Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited
before any court except for the purpose Sep 22 2014, 8:57 am
of establishing the defense of res
judicata, collateral estoppel, or the law
of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
DAVID M. ZENT GREGORY F. ZOELLER
Fort Wayne, Indiana Attorney General of Indiana
HENRY A. FLORES, JR.
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
DAVARIUS L. WHITE, )
)
Appellant-Defendant, )
)
vs. ) No. 02A03-1402-CR-52
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE ALLEN SUPERIOR COURT
The Honorable Wendy W. Davis, Judge
Cause No. 02D06-1306-FD-628
September 22, 2014
MEMORANDUM DECISION – NOT FOR PUBLICATION
BARNES, Judge
Case Summary
Davarious White appeals his sentence for Class D felony domestic battery. We
affirm.
Issue
White raises one issue, which we restate as whether his sentence is inappropriate
in light of the nature of the offense and the character of the offender.
Facts
On May 30, 2013, White got into an argument with his girlfriend. T.B., when he
did not get home until 6:00 a.m. White grabbed T.B.’s neck and placed his hand over her
mouth. T.B. sustained bruises, scratches, and cuts to her face and neck. The battery took
place in front of five children, including White’s four children with T.B. The State
charged White with Class D felony domestic battery and Class D felony strangulation.
On the day of the jury trial, White pled guilty to Class D felony domestic battery,
and the State dismissed the strangulation charge. At the sentencing hearing, the trial
court found White’s guilty plea and his taking of responsibility as mitigators. However,
the trial court found that White’s significant criminal history, the nature and
circumstances of the offense, and the fact that he was on probation at the time of the
offense were aggravators. The trial court sentenced White to three years with one year
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suspended to probation so that White could participate in the Center for Non-Violence
program for batterers.1 White now appeals.
Analysis
White argues that his sentence is inappropriate under Indiana Appellate Rule 7(B).
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 offenses and the character of the offender. When considering
whether a sentence is inappropriate, we need not be “extremely” deferential to a trial
court’s sentencing decision. Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App.
2007). Still, we must give due consideration to that decision. Id. We also understand
and recognize the unique perspective a trial court brings to its sentencing decisions. Id.
Under this rule, the burden is on the defendant to persuade the appellate court that his or
her sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).
The principal role of Rule 7(B) review “should be to attempt to leaven the outliers,
and identify some guiding principles for trial courts and those charged with improvement
of the sentencing statutes, but not to achieve a perceived ‘correct’ result in each case.”
Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). We “should focus on the forest—
the aggregate sentence—rather than the trees—consecutive or concurrent, number of
counts, or length of the sentence on any individual count.” Id. When reviewing the
appropriateness of a sentence under Rule 7(B), we may consider all aspects of the penal
1
The trial court said it was sentencing White to two and one-half years with 183 days suspended to
probation. However, the trial court immediately learned that White would not have enough time to
complete the batterer’s program and revised the sentence.
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consequences imposed by the trial court in sentencing the defendant, including whether a
portion of the sentence was suspended. Davidson v. State, 926 N.E.2d 1023, 1025 (Ind.
2010).
The nature of the offense is that White got into an argument with his girlfriend in
front of five children, including four of his own children. During the argument, he
grabbed her neck and placed his hand over her mouth. She sustained bruises, scratches,
and cuts to her face and neck.
A review of twenty-eight-year-old White’s character reveals that, despite his age,
he has amassed a significant number of criminal convictions. He has one juvenile
adjudication for criminal mischief. As an adult, he has been convicted of nine
misdemeanors and four felonies, including Class A misdemeanor possession of
marijuana, Class C misdemeanor operating a motor vehicle without ever receiving a
license on two occasions, Class A misdemeanor resisting law enforcement on three
occasions, Class D felony possession of marijuana, Class B misdemeanor false informing
on two occasions, Class C misdemeanor minor consuming alcohol, Class D felony
resisting law enforcement, Class D felony residential entry, and Class C felony
possession of a handgun with altered identifying marks. He has had four suspended
sentences revoked and home detention revoked one time. He was on probation at the
time of the instant offense. White pled guilty on the day of the jury trial, and he
expressed remorse for his actions at the sentencing hearing.
White argues that his sentence should be reduced due to his guilty plea, remorse,
long-term relationship with the victim, and children with the victim. However, the
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mitigating value of White’s guilty plea is reduced because he did not plead guilty until
the morning of his jury trial. Additionally, the fact that he battered the mother of his
children in front of the children makes the long-term relationship of little mitigating
value. Given White’s extensive criminal history and repeated failure to comply with the
law, we conclude that the three-year sentence is not inappropriate.2
Conclusion
White’s sentence is not inappropriate in light of the nature of the offense or the
character of the offender. We affirm.
Affirmed.
BRADFORD, J., and BROWN, J., concur.
2
White mentions the fact that the trial court originally was going to sentence him to two and one-half
years with 183 days suspended to probation. The trial court changed its mind at the sentencing hearing
when the probation department informed it that White would not have enough time to complete a
batterer’s program. White does not argue that the trial court abused its discretion in some way. He
merely indicates that the “trial court originally believed something less than [three years] was
appropriate.” Appellant’s Br. p. 10. However, on appeal, we must review whether the sentence actually
imposed by the trial court was inappropriate, not whether another sentence considered by the trial court
was appropriate.
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