MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                              FILED
regarded as precedent or cited before any
                                                                              Jul 14 2017, 8:48 am
court except for the purpose of establishing
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

                                                         Henry A. Flores
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Brittany N. Heft,                                        July 14, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         73A04-1611-CR-2569
        v.                                               Appeal from the Shelby Circuit
                                                         Court
State of Indiana,                                        The Honorable Charles D.
Appellee-Plaintiff.                                      O’Connor, Judge
                                                         Trial Court Cause No.
                                                         73C01-1601-F6-10



Barnes, Judge.


                                          Case Summary



Court of Appeals of Indiana | Memorandum Decision 73A04-1611-CR-2569 | July 14, 2017               Page 1 of 7
[1]   Brittany Heft appeals her two-year sentence for Level 6 felony domestic battery

      in the presence of a child. We affirm.


                                                      Issue

[2]   The sole issue on appeal is whether the sentence imposed was inappropriate in

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


                                                      Facts

[3]   On December 30, 2015, Heft went to D.C.’s residence in Shelbyville to gather

      some of her belongings. D.C. is Heft’s ex-boyfriend and the father of her two-

      year-old child, G.C. While Heft was at D.C.’s residence, she began going

      through his phone. Heft then became angry, threw the phone across the room,

      and punched D.C. in the face. G.C. was present during the altercation. Heft

      left D.C.’s residence and was not present when police arrived. On January 5,

      2016, Heft was charged with Level 6 felony domestic battery in the presence of

      a child. On January 6, 2016, the State amended the charge and added Class A

      misdemeanor domestic battery and Level 6 felony domestic battery with a

      prior, unrelated conviction.


[4]   Heft pled guilty to Level 6 felony domestic battery. The plea agreement did not

      include a sentencing cap and provided that the sentence imposed would run

      consecutive to sentences in three other cases. A sentencing hearing was held on

      October 13, 2016. Heft admitted that she had a history of drug and alcohol

      abuse and that she has some mental and physical health issues. Specifically,

      Heft indicated that she has been diagnosed with PTSD, ADHD, and chronic

      Court of Appeals of Indiana | Memorandum Decision 73A04-1611-CR-2569 | July 14, 2017   Page 2 of 7
      depression. She also reported having arthritis, back pain, and seizures. The

      trial court found as aggravating circumstances that while Heft was out on bond

      she committed two subsequent offenses by violating no contact orders and that

      Heft was on probation when the current offense took place. The trial court

      found Heft’s guilty plea and mental health issues as mitigating circumstances.

      The trial court sentenced Heft to two years executed in the Department of

      Correction. Heft now appeals.


                                                       Analysis

[5]   Heft argues that the sentence imposed was inappropriate in light of the nature

      of the offense and her character.1 Indiana Appellate Rule 7(B) gives this court

      the authority to revise a trial court’s sentence if we find the sentence is

      inappropriate given the nature of the offense and the character of the offender.

      See Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007) clarified on reh’g, 875

      N.E.2d 218 (Ind. 2007). Although Rule 7(B) does not require us to be

      “extremely” deferential to a trial court’s sentencing decision, we still must give

      due consideration to that decision. Rutherford v. State, 866 N.E.2d 867, 873

      (Ind. Ct. App. 2007). We also understand and recognize the unique perspective

      a trial court brings to its sentencing decisions. Id. “Additionally, a defendant




      1
        “An inappropriate sentence analysis does not involve an argument that the trial court abused its discretion
      in sentencing the defendant.” King v. State, 894 N.E.2d 265, 267 (Ind. Ct. App. 2008). Under Rule 7(B) we
      only consider whether the nature of the offense and the character of the offender warrant a revised sentence.
      To the extent that Heft argues the trial court improperly assigned certain weight to mitigating and
      aggravating circumstances, this argument is waived because Heft has not fully developed an abuse of
      discretion argument.

      Court of Appeals of Indiana | Memorandum Decision 73A04-1611-CR-2569 | July 14, 2017               Page 3 of 7
      bears the burden of persuading the appellate court that his or her sentence is

      inappropriate.” Id.


[6]   The principal role of Rule 7(B) review “should be to attempt to leaven the

      outliers, and identify some guiding principles for trial courts and those charged

      with improvement of the sentencing statutes, but not to achieve a perceived

      ‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.

      2008). We “should focus on the forest—the aggregate sentence—rather than

      the trees—consecutive or concurrent, number of counts, or length of the

      sentence on any individual count.” Id. Whether a sentence is inappropriate

      ultimately turns on 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. Id. at 1224. When reviewing the appropriateness of a sentence

      under Rule 7(B), we may consider all aspects of the penal consequences

      imposed by the trial court in sentencing the defendant, including whether a

      portion of the sentence was suspended. Davidson v. State, 926 N.E.2d 1023,

      1025 (Ind. 2010).


[7]   The advisory sentence is the starting point to determine the appropriateness of

      the sentence. See Anglemyer, 868 N.E.2d at 494. Indiana Code Section 35-50-2-

      7 provides, “a person who commits a Level 6 felony shall be imprisoned for a

      fixed term of between six months and two and one-half years, with the advisory

      sentence being one year.” Heft’s sentence was above the advisory sentence but

      within the statutory range.



      Court of Appeals of Indiana | Memorandum Decision 73A04-1611-CR-2569 | July 14, 2017   Page 4 of 7
[8]   One factor we consider when determining the appropriateness of a deviation

      from the advisory sentence is whether there is anything more or less egregious

      about the offense committed by the defendant that makes it different from the

      “typical” offense accounted for by the legislature when it set the advisory

      sentence. Johnson v. State, 986 N.E.2d 852, 856 (Ind. Ct. App. 2013). Heft

      argues that the nature of the offense was not egregious because, “it involved one

      contact, and left no visible injury and Heft left immediately.” Appellant’s Br. p.

      10. Heft contends that she was only at her ex-boyfriend’s residence to gather

      some of her belongings. However, she walked into D.C.’s residence while he

      was not home, picked up D.C.’s phone, and started going through it. When

      D.C. retuned, Heft threw the phone on the ground. D.C. bent over to pick up

      the phone and Heft punched him while their two-year-old child was present.

      Based on the nature of the offense, Heft has not persuaded us that her sentence

      should be revised.


[9]   We now turn to Heft’s character. When considering the character of the

      offender, one relevant fact is the defendant’s criminal history. Johnson, 986

      N.E.2d at 857. The significance of a criminal history in assessing a defendant’s

      character and an appropriate sentence varies based on the gravity, nature, and

      number of prior offenses in relation to the current offense. Rutherford, 866

      N.E.2d at 874. Heft was previously convicted of domestic battery against the

      same victim and was on probation when the instant offense occurred. She also

      has been convicted of misdemeanor operating a vehicle while intoxicated,




      Court of Appeals of Indiana | Memorandum Decision 73A04-1611-CR-2569 | July 14, 2017   Page 5 of 7
       soliciting, possession of fake drugs, and false information to mislead.2 Heft also

       has two prior felony convictions for possession of more than three grams of

       cocaine or a Schedule I or II narcotic drug and domestic battery committed in

       the presence of a child less than sixteen years old. In addition, the pre-sentence

       investigation report indicated that Heft was in a high risk category to reoffend.

       Also, while out on bond for the current offense, Heft was convicted of two

       more offenses and has violated probation on numerous occasions. Heft also

       admitted she is $14,000 in arrears on child support for her oldest child.


[10]   We will also consider Heft’s arguments about her guilty plea and mental health

       in conjunction with her character. Although we acknowledge that a guilty plea

       deserves at least some mitigating weight, Anglemyer, 875 N.E.2d at 220, we are

       not persuaded to modify her sentence. Also, a mental health history may be a

       significant mitigating factor. However, in order for a mental health history to

       provide a basis for establishing a mitigating factor, there must be a nexus

       between the defendant’s mental health and the crime in question. Corralez v.

       State, 815 N.E.2d 1023, 1026 (Ind. Ct. App. 2004); see also Thomas-Collins v.

       State, 868 N.E.2d 557, 561 (Ind. Ct. App. 2007) (holding that the defendant had

       not even attempted to establish a nexus between her offenses and any mental

       illness when defendant only stated that the trial court failed to find “the

       uncontroverted fact that she was mentally ill” to be a mitigating circumstance),




       2
           These offenses occurred in Ohio.


       Court of Appeals of Indiana | Memorandum Decision 73A04-1611-CR-2569 | July 14, 2017   Page 6 of 7
       trans. denied. Heft has only stated that she has a history of mental health issues,

       but she has failed to show that her mental health was responsible for her actions

       on the day the offense occurred.


[11]   Given Heft’s criminal history and the nature of the offense, she has not

       demonstrated that her two-year sentence is inappropriate.

                                                   Conclusion

[12]   Heft has failed to show that the sentence imposed by the trial court was

       inappropriate in light of the nature of the offense and her character. We affirm.


[13]   Affirmed.


       Baker, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 73A04-1611-CR-2569 | July 14, 2017   Page 7 of 7
