MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                           FILED
this Memorandum Decision shall not be                                     Mar 30 2020, 11:18 am
regarded as precedent or cited before any
court except for the purpose of establishing                                     CLERK
                                                                           Indiana Supreme Court
                                                                              Court of Appeals
the defense of res judicata, collateral                                         and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke                                    Curtis T. Hill, Jr.
Wieneke Law Office, LLC                                  Attorney General of Indiana
Brooklyn, Indiana
                                                         Catherine E. Brizzi
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Tabetha Lynn Smith,                                      March 30, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-2129
        v.                                               Appeal from the Vigo Superior
                                                         Court
State of Indiana,                                        The Honorable Sarah K. Mullican,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         84D03-1804-F1-1294



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2129 | March 30, 2020                     Page 1 of 9
                                       Statement of the Case
[1]   Tabetha L. Smith (“Smith”) appeals the sentence imposed after she pled guilty

      to Level 3 felony neglect of a dependent.1 Her sole argument is that her

      sentence, part of which the trial court ordered her to serve at the Department of

      Correction (“DOC”), is inappropriate. Concluding that Smith has failed to

      show that her sentence is inappropriate, we affirm the sentence.


[2]   We affirm.


                                                     Issue
                               Whether Smith’s sentence is inappropriate.


                                                     Facts
[3]   Smith’s son, A.S. (“A.S.”), was born on December 3, 2017 at Methodist

      Hospital in Indianapolis. He was Smith’s seventh child. A.S. weighed only

      four pounds, thirteen ounces at birth and suffered from numerous medical

      issues, including Down Syndrome, two holes in his heart, respiratory issues,

      swallowing issues, and intestinal issues that required him to use a nasal feeding

      tube. Because of his low birth weight and medical issues, A.S. was transferred

      to Riley Hospital (“Riley”). His physician at Riley was Dr. Christiansen (“Dr.

      Christiansen”).




      1
          IND. CODE § 35-46-1-4.



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2129 | March 30, 2020   Page 2 of 9
[4]   Riley discharged A.S. on January 8, 2018. Riley staff trained Smith how to use

      the feeding tube and told her not to feed A.S. with a bottle. At the time of his

      discharge, A.S. weighed approximately six pounds. Smith took A.S. to her

      home in Terre Haute.


[5]   A.S. had a follow-up appointment scheduled on January 10. Although the

      record is not clear whether the appointment was scheduled with Riley or with

      Terre Haute pediatrician Dr. Chakrabarti (“Dr. Chakrabarti”), Smith did not

      take A.S. to the appointment. On January 12, Smith removed A.S.’s feeding

      tube and began feeding A.S. with a bottle. Smith failed to take A.S. to a second

      follow-up appointment on January 23.


[6]   Smith eventually took A.S. to see Dr. Chakrabarti on January 26, when she told

      the doctor that she had not been using the feeding tube for two weeks. Dr.

      Chakrabarti’s notes indicate that Riley was not aware that Smith had removed

      the feeding tube. In early February, a doctor told Smith to reinsert the feeding

      tube, but Smith chose not to do so. Instead, she wanted to “try to get a second

      opinion on if he even needed the feeding tube.” (Tr. at 69). Smith never sought

      a second opinion.


[7]   On February 27, Smith took A.S. to an appointment with Dr. Christiansen at

      Riley. A.S. weighed approximately six pounds, thirteen ounces. Smith told

      Dr. Christiansen that she had been feeding A.S. with a bottle for six weeks. Dr.

      Christiansen told Smith to make sure that A.S. consumed a specific amount of

      formula each day and to frequently check his weight.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2129 | March 30, 2020   Page 3 of 9
[8]    Smith and A.S. missed an appointment with Dr. Chakrabarti on March 7

       because Smith had a dental appointment. Later that day, Smith took A.S. to a

       local clinic to check his weight, which was approximately seven pounds and

       three ounces. When Smith contacted Dr. Christiansen to inform her of A.S.’s

       weight, the doctor told Smith to reinsert the feeding tube because A.S. was not

       gaining enough weight. Smith did not reinsert the feeding tube, and A.S. died

       four days later from severe dehydration.


[9]    The State charged Smith with Level 1 felony neglect of a dependent resulting in

       death, Level 3 felony neglect of a dependent resulting in serious bodily injury,

       Level 5 felony neglect of a dependent resulting in bodily injury, and Level 6

       felony neglect of a dependent. Smith pled guilty to the Level 3 felony pursuant

       to a plea agreement. The agreement further provided that the State would

       dismiss the additional charges, and that Smith would be sentenced to sixteen

       years. The agreement also provided that the parties would “argue how that 16

       year sentence [would be] served, whether it be in the Department of Correction,

       Community Correction, and/or probation, or any combination of the three.”

       (App. Vol. 2 at 70).


[10]   At the July 2019 sentencing hearing, Smith admitted that although Dr.

       Christiansen had told her on March 7 to reinsert A.S.’s feeding tube because

       A.S. was not gaining enough weight, Smith had continued to feed A.S. with a

       bottle. When asked why she had not followed the doctor’s instructions, Smith

       responded that she did not know.



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2129 | March 30, 2020   Page 4 of 9
[11]   After Smith had finished testifying, the trial court asked the parties if they had

       any objection to it reviewing A.S.’s medical records from Riley, Dr.

       Christiansen, and Dr. Chakrabarti. The parties had no objection but advised

       the trial court that the records included more than 2000 pages. The trial court

       asked the parties to agree on the medical records that they wanted to submit for

       its review and explained that the medical records would not become part of the

       record. The trial court also explained that it would continue the hearing to

       allow the court to review the medical records. Neither party objected.


[12]   When the sentencing hearing continued in August 2019, the trial court told the

       parties that it had read A.S.’s medical records and had “spent a lot of time

       looking at the Riley record[.]” (Tr. at 84). The trial court reviewed its notes in

       court and asked the parties questions. Thereafter, the parties made their

       arguments. The State asked the trial court to sentence Smith to sixteen years in

       the DOC, and Smith responded that she did not “believe an incarceration [was]

       necessary from this point on.” (Tr. at 93).


[13]   The trial court found Smith’s history of mental illness to be a mitigating factor.

       The trial court also found the following aggravating factors: (1) Smith’s

       criminal history, which included two misdemeanor convictions; (2) A.S. was

       less than twelve years old; (3) A.S. was disabled; and (4) A.S. was in Smith’s

       care and custody.


[14]   The trial court then sentenced Smith as follows:




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2129 | March 30, 2020   Page 5 of 9
               But this is still an extremely fragile baby. [He] needed a great
               deal of care. And the reasons why the nasal tube was there was
               because the - there w[ere] swallowing issues and [an] inability to
               um, ingest the formula. Um, I think you repeatedly ignored the
               doctor, even though Riley told you that that tube had to be back
               in and you just didn’t do it. I, I don’t know why; you said you
               don’t know why um, but that clearly is what led to the death of
               the child. So the Court is gonna impose the sixteen (16) year
               sentence. I’m gonna execute twelve (12) and suspend four (4),
               and place you on formal probation, all of which will be executed
               in the Department of Correction[].


       (Tr. at 97). Smith now appeals her sentence.


                                                   Decision
[15]   Smith argues that her sentence is inappropriate. She does not challenge the

       duration of her sentence, which was set forth in the plea agreement. Rather,

       she challenges the trial court’s sentencing decision regarding her placement in

       the DOC.


[16]   Indiana 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 offense and the character

       of the offender. The defendant bears the burden of persuading this Court that

       her sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind.

       2006). The principal role of a 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


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2129 | March 30, 2020   Page 6 of 9
       perceived ‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225

       (Ind. 2008).


[17]   When determining whether a sentence is inappropriate, the advisory sentence is

       the starting point the legislature has selected as an appropriate sentence for the

       crime committed. Childress, 848 N.E.2d at 1081. Here, Smith was convicted of

       a Level 3 felony. The sentencing range for a Level 3 felony is between three

       and sixteen years with an advisory sentence of nine years. See I.C. § 35-50-2-

       5(b). The trial court sentenced Smith to sixteen years consistent with the terms

       of the plea agreement and ordered her to serve twelve years in the DOC and

       four years on probation.


[18]   The location where a sentence is to be served is an appropriate focus for our

       review and revise authority under Appellate Rule 7(B). Biddinger v. State, 868

       N.E.2d 407, 414 (Ind. 2007). However, this Court has previously explained

       that it will be “quite difficult” for a defendant to prevail on a claim that her

       sentence is inappropriate. Fonner v. State, 876 N.E.2d 340, 343 (Ind. Ct. App.

       2007). This is because “the question under Appellate Rule 7(B) is not whether

       another sentence is more appropriate; rather, the question is whether the

       sentence imposed is inappropriate.” Id. at 344 (emphasis in original). A

       defendant challenging the placement of a sentence must convince us that the

       given placement is itself inappropriate. Id.


[19]   Turning to the nature of Smith’s neglect of a dependent conviction, we note

       that Smith’s son, A.S., was born with numerous medical issues, including


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2129 | March 30, 2020   Page 7 of 9
       Down Syndrome, two holes in his heart, respiratory issues, swallowing issues,

       and intestinal issues that required him to use a nasal feeding tube. When A.S.

       was discharged from the hospital, Riley staff trained Smith to use the feeding

       tube and specifically told her not to feed A.S. with a bottle. Despite A.S.’s

       fragile condition and Riley’s specific instructions, Smith failed to attend

       scheduled follow-up appointments, removed the feeding tube, and began to feed

       A.S. with a bottle. In early February, a doctor told Smith to reinsert the feeding

       tube. Smith refused to do so stating that she wanted a second opinion as to

       whether A.S. needed a feeding tube. Smith never got that second opinion. On

       March 7, after missing A.S.’s appointment to attend a dental appointment,

       Smith took A.S. to a local clinic for a weight check. When Smith told Dr.

       Christiansen how much A.S. weighed, the doctor told Smith to reinsert the

       feeding tube because A.S. was not gaining enough weight. Smith disregarded

       the doctor’s instructions, and A.S. died four days later of severe dehydration.


[20]   Turning to the nature of Smith’s character, we note that she has two prior

       misdemeanor convictions. Even a minor criminal history reflects poorly on a

       defendant’s character for the purposes of sentencing. Rutherford v. State, 866

       N.E.2d 867, 874 (Ind. Ct. App. 2007). Smith’s character is further revealed by

       her utter disregard for the health and welfare of her fragile two-month old baby

       and by her refusal to heed the instructions of medical providers on how to meet

       the basic needs of her child.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2129 | March 30, 2020   Page 8 of 9
[21]   Smith has failed to meet her burden to persuade this Court that placement in

       the DOC for twelve years for her Level 3 felony neglect of a dependent

       conviction is inappropriate.


[22]   Affirmed.


       Baker, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2129 | March 30, 2020   Page 9 of 9
