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
of establishing the defense of res
judicata, collateral estoppel, or the law                Mar 25 2014, 6:18 am
of the case.




ATTORNEY FOR APPELLANT:                           ATTORNEYS FOR APPELLEE:

KRISTIN A. MULHOLLAND                             GREGORY F. ZOELLER
Crown Point, Indiana                              Attorney General of Indiana

                                                  RICHARD C. WEBSTER
                                                  Deputy Attorney General
                                                  Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

RICHARD ANTONIO CLARK,                            )
                                                  )
        Appellant-Defendant,                      )
                                                  )
               vs.                                )      No. 45A03-1308-CR-337
                                                  )
STATE OF INDIANA,                                 )
                                                  )
        Appellee-Plaintiff.                       )


                       APPEAL FROM THE LAKE SUPERIOR COURT
                          The Honorable Diane Ross Boswell, Judge
                              Cause No. 45G03-1210-FD-240


                                        March 25, 2014

                 MEMORANDUM DECISION – NOT FOR PUBLICATION

BARNES, Judge
                                      Case Summary

       Richard Clark appeals his three-year sentence for Class D felony strangulation and

Class A misdemeanor domestic battery. We affirm.

                                           Issue

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

                                           Facts

       On October 8, 2012, while on probation, Clark was involved in an argument with

his wife at their home in Merrillville. During the argument, Clark put his hands on his

wife’s neck in a manner that could have impaired her breathing and touched her in a rude,

insolent, or angry manner that caused her discomfort or pain.

       The State charged Clark with Class D felony strangulation and Class A

misdemeanor battery, and Clark pled guilty to both charges. The trial court sentenced

Clark to three years on the strangulation charge and to one year on the battery charge.

The trial court ordered the sentences to be served concurrently for a total sentence of

three years. Clark now appeals.

                                         Analysis

       Focusing on the three-year sentence for strangulation, Clark argues that his

sentence is inappropriate. Indiana Appellate Rule 7(B) permits us to 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. Although Rule 7(B) does not require us to be “extremely” deferential to a trial

court’s sentencing decision, we still must give due consideration to that decision.

                                             2
Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007). We also understand and

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

“Additionally, a defendant bears the burden of persuading the appellate court that his or

her sentence is inappropriate.” Id.

       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. Whether a sentence is

inappropriate ultimately turns on the culpability of the defendant, the severity of the

crime, the damage done to others, and myriad other factors that come to light in a given

case. Id. at 1224. When reviewing the appropriateness of a sentence under Rule 7(B),

we may consider all aspects of the penal 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).

       As for the nature of the offenses, Clark contends that the strangulation offense was

not the worst-of-the-worst so as to warrant the maximum sentence of three years. We

reject Clark’s request to review only the three-year sentence for strangulation and instead

consider the sentence as a whole—three years for one count of Class D felony

strangulation and one count of Class A misdemeanor battery. We also consider the fact



                                            3
that Clark committed these offenses while on probation for having committed Class D

felony strangulation against another woman seven months prior.

          As for his character, although Clark pled guilty to the charges in an open plea,

during the preparation of the presentence investigation report, Clark denied having

committed the offense.1 This is consistent with Clark’s statement during the sentencing

hearing in which he repeatedly pointed out his wife’s wrongdoing. Clark’s decision to

plead guilty appears to be a pragmatic decision as opposed to the acceptance of

responsibility for his crimes.

          Moreover, fifty-nine-year-old Clark’s criminal history is extensive, and several of

his prior convictions are closely related to the current convictions. Since 2007, Clark has

been convicted of battery, three counts of domestic battery, disorderly conduct, reckless

driving, and driving while suspended as misdemeanors in addition to the Class D felony

strangulation conviction. In 1981, Clark was convicted of aggravated battery and three

counts of attempted murder.              Clark’s criminal history also includes numerous other

arrests for battery, attempted battery, domestic battery, and assault. Given the current

offenses and the nature and extent of Clark’s criminal history, he has not established that

the three-year sentence is inappropriate.

                                                 Conclusion

          Clark has not established that his sentence is inappropriate. We affirm.

          Affirmed.

          ROBB, J., and BROWN, J., concur.

1
    The report indicates that Clark wished to keep his guilty plea as it was.
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