      MEMORANDUM DECISION

      Pursuant to Ind. Appellate Rule 65(D),                                 FILED
      this Memorandum Decision shall not be                             Jan 30 2017, 8:42 am
      regarded as precedent or cited before any
                                                                             CLERK
      court except for the purpose of establishing                       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
      Douglas D. Martz                                         Curtis T. Hill, Jr.
      Marion, Indiana                                          Attorney General of Indiana
                                                               Christina D. Pace
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Joshua R. Walker,                                        January 30, 2017
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               05A02-1607-CR-1584
              v.                                               Appeal from the Blackford Circuit
                                                               Court
      State of Indiana,                                        The Honorable Dean A. Young,
      Appellee-Plaintiff.                                      Judge
                                                               Trial Court Cause No.
                                                               05C01-1505-F5-114



      Mathias, Judge.


[1]   Joshua R. Walker (“Walker”) was convicted in Blackford Circuit Court of

      Level 6 felony neglect of a dependent and sentenced to an executed term of two


      Court of Appeals of Indiana | Memorandum Decision 05A02-1607-CR-1584 | January 30, 2017    Page 1 of 8
      and one-half years of incarceration. On appeal, Walker contends that the trial

      court abused its discretion in sentencing him by considering an element of the

      crime as an aggravating factor.


[2]   We affirm.


                                    Facts and Procedural History

[3]   Walker and his girlfriend, Doralee Burress (“Burress”), had a child, B.W. On

      October 14, 2014, Burress took the child to Riley Children’s Hospital in

      Indianapolis because the infant’s head seemed enlarged. At the hospital,

      doctors discovered that B.W. had suffered serious injuries, which included

      multiple skull fractures, fractured ribs, a possible fracture of his tibia and left

      ankle, a lacerated liver, retinal hemorrhaging, and fluid on his brain. One of the

      treating physicians told the police that some of the fractures showed signs of

      healing, but that the rib fractures had not yet healed. The physician was of the

      opinion that the injuries were the result of abuse, not accident. Walker and

      Burress were the child’s main caregivers, and only they and Walker’s sister,

      Burress’s mother, and Burress’s friend had ever been alone with the child since

      his birth.


[4]   On May 4, 2015, the State charged Walker with Level 5 felony neglect of a

      dependent. Walker entered into a plea agreement with the State on January 28,

      2016, in which he agreed to plead guilty to Level 6 felony neglect of a

      dependent and serve any sentence received on home detention through

      community corrections. The trial court rejected this plea agreement on


      Court of Appeals of Indiana | Memorandum Decision 05A02-1607-CR-1584 | January 30, 2017   Page 2 of 8
      February 26, 2016. Thereafter, the parties entered into another plea agreement.

      This time, the agreement called for Walker to plead guilty to Level 6 neglect of

      a dependent, but sentencing was left wholly to the discretion of the trial court.

      The trial court accepted this plea.


[5]   At a sentencing hearing held on June 13, 2016, the trial court found as

      mitigating the following factors: Walker had no criminal history; Walker had

      served in the Navy for five years; Walker had cooperated with the Department

      of Child Services in the CHINS proceeding that was initiated due to B.W.’s

      injuries and sought treatment; and Walker was at a low risk to reoffend. The

      trial court found as aggravating the extent and severity of the infant’s injuries.

      Concluding that the aggravators outweighed the mitigators, the trial court

      sentenced Walker to two and one-half years of incarceration, with no time

      suspended. Walker now appeals.


                                        Discussion and Decision

[6]   Generally speaking, sentencing decisions are left to the sound discretion of the

      trial court, and we review the trial court’s decision only for an abuse of this

      discretion. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g,

      875 N.E.2d 218. An abuse of discretion occurs if the decision is clearly against

      the logic and effect of the facts and circumstances before the trial court. Id. The

      trial court may abuse its discretion in sentencing in a number of ways, including

      (1) wholly failing to enter a sentencing statement, (2) entering a sentencing

      statement that explains reasons for imposing the sentence but the record does

      not support the reasons, (3) the sentencing statement omits reasons that are
      Court of Appeals of Indiana | Memorandum Decision 05A02-1607-CR-1584 | January 30, 2017   Page 3 of 8
      clearly supported by the record and advanced for consideration, or (4) the

      reasons given in the sentencing statement are improper as a matter of law.

      Kimbrough v. State, 979 N.E.2d 625, 628 (Ind. 2012) (citing Anglemyer, 868

      N.E.2d at 490-91).


[7]   Walker argues that the trial court abused its sentencing discretion when it

      considered elements of the crime for which he was convicted as aggravating

      factors to “enhance” his sentence. In Gomillia v. State, 13 N.E.3d 846 (Ind.

      2014), our supreme court explained 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.” Id. at 852-53 (emphasis added) (brackets in original) (citations and

      internal quotation marks omitted). Thus, if the trial court relies upon an

      aggravating factor that is also a material element of the offense, then the trial

      court abuses its discretion; but if there is something unique about the

      circumstances of the crime, then there is no abuse of discretion in relying upon

      these circumstances as an aggravating factor. See id. at 853 (“Generally, the

      nature and circumstances of a crime is a proper aggravating circumstance.”).


[8]   Applying this to the facts of the present case, we discern no abuse of the trial

      court’s sentencing discretion, as the trial court did not rely upon the material

      elements of the crime of neglect of a dependent as aggravators; instead, it relied

      upon the particularly horrific nature and circumstances of the case as

      aggravators.

      Court of Appeals of Indiana | Memorandum Decision 05A02-1607-CR-1584 | January 30, 2017   Page 4 of 8
[9]   The statute defining the crime of neglect of a dependent as a Level 6 felony

      provides:


               A person having the care of a dependent, whether assumed
               voluntarily or because of a legal obligation, who knowingly or
               intentionally:
                   (1) places the dependent in a situation that endangers the
                   dependent’s life or health;
                   (2) abandons or cruelly confines the dependent;
                   (3) deprives the dependent of necessary support; or
                   (4) deprives the dependent of education as required by law;
               commits neglect of a dependent, a Level 6 felony.

      Ind. Code § 35-46-1-4(a). Injury to the dependent and the pain the dependent

      suffers are not material elements of the crime.1 Yet, it is precisely these facts that

      the trial court described as aggravating factors in its sentencing statement:


               It is the aggravating circumstances, however, in this case that
               leads the Court to the conclusion that it will reach with respect to
               the sentence in this case. [B.W.] was a totally defenseless, totally
               dependent child, who spent the first two months of his life and
               every day, every moment of the first two months of his life in
               great agony. He was literally beaten up by somebody and the two
               people that were responsible to [e]nsure that that would never
               occur to their child are deaf and dumb when it comes to the



      1
        We reject Walker’s claim that the length of time that B.W. was abused was a material element of the crime
      because the charging information stated that the crime occurred “between August 7, 2014 and October 16,
      2014.” Appellant’s App. p. 28. That the charging information included a range of dates does not transform
      this range into a material element of the offense. See Blount v. State, 22 N.E.3d 559, 569 (Ind. 2014) (noting
      that where time is not otherwise an element of the offense, the State is not required to prove the offense
      occurred on the date alleged in the charging instrument) (citing Neff v. State, 915 N.E.2d 1026, 1032 (Ind. Ct.
      App. 2009), adhered to on reh’g, 922 N.E.2d 44 (Ind. Ct. App. 2010)).

      Court of Appeals of Indiana | Memorandum Decision 05A02-1607-CR-1584 | January 30, 2017              Page 5 of 8
        possible explanation as to why that happened. The injuries have
        been set out for the record many times before, but just for
        purposes of formulating the Court’s thoughts and the sentencing
        order in this case, it’s noteworthy that when he first was referred
        to Riley Hospital he had an unusually large head, he wasn’t
        acting right. Once at Riley, they discovered multiple skull
        fractures and fluid on his brain. Many of the fractures in various
        stages of healing which means that it happened more than once.
        Multiple rib fractures, again, in various stages of healing, which
        indicate that it happened more than once. Possible fracture to the
        tibia and left ankle. He had a laceration or a cut on his liver.
        There was bruising to the left side of his face.


        Virtually every single moment of that child’s life he was in great
        agony. The parents were equally responsible to keep that from
        happening and should it happen by others to seek medical
        treatment. Accordingly, they are both equally culpable. That
        child was put to more torture than if he would an Islamic Jihadist
        at Guantanamo, being tortured for information or for his crimes.
        He was abused every single day for two months. Every single
        day. Either physically beaten up or denied the medical care that
        his beatings required. And the parents are deer in headlights
        when it comes to what happened to that child. Anything other
        than the maximum sentence would seriously depreciate what
        happened to this child.


        I appreciate the parents have sought treatment now that it’s been
        determined that the child was beat up. I appreciate the fact that it
        creates a hardship by putting people in jail. I’ve never been able
        to figure out how to avoid that one, other than I guess, the person
        not committing the crime to begin with. So, that has to go back
        on them. It’s unlikely to recur. More than likely, it’s unlikely to
        recur, because nobody will ever put a child in their hands without
        taking a second look or keeping their eyes on the child the entire
        time that it’s in their care. I certainly wouldn’t. The fact that they
        have sought this treatment and that they have these mitigating

Court of Appeals of Indiana | Memorandum Decision 05A02-1607-CR-1584 | January 30, 2017   Page 6 of 8
                 things in their past may go to the amount of the sentence that
                 should be executed but not to the length of the sentence itself or
                 that some of it should be executed. And some of it must be.
                 These people are pathetic examples of parents and the Court, if
                 they’re looking for mercy, they’re not going to find it here. The
                 Court sentences Mr. Walker to the Indiana Department of
                 Correction for the advisory sentence of 1 year with an additional
                 1 1⁄2 years for aggravating circumstances. If I could give you
                 more, Mr. Walker, I would but I can’t, so I won’t, for a total
                 sentence of 2 1⁄2 years.


       Tr. pp. 33-35 (paragraph breaks added).2


[10]   Clearly, the trial court relied on the particularly brutal nature and circumstances

       of the crime, not merely the material elements of the crime, in deciding to

       sentence Walker to an executed sentence of two and one-half years. Indeed, the

       court noted the extended period that B.W. had been seriously injured and in




       2
           The trial court’s written sentencing order contained similar language:

             Comes now the Court and finds as aggravating circumstances that the harm was caused by the
             defendant to a totally defenseless, newborn child; that the child was totally dependent upon the
             defendant; that the abuse occasioned the child was daily throughout each and every moment of
             the first 2 months of the child’s life, and was in the form of repeated acts of physical abuse for
             which the defendant did not offer protection, and/or repeated failures to seek medical treatment
             for the physical injuries to which the child was subjected and which the defendant had a legal
             obligation to provide. Further, the Court finds that a lesser sentence than the one the Court
             imposes would seriously depreciate the seriousness of the offense and that but for the timely
             intervention of law enforcement and Child Protective Services the child would have suffered injury
             that may likely have resulted in the death of the child while in the care, custody and control of
             both parents. Further, the Court finds that the extreme nature of the physical abuse experienced by
             the child, and as related to the Court through the Probable Cause Affidavit submitted in this case,
             as well as in the Child in Need of Services proceedings under Case Numbers 05C01-1410-JC-058
             and 05COI-1410-JC-059, was tantamount to continual torture which no reasonable person could
             have failed to notice and for which no reasonable, caring and loving parent could fail to address
             through medical attention.
       Appellant’s App. pp. 144-45.

       Court of Appeals of Indiana | Memorandum Decision 05A02-1607-CR-1584 | January 30, 2017             Page 7 of 8
       obvious pain, yet neither Walker nor Burress did anything to seek treatment for

       the child for weeks. Instead, Walker let a newborn infant suffer. Nor do we

       agree with Walker that the trial court’s consideration of B.W.’s injuries is

       tantamount to punishing him for inflicting the injuries upon B.W. The trial

       court merely noted the severity of B.W.’s injuries, the pain the infant was in,

       and Walker’s callous disregard for B.W.’s pain and suffering.


[11]   Accordingly, we conclude that the trial court did not abuse its discretion in

       relying upon the particularly brutal facts and circumstances of the crime and the

       severity of Walker’s behavior as a reason for justifying a sentence greater than

       the advisory. See Gomillia, 13 N.E.3d at 853 (holding that trial court’s

       consideration of nature and circumstances of the crime, which included the

       leading role the defendant played in the crime and the terror the victim suffered,

       were not material elements of the offense and therefore appropriate aggravating

       factors); Hall v. State, 870 N.E.2d 449, 464 (Ind. Ct. App. 2007) (where

       circumstances surrounding defendant’s commission of murder, burglary, and

       criminal confinement was significantly more heinous than the than typical, trial

       court did not abuse its discretion in considering the nature and circumstances of

       the crimes as aggravating), trans. denied.


[12]   Affirmed.


       Baker, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 05A02-1607-CR-1584 | January 30, 2017   Page 8 of 8
