MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                         FILED
regarded as precedent or cited before any                               Dec 10 2019, 10:09 am
court except for the purpose of establishing                                  CLERK
the defense of res judicata, collateral                                   Indiana Supreme Court
                                                                             Court of Appeals
                                                                               and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Carlos I. Carrillo                                      Curtis T. Hill Jr.
Greenwood, Indiana                                      Attorney General of Indiana
                                                        Samantha M. Sumcad
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Shannon Breaux,                                         December 10, 2019
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        19A-CR-1268
        v.                                              Appeal from the Tippecanoe
                                                        Superior Court
State of Indiana,                                       The Honorable Randy J. Williams,
Appellee-Plaintiff,                                     Judge
                                                        Trial Court Cause No.
                                                        79D01-1806-F5-116



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1268 | December 10, 2019                 Page 1 of 15
                               Case Summary and Issues
[1]   Shannon Breaux pleaded guilty to neglect of a dependent, a Level 6 felony, and

      battery resulting in bodily injury to a person less than fourteen years of age, a

      Level 5 felony. The trial court sentenced Breaux to serve two years for the

      neglect of a dependent conviction and five years for the battery conviction, to be

      served concurrently in the Indiana Department of Correction (“DOC”). The

      trial court then issued a written sentencing order, in which it sentenced Breaux

      to five years for each conviction to be served concurrently. Breaux appeals and

      raises four issues for our review, which we restate as: (1) whether the trial court

      erred by allowing the State to reference certain evidence during sentencing; (2)

      whether the trial court abused its discretion in sentencing Breaux; (3) whether

      Breaux’s aggregate sentence is inappropriate in light of the nature of the

      offenses and his character; and (4) whether the trial court entered a written

      sentencing order containing a clerical error warranting remand. Concluding the

      trial court did not err with respect to the evidence presented at the sentencing

      hearing or in sentencing Breaux, Breaux’s sentence is not inappropriate, and

      that the trial court’s sentencing order contains a clerical error, we affirm and

      remand.



                            Facts and Procedural History
[2]   On June 20, 2018, the Tippecanoe County Sheriff’s Department received

      reports regarding several incidents in which two children had been tied up in

      Breaux’s home. Breaux; his daughter, L.B.; his girlfriend, A.S.; and A.S.’s son,

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1268 | December 10, 2019   Page 2 of 15
      J.S., all resided in the home. At the time, L.B. was five years old and J.S. was

      six years old. Officers visited the home to do a welfare check and observed a

      “cloth-like restraint system” hanging in the living room, which was an adult sex

      restraint device Breaux used to punish the children. Appellant’s Appendix,

      Volume 2 at 12. Breaux would place a rope around the children’s neck, strap

      their feet, and buckle their hands behind their backs, making it difficult to

      breathe. Breaux admitted to restraining the children with the device on

      multiple occasions, but claimed it was a game that he played with the children.


[3]   On June 28, 2018, the State charged Breaux with the following: Count I,

      criminal confinement where the victim is under fourteen years old, a Level 5

      felony; Count II, neglect of a dependent, a Level 6 felony; Count III, criminal

      confinement, a Level 6 felony; and Count IV, neglect of a dependent, a Level 6

      felony. See id. at 14-17. The State subsequently filed a motion to add Count V,

      battery resulting in bodily injury to a person less than fourteen years of age, a

      Level 5 felony. Id. at 69-70.


[4]   The trial court held a guilty plea hearing on March 13, 2019, and granted the

      State’s motion to add Count V. Breaux entered into a written plea agreement,

      pursuant to which he would plead guilty to Counts IV and V and receive

      concurrent sentences. In exchange, the State agreed to dismiss the remaining

      counts. Sentencing was otherwise left to the trial court’s discretion. The trial

      court took Breaux’s guilty plea under advisement until the sentencing hearing

      on May 9, 2019. Prior to the sentencing hearing, both parties filed sentencing

      memorandums and corresponding exhibits. Notably, the State submitted

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1268 | December 10, 2019   Page 3 of 15
      redacted police reports detailing the incidents and a medical journal article

      discussing the nature of strangulation injuries. See id. at 128-153.


[5]   At the sentencing hearing, the trial court accepted Breaux’s guilty plea, entered

      judgment of conviction on Counts IV and V, and heard the parties’ arguments

      as to sentencing. The State asked the trial court to sentence Breaux to five years

      executed on Count V and a consecutive term of one and one-half years on

      Count IV suspended to probation. In making this argument, the State

      summarized pertinent statements from the redacted police report:


              When the children were referencing [Breaux]’s game which is
              never the word that they used to describe it. [J.S.] reported that
              there were no red marks on him because they would wipe him
              down with soap and lotion to remove them. [J.S.] also stated
              that he got in trouble and as a result[, Breaux] placed a restraint
              around his neck, feet and hands, binding them together. That the
              restraint hurt his neck and he would have trouble breathing and
              every time he moved his arms or legs while tied up, it made his
              neck hurt worse and that [Breaux] put it so tight so that he
              couldn’t breathe. Then he was put in the garage, tied up and left
              in the dark and that this happened to him not just once, but
              multiple times, and he’s also seen it happen to [L.B.], [Breaux]’s
              daughter. [L.B.]’s statements were that when she would get in
              trouble her dad would occasionally tie her up by placing
              something around her neck and her hands and legs were tied
              behind her back, back simultaneously. The device around her
              neck would make her choke sometimes and it made her sick
              because it was so tight around her breathing pipe. She was
              placed in the garage in the dark and screamed until the door was
              opened[.] In the past her dad would also tie her to a chair and
              her hands and feet would be tied and something around her neck
              until she choked.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1268 | December 10, 2019   Page 4 of 15
      Transcript, Volume 1 at 26. The State then explained the dangers and concerns

      of strangulation as discussed in the article, such as the importance of prompt

      medical care for strangulation victims and that ten seconds of eleven pounds of

      pressure on a victim’s carotid arteries will cause loss of consciousness and brain

      death occurs in four or five minutes. Based on the nature of the offense, the

      State argued the victims were lucky to be alive. See id. at 27-28. Breaux

      informed the trial court that he was on social security disability due to his back

      problems.


[6]   The trial court found that L.B.’s age, Breaux’s criminal history, and the fact that

      Breaux was in the care, custody, and control of J.S. were aggravating

      circumstances, and that Breaux’s guilty plea, physical health issues, and family

      support were mitigating circumstances. The trial court sentenced Breaux to

      serve two years for his neglect conviction and five years for his battery

      conviction, to be served concurrently and executed in the DOC. The trial court

      subsequently entered a written sentencing order that reflected Breaux was to

      serve five years for each count to run concurrently in the DOC. Breaux now

      appeals.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1268 | December 10, 2019   Page 5 of 15
                                Discussion and Decision
                                            I. Sentencing
                           A. Evidence at the Sentencing Hearing
[7]   Breaux argues that the trial court erred by allowing the State to reference

      numerous police reports and a medical journal article on strangulation injuries

      because the referenced statements were hearsay, not signed or verified under

      oath, and he was not offered the opportunity to face or cross-examine the

      declarants of the alleged inadmissible statements. He therefore maintains that

      “[t]o the extent that the trial court relied on said statements, the trial court erred

      because said statements were inadmissible and lacked the minimal indicium of

      reliability.” Appellant’s Brief at 14 (internal quotation omitted). We find no

      error.


[8]   The strict rules of evidence do not apply to sentencing hearings. Ind. Evidence

      Rule 101(d)(2). The rationale for the relaxation of the evidentiary rules at

      sentencing is that unlike at trial, the evidence is not confined to the narrow issue

      of guilt. Kellett v. State, 716 N.E.2d 975, 983 n.5 (Ind. Ct. App. 1999). Instead,

      the task is to determine the type and extent of punishment. Id. “This

      individualized sentencing process requires possession of the fullest information

      possible concerning the defendant’s life and characteristics.” Thomas v. State,

      562 N.E.2d 43, 47 (Ind. Ct. App. 1990). Even if the State’s evidence was

      hearsay, as Breaux contends, hearsay evidence is admissible at a sentencing

      hearing. Dillon v. State, 492 N.E.2d 661, 664 (Ind. 1986). We are unpersuaded


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1268 | December 10, 2019   Page 6 of 15
      that the trial court erred in allowing the State to reference the redacted police

      report and article.


[9]   Furthermore, the terms of Breaux’s plea agreement did not forbid the trial court

      from considering any evidence, let alone the evidence at issue. In fact, Breaux’s

      agreement explicitly states that he “shall receive the sentence this Court deems

      appropriate after hearing any evidence or argument of counsel.” Appellant’s App.,

      Vol. 2 at 72, ¶ 2 (emphasis added). Therefore, Breaux agreed to allow the trial

      court to hear any evidence pertinent to determining his sentence. As our

      supreme court has explained,


              [a] plea agreement is voluntarily entered into between the State
              and the Defendant. It is a contract and when accepted by the
              trial court is binding. The parties are free to negotiate the terms
              and conditions of the plea agreement, and can agree to limit or
              otherwise exclude what may be considered by the trial court
              judge. Unless the evidence is forbidden by terms of the plea
              agreement, the trial court judgment consider all evidence
              properly before him.


      Bethea v. State, 983 N.E.2d 1134, 1146 (Ind. 2013). Here, Breaux voluntarily

      entered into a plea agreement, in which he agreed to plead guilty to two charges

      in exchange for the dismissal of the remaining three charges. Sentencing was

      left to the trial court’s discretion. The plea agreement did not limit what the

      State could offer as aggravating circumstances or what Breaux could offer as

      mitigating circumstances and therefore, “did not limit the sentencing

      evidence[.]” Id. at 1144. The trial court was free to consider any relevant

      evidence in imposing a sentence, which Breaux agreed to. The trial court did

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1268 | December 10, 2019   Page 7 of 15
       not err in allowing the State to reference certain evidence, which the trial court

       presumably considered in its decision, demonstrating the extent of the

       children’s injuries.1


                                            B. Abuse of Discretion
[10]   Breaux asserts that the trial court abused its discretion when it enhanced his

       sentences beyond the advisory sentence of each conviction “without ‘balancing’

       the mitigators and aggravators.” Appellant’s Br. at 7. Breaux incorrectly relies

       on Indiana’s previous “presumptive” sentencing standard of review, which has

       been outdated since 2005:


                On April 25, 2005, our legislature responded to Blakely v.
                Washington, 542 U.S. 296 (2004) . . ., by amending our
                sentencing statutes to replace “presumptive” sentences with
                “advisory” sentences. Under the post-Blakely statutory scheme, a
                court may impose any sentence that is authorized by statute and
                permissible under the Indiana Constitution “regardless of the
                presence or absence of aggravating circumstances or mitigating
                circumstances.” Ind. Code § 35-38-1-7.1(d).


       Weaver v. State, 845 N.E.2d 1066, 1070 (Ind. Ct. App. 2006), trans. denied.




       1
         Although not raised by the State, a trial court may properly consider the nature and circumstances of the
       crime as a valid aggravating circumstance – the essence of the State’s evidence at the sentencing hearing.
       Anglemyer v. State, 868 N.E.2d 482, 492 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (“Concerning the
       seriousness of the offense, this aggravator, which implicitly includes the nature and circumstances of the
       crime as well as the manner in which the crime is committed, has long been held a valid aggravating
       factor.”). Given the relaxed rules of evidence and that the trial court may consider the seriousness of the
       crime, it logically follows that the trial court in this case would be able to consider any evidence pertaining to
       the nature and circumstances of Breaux’s offenses, regardless of its admissibility under our traditional rules of
       evidence.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1268 | December 10, 2019                    Page 8 of 15
[11]   Prior to the 2005 amendments, a trial court was required to state its specific

       reasons for enhancing a sentence and therefore was required to issue a

       sentencing statement including (among other things) a showing that the trial

       court evaluated and balanced the mitigating and aggravating circumstances.

       Jones v. State, 705 N.E.2d 452, 454 (Ind. 1999). After the amendments, our

       supreme court’s decision in Anglemyer v. State made it clear that “the trial court

       no longer has any obligation to ‘weigh’ aggravating and mitigating factors

       against each other when imposing a sentence, . . . [and] a trial court can[not]

       now be said to have abused its discretion in failing to ‘properly weigh’ such

       factors.” 868 N.E.2d 482, 491 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218.

       Breaux argues the trial court sentenced him with “without ‘balancing’ the

       mitigators and aggravators.” Appellant’s Br. at 7. In this context, balance and

       weigh are synonymous and invoke our previous sentencing scheme. Breaux’s

       argument fails because he cannot challenge the weight the trial court assigned

       to the aggravating and mitigating circumstances under current law.


                                  II. Inappropriate Sentence
                                        A. Standard of Review
[12]   Breaux contends that his sentence is inappropriate in light of the nature of his

       offenses and his character and asks this court to revise his sentence. Article 7,

       sections 4 and 6 of the Indiana Constitution authorize independent appellate

       review and revision of sentences through Indiana Appellate Rule 7(B). King v.

       State, 894 N.E.2d 265, 267 (Ind. Ct. App. 2008). Rule 7(B) provides, “The

       Court may revise a sentence authorized by statute if, after due consideration of
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1268 | December 10, 2019   Page 9 of 15
       the trial court’s decision, the Court finds that the sentence is inappropriate in

       light of the nature of the offense and the character of the offender.” Sentencing

       decisions rest within the discretion of the trial court and, as such, should receive

       considerable deference. Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008).

       “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).


[13]   The defendant bears the burden of demonstrating his sentence is inappropriate

       under the standard, Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006), and

       we may look to any factors in the record for such a determination, Reis v. State,

       88 N.E.3d 1099, 1102 (Ind. Ct. App. 2017). Ultimately, “whether we regard a

       sentence as [in]appropriate at the end of the day turns on our sense of 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.” Cardwell,

       895 N.E.2d at 1224. In conducting our review, we focus on a defendant’s

       aggregate sentence rather than the number of counts, the length of the sentence

       on any individual count, or whether the individual sentences are consecutive or

       concurrent. Id. at 1225.


[14]   The trial court found the following aggravating circumstances: Breaux’s

       criminal history, the fact that Breaux was in the care, custody and control of

       J.S., and that L.B. was five years old at the time of the incidents. The trial court

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1268 | December 10, 2019   Page 10 of 15
       found Breaux’s guilty plea, physical health issues, and that he had the support

       of his family as mitigating circumstances. The trial court sentenced Breaux to

       an aggregate sentence of five years to be executed in the DOC.2


                                           B. Nature of the Offense
[15]   With respect to the nature of the offenses, Breaux argues that the offenses

       occurred for only a brief period of time, he did not intend to harm the children,

       and the children exaggerated the incident.


[16]   The nature of the offense is found in the details and circumstances of the

       commission of the offense and the defendant’s participation in it. Washington v.

       State, 940 N.E.2d 1220, 1222 (Ind. Ct. App. 2011), trans. denied. When

       evaluating a defendant’s sentence that deviates from the advisory sentence, we

       consider whether there is anything more or less egregious about the offense as

       committed by the defendant that distinguishes it from the typical offense

       accounted for by our legislature when it set the advisory sentence. Moyer v.

       State, 83 N.E.3d 136, 142 (Ind. Ct. App. 2017), trans. denied.


[17]   In this case, the details and circumstances surrounding Breaux’s offenses are

       alarming and his acts could have seriously injured or killed the children.

       Breaux placed a rope around each child’s neck, strapped their feet, and buckled




       2
         Although we remand this matter to the trial court to correct its sentencing order due to a clerical error with
       respect to Count IV, Breaux’s aggregate sentence remains unchanged even with the error. Therefore, we
       review whether Breaux’s five year executed sentence is inappropriate under the standard.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1268 | December 10, 2019                  Page 11 of 15
       their hands behind their backs. The rope around the neck was tight, making it

       difficult for the children to breathe. Breaux would then turn the lights off and

       leave the children restrained in the garage as punishment. Breaux did this on

       multiple occasions. We also note that both victims were young at the time of

       the incident – ages five and six. Breaux’s aggregate five-year sentence is not

       inappropriate in light of the nature of the offenses.


                                   C. Character of the Offender
[18]   The “character of the offender” portion of the Rule 7(B) standard permits a

       broader consideration of the defendant’s character. Anderson v. State, 989

       N.E.2d 823, 827 (Ind. Ct. App. 2013), trans. denied. A defendant’s life and

       conduct are illustrative of his or her character. Morris v. State, 114 N.E.3d 531,

       539 (Ind. Ct. App. 2018), trans. denied. And the trial court’s recognition or non-

       recognition of aggravators and mitigators serves as an initial guide in

       determining whether the sentence imposed was inappropriate. Stephenson v.

       State, 53 N.E.3d 557, 561 (Ind. Ct. App. 2016).


[19]   Breaux argues that the following factors reflect positively on his character,

       warranting a reduction of his sentence: (1) he took responsibility for his actions;

       (2) he has never been convicted of a felony; (3) he has family support as

       demonstrated through numerous letters submitted to the trial court; (4) he was

       employed from 2013 to 2016; (5) he has physical health issues and is on social

       security disability; and (6) he has his GED and has taken parenting classes.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1268 | December 10, 2019   Page 12 of 15
       However, we are unpersuaded that these factors render his sentence

       inappropriate.


[20]   In examining a defendant’s character, one relevant factor is his or her criminal

       history, the significance of which “varies based on the gravity, nature, and

       number of prior offenses in relation to the current offense.” Rutherford v. State,

       866 N.E.2d 867, 874 (Ind. Ct. App. 2007). As indicated in the presentence

       investigation report, Breaux’s criminal history is comprised of two prior theft

       convictions, one in 2002 and one in 2008. Although Breaux does not have a

       single prior felony conviction, this court has held that “[e]ven a minor criminal

       record reflects poorly on a defendant’s character[.]” Reis, 88 N.E.3d at 1105.


[21]   In addition, the fact that Breaux restrained his own daughter – someone he

       should protect and care for – illustrates his poor judgment and character. See

       Garner v. State, 7 N.E.3d 1012, 1016 (Ind. Ct. App. 2014) (declining to revise a

       defendant’s sentence because his “abuse of his position of trust was

       demonstrative of his lack of character.”). Additionally, Breaux abused his

       position of trust with respect to J.S. who was in his care, custody, and control at

       the time of the incidents. Breaux has failed to persuade this court that his

       sentence is inappropriate in light of his character.


[22]   In sum, we conclude that Breaux has failed to persuade this court that his

       sentence is inappropriate in light of the offenses and his character. Accordingly,

       we decline to revise his sentence pursuant to Indiana Appellate Rule 7(B).




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1268 | December 10, 2019   Page 13 of 15
                                      III. Sentencing Order
[23]   Breaux argues, and the State agrees, that the trial court’s sentencing order

       contains a clerical error. We agree and remand to the trial court.


[24]   At the sentencing hearing, the trial court sentenced Breaux to serve two years

       for his neglect of a dependent conviction, a Level 6 felony, and five years for the

       battery conviction, a Level 5 felony, to be served concurrently in the DOC. See

       Tr., Vol. 1 at 37 (“I think I’ll, the neglect, two years. Battery on a person under

       fourteen, five years. Concurrent per the plea agreement. That’s a total of five

       years, all executed in the [DOC].”). However, the trial court’s written

       sentencing order reflected Breaux was to serve five years for neglect of a

       dependent and five years for battery to be served concurrently for a total

       sentence of five years. See Appealed Order at 4. As noted by Breaux, the

       sentencing range for his neglect conviction, a Level 6 felony, is six months to

       two and one-half years. Ind. Code § 35-50-2-7(b). Therefore, the five-year

       sentence exceeds the statutory range for the crime committed. Given this

       evidence, it appears this was a clerical error or an inadvertent mistake with

       respect to the length of Breaux’s sentence for his neglect conviction. Therefore,

       we remand to the trial court to revise its sentencing order to reflect a two-year

       sentence for Breaux’s neglect of a dependent conviction.



                                              Conclusion
[25]   We conclude that the trial court did not err in allowing the State to reference

       certain evidence during the sentencing hearing, the trial court did not abuse its
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1268 | December 10, 2019   Page 14 of 15
       discretion in sentencing Breaux, and Breaux’s sentence is not inappropriate.

       We further conclude the trial court’s sentencing order contains a clerical error

       and therefore, we remand to the trial court to correct this error. Accordingly,

       we affirm and remand.


[26]   Affirmed and remanded.


       Mathias, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1268 | December 10, 2019   Page 15 of 15
