Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not                    Oct 21 2014, 10:06 am
be regarded as precedent or cited
before any court except for the purpose
of establishing the defense of res
judicata, collateral estoppel, or the law
of the case.



ATTORNEY FOR APPELLANT:                           ATTORNEYS FOR APPELLEE:

LAURA RAIMAN                                      GREGORY F. ZOELLER
Alcorn Goering & Sage, LLP                        Attorney General of Indiana
Madison, Indiana

                                                  LARRY D. ALLEN
                                                  Deputy Attorney General
                                                  Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

FREDRICK DABNER,                                  )
                                                  )
        Appellant-Defendant,                      )
                                                  )
               vs.                                )       No. 03A01-1402-CR-91
                                                  )
STATE OF INDIANA,                                 )
                                                  )
        Appellee-Plaintiff.                       )


                 APPEAL FROM THE BARTHOLOMEW SUPERIOR COURT
                          The Honorable James D. Worton, Judge
                             Cause No. 03D01-1310-FD-5609


                                       October 21, 2014

                 MEMORANDUM DECISION – NOT FOR PUBLICATION

BARNES, Judge
                                       Case Summary

          Fredrick Dabner appeals his sentence for Class D felony strangulation.         We

affirm.

                                            Issues

          Dabner raises two issues, which we restate as:

                I.     whether the trial court entered an adequate sentencing
                       statement; and

                II.    whether the sentence is inappropriate.

                                             Facts

          On October 16, 2013, Dabner’s wife arrived home from work and found Dabner

extremely intoxicated. He started a fight with her and ended up straddling her body with

his legs. He then began to swing his arms at her, and she blocked her face from his

attack. Dabner then placed his hands around her neck, making it difficult for her to

breathe. The State charged Dabner with Class D felony strangulation and Class A

misdemeanor domestic battery. Dabner pled guilty to Class D felony strangulation, and

the State dismissed the domestic battery charge.

          At the sentencing hearing, the trial court found two aggravators: Dabner’s criminal

history and the nature of the case. The trial court considered Dabner’s guilty plea and his

remorse but found that neither was a significant mitigating factor. The trial court found

that the aggravating factors outweighed the mitigating factors. The trial court sentenced

Dabner to two and one-half years in the Department of Correction. Dabner filed a motion




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to correct error, which the trial court granted in part regarding a fine it had imposed.

Dabner now appeals.

                                         Analysis

                                 I. Sentencing Statement

       Dabner argues that the trial court failed to enter a proper sentencing statement.

Sentencing decisions are within the sound discretion of the trial court. Anglemyer v.

State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218. However, a

trial court may be found to have abused its sentencing discretion in a number of ways,

including: (1) failing to enter a sentencing statement at all; (2) entering a sentencing

statement that explains reasons for imposing a sentence where the record does not

support the reasons; (3) entering a sentencing statement that omits reasons that are clearly

supported by the record and advanced for consideration; and (4) entering a sentencing

statement in which the reasons given are improper as a matter of law. Id. at 490-91. The

reasons or omission of reasons given for choosing a sentence are reviewable on appeal

for an abuse of discretion. Id. at 491. The weight given to those reasons, i.e. to particular

aggravators or mitigators, is not subject to appellate review. Id.

       According to Dabner, the trial court failed to enter a sentencing statement that

explained its reasons for imposing the sentence. Dabner argues that the trial court’s

sentencing order “does not contain any explanation of the reasons for the sentence, nor

does it identify any aggravating or mitigating circumstances.” Appellant’s Br. p. 6.

Dabner seems to be referring to the trial court’s written sentencing order. However,

“[t]he approach employed by Indiana appellate courts in reviewing sentences in non-

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capital cases is to examine both the written and oral sentencing statements to discern the

findings of the trial court.” McElroy v. State, 865 N.E.2d 584, 589 (Ind. 2007). At the

sentencing hearing, the trial court gave a thorough oral explanation for the sentence that it

imposed. The trial court discussed the aggravating factors, the mitigating factors, and

why the mitigating factors were of little weight. We conclude that the trial court’s

sentencing statement was adequate.

                                     II. Inappropriate

       Dabner argues that his sentence is inappropriate under Indiana Appellate Rule

7(B). Appellate Rule 7(B) provides that we may 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.

When considering whether a sentence is inappropriate, we need not be “extremely”

deferential to a trial court’s sentencing decision. Rutherford v. State, 866 N.E.2d 867,

873 (Ind. Ct. App. 2007). Still, we must give due consideration to that decision. Id. We

also understand and recognize the unique perspective a trial court brings to its sentencing

decisions. Id. Under this rule, the burden is on the defendant to persuade the appellate

court that his or her sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080

(Ind. 2006).

       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

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—

                                             4
the aggregate sentence—rather than the trees—consecutive or concurrent, number of

counts, or length of the sentence on any individual count.” Id. 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).

         The nature of the offense is that Dabner was extremely intoxicated and started a

fight with his wife. He then straddled her and proceeded to hit and strangle her. A

review of the character of the offender reveals that twenty-eight-year-old Dabner has a

significant criminal history. He has adult convictions for Class A misdemeanor carrying

a handgun without a license in 2004, Class C misdemeanor illegal consumption of

alcohol in 2004, Class A misdemeanor trespass in 2005, Class B misdemeanor criminal

mischief in 2005, Class A misdemeanor battery in 2004, Class B misdemeanor false

informing in 2005, Class C misdemeanor operating a vehicle without a license in 2009,

Class B misdemeanor false informing in 2009, Class A misdemeanor criminal mischief in

2007, Class A misdemeanor operating a vehicle while intoxicated in 2008, Class A

misdemeanor resisting law enforcement in 2010, Class B misdemeanor disorderly

conduct in 2012, and Class A misdemeanor invasion of privacy in 2012. In 2010, Dabner

entered into a pretrial diversion agreement regarding a Class A misdemeanor check

deception charge. Dabner has been sentenced to probation numerous times, and he has

violated his probation many times.



                                             5
       Dabner argues that his criminal history is “too remote in time and nature to

support an aggravated sentence.” Appellant’s Br. p. 8. We disagree. Dabner’s criminal

history is extensive, particularly given his age, and demonstrates a significant substance

abuse problem. His current offense was also related to his substance abuse. Despite

numerous opportunities, Dabner failed to address his drinking problem. We agree with

the State that Dabner’s criminal history is not “remote”; rather, it is “persistent.”

Appellee’s Br. p. 12.     Given Dabner’s criminal history and failure to address his

substance abuse, the sentence imposed by the trial court is not inappropriate.

                                       Conclusion

       The trial court’s sentencing statement was adequate, and the sentence imposed was

not inappropriate. We affirm.

       Affirmed.

BRADFORD, J., and BROWN, J., concur.




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