis added).


[5]   At the sentencing hearing, after hearing testimony, receiving argument, and

      after having previously reviewed the letters that had been submitted to it, the


      Court of Appeals of Indiana | Opinion 16A05-1511-CR-1923 | July 13, 2016    Page 3 of 10
      trial court identified mitigating and aggravating circumstances. As far as

      mitigators, the trial court found that Forshee was remorseful, had led a “law

      abiding life for a long period of time,” was unlikely to commit another crime,

      and had sought grief counseling. Sent. Tr. at 46-47. Contrary to Forshee’s

      request, the trial court did not find that pleading guilty constituted a significant

      mitigating circumstance, as Forshee received the benefit of dismissal of a Class

      A felony under the Plea Agreement, and it also rejected Forshee’s claim that

      incarceration would result in undue hardship on Forshee’s family, as it results

      in hardship on most families, and his situation presented no exception.


[6]   With regard to aggravators, the trial court observed that Forshee had four prior

      misdemeanor convictions, but concluded they were unrelated in nature and

      severity to the current offense, and the most recent was twelve years prior; the

      trial court therefore determined that Forshee’s criminal history was not

      significant. The trial court recognized as a significant aggravating circumstance

      that Forshee “was in a position of care, custody or control of the victim in this

      case, with a family relationship that’s been testified about[.]” Id. at 45. The

      trial court also found as a significant aggravator that this offense would have a

      “long lasting [and] very serious impact” on “the other child in this case and his

      future life.” Id.


[7]   The trial court sentenced Forshee to the advisory four years for Class C felony

      dangerous control of a child, ordering it to be executed at the Indiana

      Department of Correction, with six months suspended to probation. Forshee



      Court of Appeals of Indiana | Opinion 16A05-1511-CR-1923 | July 13, 2016   Page 4 of 10
      filed a motion to correct error, which was deemed denied. Forshee now

      appeals.


                                      Discussion and Decision
[8]   Forshee contends that the trial court abused its discretion when it sentenced

      him because it relied on an improper aggravator. Sentencing decisions rest

      within the sound discretion of the trial court and are reviewed on appeal only

      for an abuse of discretion. Guzman v. State, 985 N.E.2d 1125, 1131 (Ind. Ct.

      App. 2013) (citing Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), modified

      on other grounds on reh’g, 875 N.E.2d 218 (Ind. 2007). “An abuse of discretion

      occurs if the 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. (quotation marks omitted). When

      imposing a sentence in a felony case, the trial court must provide a reasonably

      detailed sentencing statement explaining its reason for imposing the sentence.

      Id. As the Anglemyer Court explained,


              One way in which a trial court may abuse its discretion is failing
              to enter a sentencing statement at all. Other examples include
              entering a sentencing statement that explains reasons for
              imposing a sentence - including a finding of aggravating and
              mitigating factors if any - but the record does not support the
              reasons, or the sentencing statement omits reasons that are
              clearly supported by the record and advanced for consideration,
              or the reasons given are improper as a matter of law. Under
              those circumstances, remand for resentencing may be the
              appropriate remedy if we cannot say with confidence that the



      Court of Appeals of Indiana | Opinion 16A05-1511-CR-1923 | July 13, 2016     Page 5 of 10
                trial court would have imposed the same sentence had it properly
                considered reasons that enjoy support in the record.


       Anglemyer, 868 N.E.2d at 490-91.


[9]    On appeal, Forshee does not challenge the trial court’s determination with

       regard to mitigating factors; rather, his challenge is to one of the two

       aggravators that the trial court recognized as significant. Specifically, he asserts

       that it was an abuse of discretion for the trial court to rely on the aggravating

       circumstance that he was “in a position of care, custody, or control over the

       victim[.]”3 Sent. Tr. at 45. Forshee maintains that it was improper as a matter

       of law for the trial court to rely on that fact as an aggravator because it is a

       material element of the dismissed charge (Count I, Class A neglect of a

       dependent). Forshee’s argument, however, was expressly addressed and

       rejected by our Supreme Court in Bethea v. State, 983 N.E.2d 1134 (Ind. 2013).4


[10]   In Bethea, a defendant had been charged with, among other things, felony

       burglary resulting in bodily injury, and he ultimately pleaded guilty to felony

       armed robbery and felony criminal confinement. 983 N.E.2d at 1137. At



       3
         To the extent that Forshee suggests that A.F., the six-year-old who shot the gun, was “the victim” in this
       case, we disagree. See Appellant’s Br. at 5 (stating “The trial court did not specify who he was referring to []as
       the victim in his ruling.”). Certainly, in a sense, there are many victims in this tragic case; however, we are
       certain that the trial court – when stating that “Forshee was in a position of care, custody, or control of the
       victim in this case” – was referring to C.R., who suffered a fatal gunshot wound when A.F. handled
       Forshee’s rifle, and it discharged.
       4
        In support of his position, Forshee cites to Farmer v. State, 772 N.E.2d 1025, 1027 (Ind. Ct. App. 2002) and
       Roney v. State, 872 N.E.2d 192, 201 (Ind. Ct. App. 2007), trans. denied. Appellant’s Br. at 6. However, our
       Supreme Court’s decision in Bethea abrogated Farmer and Roney. See Guzman, 985 N.E.2 1125, 1132 (Ind. Ct.
       App. 2013) (recognizing that Bethea abrogated Farmer and Roney).

       Court of Appeals of Indiana | Opinion 16A05-1511-CR-1923 | July 13, 2016                              Page 6 of 10
       sentencing, the trial court found “the harm, injury, and loss suffered by the

       victims” to be an aggravating circumstance. Id. at 1138. Bethea appealed his

       sentence, arguing that it violated the limitation on consecutive sentences in

       Indiana Code section 35-50-1-2.5 Bethea v. State, No. 18A02-0703-CR-247 (Ind.

       Ct. App. Nov. 15, 2007). Finding that Bethea had pleaded guilty to a “crime of

       violence” as defined in the statute, this court found that Bethea’s sentences were

       not subject to the statute, and it affirmed. Id. Bethea sought post-conviction

       relief, arguing that both his trial and appellate counsel were ineffective by

       failing to challenge the aggravating factors used by the trial court to sentence

       him. The post-conviction court denied Bethea’s petition, and Bethea appealed.

       Bethea v. State, 964 N.E.2d 255 (Ind. Ct. App. 2012), trans. granted. On appeal,

       Bethea argued, among other things, that appellate counsel should have asserted

       that it was trial court error to treat the victim’s injury as an aggravating factor

       because that was an element of the burglary charge that was dismissed pursuant

       to his plea agreement. Id. at 266. A majority of this court affirmed the post-

       conviction court’s denial of relief. Id. at 269.


[11]   On transfer, the Supreme Court analyzed, among other things, whether the trial

       court erred “by treating the victim’s injury as an aggravating factor when the




       5
         Indiana Code section 35-50-1-2 provides that the aggregate sentence for conduct constituting a single
       episode of criminal conduct, except in situations involving “crimes of violence,” may not exceed the advisory
       sentence for the class of felony that is one level higher than the most serious felony of which the defendant is
       convicted.



       Court of Appeals of Indiana | Opinion 16A05-1511-CR-1923 | July 13, 2016                           Page 7 of 10
injury was an element of the burglary charge that was dismissed pursuant to

[Bethea’s] plea agreement.” Bethea, 983 N.E.2d at 1142. The Bethea Court

reviewed a line of cases, including Farmer and Roney, and ultimately held that it

was not improper for the trial court in Bethea’s case to give significant weight to

facts relating to the burglary and other dismissed charges. Id. at 1145. It

reasoned that although those facts related to elements of the dismissed charges,

the terms of the plea agreement did not limit or exclude what may be

considered by the trial court. That is, a plea agreement is a contract and each

party bargains “to include or exclude certain terms and each party received

substantial benefits by arriving at an agreement.” Id. at 1144. In Bethea’s case,

Bethea bargained for dismissal of seven of nine counts with which he was

charged; the State bargained to ensure a certain conviction on two Class B

felonies. Bethea’s written plea agreement did not limit what the State could

offer as aggravating factors or what the defendant could submit as mitigating

factors. “In other words, it did not limit the sentencing evidence, only the

maximum sentence.” Id.


        It is well within the purview of contract law, and consequentially,
        as mentioned above, the law as it relates to plea bargains, for the
        Defendant to bargain and the State to accept a plea bargain that
        forecloses the possibility of the trial court using enhancements
        from the underlying charges that were dismissed, or from the
        original charges from which a lesser included plea is taken.
        However, if a plea bargain lacks such language, we hold it is not
        necessary for a trial court to turn a blind eye to the facts of the
        incident that brought the defendant before them.



Court of Appeals of Indiana | Opinion 16A05-1511-CR-1923 | July 13, 2016   Page 8 of 10
       Id. at 1145. Simply stated, “Unless evidence is forbidden by the terms of the

       plea agreement, the trial court [] may consider all the evidence before [it].” Id.

       at 1146.


[12]   Here, like in Bethea, the Plea Agreement did not contain any language

       “foreclosing the trial court from considering the facts and circumstances relating

       to the dismissed charge[].” Guzman, 985 N.E.2d at 1132. Rather, the Plea

       Agreement generally provided that the State “may present sentencing

       evidence[.]” Appellant’s App. at 15. Therefore, as the Bethea Court explained,

       the trial court did not have to “turn a blind eye” to the facts and circumstances

       surrounding the case. 983 N.E.2d at 1145. Accordingly, the trial court did not

       abuse its discretion when it considered as an aggravator the circumstance that,

       at the time of the incident, Forshee was in a position of care, custody, or control

       of C.R.6 See Guzman, 985 N.E.2d at 1132 (trial court acted within discretion

       when, while sentencing defendant for felony reckless homicide, it considered

       surviving victim’s bodily injury as aggravator, even though victim’s injury was

       essential element of two charges that were dismissed pursuant to plea

       agreement, given that agreement did not contain language foreclosing trial

       court from considering facts and circumstances relating to dismissed charges).




       6
         We recognize that “[w]here a trial court’s reason for imposing a sentence greater than the advisory sentence
       includes material elements of the offense, absent something unique about the circumstances that would
       justify deviating from the advisory sentence, that reason is ‘improper as a matter of law.’” Gomillia v. State,
       13 N.E.3d 846, 852-53 (Ind. 2014). However, that principle is inapplicable here, as the fact that C.R. “was
       under the care, custody, or control” of Forshee was not a material element of the offense for which Forshee
       was sentenced.

       Court of Appeals of Indiana | Opinion 16A05-1511-CR-1923 | July 13, 2016                           Page 9 of 10
[13]   Affirmed.


[14]   Riley, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Opinion 16A05-1511-CR-1923 | July 13, 2016   Page 10 of 10
