MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Nov 01 2018, 8:51 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
Michael Frischkorn Curtis T. Hill, Jr.
Fortville, Indiana Attorney General of Indiana
Henry A. Flores, Jr.
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Crosby Rayne Waller, November 1, 2018
Appellant-Defendant, Court of Appeals Case No.
18A-CR-1401
v. Appeal from the Hamilton
Superior Court
State of Indiana, The Honorable William J. Hughes,
Appellee-Plaintiff. Judge
Trial Court Cause No.
29D03-1710-F5-7768
Najam, Judge.
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Statement of the Case
[1] Crosby Rayne Waller appeals his sentence following his guilty plea to domestic
battery, as a Level 6 felony. He raises a single issue for our review, namely,
whether his sentence is inappropriate in light of the nature of the offense and his
character.
[2] We hold that, because Waller has failed to present any authority or analysis
with respect to whether his sentence is inappropriate in light of the nature of his
offense, he has waived appellate review of the inappropriateness of his sentence.
However, his waiver notwithstanding, Waller has failed to persuade us that his
sentence is inappropriate. Accordingly, we affirm.
Facts and Procedural History
[3] On October 24, 2017, Waller engaged in a physical altercation with his father,
Stephen Waller. Waller’s mother witnessed the altercation, and she called the
police. Officer Wade Burtron with the Westfield Police Department responded
to the call. After Officer Burtron arrived at the scene, he took a report from
Stephen. Stephen told Officer Burtron that Waller had punched him in the face
and kicked and hit him multiple times. Officer Burtron was able to observe that
Stephen had a cut on his forehead that was bleeding, a scrape on his elbow, and
a cut on his knee. Officer Burtron arrested Waller and read him his Miranda
rights. Waller admitted to Officer Burtron that he had punched Stephen in the
head.
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[4] On October 25, the State charged Waller with one count of domestic battery, as
a Class A misdemeanor (“Count 1”); one count of domestic battery, as a Level
6 felony (“Count 2”); and one count of domestic battery, as a Level 5 felony
(“Count 3”). On March 1, 2018, the State and Waller entered into a plea
agreement. Pursuant to the terms of the agreement, Waller agreed to plead
guilty to Count 2, and the State agreed to dismiss Counts 1 and 3. The plea
agreement left sentencing to the discretion of the trial court. After a hearing,
the trial court accepted Waller’s guilty plea and sentenced him to 730 days
executed in the Department of Correction. This appeal ensued.
Discussion and Decision
[5] On appeal, Waller asserts that his 730-day executed sentence is inappropriate in
light of the nature of the offense and his character. However, the entirety of
Waller’s argument on appeal is as follows:
Mr. Waller immediately admitted to the offense at the time of the
incident after being read his Miranda rights. He has saved the
State the time and expense of going to trial. Also, Mr. Waller
has a number of mental health issues that are set out at length in
the Pre-Sentence Investigation Report. Mr. Waller has been
diagnosed from an early age with high-functioning autism. Also,
he has substance abuse issues and has had difficulties with his
gender identity which led to bullying in school. During the
interview, Mr. Waller ha[d] fresh cuts on his arms and a history
of self-harm. Based on Mr. Waller’s history and mental health
issues, an executed sentence is not appropriate.
Appellant’s Br. at 6-7 (internal citations omitted). As such, Waller’s argument
is that his executed sentence is inappropriate only in light of his character.
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However, that argument, by itself, is not sufficient to invoke this court’s
authority to revise a sentence under Indiana Appellate Rule 7(B).
[6] As this court has recently explained:
Article 7, Sections 4 and 6 of the Indiana Constitution
“authorize[ ] independent appellate review and revision of a
sentence imposed by the trial court.” Roush v. State, 875 N.E.2d
801, 812 (Ind. Ct. App. 2007) (alteration original). This appellate
authority is implemented through Indiana Appellate Rule 7(B).
Id. Revision of a sentence under Rule 7(B) requires the appellant
to demonstrate that his sentence is “inappropriate in light of the
nature of his offenses and his character.” Ind. Appellate Rule
7(B) (emphasis added). That language is clear: Rule 7(B) plainly
requires, as this court has long acknowledged, “the appellant to
demonstrate that his sentence is inappropriate in light of both the
nature of the offenses and his character.” Williams v. State, 891
N.E.2d 621, 633 (Ind. Ct. App. 2008) (emphasis original to
Williams).
Sanders v. State, 71 N.E.3d 839, 843-44 (Ind. Ct. App. 2017), trans denied.
Because Waller’s argument on appeal does not address his sentence in relation
to the nature of his offense, he has waived our review of the inappropriateness
of his sentence. See id.
[7] His waiver notwithstanding, Waller has failed to persuade us that his executed
sentence is inappropriate. Indiana’s flexible sentencing scheme allows trial
courts to tailor an appropriate sentence to the circumstances presented, and the
trial court’s judgment “should receive considerable deference.” Cardwell, 895
N.E.2d at 1222. Whether we regard a sentence as inappropriate at the end of
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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.” Id. at 1224. The question is not whether another
sentence is more appropriate, but rather whether the sentence imposed is
inappropriate. King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008).
Deference to the trial court “prevail[s] 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). Further, the location where a sentence
is to be served is an appropriate focus of our review and revise authority. See
Biddinger v. State, 868 N.E.2d 407, 414 (Ind. 2007).
[8] Here, aside from providing no authority or analysis concerning the nature of his
offense, Waller has not shown that his sentence is inappropriate in light of his
character. “When considering the character of the offender, one relevant fact is
the defendant’s criminal history.” Garcia v. State, 47 N.E.3d 1249, 1251 (Ind.
Ct. App. 2015). Waller’s criminal history consists of four prior misdemeanor
convictions and one prior felony conviction. And two of those prior offenses
were similar in nature to the instance offense. Indeed, Waller had previously
been convicted of two separate crimes of battery, one as a Class A
misdemeanor and one as a Level 6 felony. Additionally, Waller was on
probation for his felony battery conviction when he committed the instant
battery offense. Waller’s criminal history reflects poorly on his character.
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Further, the fact that Waller committed the instant offense against his own
father also reflects poorly on his character. We cannot say that Waller’s 730-
day executed sentence is inappropriate in light of the nature of the offense and
his character. As such, we affirm Waller’s sentence.
[9] Affirmed.
Pyle, J., concurs.
Crone, J., concurs in result.
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