Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                                      Apr 16 2014, 9:20 am
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:

KRISTINA J. JACOBUCCI                               GREGORY F. ZOELLER
La Porte, Indiana                                   Attorney General of Indiana

                                                    JAMES B. MARTIN
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana




                               IN THE
                     COURT OF APPEALS OF INDIANA

JIMMY ISBELL,                                       )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )      No. 46A03-1306-CR-203
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                     APPEAL FROM THE LA PORTE SUPERIOR COURT
                          The Honorable Kathleen B. Lang, Judge
                              Cause No. 46D01-1101-FA-30


                                          April 16, 2014

                MEMORANDUM DECISION - NOT FOR PUBLICATION

PYLE, Judge
                                     STATEMENT OF THE CASE

          Jimmy Isbell (“Isbell”) appeals his sentence for Class A felony neglect of a

dependent.1

          We affirm.

                                                 ISSUES

          1. Whether the trial court abused its discretion in sentencing Isbell.

          2. Whether Isbell’s sentence is inappropriate pursuant to Indiana Appellate
             Rule 7(B).

                                                  FACTS

          On January 14, 2011, at about 4:19 P.M., paramedics were dispatched to a house

on a report of a child that was sick and vomiting. They arrived at the residence and met

Jeffrey Humphrey, who led them down to the basement. Paramedics found Isbell and

three boys in the basement. Isbell told the paramedics that one of the boys, four-year-old

J.B., had been throwing up.                 Isbell showed the paramedics a white garbage bag

containing vomit mixed with blood. The paramedics noted that J.B. did not appear to be

breathing. They took J.B. to the ambulance and observed bruises all over J.B.’s body.

The paramedics transported J.B. to the hospital.

          Detective Andrew Paul (“Detective Paul”) went to the hospital to investigate.

Detective Paul learned that J.B. had a bloody and collapsed lung.                  Doctors later

pronounced J.B. dead at 5:05 P.M. An autopsy revealed J.B.’s death to be a homicide




1
    Ind. Code §§ 35-46-1-4(a)(1); (b)(3).
                                                     2
due to multiple blunt force trauma. Detective Paul eventually met with Isbell at the

police station for an interview.

         On three separate occasions, Isbell waived his right to remain silent and gave

interviews to Detective Paul at the police station. During the first interview, Isbell stated

that J.B.’s injuries were the result of bumping into furniture and being hit by another

child. Isbell denied hitting J.B. but admitted that he disciplined J.B. by having him do

chores or forcing him to stand in a corner. Isbell said he never took J.B. to the hospital

because he did not want people to think that he beat J.B.

         During a second interview, Isbell changed his statement and said that he had hit

J.B. with a belt five to six times and punched him in the chest because J.B. would not eat.

Isbell stated that he grabbed J.B. when he appeared to be vomiting. Isbell stated that

when he grabbed J.B.’s arm, J.B. pulled his arm back and fell, hitting his head on a chair

and the floor. J.B. laid on the floor for about ten minutes and appeared to be having “a

seizure.” (App. 114). Isbell attempted to put J.B. in bed and feed him, but J.B. vomited

again. Isbell stated that the morning J.B. died, he attempted to feed J.B. again, but J.B.

appeared that he would vomit again. Isbell stated that he hit J.B. five or six times on the

buttocks and told him not to vomit again. Isbell then told J.B. to stand in a corner. Isbell

heard a bump and found J.B. lying “in a trance.” Id. He said that he waited for J.B. to

get better, but finally decided to call an ambulance when J.B. did not “come out of it.”

Id. Isbell told Detective Paul that had he called an ambulance sooner, J.B. may have

lived.



                                             3
          In a third interview, Isbell attempted to tell Detective Paul that all of J.B.’s injuries

were from a fall down the stairs and that he had lied during his previous interviews.

However, when police officers questioned J.B.’s brother, the brother stated that Isbell had

hit J.B. “one too many times.” (App. 133).

          On January 18, 2011, the State charged Isbell with two counts of neglect of a

dependent as Class A and Class B felonies. The State amended the charging information

on January 19, 2011 and added a charge of battery as a Class A felony. 2 On July 28,

2011, Isbell filed a request for a psychological evaluation. The trial court appointed two

doctors to evaluate Isbell’s competency to stand trial.

          On August 23, 2011, Dr. Kumud Aggarwal filed a report stating that Isbell would

not be able to assist his attorney at trial. On September 1, 2011, Dr. John T. Heroldt filed

a report concluding that Isbell did not “possess the capacity to understand the nature of

the court proceedings including the roles of the participants in that process well enough to

proceed to trial, and can’t assist in his own defense.” (App. 246). Both reports focused

on Isbell’s claim of lack of memory about the charges that led to his arrest. The trial

court committed Isbell to the Logansport State Hospital Division of Mental Health and

Addiction.

          On February 22, 2012, the trial court received a letter certifying the report of staff

psychiatrist, Douglas Morris (“Dr. Morris”). The report stated that Isbell had attained the

ability to understand the proceedings and assist his attorney in the preparation of a

defense. Dr. Morris noted in his report that:

2
    Ind. Code § 35-42-2-1(a)(5).
                                                  4
       [T]ests administered to Mr. Isbell were consistent with exaggeration of both
       symptoms of mental illness and memory impairment. Although it is likely
       that some genuine symptoms may exist, the extent and severity of these
       symptoms could not be assessed at this time due to Mr. Isbell’s purposeful
       attempt to magnify and/or fabricate psychiatric and cognitive symptoms.

(App. 258). Isbell was discharged from the Logansport State Hospital and appeared in

court again on April 5, 2012.

       On October 24, 2012, Isbell pled guilty to Class A felony neglect of a dependent.

Pursuant to the terms of the plea agreement, Isbell’s maximum executed sentence could

not exceed forty (40) years. The State, in turn, agreed to dismiss the remaining charges

concerning J.B. and all charges in four (4) unrelated cases.

       The trial court held a sentencing hearing on March 13, 2013. In its sentencing

order, the trial court detailed the horrific nature of the injuries inflicted upon J.B. In

support of the sentence it imposed, the trial court noted bite marks, contusions to the

kidneys, bruising to the liver and thymus, fractures to the ribs, hemorrhaging and

swelling in the brain, and significant trauma to J.B.’s head. The trial court noted that

Isbell was tasked with the responsibility of caring for J.B., that he failed to immediately

seek medical assistance when it was clear J.B. was in distress, and that J.B. had only

reached the tender age of four. As mitigating factors, the trial court noted that Isbell pled

guilty and “repeatedly expressed remorse for causing [J.B.’s] death.” (App. 161). In

addition, the trial court specifically noted the following mitigating factors: (1) Isbell

suffers from an “extensive history of mental illness and reports that he was sexually

abused as a child[;]” and (2) Isbell was overwhelmed with the responsibility of caring for

several children. Id. After considering all of the evidence and arguments, the trial court

                                             5
concluded that Isbell’s crime was “indefensible.” Id. The trial court sentenced Isbell to

forty (40) years with thirty-eight (38) years executed in the Department of Correction and

two (2) years suspended to probation. Isbell now appeals his sentence.

                                        DECISION

       Isbell argues that the trial court abused its discretion in sentencing him and that his

sentence was inappropriate pursuant to Indiana Appellate Rule 7(B). We address each of

Isbell’s claims separately.

1. Abuse of Discretion in Sentencing

       Isbell claims that the trial court abused its discretion during sentencing by: (a)

inappropriately considering an aggravating circumstance, and (b) failing to attach any

weight to relevant mitigating circumstances.

       a. Aggravating Circumstance

       Isbell contends that the trial court erred when it noted in its sentencing order that

“[Mr. Isbell] caused the death of J.B. by what he did and failed to do . . . . [Mr. Isbell]

was in a position of care and custody of J.B.” (App. 161). Isbell relies on Stone v. State,

727 N.E.2d 33, 37 (Ind. Ct. App. 2000) for the proposition that a material element of an

offense may not also constitute an aggravating circumstance to support an enhanced

sentence. However, we have stated in Gomillia v. State, 993 N.E.2d 306 (Ind. Ct. App.

2013), that this statement is no longer an accurate assessment of the law.

       In Gomillia, we relied on our Indiana Supreme Court’s decision in Pedraza v.

State, 887 N.E.2d 77, 80 (Ind. 2008), when it stated the following:



                                               6
       Indiana sentencing used to be a two-step process—imposing of the
       presumptive sentence, then deciding whether any aggravators or mitigators
       warranted deviation. After the 2005 modifications, it consists of only one
       discretionary determination. Thus, a sentence toward the high end of the
       range is no longer an “enhanced sentence” in the sense that the former
       regime provided. Moreover, while the trial court must still list in its
       sentencing statement those reasons it finds relevant to the sentence, the
       correlation between those factors and the given sentence is not as precisely
       tailored as it was under the presumptive sentencing scheme.

Because aggravating circumstances no longer “enhance” a sentence, considering a

material element of an offense as an aggravating circumstance can no longer be

considered a double enhancement.        See Gomillia, 993 N.E.2d at 310. Further, our

Supreme Court has stated that “the seriousness of the offense . . . which implicitly

includes the nature and circumstances of the crime as well as the manner in which the

crime is committed, has long been held a valid aggravating factor.” Anglemyer v. State,

868 N.E.2d 482, 492 (Ind. 2007) (citing Taylor v. State, 695 N.E.2d 117, 120 (Ind.

1998)).

       Here, the trial court’s sentencing order properly considered the facts and

circumstances surrounding J.B.’s death. Accordingly, we find no abuse of discretion.

       b. Mitigating Circumstances

       Isbell claims that the trial court abused its discretion in sentencing him because it

did not, in his opinion, attach significant weight to the mitigating circumstances.

Specifically, Isbell argues that the trial court erred as follows: (1) it failed to give

significant weight to his long standing history of mental illness; (2) it failed to find that

there were substantial grounds tending to excuse or justify the death of J.B.; and (3) it did

not attach significant weight to Isbell’s guilty plea or expressions of remorse.

                                              7
       The finding of mitigating circumstances is left to the discretion of the trial court.

Legue v. State, 688 N.E.2d 408, 411 (Ind. 1997). A trial court is not obligated to accept

the defendant’s assertion of what constitutes a mitigating circumstance. Id. In asserting

that a trial court failed to find a mitigating circumstance, an abuse of discretion does not

occur unless a “sentencing statement omits reasons that are clearly supported by the

record and advanced for consideration[.]” Anglemyer, 868 N.E.2d at 491. In addition,

since the 2005 amendments to Indiana’s sentencing statute, trial courts are no longer

obligated to “weigh” aggravating and mitigating circumstances to arrive at a sentence.

Id.

       Here, the sentencing statement clearly addressed Isbell’s history of mental illness.

However, the trial court was under no obligation to consider this mitigating factor in the

same manner as Isbell asserts. Again, we find no abuse of discretion in the trial court’s

sentencing order.

2. Inappropriate Sentence

       Isbell claims that his sentence is inappropriate in light of the nature of the offense

and his character. He makes no suggestion as to how we should revise his sentence.

       Rule 7(B) of the Indiana Rules of Appellate Procedure gives this Court the power

to revise an inappropriate sentence in light of the nature of the offense and character of

the offender, giving due consideration to the trial court’s decision. The defendant must

persuade us that his sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080

(Ind. 2006). Under Rule 7(B), we seek “to attempt to leaven the outliers, and identify

some guiding principles for trial courts and those charged with improvement of the

                                             8
sentencing statutes, but not to achieve a perceived ‘correct’ result in each case.”

Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008).                       Whether a sentence is

inappropriate ultimately depends upon “the culpability of the defendant, the severity of

the crime, the damage done to others, and a myriad of other factors that come to light in a

given case.” Id. at 1224.

          In determining whether a sentence is inappropriate, we first look to the advisory

sentence provided by statute. Childress, 848 N.E.2d at 1081. The sentencing range for

Class A felony neglect of a dependent is between twenty (20) and fifty (50) years, with

an advisory sentence of thirty (30) years. I.C. § 35-50-2-4. Here, however, because of

the plea agreement negotiated with the State, Isbell faced a maximum sentence of forty

(40) years.

          As to the nature of the offense, according to the coroner’s report, four-year-old

J.B. died from multiple blunt force trauma. Specifically, the report detailed the following

injuries: fractured ribs; blood clots;3 contusions to the kidney, liver, and thymus; a

lacerated lung; and swelling and hemorrhaging of the brain. The detective on the case

observed that the bruising on J.B.’s body was “horrific.” (App. 100). After blaming

another child for the injuries, Isbell admitted to punching J.B. in the chest, spanking his

buttocks, and causing J.B. to fall on his head. With the extent of J.B.’s injuries, Isbell

undoubtedly knew that the child required medical attention. When the paramedics found

J.B., he was essentially lifeless.




3
    The report used the medical term “subcutaneous hematoma.” (App. 134).
                                                   9
       The State argued the following: “[Isbell] does not, because he cannot, offer any

argument as to why his sentence is inappropriate with respect to the nature of his

offense.” (State’s Br. 15). We agree. It is of no small consequence that Isbell chose not

to argue that his sentence was inappropriate in light of the nature of the offense. Given

the brutal manner in which J.B. perished and the fact that Isbell did not receive the

maximum executed sentence possible from the trial court, Isbell cannot persuade us that

the nature of the offense makes his sentence is inappropriate. Because Isbell cannot

convince us that his sentence is inappropriate in light of both the nature of the offense and

his character, his 7(B) argument fails.

       Affirmed.

MATHIAS, J., and BRADFORD, J., concur.




                                             10
