MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                             FILED
this Memorandum Decision shall not be                                        Feb 10 2020, 9:25 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
Donald E.C. Leicht                                      Curtis T. Hill, Jr.
Peru, Indiana                                           Attorney General of Indiana
                                                        Evan Matthew Comer
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Michael Shepard,                                        February 10, 2020
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        19A-CR-2065
        v.                                              Appeal from the
                                                        Howard Circuit Court
State of Indiana,                                       The Honorable
Appellee-Plaintiff.                                     Lynn Murray, Judge
                                                        Trial Court Cause No.
                                                        34C01-1708-F6-175



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2065| February 10, 2020                     Page 1 of 7
[1]   Michael Shepard (“Shepard”) pleaded guilty to battery resulting in moderate

      injury,1 a Level 6 felony, and the trial court imposed a thirty-month sentence.

      Shepard raises one issue, which we restate as whether the lack of treatment

      programs ordered in his sentence make his sentence inappropriate.


[2]   We affirm.


                                      Facts and Procedural History
[3]   In May of 2016, R.W. and Shepard became romantically involved. Shortly

      thereafter, Shepard began to abuse R.W. Appellant’s App. Vol. 2 at 14. Over

      several months, Shepard repeatedly struck her, threatened her with a knife,

      searched her body cavities, and threatened to murder her thirteen-year-old son.

      Id.


[4]   On January 22, 2017, R.W. went to a laundromat in Kokomo. Id. at 15.

      Because she was homeless, she put all her belongings in a bag and took the bag

      with her to the laundromat. Id. Shepard came to the laundromat a few minutes

      later. Id. Shepard struck R.W.’s face and ear several times causing “a massive

      amount of pain.” Id. R.W. began to bleed from her ear and temporarily lost

      hearing. Id. After he stopped beating R.W., Shepard walked toward her bag of

      belongings. Id. Shepard had often taken R.W.’s belongings, and R.W. pulled

      out a knife and lunged at Shepard, but did not cut him. Id. Shepard fled. Id.




      1
          See Ind. Code § 35-42-2-1(e)(2).


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2065| February 10, 2020   Page 2 of 7
[5]   On August 28, 2017, the State charged Shepard with battery causing moderate

      injury, a Level 6 felony, and alleged that Shepard was an habitual offender. Id.

      at 10-11. On July 3, 2019, Shepard agreed to plead guilty to the battery charge

      in exchange for dismissal of the habitual offender allegation. Shepard’s

      sentence was left to the trial court’s discretion. Id. at 51. Shepard also agreed

      to participate in the Howard County Men’s Non-Violence Program. Id. The

      pre-sentence investigation report (“PSI”) indicated that Shepard had completed

      an “Adult Substance Use History Assessment,” and, based on Shepard’s self-

      reported results, the PSI indicated that Shepard was a candidate for the Howard

      County Alcohol and Drug Program. Appellant’s Conf. App. Vol. 2 at 58 (together,

      “the treatment programs”).


[6]   On August 14, 2019, Shepard formally pleaded guilty, and the trial court

      proceeded directly to sentencing. Tr. Vol. II at 3, 9-10. The State asked the trial

      court to impose a fully executed sentence of thirty months. Id. at 10. Shepard

      agreed that a thirty-month sentence was appropriate, but he argued that he

      should receive a placement that would allow supervised monitoring and the

      treatment programs. Id. at 10-11. The trial court imposed a thirty-month

      sentence, but it declined Shepard’s request for alternative placement and

      treatment programs.


              [Shepard has] been committed to the Department of Corrections
              a number of times and commitments to the county jail a number
              of times. This is his third battery conviction, although first felony
              for battery in ten years. It would seem that everything that this
              court and system has tried to do has not been successful.
              Apparently, [the deputy prosecutor] added the math up, thirty-
      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2065| February 10, 2020   Page 3 of 7
              nine times in your life you have been arrested. Mr. Shepard, I have
              no confidence that you are able to successfully complete any programs. . .
              . Your overwhelming past history is a strong aggravator here. . .
              . I know part of the plea does require you to complete the batterer’s
              program. I’m not, since I’m not suspending any part of that sentence, I
              am not making that part of your sentence in this case, simply that
              you do the time.


      Id. at 13-14 (emphasis added). Shepard now appeals.


                                     Discussion and Decision
[7]   Although he does not challenge the length of his sentence, Shepard contends his

      sentence is inappropriate because the trial court did not include the treatment

      programs in his sentence. Under Indiana Appellate Rule 7(B), we may revise a

      sentence if we find the sentence inappropriate considering the nature of the

      offense and the character of the offender. Anglemyer v. State, 868 N.E.2d 482,

      491 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (2007). The “nature of

      offense” compares the defendant’s actions with the required showing to sustain

      a conviction under the charged offense, Cardwell v. State, 895 N.E.2d 1219, 1224

      (Ind. 2008), while the “character of the offender” permits a broader

      consideration of the defendant’s character. Anderson v. State, 989 N.E.2d 823,

      827 (Ind. Ct. App. 2013), trans. denied. “[W]hether we regard a sentence as

      appropriate at the end of the day turns on our 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, 895 N.E.2d at 1224.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2065| February 10, 2020   Page 4 of 7
[8]   We consider not only the aggravators and mitigators found by the trial court but

      any other factors appearing in the record. Johnson v. State, 986 N.E.2d 852, 856

      (Ind. Ct. App. 2013). We defer to the trial court’s decision, and our goal is to

      determine whether the appellant’s sentence is inappropriate, not whether some

      other sentence would be more appropriate. Conley v. State, 972 N.E.2d 864, 876

      (Ind. 2012). “Such deference should prevail unless overcome by compelling

      evidence portraying in a positive light the nature of the offense (such as

      accompanied by restraint, regard, and lack of brutality) and the defendant’s

      character (such as substantial virtuous traits or persistent examples of good

      character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015). When we

      review a sentence, we seek to leaven the outliers, not to achieve a perceived

      correct result. Cardwell, 895 N.E.2d at 1225. “Aside from revising the length of

      a sentence, the place where a sentence is to be served is also an appropriate

      focus for our review under 7(B).” Livingston v. State, 113 N.E.3d 611, 613 (Ind.

      2018).


[9]   In contending that his sentence is inappropriate because it does not include the

      treatment programs, Shepard appears to argue that these programs would have

      provided incentives to improve his behavior. His argument, in its entirety, is as

      follows:


               Two programs . . . one by plea agreement and one by evaluation
               . . . that are designed to address Shepard’s history and tendencies
               . . . two programs to modify attitude and future behavior . . . to
               Shepard’s benefit and to society’s benefit.



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2065| February 10, 2020   Page 5 of 7
               So, what sanction does the Trial Court (or the State) hold over
               Shepard to enforce compliance with the accepted Plea
               Agreement (Men’s Non-Violence Program) or with the
               assessment (Alcohol and Drug Program)?


               None. Nothing.


       Appellant’s Br. at 8.


[10]   Shepard cites no supporting authority for his claim, and his argument is not

       cogent. Therefore, he has waived this issue. See Lacey v. State, 124 N.E.3d

       1253, 1257 (Ind. Ct. App. 2019); Ind. Appellate Rule 46(A)(8)(a). Waiver

       notwithstanding, the trial court’s decision not to include the treatment programs

       in Shepard’s sentence does not make his sentence inappropriate. First, his

       sentence was not inappropriate based on the nature of his offense. Shepard

       battered R.W.’s face several times and struck her ear once, with the blow to

       R.W.’s ear causing “a massive amount of pain.” Appellant’s App. Vol. 2 at 15.

       R.W. bled from her ear and temporarily lost hearing in that ear. Id.


[11]   Second, Shepard’s sentence was not inappropriate based on his character.

       Before this incident, Shepard had beaten R.W. many times and often

       threatened her with a knife. Id. at 14-15. He had threatened to murder R.W.’s

       son. Id. Shepard was using methamphetamine, which contributed to his

       violent and paranoid behavior. Id. at 14. Furthermore, Shepard’s extensive

       criminal history reflects poorly on his character, and, as most relevant here, it

       demonstrates that he is unwilling to reform his behavior, even though he has

       been given many chances to do so. Appellant’s Conf. App. Vol. 2 at 38, 59-63.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2065| February 10, 2020   Page 6 of 7
       Shepard has previously been convicted of six felonies, five misdemeanors, and

       one habitual offender enhancement, and he has received multiple delinquency

       adjudications. Id. at 59-67. Many of his convictions and adjudications were for

       violent offenses, including robbery resulting in bodily injury, domestic battery,

       and multiple counts of battery. Id. Thus, we question whether giving Shepard

       yet another opportunity to participate in treatment programs, probation, or

       home detention would change his behavior. We therefore concur with the trial

       court’s assessment regarding the utility of treatment programs and alternative

       placement for Shepard: “It would seem that everything that this court and

       system has tried to do has not been successful. . . . Mr. Shepard, I have no

       confidence that you are able to successfully complete any programs.” Tr. Vol. II

       at 13-14. Shepard’s sentence is not inappropriate considering the nature of the

       offense and his character.


[12]   Affirmed.


       Bailey, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2065| February 10, 2020   Page 7 of 7
