MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                           FILED
regarded as precedent or cited before any                                  Mar 03 2020, 7:58 am
court except for the purpose of establishing
                                                                                CLERK
the defense of res judicata, collateral                                     Indiana Supreme Court
                                                                               Court of Appeals
estoppel, or the law of the case.                                                and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
William T. Myers                                         Curtis T. Hill, Jr.
Whitehurst & Myers Law                                   Attorney General of Indiana
Marion, Indiana
                                                         Myriam Serrano
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Jeremy L. Adams,                                         March 3, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-1896
        v.                                               Appeal from the Huntington
                                                         Superior Court
State of Indiana,                                        The Honorable Jennifer E.
Appellee-Plaintiff                                       Newton, Judge
                                                         Trial Court Cause No.
                                                         35D01-1906-F6-179



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1896 | March 3, 2020                       Page 1 of 10
[1]   Jeremy L. Adams appeals his two-year sentence for Level 6 felony domestic

      battery in the presence of a child. 1 He presents two issues for our consideration,

      which we restate as:


                 1. Whether the trial court abused its discretion when it sentenced
                 him for a Level 6 felony because it did not provide a statement
                 regarding its reason for the sentence; and


                 2. Whether Adams’ sentence is inappropriate based on the
                 nature of his offense and his character.


      We affirm.



                                Facts and Procedural History
[2]   On May 24, 2019, Adams was at the home of his former girlfriend, P.U., and

      their daughter, J.U. Adams and P.U. began arguing over a cell phone. When

      P.U. asked Adams why he was using a cell phone that he had previously told

      P.U. did not work, Adams said, “fuck you bitch[.]” (App. Vol. II at 26.)

      Adams became angry and “shoved [P.U.] with both hands on her chest.” (Id.)

      P.U. fell over a toy car and her head bounced off the wall. Adams told P.U. to

      “get up cry baby[.]” (Id.) J.U., who had been sitting in the room during the

      incident, began to cry. P.U. told Adams that she was going to call the police.




      1
          Ind. Code § 35-42-2-1.3(b)(2).


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1896 | March 3, 2020   Page 2 of 10
      Adams gathered his things to leave and told J.U., “[J.U.,] I’m sorry, Dad’s

      sorry, but your mom is a stupid bitch[.]” (Id. at 27.)


[3]   On June 27, 2019, the State charged Adams with Level 6 felony domestic

      battery in the presence of a child. At his initial hearing on July 12, Adams

      indicated he wished to plead guilty as charged without benefit of counsel. The

      trial court continued the hearing until July 23, 2019, at which time Adams

      returned to court. He signed an attorney waiver form and proceeded pro se. On

      the same day, Adams filed a motion to plead guilty and signed a written

      advisement and waiver of rights. Based on his plea, the trial court sentenced

      Adams to two years and suspended all but 270 days to probation.



                                 Discussion and Decision
                                         Abuse of Discretion
[4]   A trial court commits an abuse of discretion if “the decision is clearly against

      the logic and effect of the facts and circumstances.” Anglemyer v. State, 868

      N.E.2d 482, 491 (Ind. 2007), clarified on reh’g 875 N.E.2d 218 (Ind. 2007).

      There are four ways that a trial court can abuse its discretion at sentencing: (1)

      failing to enter a sentencing statement altogether; (2) entering a sentencing

      statement explaining reasons for imposing the sentence when those reasons are

      not supported by the record; (3) failing to include reasons supported by the

      record and put forth for consideration when entering a sentencing statement;

      and (4) considering reasons inappropriate as a matter of law. Id. at 490-91. If

      the trial court abused its discretion in one or more of those ways and we are
      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1896 | March 3, 2020   Page 3 of 10
      unable to “say with confidence that the trial court would have imposed the

      same sentence had it properly considered reasons that enjoy support in the

      record,” then we will remand for resentencing. Id. at 491.


[5]   The trial court sentenced Adams to two years, with all but 270 days suspended

      to probation. This sentence is within the sentencing range for a Level 6 felony.

      See Ind. Code § 35-50-2-7(b) (sentencing range for a Level 6 felony between six

      months and two-and-one-half years, with an advisory sentence of one and one-

      half years). Adams argues the trial court abused its discretion because it did not

      enter a detailed sentencing statement indicating its reasons for imposing his

      sentence.


[6]   “Indiana trial courts are required to enter sentencing statements whenever

      imposing sentence for a felony offense.” Anglemyer, 868 NE.2d at 490. “[T]he

      statement must include a reasonably detailed recitation of the trial court’s

      reasons for imposing a particular sentence.” Id.


              “A trial court’s consideration of factors may be evidenced in
              either the written order or in an oral sentencing statement.”
              Anderson v. State, 989 N.E.2d 823, 826 (Ind. Ct. App. 2013), trans.
              denied. “In reviewing a sentencing decision in a non-capital case,
              we are not limited to the written sentencing statement but may
              consider the trial court’s comments in the transcript of the
              sentencing proceedings.” Corbett v. State, 764 N.E.2d 622, 631
              (Ind. 2002).


      Zavala v. State, 138 N.E.3d 291, 299 (Ind. Ct. App. 2019).




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1896 | March 3, 2020   Page 4 of 10
[7]   The trial court discussed Adams’ criminal history report with him and asked

      him if the information contained therein was correct. Adams indicated it was.

      The State noted Adams had “one (1) prior juvenile adjudication, three (3) prior

      misdemeanors and two (2) felonies . . . [and] three (3) Petitions to Revoke

      Probation.” (Tr. Vol. II at 8.) Adams corrected the State’s statement regarding

      his criminal history, noting that “two (2) of them (sic) Batteries were dismissed

      out of Wabash County.” (Id. at 9.) The State noted the same, and the trial

      court acknowledged Adams’ correction.


[8]   The trial court then sentenced Adams, stating:


              All right, I will sentence you to two (2) years with all suspended
              except for two hundred and seventy (270) days. You will be
              placed on Probation for the balance of that sentence. Standard
              terms of Probation will apply. You’ll also be required, as a
              condition of Probation, to, um, complete the Center for Non-
              Violence [program]. You will be assessed a fine of two hundred
              dollars ($200.00) plus court costs and standard Probation user
              fees. And I will, um, grant the State’s request for the Domestic
              Violence Determination. Okay.


      (Id. at 9-10.) The trial court’s written order read:


              The Defendant shall be imprisoned for a term of 2 years with 1
              year, 95 days to be served on Probation, upon release. Written
              terms are given to the Defendant in open Court. The terms
              include the executed portion of the sentence. The executed
              portion of the sentence and the terms of Probation/Community
              Corrections shall not exceed the maximum allowed sentence for
              this offense.



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1896 | March 3, 2020   Page 5 of 10
       (App. Vol. II at 37.) Based on the trial court’s statements, we agree with

       Adams that it did not provide an adequate sentencing statement because it did

       not set forth the factors it considered when sentencing Adams. See Eiler v. State,

       938 N.E.2d 1235, 1238 (Ind. Ct. App. 2010) (sentencing statement inadequate

       when trial court did not explain its reason for sentencing Eiler), reh’g denied.

       While the trial court received information regarding Adams’ guilty plea and

       criminal history, and Adams was permitted to make a statement at sentencing,

       we do not know the factors the trial court considered in sentencing because of

       the trial court’s lack of specificity.


[9]    When a trial court abuses its discretion in sentencing, we have “several

       options.” Windhorst v. State, 868 N.E.2d 504, 507 (Ind. 2007). We may remand

       to the trial court for “clarification or a new sentencing determination” or “we

       may exercise our authority to review and revise the sentence” by addressing

       whether it is inappropriate under Indiana Appellate Rule 7(B). Id. Based on

       judicial economy concerns, we will not remand the case back to the trial court

       unless the sentence is inappropriate. See id. (affirming Court of Appeals

       decision to review Windhorst’s sentence based on Indiana Appellate Rule 7(B)

       instead of remanding to trial court for entry of a sentencing statement).


                                 Inappropriateness of Sentence
[10]   Under Indiana Appellate Rule 7(B), we may revise a sentence if, after due

       consideration of the trial courts decision, we find the sentence inappropriate in

       light of the nature of the offense and the character of the offender. Anglemyer,


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1896 | March 3, 2020   Page 6 of 10
       868 N.E.2d at 491. We consider not only the aggravators and mitigators found

       by the trial court, but also any other factors appearing in the record. Johnson v.

       State, 986 N.E.2d 852, 856 (Ind. Ct. App. 2013). We defer to the trial court’s

       decision, and our goal is to determine whether the defendant’s sentence is

       inappropriate, not whether some other sentence would be more appropriate.

       Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012), reh’g denied. “Such deference

       should prevail unless overcome by compelling evidence portraying in a positive

       light the nature of the offense (such as accompanied by restraint, regard, and

       lack of brutality) and the defendant’s character (such as substantial virtuous

       traits or persistent examples of good character).” Stephenson v. State, 29 N.E.3d

       111, 122 (Ind. 2015). Adams, as the appellant, bears the burden of

       demonstrating his sentence is inappropriate. See Childress v. State, 848 N.E.2d

       1073, 1080 (Ind. 2006) (appellant bears burden of demonstrating sentence is

       inappropriate).


[11]   When considering the nature of the offense, the advisory sentence is the starting

       point for determining the appropriateness of a sentence. Anglemyer, 868 N.E.2d

       at 494. The advisory sentence for a Level 6 felony is one-and-one-half years,

       with a sentencing range of six months to two-and-one-half years. Ind. Code §

       35-50-2-7(b). The trial court sentenced Adams to two years, with all but 270

       days suspended to probation.


[12]   Regarding the nature of the offense, Adams argues that while his offense is

       “unacceptable,” it is not the “worst of the worst.” (Br. of Appellant at 11.) We

       first note Adams did not receive the maximum sentence for his crime, which

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1896 | March 3, 2020   Page 7 of 10
       would have been two-and-one-half years. Adams stipulated that he became

       angry with P.U. and pushed her with both hands on the chest, that she hit the

       wall, and that the couple’s one-year-old daughter was present during the

       incident. He then called P.U. a “crybaby” and a “stupid bitch.” (App. Vol. II

       at 26-7.)


[13]   When considering the character of the offender, one relevant fact is the

       defendant’s criminal history. Johnson, 986 N.E.2d at 857. The significance of

       criminal history varies based on the gravity, nature, and number of prior

       offenses in relation to the current offense. Id. As noted by the State during the

       sentencing portion of the July 23, 2019, hearing, Adams has “one (1) prior

       juvenile adjudication, three (3) prior misdemeanors and two (2) prior felonies . .

       . [and] three (3) Petitions to Revoke Probation.” (Tr. Vol. II at 8.) Adams

       argues these convictions are “stale and remote in time,” (Br. of Appellant at

       10), but does not explain how the passage of time negates the seriousness of the

       offenses he committed, or how they relate to the offense before us. While

       Adams’ last conviction occurred in 2009, his continued engagement with the

       criminal justice system reflects poorly on his character. See Rutherford v. State,

       866 N.E.2d 867, 874 (Ind. Ct. App. 2007) (continuing to commit crimes after

       frequent contacts with the judicial system is a poor reflection on one’s

       character).


[14]   Further, Adams argues his guilty plea should reflect favorably on his character

       because “[h]is immediate acceptance of responsibility indicates reflection and



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1896 | March 3, 2020   Page 8 of 10
       remorse for his actions regarding his wife 2 and daughter.” (Br. of Appellant at

       10) (footnote added). He also argues his dependents would suffer undue

       hardship while he completes the executed portion of his sentence. However,

       “[m]any persons convicted of serious crimes have one or more children and,

       absent special circumstances, trial courts are not required to find that

       imprisonment will result in an undue hardship.” Dowdell v. State, 720 N.E.2d

       1146, 1154 (Ind. 1999).


[15]   While Adams’ prompt acceptance of responsibility for the crime is admirable,

       we cannot ignore the nature of his crime, that is, violence towards the mother of

       his child in that child’s presence, and Adams’ continued involvement in

       criminal activity. Accordingly, we conclude Adams’ two-year sentence is not

       inappropriate. See Stephenson v. State, 53 N.E.3d 557, 562 (Ind. Ct. App. 2016)

       (sentence above the advisory sentence not inappropriate based on the facts of a

       domestic violence incident and defendant’s criminal history).



                                                   Conclusion
[16]   We conclude the trial court abused its discretion when it did not enter a

       sentencing statement including its reasons for the sentence it imposed on

       Adams for Level 6 felony domestic battery in the presence of a child. However,

       as we also conclude that Adams’ sentence is not inappropriate based on the




       2
         Adams’ brief refers to P.U. as Adams’ wife; however, the court’s record, including Adams’ statement of
       facts in his guilty plea, refers to her as Adams’ former girlfriend and mother of the child involved in this case.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1896 | March 3, 2020                        Page 9 of 10
       nature of his offense or his character, we decline his request to revise his

       sentence or to remand to the trial court for clarification of the reasons for the

       sentence. Accordingly, we affirm.


[17]   Affirmed.


       Crone, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1896 | March 3, 2020   Page 10 of 10
