MEMORANDUM DECISION
                                                                       FILED
Pursuant to Ind. Appellate Rule 65(D),                            Jun 10 2016, 8:49 am
this Memorandum Decision shall not be
                                                                       CLERK
regarded as precedent or cited before any                          Indiana Supreme Court
                                                                      Court of Appeals
court except for the purpose of establishing                            and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Michael P. DeArmitt                                      Gregory F. Zoeller
Columbus, Indiana                                        Attorney General of Indiana
                                                         Karl M. Scharnberg
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Michael S. Burton,                                       June 10, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         03A01-1510-CR-1802
        v.                                               Appeal from the Bartholomew
                                                         Superior Court
State of Indiana,                                        The Honorable James D. Worton,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause Nos.
                                                         03D01-1408-F6-3396
                                                         03D01-1412-CM-5660
                                                         03D01-1501-F6-22



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 03A01-1510-CR-1802 | June 10, 2016       Page 1 of 8
                                       Statement of the Case
[1]   Michael Burton (“Burton”) appeals the sentence imposed in three separate

      causes following his convictions for Level 6 felony strangulation,1 Class A

      misdemeanor operating a vehicle while intoxicated endangering a person,2 and

      Class A misdemeanor operating a vehicle with an ACE of .15 or more3. He

      specifically contends that the two and one-half-year sentence imposed for his

      Level 6 felony strangulation conviction is inappropriate in light of the nature of

      the offenses and his character. Because we conclude that Burton’s sentence was

      not inappropriate, we affirm.


[2]   Affirmed.


                                                     Facts
[3]   In July 2014, after consuming alcohol and failing to take his mood stabilizing

      medication, forty-three-year-old Burton and his girlfriend began arguing.

      Burton subsequently squeezed his girlfriend’s neck or throat hard enough to

      impede her breathing and blood circulation. Two months later, in September

      2014, Burton became intoxicated, operated a vehicle, and was involved in an

      accident. Two months after that, Burton took his ex-girlfriend’s fifteen-year-old




      1
          IND. CODE § 35-42-2-9.

      2
          IND. CODE § 9-30-5-2.

      3
          I.C. §   9-30-5-1.


      Court of Appeals of Indiana | Memorandum Decision 03A01-1510-CR-1802 | June 10, 2016   Page 2 of 8
      daughter for a ride on a moped when his alcohol level measured greater than

      .15 grams of alcohol per 210 liters of breath.


[4]   In August 2015, Burton pled guilty to Level 6 felony strangulation, Class A

      misdemeanor operating a vehicle while intoxicated, and Class A misdemeanor

      operating a vehicle with an ACE of .15 or more in three separate causes. At his

      September 2015 sentencing hearing, Burton testified that he had a twenty-five-

      year history of drinking alcohol, and that in the past he had typically drunk a

      fifth of vodka or more every day. Burton also testified that he suffered from bi-

      polar and mood disorders as well as depression and that he had not been taking

      his medication when he committed these offenses. He asked the trial court to

      place him on probation so that he could seek drug and alcohol treatment.


[5]   The State, however, pointed out that Burton had a long history of criminal

      behavior. Specifically, Burton had seven misdemeanor convictions, which

      included convictions for operating while intoxicated and public intoxication

      and four felony convictions, which included convictions for domestic battery

      and nonsupport of a dependent child. He had also violated probation in the

      past.


[6]   At the end of the hearing, the trial court found the following aggravating

      factors: (1) Burton had an extensive criminal history, which the trial court

      considered to be a significant aggravator; (2) Burton had been on probation

      numerous times in the past and had multiple petitions to revoke probation filed

      against him; (3) Burton’s past opportunity for treatment had been unsuccessful.


      Court of Appeals of Indiana | Memorandum Decision 03A01-1510-CR-1802 | June 10, 2016   Page 3 of 8
      The trial court further found that Burton’s mental health diagnosis was a slight

      mitigating factor.


[7]   Based on these aggravators and mitigators, the trial court sentenced Burton as

      follows: (1) two and one-half (2½) years for strangulation; (2) one (1) year for

      operating a vehicle while intoxicated endangering a person; and (3) one (1) year

      for operating a motor vehicle with an ACE of .15 or more. The trial court

      further ordered the sentences to run consecutively to each other for an aggregate

      sentence of four and one-half (4½) years. Burton appeals his sentence.


                                                  Decision
[8]   Burton argues that his two and one-half year sentence for his Level 6 felony

      strangulation conviction is inappropriate. Indiana Appellate Rule 7(B) provides

      that we may revise a sentence authorized by statute if, after due consideration

      of the trial court’s decision, we find that the sentence is inappropriate in light of

      the nature of the offense and the character of the offender. The defendant bears

      the burden of persuading this Court that his sentence is inappropriate. Childress

      v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). Whether we regard a sentence as

      inappropriate 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.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008).


[9]   When determining whether a sentence is inappropriate, we acknowledge that

      the advisory sentence is the starting point the Legislature has selected as an

      appropriate sentence for the crime committed. Childress, 848 N.E.2d at 1081.

      Court of Appeals of Indiana | Memorandum Decision 03A01-1510-CR-1802 | June 10, 2016   Page 4 of 8
       Here, Burton pled guilty to Level 6 felony strangulation. The sentencing range

       for a Level 6 felony is between six months and two and one-half years, with an

       advisory sentence of one year. I.C. § 35-50-2-7. Burton is correct that the trial

       court sentenced him to the maximum sentence for the Level 6 felony. He asks

       us to reduce this two and one-half-year sentence to the advisory sentence of one

       year.


[10]   With regard to the nature of the offense, we note that the record on appeal

       reveals only that Burton squeezed his girlfriend’s neck or throat hard enough to

       impede her normal breathing or blood circulation. He argues that the “record

       regarding the nature of [his] offense establishes little, if anything, about and

       beyond the statutory definition of the offense.” (Appellant’s Br. 6). We

       acknowledge that the facts as set forth in the factual basis were minimal and

       that the nature of the offense alone might not have supported the sentence

       imposed.


[11]   It is Burton’s character, however, that is significantly aggravating. Specifically,

       Burton has seven prior misdemeanor convictions, including convictions for

       operating while intoxicated and public intoxication. He also has four prior

       felony convictions, and multiple petitions to revoke probation have been filed

       against him. His former contacts with the law have not caused him to reform

       himself. See Jenkins v. State, 909 N.E.2d 1080, 1086 (Ind. Ct. App. 2009), trans.

       denied. Burton has failed to persuade this Court that his two and one-half-year

       sentence for Level 6 felony strangulation is inappropriate.



       Court of Appeals of Indiana | Memorandum Decision 03A01-1510-CR-1802 | June 10, 2016   Page 5 of 8
[12]   Affirmed.


       Kirsch, J., concurs.


       Riley, J., dissents with opinion.




       Court of Appeals of Indiana | Memorandum Decision 03A01-1510-CR-1802 | June 10, 2016   Page 6 of 8
                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Michael S. Burton,                                       Court of Appeals Case No.
                                                               03A01-1510-CR-1802
      Appellant-Defendant,

              v.

      State of Indiana,
      Appellee-Plaintiff.




      Riley, Judge.


I respectfully dissent from the majority’s decision to affirm Burton’s aggregate

      sentence of four and one-half years. Although the trial court considered

      Burton’s mental health diagnosis to be a “slight mitigator,” it nevertheless

      imposed the maximum sentence on each of Burton’s three charges. (Transcript

      p. 53). Specifically, the court imposed two and one-half years for the

      strangulation charge, one year for the operating a vehicle while intoxicated

      endangering a person charge and one year for the operating a vehicle with an

      ACE of .15 or more charge, with all sentences to run consecutive. While this

      sentence falls within the statutory range, I conclude the sentence to be

      inappropriate, especially after the finding of a mitigating factor. Due to

      Court of Appeals of Indiana | Memorandum Decision 03A01-1510-CR-1802 | June 10, 2016   Page 7 of 8
Burton’s mental health, I would reduce Burton’s sentence on his strangulation

charge to the advisory sentence of one year, to run consecutive to the maximum

sentences of his two other charges, for a total sentence of three years.




Court of Appeals of Indiana | Memorandum Decision 03A01-1510-CR-1802 | June 10, 2016   Page 8 of 8
