MEMORANDUM DECISION
                                                                                FILED
Pursuant to Ind. Appellate Rule 65(D),                                     Feb 27 2017, 10:15 am

this Memorandum Decision shall not be                                           CLERK
                                                                            Indiana Supreme Court
regarded as precedent or cited before any                                      Court of Appeals
                                                                                 and Tax Court
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
Brian A. Karle                                           Curtis T. Hill, Jr.
Ball Eggleston, PC                                       Attorney General of Indiana
Lafayette, Indiana
                                                         Caryn N. Szyper
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana




                                           IN THE
    COURT OF APPEALS OF INDIANA

James D. Smith,                                          February 27, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         79A02-1609-CR-2149
        v.                                               Appeal from the Tippecanoe
                                                         Superior Court
State of Indiana,                                        The Honorable Steven P. Meyer,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         79D02-1601-F5-5



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 79A02-1609-CR-2149 | February 27, 2017            Page 1 of 7
                                       Statement of the Case
[1]   James D. Smith appeals his sentence following his conviction for battery, as a

      Level 5 felony. Smith presents two issues for our review, namely, whether the

      trial court abused its discretion when it sentenced him and whether his sentence

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

      affirm.


                                 Facts and Procedural History
[2]   On December 21, 2015, Smith went to see his ex-girlfriend, Annie Carter, at her

      house in Lafayette. Smith began to argue with Carter, and he threw her to the

      floor and hit her in the face with a liquor bottle. At some point, Carter’s

      boyfriend, Zaccheues Ward, arrived at the house, and Smith physically

      attacked him. Smith struck Ward in the head with an empty liquor bottle,

      which caused Ward to fall down the basement stairs. Smith then went down to

      the basement and struck Ward in the head multiple times with the bottle.

      Smith left Ward lying on the basement floor and left the house. Smith did not

      call for emergency medical help for Ward, who had sustained a skull fracture,

      and Smith fled to Chicago in an attempt to avoid arrest for the battery.


[3]   The State charged Smith with two counts of battery, as Level 5 felonies, and

      one count of battery, as a Level 6 felony. The day before trial, Smith pleaded

      guilty to one count of battery, as a Level 5 felony, and, in exchange for that

      plea, the State dismissed the other two charges. The trial court accepted

      Smith’s guilty plea and, following a sentencing hearing, sentenced Smith to five


      Court of Appeals of Indiana | Memorandum Decision 79A02-1609-CR-2149 | February 27, 2017   Page 2 of 7
      years executed. In its sentencing statement, the trial court identified the

      following mitigators: Smith’s guilty plea without the benefit of a plea

      agreement and his acceptance of responsibility; his participation in

      rehabilitative programs in jail; his difficult childhood. And the trial court

      identified the following aggravators: his serious criminal history; his violation

      of pre-trial release; prior petitions to revoke probation; failures to appear in

      court; his flight to avoid arrest after committing the crime; and his high risk to

      reoffend. This appeal ensued.


                                     Discussion and Decision
                                     Issue One: Abuse of Discretion

[4]   Smith first contends that the trial court abused its discretion when it sentenced

      him. Generally, sentencing decisions are left to the sound discretion of the trial

      court, and we review its decision only for an abuse of that discretion. Singh v.

      State, 40 N.E.3d 981, 987 (Ind. Ct. App. 2015), trans. denied. “An abuse of

      discretion occurs if the decision is clearly against the logic and effect of the facts

      and circumstances before the trial court.” Id.


              One way in which a trial court may abuse its discretion is failing
              to enter a sentencing statement at all. Other examples include
              entering a sentencing statement that explains reasons for
              imposing a sentence—including a finding of aggravating and
              mitigating factors if any—but the record does not support the
              reasons, or the sentencing statement omits reasons that are
              clearly supported by the record and advanced for consideration,
              or the reasons given are improper as a matter of law. Under
              those circumstances, remand for resentencing may be the
              appropriate remedy if we cannot say with confidence that the
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              trial court would have imposed the same sentence had it properly
              considered reasons that enjoy support in the record.


      Anglemyer v. State, 868 N.E.2d 482, 490-91 (Ind. 2007) (“Anglemyer I”) (internal

      quotation marks and citations omitted), clarified on reh’g, 875 N.E.2d 218

      (“Anglemyer II”).


[5]   Smith maintains that the trial court abused its discretion when it identified as an

      aggravating factor the probation department’s assessment that he was at a high

      risk to reoffend. In support of that contention, Smith cites our supreme court’s

      opinion in J.S. v. State, 928 N.E.2d 576, 578 (Ind. 2010), where the court held

      that “the scores produced by . . . offender recidivism risk assessment

      instruments do not function as aggravating or mitigating circumstances for the

      purpose of determining the length of sentence appropriate for each defendant.”

      But, as the State points out, our supreme court in J.S. also held that risk

      assessment scores “may be considered to ‘supplement and enhance a judge’s

      evaluation, weighing, and application of the other sentencing evidence in the

      formulation of an individualized sentencing program appropriate for each

      defendant.’” Id.


[6]   We need not decide whether the trial court properly considered Smith’s high

      risk to reoffend because, even if such consideration was improper, “‘when a

      trial court improperly applies an aggravator but other valid aggravating

      circumstances exist, a sentence enhancement may still be upheld.’” Baumholser

      v. State, 62 N.E.3d 411, 417 (Ind. Ct. App. 2016) (quoting Hackett v. State, 716

      N.E.2d 1273, 1278 (Ind. 1999) (internal citations omitted)). Smith does not
      Court of Appeals of Indiana | Memorandum Decision 79A02-1609-CR-2149 | February 27, 2017   Page 4 of 7
      challenge the other aggravators identified by the trial court in support of his

      five-year sentence, which is two years more than the advisory sentence for a

      Level 5 felony. Ind. Code § 35-50-2-6(b) (2017). Again, the trial court also

      identified as aggravating: Smith’s criminal history, which includes two felony

      convictions, namely, conspiracy to distribute crack cocaine and criminal

      recklessness, and nine misdemeanor convictions; his multiple failures to appear;

      his multiple probation revocations; his violation of pre-trial release; and the fact

      that he fled to avoid arrest after committing the instant offense. We are

      confident that, had the trial court considered only those proper aggravators, it

      would have sentenced Smith to five years executed. See Anglemyer I, 868

      N.E.2d at 491 (holding remand for resentencing appropriate if we cannot say

      with confidence that the trial court would have imposed the same sentence had

      it properly considered reasons that enjoy support in the record). Accordingly,

      the trial court did not abuse its discretion when it sentenced Smith.


                                    Issue Two: Appellate Rule 7(B)

[7]   Smith contends that his five-year sentence is inappropriate in light of the nature

      of the offense and his character. As we have explained:

              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
      Court of Appeals of Indiana | Memorandum Decision 79A02-1609-CR-2149 | February 27, 2017   Page 5 of 7
              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 inappropriateness standard of review.
              Roush v. State, 875 N.E.2d 801, 812 (Ind. Ct. App. 2007).


      Robinson v. State, 61 N.E.3d 1226, 1228 (Ind. Ct. App. 2016).


[8]   Smith asserts that the battery against Ward “is a ‘typical’ offense of battery

      resulting in serious bodily injury” and, thus, the nature of the offense does not

      support an enhanced sentence. Appellant’s Br. at 10. We cannot agree. Smith,

      with no apparent provocation, struck Ward in the head with a liquor bottle,

      which caused Ward to fall down a flight of stairs. Smith then went down stairs

      and struck Ward in the head with the bottle multiple times, fracturing his skull,

      and Smith left the scene without calling 9-1-1. Had Smith merely struck Ward

      in the head once and knocked him down the stairs, that would have been

      sufficient to support the seriously bodily injury enhancement. But Smith did

      not stop there. He continued his battery on Ward. We cannot say that Smith’s

      five-year sentence is inappropriate in light of the nature of the offense.


[9]   Smith also maintains that his sentence is inappropriate in light of his character.

      In support of that contention, Smith points out that he pleaded guilty without

      the benefit of an agreement and took responsibility for his actions. And Smith

      cites the evidence that, while he was in jail, he: obtained a certificate of work

      readiness and a certificate of college readiness; attended alcohol abuse classes;

      attended church and bible study classes; and obtained an academic achievement

      award for math and language studies. But, again, as the trial court found,


      Court of Appeals of Indiana | Memorandum Decision 79A02-1609-CR-2149 | February 27, 2017   Page 6 of 7
       Smith’s criminal history is significant. Smith has two prior felony convictions

       and nine misdemeanor convictions. He has failed to appear for court hearings

       on multiple occasions over many years, and he has had his probation revoked

       many times. In addition, Smith fled Lafayette and went to Chicago in an

       attempt to avoid arrest after severely battering Ward. While Smith has

       demonstrated a willingness to better himself while in jail for this offense, his

       criminal history, lack of respect for court orders, and inability to successfully

       complete probation support an enhanced sentence. We cannot say that Smith’s

       sentence is inappropriate in light of his character.


[10]   Affirmed.


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




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