MEMORANDUM DECISION
                                                                              FILED
Pursuant to Ind. Appellate Rule 65(D),
                                                                         May 17 2018, 7:39 am
this Memorandum Decision shall not be
regarded as precedent or cited before any                                     CLERK
                                                                          Indiana Supreme Court
court except for the purpose of establishing                                 Court of Appeals
                                                                               and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Matthew D. Anglemeyer                                   Curtis T. Hill, Jr.
Marion County Public Defender                           Attorney General of Indiana
Appellate Division
                                                        Christina D. Pace
Indianapolis, Indiana                                   Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Mercy Darrington,                                       May 17, 2018
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        49A02-1708-CR-1876
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Marc T.
Appellee-Plaintiff.                                     Rothenberg, Judge
                                                        Trial Court Cause No.
                                                        49G02-1310-FB-69153



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1708-CR-1876 | May 17, 2018               Page 1 of 17
[1]   Mercy Darrington appeals her sentence for two counts of neglect of a

      dependent resulting in serious bodily injury as class B felonies. Darrington

      raises three issues which we consolidate and restate as:


          I.      Whether the trial court erred in ordering her to pay certain fines
                  and costs; and

          II.     Whether her sentence is inappropriate in light of the nature of the
                  offense and her character.

      We affirm and remand.


                                      Facts and Procedural History

[2]   On July 12, 2013, Da., born on December 4, 2010, and De., born on July 12,

      2012, (Da. and De., together, the “children”) and their two older siblings were

      placed in foster care with Darrington, a therapeutic foster parent. In August

      2013, Kylee Bunnell, an employee of The Villages of Indiana, a primary foster

      care and adoption agency, picked up De. and Da. from their foster home for a

      visit with their biological mother. During the visit, the children’s biological

      mother brought sausages and a lemonade or juice for the children. Once the

      food and drinks were brought, Da. did not want to go back and play and was

      “just pouring more juice and wanting juice and juice.” Transcript Volume II at

      23. Da. was “just sitting at the table wanting to drink.” Id. Bunnell tried to

      redirect Da. to water instead of juice and Da. was “downing those just left and

      right, cold water, like he had done with the juice. But just kept wanting more

      and more, stopping to take a breath and just kept chugging.” Id. at 24.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1708-CR-1876 | May 17, 2018   Page 2 of 17
[3]   In October 2013, another visit occurred at The Villages. Casey Elliott, an

      employee at The Villages and a provider of supervised parenting time, provided

      transportation for Da. and De. and went to Darrington’s home to pick the

      children up for a visit with their biological mother. Da. was crying when Elliott

      arrived and continued to do so. Darrington brought Da. out, and Elliott

      observed that he was crying uncontrollably and shaking. Darrington told

      Elliott that Da. had been crying for awhile and that “it was probably excitement

      about the visit.” Id. at 55. Elliott did not see Darrington comfort Da. and

      observed that De. “showed no emotion at all” and was just sitting. Elliott took

      Da. and De. to The Villages for a visit and noticed that Da. was “walking

      strange,” “like shuffling his feet,” and that he “tripped over his feet a couple of

      times.” Id. at 57. She observed that one side of Da.’s face “appeared to kind of

      be drooping significantly more than the other side.” Id. She also observed

      changes in De. and Da. from earlier visits in that they were not active or

      playing, they stopped smiling and laughing, and “[t]hey would just pretty much

      sit on the couch just expressionless, emotionless.” Id. at 60.


[4]   When the children’s biological mother arrived for the visit with fried chicken

      and juice, Da. “beelined for the food” and “went straight for the juice again.”

      Id. at 27. Da. was “chugging, vomited, and kept drinking.” Id. Da. “just

      needed to eat and drink.” Id. at 28. At that time, Bunnell was extremely

      worried. Elliott observed Da. “drink cup after cup of either juice or water as

      fast as he could.” Id. at 59. Da. drank continuously through the whole visit,

      became sick a couple of times and threw up, and wanted to drink again. At


      Court of Appeals of Indiana | Memorandum Decision 49A02-1708-CR-1876 | May 17, 2018   Page 3 of 17
      some point, Bunnell observed that Da.’s eye was droopy and he did not change

      facial expressions. The Clinical Director at the Villages observed the children

      and then called Child Protective Services.


[5]   Indianapolis Metropolitan Police Detective Sergeant Eli McAllister arrived at

      the scene and observed that De. was “more or less asleep or non-responsive.”

      Id. at 130. He also observed that Da. was awake but appeared very afraid,

      uneasy, was shaking, and his left eyebrow was drooping down. An ambulance

      was called, the medics informed Detective Sergeant McAllister and others that

      they felt that the children needed to be transported to Riley Hospital for

      Children right away and then transported them to the hospital where an

      emergency room physician decided to admit the children.


[6]   That evening, Detective Sergeant McAllister interviewed Darrington. She

      stated that De. was “very, very, overweight” when she was placed in her home.

      State’s Exhibit 11 at 24:10-24:15. She told him at one point that she did not

      give De. anything to drink at lunch on Monday. She stated that she was easing

      up on the milk because she was looking for a bowel movement from De., that

      she gave De. half a cup of milk at 2:30 on Monday, and that she did not give

      De. or Da. anything to drink in between meals. She later indicated that on that

      Monday, De. had half of a sippy cup of milk for breakfast, a little less than half

      a cup at 12:00, and had nothing else to drink that day. She stated that Da. did

      not eat much recently. When asked why she did not allow the children to have

      anything to drink outside of mealtimes, she answered that they wet the bed and

      pee on themselves. Detective Sergeant McAllister found the information

      Court of Appeals of Indiana | Memorandum Decision 49A02-1708-CR-1876 | May 17, 2018   Page 4 of 17
      Darrington gave him about what she had been feeding the children and

      providing them to drink to be “wholly inadequate and strangely restrictive,”

      and arrested her. Transcript Volume II at 139.


[7]   The next day, Dr. Tara Harris, an assistant professor of clinical pediatrics at

      Riley Hospital for Children with a subspecialty in child abuse pediatrics,

      observed that De. could not be engaged at all, and “[i]f you moved forward to

      engage with her or if she thought you were going to touch her, she screamed.”

      Id. at 85. Dr. Harris also observed that De.’s skin looked very dry to the point

      that it was wrinkled which was not typical for a fifteen-month-old. She

      determined that the cause of the appearance of De.’s skin was from profound

      dehydration and that her sodium level was 164 which was outside the normal

      range of 135 to 145 and potentially lethal for her and her potassium level was

      critical.


[8]   Dr. Harris observed that Da.’s behavior was very unusual for a child his age

      and that he was very quiet. She also observed that he had very dry skin to the

      point of having some saggy and “kind of wrinkled-looking” areas. Id. at 97.

      She determined that Da.’s sodium level was 155 which, “[i]f it progressed much

      further, it certainly could be life threatening.” Id. at 97. She also determined

      that Da.’s potassium level was at a level where it could have been life

      threatening. Da. received treatment and his sodium levels returned to the

      normal range after two days. With treatment, De.’s levels returned to normal

      by the third day.



      Court of Appeals of Indiana | Memorandum Decision 49A02-1708-CR-1876 | May 17, 2018   Page 5 of 17
[9]    On October 23, 2013, the State charged Darrington with two counts of neglect

       of a dependent as class B felonies and two counts of battery as class D felonies.

       On July 15, 2016, the State charged Darrington in an amended information

       with two counts of neglect of a dependent resulting in serious bodily injury as

       class B felonies and one count of battery resulting in bodily injury as a class D

       felony.


[10]   On June 26 and 27, 2017, the court held a jury trial. When asked about Da.’s

       drinking and wanting more to drink, Bunnell testified: “At first the juice wasn’t

       but after we noticed, like, how much he kept, like, just not wanting to do

       anything else, it became – it started to become very unusual.” Id. at 24. Elliott

       testified that Da. was not a “real active child” and that “[a]ny time there was

       food or drink, he would eat or drink as – all of it – as much of it as he could as

       fast as he could” at “[e]very visit.” Id. at 57. Dr. Harris testified that the high

       levels of sodium in De. and Da. were due to fluid restriction and that a fifteen-

       month-old should have four full eight-ounce sippy cups each day. Dr. Harris

       also testified that the level of dehydration did not develop rapidly. She testified

       that Da.’s droopy eyebrow was related to his sodium level which can change

       the way one’s nerves are working. When asked if there was any way to know

       what the full implications would be for De. and Da., Dr. Harris answered:


               Unfortunately, no. What they experienced is something we term
               medically as Toxic Stress. So, again, for both of them, they’re at
               that period of those early, formative years where their brain is
               growing really rapidly and should be making lots of new
               connections. The way that you make all those new connections
               is by good nutrition and by interacting with the world. So by
       Court of Appeals of Indiana | Memorandum Decision 49A02-1708-CR-1876 | May 17, 2018   Page 6 of 17
               people talking to you and playing with you and having those
               interactions. So the fact that they didn’t have those and didn’t
               have that adequate nutrition for brain growth is going to have
               life-long implications for them.


       Id. at 108. She also testified that, if De. and Da. had not been treated, they

       would have died from the liquid restrictions. The court admitted photographic

       evidence showing the appearance of the children when they were hospitalized.


[11]   After the State rested, Darrington moved for a directed verdict, and the court

       denied the motion. During the presentation of the defense’s case, Dr. Dana

       Hiller testified that she had seen De. and Da. on one occasion in late summer

       or early fall when Darrington brought them in for a wellness check, the children

       seemed to be doing fairly well, and she did not have any specific concerns but

       referred the children to First Steps because they had mental or physical

       developmental disabilities. On cross-examination, Dr. Hiller testified that she

       never saw them again after that visit in September.


[12]   Terri Everitt, an employee of Dockside Services, an agency contracted with the

       Department of Child Services to provide services including therapy and case

       management, testified that she was a foster care case manager in 2013 and that

       the children were initially very scared and would scream when out of

       Darrington’s presence. She testified that she visited Darrington’s home twice a

       week on a regular basis, visited the home on October 22, 2013, noticed only

       that Da. and De. were fussy and wanted to be in the same room with her, and

       did not notice a droopiness on Da.’s face.


       Court of Appeals of Indiana | Memorandum Decision 49A02-1708-CR-1876 | May 17, 2018   Page 7 of 17
[13]   Tyanne Clancy, a social worker, testified that she went to Darrington’s home

       between 4:30 and 5:00 on October 22, 2013, to pick up her own two children

       who Darrington cared for while she worked and did not notice anything out of

       the ordinary with Da. or De.


[14]   The jury found Darrington guilty of two counts of neglect of a dependent

       resulting in serious bodily injury as class B felonies and not guilty of battery.


[15]   On July 26, 2017, the court held a sentencing hearing. Detective Sergeant

       McAllister testified there were six children living in Darrington’s home, he did

       not see many toys, and there was food in the kitchen. He testified that he

       interviewed the two older foster children that were related to De. and Da. and

       both described in particular one occasion in which Darrington slapped Da.

       across the face. He also testified that one of the children talked about watching

       Darrington telling De. to shut up on the morning of the investigation and “push

       her head into the pack ‘n play and then even when she started crying louder,

       she shoved her head harder.” Transcript Volume III at 66. He also testified

       that there were numerous electronics in the home, specifically televisions, as

       well as a Cadillac sedan, a Cadillac SUV, and a Corvette convertible.


[16]   Darrington stated:


               Definitely I’d like to say that I’m sorry. You know, for one, it
               was never the intention to harm any child. And so, you know,
               for that, I apologize. I have learned, you know, the dehydration
               and more on the facts of nutrition. You know, I did not withhold
               anything. They were drinking milk. They were drinking milk


       Court of Appeals of Indiana | Memorandum Decision 49A02-1708-CR-1876 | May 17, 2018   Page 8 of 17
               and juice and just not enough water. I didn’t withhold with any
               intent of harming any child.


               And, again, I’ve learned. I continue repeatedly to share the
               information with others to say, Give your kids more water. Give
               your kids more water. They need water, not just juice and not
               just milk. We have to, you know, some of us just didn’t know. I
               do know now. And that mistake will never happen again. You
               know, that I’m confident of.


       Id. at 80. She also testified that she purchased bicycles and clothes for the

       children, the testimony that she struck one of the children was not accurate, and

       that she filed for bankruptcy in 2016 and the bankruptcy was complete. The

       court asked her if she had equity in her mortgage, and she answered: “No. The

       home is upside down.” Id. at 85.


[17]   The court stated:


               [T]his case is not the typical case you see here. When you see
               Neglect of a Dependent, I usually see, unfortunately, a dead
               child, one who has usually been beaten, shaken, smothered. I
               don’t see one who’s been now malnourished. It was unusual in
               that sense.

               I don’t think it’s a situation where Ms. Darrington didn’t care. I
               don’t think that’s it at all. I think there was certainly a level of
               ignorance and a level of – for lack of a better term, a draconian
               sense of upbringing which brought us here. I think she did what
               she thought was best. Unfortunately, it was terrible.

               If you think, you know, every time someone wets themselves the
               punishment is you don’t give them something to drink, that’s a
               terrible, terrible thing. Withholding the – you know, she can buy
               them all the TVs in the world. She can buy them clothes. She

       Court of Appeals of Indiana | Memorandum Decision 49A02-1708-CR-1876 | May 17, 2018   Page 9 of 17
               can buy them everything. But you’re withholding the essentials
               of life. You’re withholding water. You know, you can survive
               without food. You can’t – for a bit. You can’t survive without
               water for more than two days. Other liquids may substitute that
               hydration for a short period of time, but in the end, you need
               water.

               So it’s not that I think she doesn’t care. I think that she
               intentionally – I think there was absolutely a knowing aspect to
               this. She knew what she was doing. I just think her methods
               were criminal. They rose to the level and the jury agreed with
               me.

       Id. at 92-93. The court stated: “There are aggravators in this matter. The

       nature of the crime, I think, again, the malnutrition. It’s not something I see

       but it’s something that has to be considered as an aggravator.” Id. at 94. The

       court found the “young age of the dependent” as an aggravator. Id. The court

       found the fact that “the crime is going to be the result of circumstances that are

       unlikely to occur as a mitigator because she shouldn’t have care and control of

       any children.” Id. at 95. The court also observed that Darrington did not have

       a criminal history. The court stated: “I think she has expressed remorse but I’m

       not sure she’s really accepted responsibility.” Id. The court sentenced

       Darrington to ten years with seven years suspended for each count and ordered

       that the sentences be served consecutive to each other.


[18]   The court imposed a fine of $4,000 for each count for a total of $8,000. At the

       sentencing hearing, the court stated:


               Now, I understand there was a bankruptcy proceeding. Without
               that bankruptcy proceeding, I – and based on what I’ve seen and
               the assets I’ve seen and when they were purchased, I believe she
       Court of Appeals of Indiana | Memorandum Decision 49A02-1708-CR-1876 | May 17, 2018   Page 10 of 17
               has the means to pay these fines and the court costs I’m going to
               assess on her $183.00 on each cause, probation fees in the
               amount of $100.00 on each cause which is the amount I can give
               plus any administrative fees.

               That being said, if the Defense wants to present the bankruptcy
               findings and proof of assets, I would look to modify that fee if
               they can show that she really truly has liquidated assets and she
               has no way of paying. Otherwise, yeah. She can sell a TV. She
               can sell a car. I know she’s upside down on her house, but she
               can get herself a reverse mortgage. I mean, there are ways of
               doing that unless that bankruptcy tells me, which she just
               recently went through – and it very well may – that she has no
               assets.

       Id. at 97.


[19]   Darrington indicated that she wished to appeal, and her counsel asked the court

       to appoint pauper counsel. The court stated:


               Okay. Aside from – and granted. Considering the fines that I’ve
               imposed and the assets that I see here, she has no income. I will
               appoint pauper counsel for those purposes. But, again, make no
               mistake. I do find that from the evidence presented, she does
               have the assets to pay the fines that have been assessed in this
               matter.


       Id. at 98-99.


                                                   Discussion

                                                         I.


[20]   The first issue is whether the trial court erred in ordering Darrington to pay

       certain fines and costs. Sentencing decisions, including decisions to impose

       Court of Appeals of Indiana | Memorandum Decision 49A02-1708-CR-1876 | May 17, 2018   Page 11 of 17
       restitution and costs, are generally left to the trial court’s discretion. Berry v.

       State, 950 N.E.2d 798, 799 (Ind. Ct. App. 2011). If the fees imposed by the trial

       court fall within the parameters provided by statute, we will not find an abuse

       of discretion. Id.


[21]   Darrington acknowledges that certain vehicles were jointly owned by herself

       and her adult daughter and that they had been purchased in 2011, 2010, and

       2009. She points to her testimony that “[t]his whole case has depleted all my

       finances and living situation which is what’s indicated with the bankruptcy or

       where that stemmed from.” Transcript Volume III at 83. She also points out

       that she was upside down on her home. She asserts that the trial court did not

       dispatch its affirmative duty to determine whether she was indigent before it

       imposed the fine and that this court should remand for a proper indigency

       hearing.


[22]   The State argues that it presented evidence of Darrington’s material assets

       including her luxury vehicles, flat screen televisions, hot tub in her bedroom,

       and newly remodeled kitchen. The State also asserts that Darrington made a

       total of $12,796.92 for being a foster parent to Da. and De. between July 12,

       2013, and October 22, 2013, prior to their removal. It asserts that the indigency

       hearing was part and parcel of the sentencing hearing.


[23]   Ind. Code § 35-50-2-5 provides that a person who commits a class B felony

       “may be fined not more than ten thousand dollars ($10,000).” The Indiana

       Supreme Court has noted that the Indiana legislature requires indigency


       Court of Appeals of Indiana | Memorandum Decision 49A02-1708-CR-1876 | May 17, 2018   Page 12 of 17
       hearings as to the imposition of fines and costs, see Ind. Code § 33-37-2-3(a)

       (providing “when the court imposes costs, it shall conduct a hearing to

       determine whether the convicted person is indigent”); Ind. Code § 35-38-1-18

       (same for court-imposed fines), and the Court has held that, “when fines or

       costs are imposed upon an indigent defendant, such a person may not be

       imprisoned for failure to pay the fines or costs.”1 Whedon v. State, 765 N.E.2d

       1276, 1279 (Ind. 2002). The Court has also stated that “a defendant’s financial

       resources are more appropriately determined not at the time of initial

       sentencing but at the conclusion of incarceration, thus allowing consideration of

       whether the defendant may have accumulated assets through inheritance or

       otherwise.” Id. While a trial court’s appointment of defense and appellate

       counsel for a defendant implies a finding of indigency, the appointment of

       counsel is not conclusive as to the defendant’s inability to pay costs. Briscoe v.

       State, 783 N.E.2d 790, 792 (Ind. Ct. App. 2003). Where a trial court fails to

       conduct an indigency hearing when required, the proper remedy is to remand

       with instructions to hold such a hearing. Id. at 792-793.


[24]   Although there was testimony regarding the vehicles Darrington owned and the

       televisions in her home, the record also revealed that Darrington testified that

       she had filed bankruptcy which was complete and that she was upside down on




       1
        Also, Ind. Code § 33-37-2-3(b) provides in part that “[a] court may impose costs and suspend payment of all
       or part of the costs until the convicted person has completed all or part of the sentence” and “[i]f the court
       suspends payment of the costs, the court shall conduct a hearing at the time the costs are due to determine
       whether the convicted person is indigent.”

       Court of Appeals of Indiana | Memorandum Decision 49A02-1708-CR-1876 | May 17, 2018             Page 13 of 17
her mortgage. Under “Financial Situation,” the presentence investigation

report (“PSI”) states:


        [Darrington] stated that she is currently supporting herself
        through her savings due to having been laid off in 2008 from her
        last place of employment. The defendant also listed that she
        receives $200 per month for child support and also reported
        receiving $1200 per month from her family. The defendant
        admitted that she does have a checking account but indicated
        that she did not have either a savings account or any assets of
        value. The defendant reported that her monthly bills total
        $1516.00 and indicated that she does not have any past due debts
        but also indicated that she filed bankruptcy in 2016. The
        defendant indicated that she felt that she was not able to pay her
        bills but also indicated that she was able to pay her bills without
        struggling.


Appellant’s Appendix Volume III at 100. The court acknowledged that “it very

well may – that she has no assets.” Transcript Volume III at 97. In appointing

pauper counsel for appeal, the court stated that Darrington “has no income.”

Id. at 98. Under the circumstances, we conclude that the trial court erred in

failing to hold a hearing or make the necessary inquiry regarding Darrington’s

indigency or ability to pay as statutorily required. We remand with instructions

to hold a hearing on Darrington’s indigency or ability to pay. See Briscoe, 783

N.E.2d at 793 (noting that the appointment of trial and appellate counsel

implied the trial court knew of the defendant’s indigency and that the

presentence investigation report provided some information regarding the

defendant’s financial position, noting that these facts were not conclusive as to

the defendant’s ability to pay fees, holding the trial court erred when it failed to

Court of Appeals of Indiana | Memorandum Decision 49A02-1708-CR-1876 | May 17, 2018   Page 14 of 17
       conduct a hearing on this issue, and remanding with instructions to hold a

       hearing on the defendant’s indigency because his sentence included the

       imposition of a fee).


                                                        II.


[25]   The next issue is whether Darrington’s sentence is inappropriate in light of the

       nature of the offense and the character of the offender. Darrington asserts that

       she felt bad about what happened, did not contemplate that the amount of fluid

       she gave the children would harm them, and did much good for them including

       taking the children to wellness checks. She also points out that many

       professional people credentialed in child care did not discern anything out of

       the ordinary with the children. She asserts that she has a good relationship with

       her family, worked for twenty-five years as an underwriter but had not been

       employed since she was laid off from that job in 2008, and has no criminal

       history or history of drug use. She requests that we revise her sentence to a

       lesser time on home detention and probation and run the sentences

       concurrently.


[26]   The State points out that the trial court suspended most of Darrington’s

       sentence to probation and that nothing about the nature of the offenses warrants

       a downward revision of Darrington’s already lenient sentence. The State

       asserts that Darrington’s treatment of the children reflects poorly on her

       character.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1708-CR-1876 | May 17, 2018   Page 15 of 17
[27]   Ind. 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 offense and the character

       of the offender.” 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).


[28]   Ind. Code § 35-50-2-5 provides that “[a] person who commits a Class B felony

       (for a crime committed before July 1, 2014) shall be imprisoned for a fixed term

       of between six (6) and twenty (20) years, with the advisory sentence being ten

       (10) years.”


[29]   Our review of the nature of the offense reveals that Darrington was the

       therapeutic foster parent for Da. and De. While in Darrington’s care, the

       children suffered profound dehydration and high levels of sodium and

       potassium due to fluid restriction. Dr. Harris determined that De.’s sodium

       level was potentially lethal for her and that Da.’s potassium level was at a level

       where it could have been life threatening.


[30]   Our review of the character of the offender reveals that Darrington does not

       have a criminal history. Darrington reported she worked as an insurance

       underwriter for twenty-five years until she was laid off in 2008 and had not been

       employed since 2008. The PSI indicates that Darrington reported never

       consuming alcohol, marijuana, cocaine, heroin, methamphetamine, or

       prescription pills. The PSI also indicates that Darrington’s overall risk


       Court of Appeals of Indiana | Memorandum Decision 49A02-1708-CR-1876 | May 17, 2018   Page 16 of 17
       assessment score using the Indiana risk assessment system places her in the low

       risk to reoffend category.


[31]   After due consideration, we conclude that Darrington has not sustained her

       burden of establishing that her consecutive sentences of the advisory sentence of

       ten years with seven years suspended for each count is inappropriate in light of

       the nature of the offense and her character.2


                                                       Conclusion

[32]   For the foregoing reasons, we affirm Darrington’s sentence and remand for a

       determination of her indigency or ability to pay consistent with this opinion.


[33]   Affirmed and remanded.


       Bailey, J., and Crone, J., concur.




       2
         To the extent Darrington argues the court abused its discretion in sentencing her by using the malnutrition
       the children experienced as an aggravator, we need not address this issue because we find that her sentence is
       not inappropriate under Ind. Appellate Rule 7(B). See Chappell v. State, 966 N.E.2d 124, 134 n.10 (Ind. Ct.
       App. 2012) (noting that any error in failing to consider the defendant’s guilty plea as a mitigating factor is
       harmless if the sentence is not inappropriate) (citing Windhorst v. State, 868 N.E.2d 504, 507 (Ind. 2007)
       (holding that, in the absence of a proper sentencing order, Indiana appellate courts may either remand for
       resentencing or exercise their authority to review the sentence pursuant to Ind. Appellate Rule 7(B)), reh’g
       denied; Mendoza v. State, 869 N.E.2d 546, 556 (Ind. Ct. App. 2007) (noting that, even if the trial court is found
       to have abused its discretion in sentencing, the error is harmless if the sentence imposed is not inappropriate),
       trans. denied), trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1708-CR-1876 | May 17, 2018                Page 17 of 17
