MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                       FILED
regarded as precedent or cited before any
court except for the purpose of establishing                      Apr 04 2017, 8:52 am

the defense of res judicata, collateral                                CLERK
                                                                   Indiana Supreme Court
estoppel, or the law of the case.                                     Court of Appeals
                                                                        and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Andrew B. Arnett                                         Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Cristina D. Pace
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

James A. McNabb,                                         April 4, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         73A01-1609-CR-2249
        v.                                               Appeal from the Shelby Circuit
                                                         Court
State of Indiana,                                        The Honorable Charles D.
Appellee-Plaintiff.                                      O’Connor, Judge
                                                         Trial Court Cause No. 73C01-
                                                         1505-F6-144



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 73A01-1609-CR-2249 | April 4, 2017       Page 1 of 7
                                STATEMENT OF THE CASE
[1]   Appellant-Defendant, James McNabb (McNabb), appeals his sentence

      following a guilty plea to domestic battery, a Level 6 felony, Ind. Code § 35-42-

      2-1.3(a); and battery on a child less than fourteen years of age, a Level 5 felony,

      I.C. § 35-42-2-1(b) .


[2]   We affirm.


                                                    ISSUE
[3]   McNabb raises one issue for our review, which we restate as: Whether

      McNabb’s sentence is appropriate in light of the nature of the offenses and his

      character.


                      FACTS AND PROCEDURAL HISTORY
[4]   In May of 2015, McNabb was living with his girlfriend, Christy Parrish

      (Parrish), and Parrish’s five-year-old daughter, L.B. On May 13, 2015,

      McNabb and Parrish got into an argument. McNabb struck and kicked Parrish

      several times. As a result, Parrish incurred pain and swelling to her knee,

      abrasions to her leg, a bruise on her left arm, and a busted lip. When L.B.

      walked into the room, she saw McNabb assault her mother. She started crying

      and ran out of the house to notify the neighbor. McNabb ran after L.B. He

      grabbed L.B., picked her up, brought her back into the house, and locked the

      door, preventing her from leaving again.




      Court of Appeals of Indiana | Memorandum Decision 73A01-1609-CR-2249 | April 4, 2017   Page 2 of 7
[5]   On May 18, 2015, the State charged McNabb with domestic battery and

      strangulation, both Level 6 felonies. On April 8, 2016, the State amended the

      Information by adding criminal confinement, a Level 5 felony. On May 19,

      2016, McNabb pled guilty, pursuant to a written plea agreement, to Level 5

      felony criminal confinement and Level 6 felony domestic battery, with the

      strangulation charge being dismissed. The plea agreement capped his sentence

      to a maximum executed sentence of two-and-one-half years, with sentences to

      run concurrently. A sentencing hearing was held on September 1, 2016.

      Because a guilty plea to a Level 5 criminal confinement would require McNabb

      to register as a sex and violent offender for life due to the young age of the

      victim, the parties agreed that the State would dismiss Level 5 criminal

      confinement and allow McNabb to plead guilty to Level 5 battery on a child

      less than fourteen years of age. Accordingly, McNabb’s guilty plea for Level 5

      criminal confinement was vacated, and he pled guilty, pursuant to an amended

      written plea agreement, to Level 5 felony battery on a child less than fourteen

      years of age. This amended plea agreement also capped McNabb’s maximum

      executed sentence to two-and-one-half years for domestic battery and to five

      years, with two-and-one half years suspended to probation for battery on a child

      less than fourteen years of age, with sentences to run concurrently.


[6]   McNabb now appeals. Additional facts will be provided as necessary.




      Court of Appeals of Indiana | Memorandum Decision 73A01-1609-CR-2249 | April 4, 2017   Page 3 of 7
                                DISCUSSION AND DECISION
[7]   McNabb contends that his sentence is inappropriate in light of the nature of the

      offense and his character. 1 Initially, we note that McNabb agreed to “waive[]

      any right to appellate review of his/her sentence” when executing his plea

      agreement. (Appellant’s App. Vol. II, pp. 35-36). In Creech v. State, 887 N.E.2d

      73, 75 (Ind. 2008), our supreme court recognized that “a defendant may waive

      the right to appellate review of his sentence as part of a written plea

      agreement.” Nevertheless, at the sentencing hearing, the trial court advised

      McNabb that he had a right to appeal his sentence because it was an open

      sentence. Neither the State nor McNabb’s counsel objected. After rendering its

      sentence, the trial court again informed McNabb of his right to appeal, without

      objection by either party. In Ricci v. State, 894 N.E. 2d 1089, 1093-94 (Ind. Ct.

      App. 2008), trans. denied, we found that when a trial court advises the defendant

      at the plea hearing of his right to appeal his sentence and the parties do not

      correct the trial court, then this court cannot conclude that the defendant

      waived his right to appeal his sentence. Therefore, we will address McNabb’s

      argument on its merits.


[8]   Although a trial court may have acted within its lawful discretion in imposing a

      sentence, Indiana Appellate Rule 7(B) provides that an appellate court “may




      1
        To the extent McNabb challenges the trial court’s weighing of the cited aggravating and mitigating
      circumstances, we note that “a trial court can not now be said to have abused its discretion in failing to
      properly weigh such factors.” Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007), clarified on reh’g, 875
      N.E.2d 218 (Ind. 2007).

      Court of Appeals of Indiana | Memorandum Decision 73A01-1609-CR-2249 | April 4, 2017                 Page 4 of 7
      revise a sentence authorized by statute if, after due consideration of 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.” The defendant has the

      burden of persuading us that his sentence is inappropriate. Childress v. State, 848

      N.E.2d 1073, 1080 (Ind. 2006). Whether this court regards a sentence as

      appropriate at the end of the day turns on its sense of the culpability of the

      defendant, the severity of the crime, the damage done to others, and a myriad

      of other facts that come to light in a given case. Suprenant v. State, 925 N.E.2d

      1280, 1284 (Ind. Ct. App. 2010), trans. denied.


[9]   We recognize that the advisory sentence “is the starting point the Legislature

      has selected as an appropriate sentence of the crime committed.” Weiss v. State,

      848 N.E.2d 1070, 1072 (Ind. 2006). Pursuant to the statute, a person convicted

      for a Level 5 felony, shall be imprisoned for a fixed term of between one and six

      years, with the advisory sentence being three years. I.C. § 35-50-2-6. A person

      who commits a Level 6 felony shall be imprisoned for a fixed term of between

      six months and two and one-half, with the advisory sentence being one year.

      I.C. § 35-50-2-7. Here, McNabb received an aggregate sentence of five years

      with two-and-one-half years suspended to probation. As pointed out by the

      State, “[g]iven that the potential sentence for his Level 5 and Level 6

      convictions in the absence of the agreement was eight and one-half years,”

      McNabb did not receive the maximum allowable sentence. (Appellee’s Br. p.

      9).




      Court of Appeals of Indiana | Memorandum Decision 73A01-1609-CR-2249 | April 4, 2017   Page 5 of 7
[10]   As to the nature of the offenses, we note that McNabb beat his girlfriend in the

       presence of the girlfriend’s five-year-old daughter. When the child ran out of

       the house in an attempt to alert a neighbor, McNabb turned on the little girl.

       He ran after her and forcibly brought her back inside the residence and locked

       the doors.


[11]   When considering the character of the offender, one relevant consideration is

       the defendant’s criminal history. Rutherford v. State, 866 N.E.2d 867, 874 (Ind.

       Ct. App. 2007). At thirty-six years of age, McNabb has amassed a relevant

       criminal history. He has six misdemeanor convictions, including four

       convictions for battery and two convictions for possession of marijuana, and six

       felony convictions, including two convictions for dealing marijuana and one

       conviction for maintaining a common nuisance. McNabb was placed on

       probation twice and both times the probation was revoked. Even when he was

       incarcerated for the instant offense, McNabb committed a battery against

       another inmate because he “lost [his] cool.” (Tr. p. 41). It is clear that his

       repeated contacts with the criminal justice system have had no impact on

       persuading him to reform.


[12]   During the sentencing hearing, McNabb admitted to abusing drugs. Parrish

       testified that after she bonded McNabb out for the instant offense, it only took

       McNabb two months to start using methamphetamines again. She testified that

       she has “been with this man for five years and every time, it’s the same thing.

       He’s had good jobs, lost them because of meth. Every time I got beat up it was



       Court of Appeals of Indiana | Memorandum Decision 73A01-1609-CR-2249 | April 4, 2017   Page 6 of 7
       because he was on meth.” (Tr. p. 46). “He’s done numerous things to try to get

       sober,” all to no avail. (Tr. p. 46).


[13]   Accordingly, we conclude that McNabb has failed to carry his burden to

       establish that his sentence is inappropriate in light of the nature of the offense

       and McNabb’s character.


                                             CONCLUSION
[14]   Based on the foregoing, we conclude that McNabb’s sentence in not

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


[15]   Affirmed.


[16]   Najam, J. and Barnes, J. concur




       Court of Appeals of Indiana | Memorandum Decision 73A01-1609-CR-2249 | April 4, 2017   Page 7 of 7
