      MEMORANDUM DECISION
                                                                                    FILED
      Pursuant to Ind. Appellate Rule 65(D), this                               Dec 18 2017, 9:49 am
      Memorandum Decision shall not be regarded as
                                                                                    CLERK
      precedent or cited before any court except for the                        Indiana Supreme Court
                                                                                   Court of Appeals
      purpose of establishing the defense of res judicata,                           and Tax Court
      collateral estoppel, or the law of the case.



      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Melissa J. Haley                                         Curtis T. Hill, Jr.
      Martin & Martin PC                                       Indiana Attorney General
      Boonville, Indiana
                                                               Christina D. Pace
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana


                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Christopher Lee West,                                    December 18, 2017

      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               87A05-1703-CR-591
                                                               Appeal from the Warrick Circuit
              v.                                               Court.
                                                               The Honorable Greg A. Granger,
      State of Indiana,                                        Judge.
                                                               Trial Court Cause Nos.
      Appellee-Plaintiff.                                      87C01-1409-F5-351
                                                               87C01-1410-FD-367




      Barteau, Senior Judge


                                       Statement of the Case
[1]   Christopher L. West appeals from the trial court’s sentencing order from his

      convictions of one count of Class C felony battery resulting in serious bodily


      Court of Appeals of Indiana | Memorandum Decision 87A05-1703-CR-591 | December 18, 2017           Page 1 of 10
                 1                                                                   2
      injury, and one count of Level 5 felony criminal recklessness. He claims that

      his aggregate, eleven-year sentence is inappropriate given the nature of the

      offenses and his character, and that the trial court abused its discretion by

      failing to find that West’s mental health was a significant mitigating

      circumstance. We affirm.


                                                    Issues
[2]   West presents the following two issues for our review:


                 I.       Whether West’s sentence is inappropriate in light of the
                          nature of the offense and the character of the offender; and
                 II.      Whether the trial court abused its discretion by failing to
                          find West’s mental health was a significant mitigating
                          circumstance, warranting a lesser sentence.

                                   Facts and Procedural History
[3]   The facts supporting West’s guilty plea establish the following information.

      Warren J. Ingram and his wife, Mary, had been married for approximately

      thirty years when the separate events of 2014 took place. West lived with his

      mother, Mary, and step-father, Warren, during that period, with intermittent

      absences to live with other relatives. As of April 2014, West lived in a rental

      house on the same property as his mother and step-father’s house.




      1
          Ind. Code § 35-42-2-1 (2012).
      2
          Ind. Code § 35-42-2-2(b)(2)(A) (2014).


      Court of Appeals of Indiana | Memorandum Decision 87A05-1703-CR-591 | December 18, 2017   Page 2 of 10
[4]   On April 26, 2014, West’s step-father told West that his motorcycle and toolbox

      had fallen over inside the garage. Upon hearing this news, West became

      enraged and threatened his step-father.


[5]   While in the garage, West jumped up on the lawnmower and grabbed his step-

      father by the throat. His step-father blacked out and was rendered unconscious.

      As a result of the attack, Warren’s C3 to C7 vertebrae were damaged. Due to

      those injuries, Warren had numerous medical appointments–143–related to

      those injuries, and had accrued at least $38,800 in medical fees after insurance

      adjustments.


[6]   Next, on September 9, 2014, West’s mother approached him at his rental house

      on her property and notified him that he had thirty days to relocate. The major

      impetus for this notification was the April 26, 2014 altercation with West’s step-

      father. Upon hearing the news, West became irate, took a gun from his gun

      safe and fired it into the living room floor. Next, he threw his mother down to

      the ground and used both knees to hold her arms down. He then struck her

      twice in the face. He expressed threats to both his mother and step-father before

      that incident ended.


[7]   For the acts involving his mother, West was charged by the State with one

      count of Level 5 felony criminal recklessness, one count of Level 5 felony

      intimidation, and one count of Class A misdemeanor battery resulting in bodily

      injury under cause number F5-351. With respect to the acts involving his step-

      father, West was charged by the State with one count of Class C felony battery


      Court of Appeals of Indiana | Memorandum Decision 87A05-1703-CR-591 | December 18, 2017   Page 3 of 10
       resulting in serious bodily injury, one count of Class D felony strangulation,

       and one count of Class A misdemeanor battery resulting in bodily injury under

       FD-367. West pleaded guilty under both cause numbers as described above.

       He now appeals.


                                    Discussion and Decision
                                     I. Inappropriate Sentence
[8]    West contends that his sentence is inappropriate in light of the nature of the

       offenses and his character. West received an aggregate sentence of eleven years

       for his two convictions.


[9]    Our Supreme Court has set forth our standard of review as follows:


               Indiana Appellate Rule 7(B) provides, ‘[t]he 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.’ The principal role of appellate review
               should be to attempt to leaven the outliers . . . but not achieve a
               perceived “correct” result in each case. Defendant has the
               burden to persuade us that the sentence imposed by the trial
               court is inappropriate.
       Shoun v. State, 67 N.E.3d 635, 642 (Ind. 2017).


[10]   In considering the nature of West’s offenses, the advisory sentence is

       the starting point the Legislature has selected as an appropriate sentence.

       Anglemyer v. State, 868 N.E.2d 482, 494 (Ind. 2007), clarified on reh’g, 875 N.E.2d

       218. When determining the appropriateness of a sentence that deviates from


       Court of Appeals of Indiana | Memorandum Decision 87A05-1703-CR-591 | December 18, 2017   Page 4 of 10
       an advisory sentence, we consider whether there is anything more or less

       egregious about the offense as committed by the defendant that “makes it

       different from the typical offense accounted for by the legislature when it set

       the advisory sentence.” Holloway v. State, 950 N.E.2d 803, 807 (Ind. Ct. App.

       2011).


[11]   West pleaded guilty to one count of Class C felony battery resulting in serious

       bodily injury, for which the sentencing range was two to eight years with the

       advisory sentence being four years under Indiana Code section 35-50-2-6(a),

       receiving a sentence of six years. He also pleaded guilty to one count of Level 5

       felony criminal recklessness, for which the sentencing range was between one

       and six years with the advisory sentence being three years under Indiana Code

       section 35-50-2-6(b), receiving a sentence of five years. In exchange, West

       received the benefit of reducing his sentencing exposure by the dismissal of the

       other counts he faced. Thus, although he did not receive the advisory sentences

       for the crimes to which he pleaded guilty, he did not receive the maximum

       sentences for which he pleaded guilty.


[12]   Turning to the nature of the offenses, West became enraged when he was told

       by his step-father that his motorcycle and tool box had fallen over inside the

       garage. He overreacted by strangling his step-father to the point that he lost

       consciousness. West’s step-father’s C3 to C7 vertebrae were damaged. Due to

       those injuries, Warren had numerous medical appointments–143–related to

       those injuries, and had accrued at least $38,800 in medical fees after insurance

       adjustments.

       Court of Appeals of Indiana | Memorandum Decision 87A05-1703-CR-591 | December 18, 2017   Page 5 of 10
[13]   When West’s mother advised him that he needed to move from the rental

       house on their property, West threw his mother to the ground, pinned down her

       arms, struck her, and then threatened to kill both her and Warren.


[14]   These offenses demonstrate an escalation in West’s violent behavior. West has

       not demonstrated that the nature of his offenses warrants a downward revision

       in his sentence.


[15]   As for the character of the offender, one relevant consideration is the

       defendant’s criminal history. Sanders v. State, 71 N.E.3d 839, 844 (Ind. Ct. App.

       2017), trans. denied. The significance of any criminal history varies based upon

       the gravity, nature, and number of prior offenses in relation to the current

       offense. Id. West, who was at least forty-six years old at the time of sentencing,

       had two prior misdemeanor convictions, including criminal mischief and

       disorderly conduct.


[16]   Further, pending charges are a reflection on a defendant’s character and are

       indicative of the risk of future criminal activity. Bacher v. State, 722 N.E.2d 799,

       804 (Ind. 2000) (citing Tunstill v. State, 568 N.E.2d 539, 545 (Ind. 1991)). At the

       time of his sentencing, West faced four pending cases. Two cases were from

       Warrick County: allegations of Class A misdemeanor aggressive driving,

       allegations of Class A misdemeanor resisting law enforcement, and Level 6

       felony battery by bodily waste. West faced another case from Daviess County

       involving allegations of Class D felony resisting law enforcement. In




       Court of Appeals of Indiana | Memorandum Decision 87A05-1703-CR-591 | December 18, 2017   Page 6 of 10
       Vanderburgh County, West faced allegations of Class B misdemeanor battery

       and Class B misdemeanor criminal mischief.


[17]   Of course, while the pending charges do not reflect upon prior criminal history,

       the pending charges do reflect upon West’s character. After attacking family

       members, instead of exhibiting remorse, West has allegedly lashed out against

       others, including those in positions of authority, in various communities.


[18]   West argues that his mental health issues dictate a period of treatment, not a

       longer period of incarceration. West’s argument vis-à-vis mental health issues

       will be addressed more fully below. Suffice it to say, West’s counsel attempted

       to present the argument to the trial court through Warren’s and West’s

       testimony, but West maintained that he simply suffered from a sleep disorder.


[19]   West has not met his burden of persuading us that his sentence is inappropriate

       in light of the nature of the offenses or the character of the offender.


                           II. Failure to Find Mitigating Factor
[20]   Next, West argues that the trial court abused its discretion by failing to find his

       mental health issues as a mitigating factor.


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

       reviewed on appeal only for an abuse of discretion. Anglemyer, 868 N.E.2d at

       490. “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,




       Court of Appeals of Indiana | Memorandum Decision 87A05-1703-CR-591 | December 18, 2017   Page 7 of 10
       probable, and actual deductions to be drawn therefrom.” Id. (quotation

       omitted).


[22]   The finding of mitigating factors is discretionary with the trial court. Fugate v.

       State, 608 N.E.2d 1370, 1374 (Ind. 1993) (citing Graham v. State, 535 N.E.2d

       1152, 1155 (Ind. 1989)). The trial court is not required to find the presence of

       mitigating factors. Id. (citing Graham, 535 N.E.2d at 1155). Further, the trial

       court is not required to weigh or credit the mitigating evidence the way

       appellant suggests it should be credited or weighed. Id. (citing Hammons v. State,

       493 N.E.2d 1250, 1255 (Ind. 1986)). Likewise, if the trial court does

       not find the existence of a mitigating factor after it has been argued by counsel,

       the trial court is not obligated to explain why it has found that the factor does

       not exist. Id. (citing Hammons, 493 N.E.2d at 1254-55). To prevail on appeal, a

       defendant must show that the mitigating evidence not found by the trial court is

       both significant and clearly supported by the record.


[23]   In Biehl v. State, 738 N.E.2d 337, 340 (Ind. Ct. App. 2000), trans. denied, we

       recognized our supreme court’s statement of considerations when evaluating a

       claim of mental illness with respect to sentencing. The four factors outlined

       were: (1) the extent of the defendant’s inability to control his or her behavior

       due to the disorder or impairment; (2) overall limitations on functioning; (3) the

       duration of the mental illness; and (4) the extent of any connection between the

       disorder or impairment and the commission of the crime. Id. (citing Weeks v.

       State, 697 N.E.2d 28, 31 (Ind. 1998)).



       Court of Appeals of Indiana | Memorandum Decision 87A05-1703-CR-591 | December 18, 2017   Page 8 of 10
[24]   During the sentencing hearing, when West was asked by the trial court if he

       had ever been treated for any mental illness or if he currently suffered from any

       mental or emotional disability, he responded that he did not. His attorney

       asked West if he had been treated for any psychological issues, to which West

       responded that the treatment was more for a sleep disorder than a psychological

       issue. While West acknowledged that he had been seen by psychiatric services,

       he contended that he received a prescription for Lunesta, to help him sleep at

       night.


[25]   West did acknowledge that he was evaluated by Dr. David Cerling, who was

       unable to supply a clear mental health diagnosis. The doctor suggested that

       West’s decidedly dangerous and erratic behavior might be part of psychotic

       episodes induced by over-consumption of energy drinks. He also surmised that

       West’s behavior might be the result of a significantly impairing physiological

       disorder, either schizoaffective disorder, bipolar disorder, or a bipolar mood

       disorder.


[26]   Dr. Cerling concluded that incarceration would actually be less stressful for

       West from a social aspect than a work environment or dealing with close family

       relationships. Dr. Cerling was unable to give a mental illness diagnosis that

       registered on the Diagnostic and Statistical Manual of Mental Disorders.

       Further, he could not set a date of the onset of mental illness that would support

       West’s attorney’s assertion that he had been suffering from mental health issues

       for more than thirty years.



       Court of Appeals of Indiana | Memorandum Decision 87A05-1703-CR-591 | December 18, 2017   Page 9 of 10
[27]   Significantly, Dr. Cerling could not show a connection between West’s alleged

       mental impairment and the commission of the crimes against his step-father

       and mother. West has failed to show that the trial court abused its discretion by

       failing to find West’s alleged mental health issues were significant and

       supported by the record.


[28]   Affirmed.


       Najam, J., and Altice, J., concur.




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