Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited
before any court except for the purpose                              Sep 22 2014, 8:57 am
of establishing the defense of res
judicata, collateral estoppel, or the law
of the case.




ATTORNEY FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

DAVID M. ZENT                                    GREGORY F. ZOELLER
Fort Wayne, Indiana                              Attorney General of Indiana

                                                 HENRY A. FLORES, JR.
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

DAVARIUS L. WHITE,                               )
                                                 )
        Appellant-Defendant,                     )
                                                 )
               vs.                               )    No. 02A03-1402-CR-52
                                                 )
STATE OF INDIANA,                                )
                                                 )
        Appellee-Plaintiff.                      )


                      APPEAL FROM THE ALLEN SUPERIOR COURT
                          The Honorable Wendy W. Davis, Judge
                             Cause No. 02D06-1306-FD-628


                                     September 22, 2014

                 MEMORANDUM DECISION – NOT FOR PUBLICATION

BARNES, Judge
                                       Case Summary

          Davarious White appeals his sentence for Class D felony domestic battery. We

affirm.

                                             Issue

          White raises one issue, which we restate as whether his sentence is inappropriate

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

                                             Facts

          On May 30, 2013, White got into an argument with his girlfriend. T.B., when he

did not get home until 6:00 a.m. White grabbed T.B.’s neck and placed his hand over her

mouth. T.B. sustained bruises, scratches, and cuts to her face and neck. The battery took

place in front of five children, including White’s four children with T.B. The State

charged White with Class D felony domestic battery and Class D felony strangulation.

          On the day of the jury trial, White pled guilty to Class D felony domestic battery,

and the State dismissed the strangulation charge. At the sentencing hearing, the trial

court found White’s guilty plea and his taking of responsibility as mitigators. However,

the trial court found that White’s significant criminal history, the nature and

circumstances of the offense, and the fact that he was on probation at the time of the

offense were aggravators. The trial court sentenced White to three years with one year




                                               2
suspended to probation so that White could participate in the Center for Non-Violence

program for batterers.1 White now appeals.

                                            Analysis

       White argues that his sentence is inappropriate under Indiana Appellate Rule 7(B).

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 offenses and the character of the offender. When considering

whether a sentence is inappropriate, we need not be “extremely” deferential to a trial

court’s sentencing decision. Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App.

2007). Still, we must give due consideration to that decision. Id. We also understand

and recognize the unique perspective a trial court brings to its sentencing decisions. Id.

Under this rule, the burden is on the defendant to persuade the appellate court that his or

her sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).

       The principal role of 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 perceived ‘correct’ result in each case.”

Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). We “should focus on the forest—

the aggregate sentence—rather than the trees—consecutive or concurrent, number of

counts, or length of the sentence on any individual count.” Id. When reviewing the

appropriateness of a sentence under Rule 7(B), we may consider all aspects of the penal

1
  The trial court said it was sentencing White to two and one-half years with 183 days suspended to
probation. However, the trial court immediately learned that White would not have enough time to
complete the batterer’s program and revised the sentence.
                                                3
consequences imposed by the trial court in sentencing the defendant, including whether a

portion of the sentence was suspended. Davidson v. State, 926 N.E.2d 1023, 1025 (Ind.

2010).

         The nature of the offense is that White got into an argument with his girlfriend in

front of five children, including four of his own children. During the argument, he

grabbed her neck and placed his hand over her mouth. She sustained bruises, scratches,

and cuts to her face and neck.

         A review of twenty-eight-year-old White’s character reveals that, despite his age,

he has amassed a significant number of criminal convictions. He has one juvenile

adjudication for criminal mischief.       As an adult, he has been convicted of nine

misdemeanors and four felonies, including Class A misdemeanor possession of

marijuana, Class C misdemeanor operating a motor vehicle without ever receiving a

license on two occasions, Class A misdemeanor resisting law enforcement on three

occasions, Class D felony possession of marijuana, Class B misdemeanor false informing

on two occasions, Class C misdemeanor minor consuming alcohol, Class D felony

resisting law enforcement, Class D felony residential entry, and Class C felony

possession of a handgun with altered identifying marks. He has had four suspended

sentences revoked and home detention revoked one time. He was on probation at the

time of the instant offense. White pled guilty on the day of the jury trial, and he

expressed remorse for his actions at the sentencing hearing.

         White argues that his sentence should be reduced due to his guilty plea, remorse,

long-term relationship with the victim, and children with the victim. However, the

                                              4
mitigating value of White’s guilty plea is reduced because he did not plead guilty until

the morning of his jury trial. Additionally, the fact that he battered the mother of his

children in front of the children makes the long-term relationship of little mitigating

value. Given White’s extensive criminal history and repeated failure to comply with the

law, we conclude that the three-year sentence is not inappropriate.2

                                             Conclusion

       White’s sentence is not inappropriate in light of the nature of the offense or the

character of the offender. We affirm.

       Affirmed.

BRADFORD, J., and BROWN, J., concur.




2
 White mentions the fact that the trial court originally was going to sentence him to two and one-half
years with 183 days suspended to probation. The trial court changed its mind at the sentencing hearing
when the probation department informed it that White would not have enough time to complete a
batterer’s program. White does not argue that the trial court abused its discretion in some way. He
merely indicates that the “trial court originally believed something less than [three years] was
appropriate.” Appellant’s Br. p. 10. However, on appeal, we must review whether the sentence actually
imposed by the trial court was inappropriate, not whether another sentence considered by the trial court
was appropriate.
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