      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D), this                              Aug 07 2015, 9:52 am
      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 of the case.



      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Derick W. Steele                                         Gregory F. Zoeller
      Deputy Public Defender                                   Attorney General of Indiana
      Kokomo, Indiana
                                                               Richard C. Webster
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana


                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Jeffrey Burns,                                           August 7, 2015

      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               34A02-1501-CR-11
              v.                                               Appeal from the Howard Circuit
                                                               Court
      State of Indiana,                                        The Honorable Lynn Murray,
                                                               Judge
      Appellee-Plaintiff
                                                               Case No. 34C01-1404-MR-89



      Crone, Judge.


                                               Case Summary
[1]   Jeffrey Burns appeals his twenty-year sentence for class B felony aggravated

      battery. The dispositive issue presented for our review is whether the sentence is

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

      Court of Appeals of Indiana | Memorandum Decision 34A02-1501-CR-11 | August 7, 2015             Page 1 of 6
      offender. Finding that Burns has failed to show that his sentence is

      inappropriate, we affirm.


                                 Facts and Procedural History
[2]   One afternoon in March 2014, Burns received a telephone call from

      Christopher Arnold. The previous night, Arnold was with Burns at Burns’s

      mother’s house and the two had an argument over a girl. Arnold was still angry

      and told Burns over the phone that he was coming to Burns’s house to fight.


[3]   Arnold arrived at Burns’s house with Devin Toole and Olivia Wenisch. Toole

      and Wenisch stood out on the sidewalk while Arnold pounded on the front

      door, yelling for Burns to come out and fight. Burns’s mother opened the door

      and told Arnold that he needed to leave. Arnold and Toole observed Burns

      standing inside the house holding a shotgun, which he had stolen during a

      burglary. Burns’s mother shut the door, but Arnold continued to yell and kick

      at the door until it broke. Arnold then threw a large trash tote through a

      window and into the house. Burns fired the shotgun into the family room floor,

      and Arnold, Toole, and Wenisch fled. As they ran, Burns fired two shots at

      Toole, hitting him in the right side and arm.


[4]   The State charged seventeen-year-old Burns as an adult with class A felony

      attempted murder, class B felony burglary, class B felony aggravated battery,

      and class C felony criminal recklessness. Burns agreed to plead guilty to the

      aggravated battery in exchange for the dismissal of the remaining charges.

      Sentencing was left to the trial court’s discretion, but any executed term was

      Court of Appeals of Indiana | Memorandum Decision 34A02-1501-CR-11 | August 7, 2015   Page 2 of 6
      capped at fourteen years. The trial court sentenced Burns to twenty years of

      incarceration at the Department of Correction, with fourteen years executed

      and six years suspended to supervised probation. This appeal ensued.


                                     Discussion and Decision
[5]   Burns contends that his sentence is inappropriate and seeks resentencing. This

      “Court may 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.” Ind.

      Appellate Rule 7(B). Whether the reviewing court regards a sentence as

      inappropriate turns on “a 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 v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). This

      court “must give ‘deference to a trial court’s sentencing decision, both because

      Rule 7(B) requires us to give due consideration to that decision and because we

      understand and recognize the unique perspective a trial court brings to its

      sentencing decisions.” Gil v. State, 988 N.E.2d 1231, 1237 (Ind. Ct. App. 2013)

      (quoting Stewart v. State, 866 N.E.2d 858, 866 (Ind. Ct. App. 2007)). Upon the

      review of sentence appropriateness, “appellate courts may consider all aspects

      of the penal consequences imposed by the trial judge,” including suspension of

      the sentence and probation. Davidson v. State, 926 N.E.2d 1023, 1025 (Ind.

      2010). The defendant bears the burden of persuading the Court that his sentence

      is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). The

      defendant bears the burden of showing both prongs of the inquiry—the nature

      Court of Appeals of Indiana | Memorandum Decision 34A02-1501-CR-11 | August 7, 2015   Page 3 of 6
      of the offense and the character of the defendant—favor revision of his

      sentence. Anderson v. State, 989 N.E.2d 823, 827 (Ind. Ct. App. 2013), trans.

      denied.


[6]   Regarding the nature of the offense, Burns argues that the sentence is

      inappropriate because he acted to some degree in the defense of himself, his

      home, and his mother. In assessing the nature of the offense, this Court

      examines the defendant’s actions in comparison to the statutory requirements of

      the crime. Id. A person who knowingly or intentionally inflicts injury on a

      person that creates a substantial risk of death commits class B felony aggravated

      battery. Ind. Code § 35-42-2-1.5. A class B felony is punishable by

      imprisonment for a fixed term of between six and twenty years, with the

      advisory sentence being ten years. Ind. Code § 35-50-2-5. The advisory sentence

      is “the starting point the Legislature has selected as an appropriate sentence for

      the crime committed.” Anglemyer v. State, 868 N.E.2d 482, 494 (Ind. 2007),

      clarified on reh’g, 875 N.E.2d 218.


[7]   Burns knowingly or intentionally inflicted injury upon Toole when he shot him

      twice with a shotgun. While Arnold did instigate the event and provoke Burns,

      Burns escalated the violence substantially by bringing out the stolen shotgun.

      There is no evidence in the record that Arnold, Toole, or Wenisch were armed.

      Further, the trio fled as soon as Burns fired the first shot into the floor, yet

      Burns continued to shoot and struck Toole as he ran away. Thus, even

      considering that Arnold instigated the event, the nature of the offense supports

      a sentence in excess of the advisory.

      Court of Appeals of Indiana | Memorandum Decision 34A02-1501-CR-11 | August 7, 2015   Page 4 of 6
[8]    Regarding his character, Burns argues that the sentence is inappropriate because

       of his drug dependency. Specifically, he argues that a more appropriate

       sentence would have been to place him in the Department of Correction for a

       period of ten years, with ten years on supervised probation because this would

       better provide him with resources to conquer his substance abuse and mental

       health issues. We first observe that our inquiry is whether the sentence imposed

       is inappropriate, “not whether another sentence is more appropriate.” King v.

       State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008). Thus, Burns’s argument for an

       alternative sentence is not within the scope of appellate review.


[9]    We further observe that while a person’s drug dependency may be considered in

       determining the appropriateness of his sentence, one’s criminal history may also

       be considered in assessing a defendant’s character. Rutherford v. State, 866

       N.E.2d 867, 874 (Ind. Ct. App. 2007). It is proper to consider one’s criminal

       history “as a poor reflection on the defendant’s character because it may reveal

       that he or she has not been deterred even after having been subjected to the

       police authority of the State.” Id.


[10]   Burns’s criminal history began as a juvenile when he committed battery at six

       years old. Since then, Burns has had sixteen known contacts with the juvenile

       justice system, including an adjudication for battery. His extensive contacts

       with the juvenile justice system have failed to rehabilitate him. Burns also has a

       prior adult conviction for class D felony auto theft and had been released on

       probation from that conviction for just two months before he committed the



       Court of Appeals of Indiana | Memorandum Decision 34A02-1501-CR-11 | August 7, 2015   Page 5 of 6
       aggravated battery in this case. His guilty plea resulted in his second adult

       felony conviction in less than a year.


[11]   Burns’s criminal history shows his disregard for the criminal justice system and

       the authority of the court. There were multiple attempts through several

       programs to rehabilitate and treat Burns’s mental and emotional problems,

       none of which were ever completed. After he was convicted of auto theft, he

       was ordered to complete the court’s drug and alcohol abuse program, but he

       was arrested on the charges in this case before he could begin the program. We

       agree with the State’s classification of Burns’s character as that of a career

       criminal. As such, a sentence in excess of the advisory is warranted. Thus,

       Burns has failed to show that both the nature of the offense and his character

       render his twenty-year sentence inappropriate.


[12]   Affirmed.


       May, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 34A02-1501-CR-11 | August 7, 2015   Page 6 of 6
