Pursuant to Ind.Appellate Rule 65(D), this                        Aug 14 2013, 5:37 am
Memorandum Decision shall not 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:

GARY L. GRINER                                   GREGORY F. ZOELLER
Mishawaka, Indiana                               Attorney General of Indiana

                                                 J. T. WHITEHEAD
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

WILLIS JAMES SIMMONS,                            )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )      No. 71A04-1301-CR-31
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                    APPEAL FROM THE ST. JOSEPH SUPERIOR COURT
                         The Honorable John M. Marnocha, Judge
                             Cause No. 71D02-1209-FD-864


                                      August 14, 2013

               MEMORANDUM DECISION – NOT FOR PUBLICATION

RILEY, Judge
                            STATEMENT OF THE CASE

      Appellant–Defendant, Willis James Simmons (Simmons), appeals the sentence

imposed following his conviction of domestic battery in the presence of his children, a

class D felony, Ind. Code Section 35-42-2-1.3.

      We affirm.

                                        ISSUES

      Simmons raises a single issue on appeal, which we restate as follows: Whether

Simmons’ sentence is inappropriate.

                       FACTS AND PROCEDURAL HISTORY

      Simmons married Jamila Jackson (Jackson) in July 2012. At the time Jackson and

her three children, ages thirteen, eight and six, were staying at the Center for the

Homeless in South Bend, Indiana. On September 21, 2012, Jackson, Simmons and the

three children visited a family friend at his apartment. Jackson and Simmons had been

drinking that night, and at some point during the night, Jackson and Simmons got into an

oral argument. In the process of it all, Jackson packed up some bags and left the

apartment with her three children to return to the Center for the Homeless. Simmons

began looking for Jackson and her children and he eventually found them sitting on a

step. Simmons approached Jackson and they started arguing again.

      This time, however, the argument between Jackson and Simmons turned into a

physical fight. Simmons hit Jackson on the back of her head, punched and also pulled

Jackson’s hair. During this time, Jackson’s children were watching the fight and they

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were crying and screaming. All three children tried to help Jackson by pulling her away

from Simmons. At some point, Jackson called 911 seeking help. When the police

arrived, Jackson and her three children flagged down the responding officer, Joshua

Mann (Officer Mann) of the South Bend Police Department. Officer Mann handcuffed

Simmons, while Officer John Cox (Officer Cox) spoke to Jackson. Officer Cox took

photographs of Jackson’s injuries. Thereafter, Officer Mann and Officer Cox transported

Simmons to the police station.

      On September 22, 2012, the State charged Simmons with domestic battery, a Class

D felony, I. C. § 35-42-2-1.3. On December 3, 2012, Simmons’ trial commenced. On

December 4, 2012, the jury found Simmons guilty as charged. On January 9, 2013, the

trial court sentenced Simmons to three years at the Indiana Department of Correction.

      Simmons now appeals. Additional facts will be provided as necessary.

                            DISCUSSION AND DECISION

      Simmons argues that his three-year sentence imposed by the trial court was

inappropriate given the nature of the offense and his character. Ind. Appellate Rule 7(B)

provides that the “[c]ourt may revise a sentence authorized by statute if, after due

consideration of the trial court’s decision, the [c]ourt finds that the sentence is

inappropriate in light of the nature of the offense and the character of the offender.” We

defer to the trial court during appropriateness review, Stewart v. State, 866 N.E.2d 858,

866 (Ind. Ct. App. 2007), and we refrain from merely substituting our judgment for that

of the trial court. Golden v. State, 862 N.E.2d 1212, 1218 (Ind. Ct. App. 2007), trans.

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denied. The burden is on the defendant to persuade the reviewing court that his sentence

is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). We also note

that when considering whether the sentence is inappropriate, we must examine both the

nature of the offense and the defendant’s character. See Payton v. State, 818 N.E.2d 493,

498 (Ind. Ct. App. 2004), trans. denied.

      Simmons received a three year sentence for the domestic battery offense, which is

the maximum sentence for a Class D felony. Simmons argues that “[t]he only injury

Jackson reported was pain resulting from Simmons pulling her hair” (Appellant’s Br. p.

6). He thus argues that the battery charge was not that egregious, and as such he did not

deserve to get the maximum sentence for the domestic violence offense. We find this

argument unpersuasive. We have previously explained that:

      If we were to take this language literally, we would reserve the maximum
      punishment for only the single most heinous offense.... We should concentrate less
      on comparing the facts of this case to others, whether real or hypothetical, and
      more on focusing on the nature, extent, and depravity of the offense for which the
      defendant is being sentenced, and what it reveals about the defendant’s character.

Brown v. State, 760 N.E.2d 243, 247 (Ind. Ct. App. 2002), trans. denied.

      Here, with respect to the character of the offender, we recognize Simmons’

previous criminal history. The pre-sentence investigation report showed that Simmons

had over a period of seven years, picked up a total of nine misdemeanors and one prior

felony conviction. The record shows that in 2005, Simmons was convicted of two

charges for criminal conversion. In 2007, he was charged with driving without a license.

In the same year, Simmons was charged with carrying a handgun without a license. In

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2008, Simmons was charged and convicted of criminal conversion, criminal trespass and

resisting law enforcement. In 2009, Simmons was convicted of another resisting law

enforcement offense. Lastly, in 2010, Simmons was convicted of a domestic battery

offense which he also committed in front of a child. We find that Simmons has shown a

disregard for the legal system and an inability to take responsibility for correcting his

behaviors. His sentence is not inappropriate.

        With respect to the nature of the offense, with nine prior misdemeanor convictions

and one felony conviction, Simmons battered his wife in front of his step children.

Moreover, he committed this current offense when he was on parole for his prior

domestic violence offense. His prior convictions show a disregard for the law as well as

an escalation in the severity of the crimes. See Ruiz v. State 818 N.E.2d 927, 929 (Ind.

2004)

                                      CONCLUSION

        For the foregoing reasons, we conclude that Simmons’ sentence was not

inappropriate in light of the nature of the offense and the character of the offender.

        Affirmed.

BRADFORD, J. and BROWN, J. concur




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