MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Sep 16 2016, 6:11 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
Zachary A. Witte Gregory F. Zoeller
Locke & Witte Attorney General of Indiana
Fort Wayne, Indiana Caryn N. Szyper
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Lindsey P. Smith, September 16, 2016
Appellant-Defendant, Court of Appeals Case No.
02A03-1603-CR-652
v. Appeal from the Allen Superior
Court
State of Indiana, The Honorable Wendy W. Davis,
Appellee-Plaintiff Judge
Trial Court Cause No.
02D05-1508-F6-731
Mathias, Judge.
[1] Lindsey P. Smith (“Lindsey”) pleaded guilty in Allen Superior Court to
domestic battery in the presence of a child. The sentencing court sentenced
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Lindsey to one-and-a-half years’ incarceration in the Department of Correction,
all suspended to probation, but conditioned upon her execution of thirty days’
confinement in the Allen County jail. Lindsey appeals this sentence as
inappropriate.
[2] We affirm.
Facts and Procedural History
[3] Late in the evening of August 3, 2015, detectives of the Fort Wayne Police
Department were called to the apartment home of Lindsey and her then-
husband Heath Smith (“Heath”) by a report of domestic battery. Heath met the
officers at the door, teary eyed and red faced, complaining of pain in his face
and back. Lindsey and Heath had argued and come to blows, because Heath
had chosen to visit his mother and brother rather than take Lindsey to her first
day of work. Specifically, Heath reported that Lindsey struck his face and back
repeatedly in the presence of one or both of Lindsey’s young sons, aged five and
eight at the time of sentencing.1 Lindsey admitted the truth of Heath’s
accusations to the detectives, adding that, if she could get through the detectives
to hit Heath again, she “damn well sure would.” Ex. Vol., State’s Ex. 15.
1
The detectives reported only the presence of Lindsey’s younger son on the scene at the time of the
argument, but both children were present in the apartment at the time of the detectives’ interview with Heath
and Lindsey, and Lindsey affirmed at sentencing, in response to questioning by the court, that both children
were “upstairs while all that was [going on].” Tr. p. 15.
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[4] Lindsey was charged with domestic battery in the presence of a child. Unable to
reach a plea agreement with the State, Lindsey pleaded guilty without the
benefit of an agreement two days before her scheduled trial on February 2,
2016. The court ordered a presentence investigation report and heard evidence
and argument at Lindsey’s sentencing hearing on March 11, 2016. The court
sentenced Lindsey to 548 days in the Department of Correction, all suspended
but conditioned on thirty days in the Allen County jail. This appeal followed.
Whether Lindsey’s Sentence Is Inappropriate
[5] Two avenues to relief are open to a convicted offender wishing to challenge her
sentence, one substantive and one procedural. Anglemyer v. State, 868 N.E.2d
482, 491 (Ind. 2007), modified on other grounds on reh’g, 875 N.E.2d 218 (Ind.
2007). The Indiana Constitution and Indiana Rules of Appellate Procedure
authorize substantive appellate review and revision of any sentence in a
criminal case. Ind. Const. art. VII, § 6; Ind. Appellate Rule 7(B). This
constitutional power of revision is independent of the power, grounded in
statute, to review procedurally the exercise of the sentencing court’s discretion
in fashioning a sentence. Anglemyer, 868 N.E.2d at 491; Ind. Code § 35-38-1-
7.1(d) (court “may impose” any sentence consistent with statute and the
Constitution).
[6] A reviewing court invited to exercise its power of revision will do so only if,
“after due consideration of the trial court’s decision,” the court finds the
sentence to be “inappropriate in light of the nature of the offense and the
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character of the offender.” App. R. 7(B). We are reluctant to substitute our
judgment for that of the sentencing court. Hunter v. State, 854 N.E.2d 342, 344
(Ind. 2006). The question before us is not whether some other sentence might
be “more appropriate,” but rather whether the sentence as pronounced is
inappropriate. Barker v. State, 994 N.E.2d 306, 315 (Ind. Ct. App. 2013), trans.
denied.
[7] The defendant bears the burden of persuading the appellate court that she has
been inappropriately sentenced. King v. State, 894 N.E.2d 265, 267 (Ind. Ct.
App. 2008). This burden is a heavy one. “[C]onsiderable deference” is due the
sentence pronounced below, Hines v. State, 30 N.E.3d 1216, 1225 (Ind. 2015), in
view of the sentencing courts’ “special expertise” in the fact-intensive
sentencing decision, Scott v. State, 840 N.E.2d 376, 381 (Ind. Ct. App. 2006),
trans. denied, and such deference ordinarily “should prevail unless overcome by
compelling evidence portraying [the offense and the offender] in a positive
light.” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015).
[8] We examine the sentence in its totality as it is actually to be served. Cardwell v.
State, 895 N.E.2d 1219, 1224 (Ind. 2008). The aggregate term of years, id., the
time suspended and executed, Davidson v. State, 926 N.E.2d 1023, 1025 (Ind.
2010), the placement called for in the sentence, King, 894 N.E.2d at 267, and
any other penal consequences, Davidson, 926 N.E.2d at 1025, are examined in
light of the defendant’s culpability, the severity of the crime, the harm done to
others, and any other relevant facts of the individual case. Cardwell, 895 N.E.2d
at 1224. We undertake such review guided by its primary purpose of
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“leaven[ing] the outliers,” that is, promoting consistency and uniformity in
sentencing by restraining extraordinarily harsh or lenient sentences. Id. at 1225.
[9] Lindsey pleaded guilty without benefit of a plea agreement to a Level 6 felony.
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, plus a fine of up to
$10,000. I.C. § 35-50-2-7(b). See Abbot v. State, 961 N.E.2d 1016, 1019 (Ind.
2012) (identifying advisory sentence as the “starting point” of inappropriateness
review). Lindsey’s one-and-one-half-year sentence is thus both longer and
shorter than the advisory sentence: the aggregate term being six months longer,
but the executed time eleven months shorter, near the midpoint of the statutory
range. We now examine whether this sentence is inappropriate in light of the
nature of Lindsey’s offense and of Lindsey’s character.
[10] As to the nature of her offense, Lindsey argues that her conduct was not
“particularly egregious or severe” so as to justify deviation from the advisory
sentence, Appellant’s Br. at 12, and, in effect, that the sentencing court
improperly weighed the underlying elements of the offense in aggravation of
her sentence, usually referred to as “double enhancement.” She argues
particularly that Heath’s injuries were no greater than the minimum required to
satisfy the bodily-injury element of domestic battery, I.C. § 35-42-2-1.3(a)
(2015),2 and that her “offense has already been enhanced” from a misdemeanor
2
Simple domestic battery no longer requires bodily injury. Compare I.C. § 35-42-2-1.3(a)(1) (2016) with I.C. §
35-42-2-1.3(a) (2015).
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to a felony by the presence of her children at the time of the battery. Appellant’s
Br. at 12. Compare I.C. § 35-42-2-1.3(a) (2015) (simple domestic battery) with id.
at (b)(2) (domestic battery in presence of a child under age sixteen).
[11] We find these arguments unpersuasive for three reasons. First, the advisory
sentence must be understood as the legislature does, as a “guideline sentence
that the court may voluntarily consider,” I.C. § 35-50-2-1.3(a) (emphasis added),
not as a presumptive sentence by another name. Since the legislature
abandoned presumptive sentences, our supreme court has consistently held
that, “[b]ecause the sentencing statute no longer requires a trial court to impose
a presumptive sentence except when deviating from it on the basis of
aggravating or mitigating [factors], the correlation between those factors and a
given sentence will not be as close” as under the previous scheme. Hamilton v.
State, 955 N.E.2d 723, 726 (Ind. 2011). So long as the sentencing court provides
a sentencing statement as required by statute, “which may or may not include
the existence of aggravating and mitigating factors, [the court] may then impose
any sentence” permitted by statute and the Constitution. Sharkey v. State, 967
N.E.2d 1074, 1078 (Ind. Ct. App. 2012) (emphasis added). Defendants like
Lindsey wishing to challenge their sentences may not argue that a sentencing
court must justify “deviation” from a preset default.
[12] Second, it is well settled that a sentencing court evaluating aggravators and
mitigators may properly consider the particular circumstances of the offense as
aggravators. McElroy v. State, 865 N.E.2d 584, 589–90 (Ind. 2007). The only fact
required to enhance domestic battery by the presence of a child is that the child
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be capable of sensing the battery. Boyd v. State, 889 N.E.2d 321, 325 (Ind. Ct.
App. 2008), trans. denied. The sentencing court thus did not twice weigh the
presence of Lindsey’s children at the scene of the battery when it found as an
aggravator the children’s actual exposure to Lindsey’s coarse language and her
“punching, scratching, [and] whatever [else Lindsey] could do to get to
[Heath].” Tr. pp. 14–15.
[13] Similarly, Lindsey mischaracterizes the evidence below as to Heath’s injuries.
Lindsey argues that Heath “did not sustain any damage other tha[n] redness to
his face,” Appellant’s Br. at 12, but Heath insisted otherwise in his victim
impact statement. Appellant’s App. p. 67 (reporting continuing physical and
mental pain as the result of Lindsey’s battery). In any event, the statute requires
even less: any physical impairment, including any degree of physical pain. Bailey
v. State, 979 N.E.2d 133, 138 (Ind. 2012) (pain caused by repeated “pokes” to
the forehead is bodily injury within the domestic battery statute). It was thus
within the sound discretion of the sentencing court to find any additional
circumstance as an aggravator. Anglemyer, 868 N.E.2d at 491.
[14] Finally, to the extent that claims for double enhancement survived the
legislature’s 2005 sentencing revisions, see Pedraza v. State, 887 N.E.2d 77 (Ind.
2008), such claims, in their nature procedural, are properly brought as claims
for abuse of discretion. Gomillia v. State, 13 N.E.3d 846, 852 (Ind. 2014)
(locating surviving double-enhancement claims in the “improper as a matter of
law” prong of abuse-of-discretion analysis (Anglemyer, 868 N.E.2d at 491)).
Lacking additional, substantive cogency, Lindsey’s double-enhancement
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arguments are not cognizable in Rule 7(B) review. As we have discussed above,
however, Lindsey’s arguments would fail on the merits even had they been
properly raised.
[15] As to her character, Lindsey focuses on her previously unblemished criminal
record and her quick acceptance of responsibility. These facts were presented as
mitigators at Lindsey’s sentencing and were considered by the court on the
record. In contrast, the sentencing court found Lindsey’s utter lack of remorse
for her conduct “extremely aggravating.” Tr. p. 14.
[16] Lindsey argues that her lack of remorse “was not so egregious as to outweigh
all other mitigating circumstances.” Appellant’s Br. at 13. Her argument is thus
with the relative weight the sentencing court assigned to the aggravators and
mitigators in her case. Again, however, the weighing of recorded aggravators
and mitigators is within the sound discretion of the sentencing court, Anglemyer,
868 N.E.2d at 491, and Lindsey’s argument amounts simply to request for a
“more appropriate” sentence. However, this is not our task. Barker, 994 N.E.2d
at 315.
[17] Though the factual record is fairly sparse, it is clear that Lindsey repeatedly and
violently struck her then-husband Heath on the face and back in retaliation for
his deliberate failure to transport her to her first day of work at a new job, and,
possibly, for verbal provocation by Heath. Lindsey exposed her two sons, aged
five and eight, to her violent conduct and violent language as they sat in an
upstairs room of their shared home.
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[18] While Lindsey had no prior criminal record and was found to present a low risk
of re-offense, she reported to her presentence report investigator having “some
criminal peers” with whom she will continue to associate. Appellant’s App. p.
94. When asked at sentencing whether her battery of Heath had been a “one-
time event,” Lindsey refused to answer. Tr. p. 13. Most damningly, she
repeatedly asserted that Heath deserved the treatment he received from her,
both to the on-scene detective, Ex. Vol., State’s Ex. 15, and to her presentence
report investigator, Appellant’s App. p. 95; and she suggested as much again at
sentencing. Tr. pp. 12–13.
[19] In light of the nature of Lindsey’s offense and her character, we cannot say that
her sentence is inappropriate.3
[20] Affirmed.
Robb, J., and Brown, J., concur.
3
The decision rendered in this opinion does not excuse Heath’s deliberate choice not to transport Lindsey to
her first and most important day of work, a particularly inconsiderate decision at a time when work is hard to
come by.
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