MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                              FILED
this Memorandum Decision shall not be                          Nov 30 2016, 8:57 am
regarded as precedent or cited before any                           CLERK
court except for the purpose of establishing                    Indiana Supreme Court
                                                                   Court of Appeals
the defense of res judicata, collateral                              and Tax Court


estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
T. Andrew Perkins                                       Gregory F. Zoeller
Peterson Waggoner & Perkins, LLP                        Attorney General of Indiana
Rochester, Indiana
                                                        Lyubov Gore
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Zachary Clark,                                          November 30, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        25A05-1606-CR-1454
        v.                                              Appeal from the Fulton Superior
                                                        Court
State of Indiana,                                       The Honorable Wayne E. Steele,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        25D01-1408-FB-449



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 25A05-1606-CR-1454 | November 30, 2016   Page 1 of 7
                                       Statement of the Case
[1]   Zachary Clark appeals one of his convictions and his sentence after he pleaded

      guilty to aggravated battery, as a Class B felony, and involuntary manslaughter,

      as a Class C felony. Clark presents two issues for our review:

              1.      Whether his convictions violate double jeopardy
                      principles.

              2.      Whether his sentence is inappropriate in light of the nature
                      of the offenses and his character.


      We affirm.


                                 Facts and Procedural History
[2]   On May 24, 2014, at approximately 9:00 p.m., Clark, who was intoxicated,

      entered a tavern in Rochester, ordered a drink, and sat in a booth. The

      bartender could tell Clark was intoxicated, so she made him a drink with a

      small amount of alcohol in it and served him. At some point, Clark passed out

      and slept for about one hour. Clark eventually woke up and began vomiting on

      himself. Clark then stood up and walked towards a bar employee and struck

      him with his fist. Clark then approached Tony Coleman, whom Clark did not

      know and with whom he had had no prior interactions, and Clark “hit

      Coleman in the head with his right fist,” knocking him to the ground. State’s

      Ex. 1. Coleman’s mother, Cheri, was there, and she “jumped on Clark” and

      they fell to the ground, but Clark eventually made his way out of the tavern. Id.

      Coleman was unconscious on the floor, and someone called 9-1-1. Emergency


      Court of Appeals of Indiana | Memorandum Decision 25A05-1606-CR-1454 | November 30, 2016   Page 2 of 7
      responders were unsuccessful in their attempts to help Coleman, and, after he

      was transported to a nearby hospital, Coleman was pronounced dead. Police

      officers located Clark at a nearby campground and arrested him. Clark’s

      alcohol concentration was measured at .12 gram per 210 liters of his breath.


[3]   The State charged Clark with aggravated battery, as a Class B felony, and

      involuntary manslaughter, as a Class C felony. On March 15, 2016, Clark

      pleaded guilty as charged. And on May 24, the trial court sentenced Clark to

      concurrent sentences of twenty years for aggravated battery and eight years for

      involuntary manslaughter. In its sentencing statement, the trial court stated as

      follows:

              (B) That these are the aggravating circumstances: Nature and
              circumstances of the offense, particularly as to Count 1, where
              the aggravated battery actually resulted in death of the victim.
              The attack was unprovoked on a total stranger and [the] victim
              was blindsided while dining with his mother.

              (C) That these are the mitigating circumstances: Minimal
              criminal history; expressed remorse but actually has no
              recollection of the events; plea of guilty was more a pragmatic
              decision as [the] evidence [was] overwhelming; employment and
              family support.


      Order of Judgment of Conviction at 1. This appeal ensued.




      Court of Appeals of Indiana | Memorandum Decision 25A05-1606-CR-1454 | November 30, 2016   Page 3 of 7
                                    Discussion and Decision
                                      Issue One: Double Jeopardy

[4]   Clark first contends that the trial court violated the prohibition against double

      jeopardy under the Indiana Constitution when it entered judgment of

      conviction for both aggravated battery and involuntary manslaughter. But, as

      our supreme court has held, “Defendants waive a whole panoply of rights by

      voluntarily pleading guilty. These include the right to a jury trial, the right

      against self-incrimination, the right of appeal, and the right to attack collaterally

      one’s plea based on double jeopardy.” Mapp v. State, 770 N.E.2d 332, 334-35 (Ind.

      2002) (emphasis added). Because Clark pleaded guilty to both aggravated

      battery and involuntary manslaughter, his double jeopardy challenge under the

      Indiana Constitution is waived. Id.


                                           Issue Two: Sentence

[5]   Clark also contends that his sentence is inappropriate. Indiana Appellate Rule

      7(B) permits an Indiana appellate court to “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.” We assess the trial court’s recognition or

      nonrecognition of aggravators and mitigators as an initial guide to determining

      whether the sentence imposed was inappropriate. Gibson v. State, 856 N.E.2d

      142, 147 (Ind. Ct. App. 2006). The principal role of appellate review is to

      “leaven the outliers.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). A

      defendant must persuade the appellate court that his or her sentence has met the
      Court of Appeals of Indiana | Memorandum Decision 25A05-1606-CR-1454 | November 30, 2016   Page 4 of 7
      inappropriateness standard of review. Roush v. State, 875 N.E.2d 801, 812 (Ind.

      Ct. App. 2007).


[6]   An appellant bears the burden of showing that both prongs of the inquiry favor

      revision of his sentence. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).

      Here, Clark contends only that his sentence is inappropriate in light of his

      character, but he makes no argument regarding the nature of the offenses.

      Accordingly, we agree with the State that Clark has waived this issue for our

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

      denied.


[7]   Waiver notwithstanding, Clark’s argument on appeal is without merit.

      Regarding the nature of the offenses, Clark was so intoxicated that he passed

      out and began vomiting on himself when he woke up. Clark then punched two

      random people in the tavern, unprovoked, one of whom, Coleman, he killed

      with one blow to the head. Clark killed Coleman in front of Coleman’s mother,

      who unsuccessfully tried to prevent Clark from fleeing the scene. We cannot

      say that Clark’s sentence is inappropriate in light of the nature of the offenses.


[8]   Still, Clark maintains that his sentence should be revised based on his good

      character. In support of that contention, Clark points out the following: his

      criminal history consists of a single juvenile adjudication in 2003; he was found

      to be at a low risk to reoffend; “many individuals” wrote letters of support to

      the trial court and “most stressed his nonviolent nature”; those individuals

      stated that Clark has a “history of selflessness” and is “a helpful man with a


      Court of Appeals of Indiana | Memorandum Decision 25A05-1606-CR-1454 | November 30, 2016   Page 5 of 7
       good work ethic”; he is “easy-going”; he has a “stable work history”; these

       offenses were described by friends and family as completely “out of character”

       for Clark; and he showed remorse in a statement to Coleman’s family.

       Appellant’s Br. at 10-12.


[9]    The State responds that Clark’s juvenile adjudication for minor consuming is

       “particularly significant in this case because of [his] intoxication during the

       commission of this offense.” Appellee’s Br. at 14. And the State points out

       that: his juvenile adjudication “did not deter [Clark] from continuing to

       consume alcohol to the point where he passes out and kills someone a decade

       later”; Clark has admitted that, prior to these offenses, he would drink “6 to 10

       beers at a setting [sic]”; Clark’s contention that he is a non-violent person “is

       belied by his actions” in becoming intoxicated to the point of passing out,

       punching two strangers without provocation, and punching Coleman with such

       force that he killed him. Id. at 14-15; Appellant’s App. Vol. III at 14-15. The

       State also maintains that Clark’s behavior “was not that of someone who is a

       ‘family man’” in that Clark was at the tavern in a state of extreme intoxication

       while his wife was nine-months pregnant and one week away from giving birth

       to their second child. Appellee’s Br. at 16. Finally, the State points out that

       Clark waited almost two years after Coleman’s death to express remorse to the

       family or plead guilty.


[10]   For all of those reasons, we agree with the State that Clark’s sentence is not

       inappropriate in light of his character. The trial court considered all of the

       evidence regarding Clark’s character and imposed the twenty-year aggregate

       Court of Appeals of Indiana | Memorandum Decision 25A05-1606-CR-1454 | November 30, 2016   Page 6 of 7
       sentence. We cannot say that, given the nature of the offenses and Clark’s

       character, his sentence is an outlier.


[11]   Affirmed.


       Bailey, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 25A05-1606-CR-1454 | November 30, 2016   Page 7 of 7
