MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                   FILED
regarded as precedent or cited before any                           Jun 07 2017, 5:52 am

court except for the purpose of establishing                            CLERK
                                                                    Indiana Supreme Court
the defense of res judicata, collateral                                Court of Appeals
                                                                         and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Donald C. Swanson, Jr.                                   Curtis T. Hill, Jr.
Deputy Public Defender                                   Attorney General of Indiana
Fort Wayne, Indiana
                                                         Tyler G. Banks
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Dale D. Carter,                                          June 7, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         02A03-1701-CR-26
        v.                                               Appeal from the Allen Superior
                                                         Court
State of Indiana,                                        The Honorable Wendy W. Davis,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         02D04-1608-F6-887



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 02A03-1701-CR-26 | June 7, 2017           Page 1 of 5
                                 Case Summary and Issue
[1]   Dale Carter pleaded guilty to domestic battery, a Level 6 felony, and the trial

      court sentenced him to two and one-half years in the Indiana Department of

      Correction. Carter raises one issue on appeal: whether his sentence is

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

      offender. Concluding his sentence is not inappropriate, we affirm.



                             Facts and Procedural History
[2]   In August 2016, police responded to a call from nine-year-old N.B. reporting

      Carter choked her mother, Naketa Burks, and threw her to the ground. Carter

      and Naketa were in a relationship at the time. According to the probable cause

      affidavit, N.B. hid in a closet while making the phone call. N.B. and Naketa

      both told law enforcement officers that Carter grabbed Naketa’s throat and

      threw her to the ground by her hair.


[3]   The State charged Carter with domestic battery in the presence of a child less

      than sixteen years of age and strangulation, both Level 6 felonies. On

      December 16, 2016, Carter and the State entered into a written plea agreement

      pursuant to which Carter agreed to plead open to domestic battery as a Level 6

      felony in exchange for the State dismissing the strangulation charge.1




      1
       It appears the State also alleged Carter was an habitual offender, although no such charging information
      appears in the appendix. The transcript makes clear, however, an habitual offender charge was dismissed
      pursuant to the plea agreement.

      Court of Appeals of Indiana | Memorandum Decision 02A03-1701-CR-26 | June 7, 2017                 Page 2 of 5
[4]   After the sentencing hearing, the trial court found as mitigating factors that

      Carter showed remorse and took responsibility for his actions. As aggravating

      factors, the trial court noted Carter’s criminal history, which includes six prior

      felony convictions, five misdemeanor convictions, and a probation revocation.

      The trial court also noted Carter committed the present offense while

      participating in a re-entry program and had failed prior rehabilitation attempts

      for substance abuse.


[5]   The trial court concluded the aggravators outweighed the mitigators and

      sentenced Carter to two and one-half years in the Department of Correction.

      This appeal ensued.



                                 Discussion and Decision
                                     I. Standard of Review
[6]   We are empowered by Indiana Appellate Rule 7(B) to revise a sentence “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 bears the burden to persuade this court that his

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

      2006). When conducting this inquiry, we may look to any factors appearing in

      the record. Stokes v. State, 947 N.E.2d 1033, 1038 (Ind. Ct. App. 2011), trans.

      denied. At the end of the day, our determination will depend on “our sense of

      the culpability of the defendant, the severity of the crime, the damage done to


      Court of Appeals of Indiana | Memorandum Decision 02A03-1701-CR-26 | June 7, 2017   Page 3 of 5
      others, and myriad other factors that come to light in a given case.” Cardwell v.

      State, 895 N.E.2d 1219, 1224 (Ind. 2008).


                                       II. Carter’s Sentence
[7]   Carter pleaded guilty to domestic battery in the presence of a child less than

      sixteen years of age, a Level 6 Felony. The sentencing range for a Level 6

      felony is six months to two and one-half-years, with an advisory sentence of one

      year. Ind. Code § 35-50-2-7. As to the nature of the offense and his character,

      Carter argues he should not have been sentenced above the advisory sentence

      because he accepted responsibility for his actions, showed remorse, and

      expressed a desire to end his substance abuse and found a support group to help

      him do so. We disagree.


[8]   First, we consider the nature of Carter’s offense. Carter grabbed his girlfriend’s

      throat and threw her to the ground by her hair while her daughter was present,

      necessitating the child make a call to the police. The statute under which Carter

      was convicted requires the State to prove domestic battery occurred in the

      presence of a child less than sixteen years of age. Naketa’s daughter was only

      nine years old – well below the statutory requirement.


[9]   Next, we consider Carter’s character. When considering the character of the

      offender, one relevant factor is the defendant’s criminal history. Wells v. State, 2

      N.E.3d 123, 131 (Ind. Ct. App. 2017), trans. denied. As noted by the trial court,

      Carter has a significant criminal history with numerous misdemeanors and

      felonies. “The significance of a defendant’s criminal history varies based on the

      Court of Appeals of Indiana | Memorandum Decision 02A03-1701-CR-26 | June 7, 2017   Page 4 of 5
       gravity, nature and number of prior offenses as they relate to the current

       offense.” Harris v. State, 897 N.E.2d 927, 930 (Ind. 2008). Much of Carter’s

       criminal history consists of convictions for drug possession, which are different

       in nature from the current crime, and gun-related offenses, and there is no

       evidence guns were involved here. However, Carter’s recent criminal history

       also includes a conviction for attempted battery. Furthermore, Carter

       previously had his supervised release on probation revoked once, and

       committed the present offense while participating in a re-entry program. While

       Carter’s promise to turn his life around is laudable, his prior contacts with law

       enforcement exhibit a disregard for the law and an unwillingness to abide by it

       that casts doubt on this self-serving claim. We also note Carter received a

       benefit from the plea agreement in that the other two charges against him were

       dropped. In sum, Carter’s sentence is not inappropriate in light of the nature of

       the offense and his character.



                                               Conclusion
[10]   We conclude Carter’s sentence is not inappropriate and therefore affirm his

       sentence.


[11]   Affirmed.


       Vaidik, C.J., and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 02A03-1701-CR-26 | June 7, 2017   Page 5 of 5
