Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be Jun 17 2014, 9:54 am regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
CHRISTOPHER J. HAMMERLE GREGORY F. ZOELLER CHRISTOPHER B. SERAK Attorney General of Indiana Jacob Hammerle & Johnson Zionsville, Indiana MICHAEL GENE WORDEN Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
CHRISTOPHER CARLISLE, ) ) Appellant-Defendant, ) ) vs. ) No. 06A01-1308-CR-352 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE BOONE SUPERIOR COURT The Honorable Matthew C. Kincaid, Judge Cause No. 06D01-1202-FD-85
June 17, 2014
MEMORANDUM DECISION – NOT FOR PUBLICATION
RILEY, Judge STATEMENT OF THE CASE
Appellant-Defendant, Christopher Carlisle (Carlisle), appeals his conviction for
domestic battery, a Class D felony, Ind. Code § 35-42-2-1.3.
We affirm.
ISSUES
Carlisle raises two issues on appeal which we restate as follows:
(1) Whether the trial court abused its discretion by failing to issue a sentencing
statement; and
(2) Whether the charging Information was insufficient.
FACTS AND PROCEDURAL HISTORY
Carlisle and Alyssa Toney (Toney) were in a relationship and lived together for four
years. Together, they had two children, who were then, ages four and two. On the early
morning of February 23, 2012, Toney returned home from work. She found Carlisle
sleeping on the couch with the youngest child, and the oldest child was sleeping in his
bedroom. Toney had worked a night shift at Wal-Mart so she proceeded to go to bed. At
some point, she was awoken by her youngest child, who was now on her bed, crying
because he had a wet diaper. According to Toney, she woke up to go “fix him a bottle,”
but Carlisle entered the bedroom before she could exit. (Transcript p. 10). What followed
was a heated argument. Carlisle confronted Toney about their youngest child’s hygiene,
asking why the “baby was soaking wet,” threatening to call Child Protective Services
(CPS). (Tr. p. 12). In response, Toney called him a “dumbass.” Id. This made Carlisle
angry and he reacted by slapping Toney on her face with his hand. By this time, both 2 children were awake and were in the bedroom when Carlisle hit Toney. Carlisle left the
bedroom, and at some point, Toney texted her father. Thereafter, Toney’s father called the
police, who arrived at their residence, conducted an investigation, and later arrested
Carlisle.
The next day, the State filed an Information charging Carlisle with domestic battery,
a Class D felony. On November 2, 2012, Carlisle waived jury trial, and a bench trial was
conducted the same day. At the close of the evidence, the trial court found Carlisle guilty
as charged. On June 24, 2013, the trial court sentenced Carlisle to one and one-half years
executed.
Carlisle now appeals. Additional information will be provided as necessary.
DISCUSSION AND DECISION
I. Sentencing Statement
Carlisle argues that the trial court abused its discretion when it failed to provide a
sentencing statement when sentencing him. We note that a “trial court’s sentencing
determination is within its discretion, and we will reverse only for an abuse of that
discretion.” Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g by,
875 N.E.2d 218 (Ind. 2007). The trial court abuses its discretion when its decision is clearly
against the logic and effect of the facts and circumstances before it, or the reasonable,
probable, and actual deductions to be drawn therefrom. Id. We may find an abuse of
discretion if the trial court does not provide a sentencing statement, the sentencing
statement is not supported by the record, the sentencing statement omits reasons clearly
supported by the record and advanced by the defendant, or the trial court’s reasons for
3 sentencing are improper as a matter of law. Id. at 490-91. In a felony case, the trial court
must give a reasonably detailed recitation of the reasons for the sentence imposed. Id. at
490. In reviewing sentencing decisions, we consider both the written and oral sentencing
statements. Corbett v. State, 764 N.E.2d 622, 631 (Ind. 2002).
Carlisle is correct when he asserts the trial court must issue a sentencing statement
for felony convictions and here, the trial court did not. This notwithstanding, we note that
where a trial court has failed to enter a sentencing statement, we may either remand for a
new sentencing statement or exercise our authority to review the sentence under Indiana
Appellate Rule 7(B). See Windhorst v. State, 868 N.E.2d 504, 507 (Ind. 2007), reh’g
denied.
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.” If the
defendant’s sentence is not inappropriate, we may affirm the sentence despite an
inadequate sentencing statement. See Windhorst, 868 N.E.2d at 507. See also Eiler v.
State, 938 N.E.2d 1235, 1239 (Ind. Ct. App. 2010). In light of the foregoing, we elect to
address whether Carlisle’s sentence is inappropriate under App. R. 7(B).
In determining whether a sentence is inappropriate, the advisory sentence “is the
starting point the legislature has selected as an appropriate sentence for the crime
committed.” Childress v. State, 848 N.E.2d 1073, 1081 (Ind. 2006). The sentencing range
for a Class D felony is between six months and three years, with the advisory sentence
4 being one and one-half years. I.C. § 35-50-2-7. Here, the trial court imposed a one and
one-half year sentence.
As for the nature of the offense, Carlisle physically assaulted Toney by slapping
her on the face, in front of their minor children. As for his character, in 2006, Carlisle pled
guilty to non-support of a dependent child, battery, and false informing. In addition, at
trial, the court found that Carlisle had violated the terms of his probation by failing to make
child support payments from February 2011 to May 2011. Also, Carlisle committed the
instant offense while on probation. At the sentencing hearing, we note that Carlisle asked
the court to consider that he suffered from a chronic illness which requires constant medical
attention. We find that Carlisle illness has not deterred him from breaking the law and
conclude that Carlisle’s was sentence appropriate.
II. Charging Information Was Insufficient
Carlisle claims that the Charging Information was insufficient to inform him of the
charge proffered against him. As a preliminary matter, we note that Carlisle did not raise
this issue at trial.
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Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be Jun 17 2014, 9:54 am regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
CHRISTOPHER J. HAMMERLE GREGORY F. ZOELLER CHRISTOPHER B. SERAK Attorney General of Indiana Jacob Hammerle & Johnson Zionsville, Indiana MICHAEL GENE WORDEN Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
CHRISTOPHER CARLISLE, ) ) Appellant-Defendant, ) ) vs. ) No. 06A01-1308-CR-352 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE BOONE SUPERIOR COURT The Honorable Matthew C. Kincaid, Judge Cause No. 06D01-1202-FD-85
June 17, 2014
MEMORANDUM DECISION – NOT FOR PUBLICATION
RILEY, Judge STATEMENT OF THE CASE
Appellant-Defendant, Christopher Carlisle (Carlisle), appeals his conviction for
domestic battery, a Class D felony, Ind. Code § 35-42-2-1.3.
We affirm.
ISSUES
Carlisle raises two issues on appeal which we restate as follows:
(1) Whether the trial court abused its discretion by failing to issue a sentencing
statement; and
(2) Whether the charging Information was insufficient.
FACTS AND PROCEDURAL HISTORY
Carlisle and Alyssa Toney (Toney) were in a relationship and lived together for four
years. Together, they had two children, who were then, ages four and two. On the early
morning of February 23, 2012, Toney returned home from work. She found Carlisle
sleeping on the couch with the youngest child, and the oldest child was sleeping in his
bedroom. Toney had worked a night shift at Wal-Mart so she proceeded to go to bed. At
some point, she was awoken by her youngest child, who was now on her bed, crying
because he had a wet diaper. According to Toney, she woke up to go “fix him a bottle,”
but Carlisle entered the bedroom before she could exit. (Transcript p. 10). What followed
was a heated argument. Carlisle confronted Toney about their youngest child’s hygiene,
asking why the “baby was soaking wet,” threatening to call Child Protective Services
(CPS). (Tr. p. 12). In response, Toney called him a “dumbass.” Id. This made Carlisle
angry and he reacted by slapping Toney on her face with his hand. By this time, both 2 children were awake and were in the bedroom when Carlisle hit Toney. Carlisle left the
bedroom, and at some point, Toney texted her father. Thereafter, Toney’s father called the
police, who arrived at their residence, conducted an investigation, and later arrested
Carlisle.
The next day, the State filed an Information charging Carlisle with domestic battery,
a Class D felony. On November 2, 2012, Carlisle waived jury trial, and a bench trial was
conducted the same day. At the close of the evidence, the trial court found Carlisle guilty
as charged. On June 24, 2013, the trial court sentenced Carlisle to one and one-half years
executed.
Carlisle now appeals. Additional information will be provided as necessary.
DISCUSSION AND DECISION
I. Sentencing Statement
Carlisle argues that the trial court abused its discretion when it failed to provide a
sentencing statement when sentencing him. We note that a “trial court’s sentencing
determination is within its discretion, and we will reverse only for an abuse of that
discretion.” Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g by,
875 N.E.2d 218 (Ind. 2007). The trial court abuses its discretion when its decision is clearly
against the logic and effect of the facts and circumstances before it, or the reasonable,
probable, and actual deductions to be drawn therefrom. Id. We may find an abuse of
discretion if the trial court does not provide a sentencing statement, the sentencing
statement is not supported by the record, the sentencing statement omits reasons clearly
supported by the record and advanced by the defendant, or the trial court’s reasons for
3 sentencing are improper as a matter of law. Id. at 490-91. In a felony case, the trial court
must give a reasonably detailed recitation of the reasons for the sentence imposed. Id. at
490. In reviewing sentencing decisions, we consider both the written and oral sentencing
statements. Corbett v. State, 764 N.E.2d 622, 631 (Ind. 2002).
Carlisle is correct when he asserts the trial court must issue a sentencing statement
for felony convictions and here, the trial court did not. This notwithstanding, we note that
where a trial court has failed to enter a sentencing statement, we may either remand for a
new sentencing statement or exercise our authority to review the sentence under Indiana
Appellate Rule 7(B). See Windhorst v. State, 868 N.E.2d 504, 507 (Ind. 2007), reh’g
denied.
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.” If the
defendant’s sentence is not inappropriate, we may affirm the sentence despite an
inadequate sentencing statement. See Windhorst, 868 N.E.2d at 507. See also Eiler v.
State, 938 N.E.2d 1235, 1239 (Ind. Ct. App. 2010). In light of the foregoing, we elect to
address whether Carlisle’s sentence is inappropriate under App. R. 7(B).
In determining whether a sentence is inappropriate, the advisory sentence “is the
starting point the legislature has selected as an appropriate sentence for the crime
committed.” Childress v. State, 848 N.E.2d 1073, 1081 (Ind. 2006). The sentencing range
for a Class D felony is between six months and three years, with the advisory sentence
4 being one and one-half years. I.C. § 35-50-2-7. Here, the trial court imposed a one and
one-half year sentence.
As for the nature of the offense, Carlisle physically assaulted Toney by slapping
her on the face, in front of their minor children. As for his character, in 2006, Carlisle pled
guilty to non-support of a dependent child, battery, and false informing. In addition, at
trial, the court found that Carlisle had violated the terms of his probation by failing to make
child support payments from February 2011 to May 2011. Also, Carlisle committed the
instant offense while on probation. At the sentencing hearing, we note that Carlisle asked
the court to consider that he suffered from a chronic illness which requires constant medical
attention. We find that Carlisle illness has not deterred him from breaking the law and
conclude that Carlisle’s was sentence appropriate.
II. Charging Information Was Insufficient
Carlisle claims that the Charging Information was insufficient to inform him of the
charge proffered against him. As a preliminary matter, we note that Carlisle did not raise
this issue at trial. Therefore, Carlisle has waived this issue for appeal. See Stevens v. State,
913 N.E .2d 270, 278-79 (Ind. Ct. App. 2009) (a challenge to the adequacy of a Charging
Information must be made by a motion to dismiss prior to arraignment or the issue is
waived); Vaillancourt v. State, 695 N.E.2d 606, 610 (Ind. Ct. App. 1998) (“The proper
time for raising the insufficiency of the charging information is prior to arraignment.”).
Carlisle attempts to avoid waiver by arguing that the insufficient Charging
Information constitutionally denied him a fair trial. We note that the fundamental error
exception to the contemporaneous objection rule is extremely narrow, and applies only
5 where the error constitutes a blatant violation of basic principles, the harm or potential for
harm is substantial, and the resulting error denies the defendant fundamental due process.
See Brown v. State, 929 N.E.2d 204 (Ind. 2010). The claimed error must either make a fair
trial impossible or constitute a clearly blatant violation of basic and elementary principles
of due process. Id.
I.C. § 35-34-1-2(d), as a whole, sets forth the required contents of a Charging
Information. The overarching purpose of the statute is to give the defendant particular
notice of the crimes with which he is being charged and also enable him to prepare an
appropriate defense.
The offense of domestic battery is governed by I.C. § 35-42-2-1.3, which provides:
A person who knowingly or intentionally touches an individual who: (1) is or was a spouse of the other person; (2) is or was living as if a spouse of the other person as provided in subsection (c); or (3) has a child in common with the other person; in a rude, insolent, or angry manner that results in bodily injury to the person described in subdivision (1), (2), or (3) commits domestic battery, a Class A misdemeanor. The offense “is a Class D felony if the person who committed the offense . . . committed
the offense in the physical presence of a child less than sixteen (16) years of age, knowing
that the child was present and might be able to see or hear the offense.” See I.C. § 35-42-
2-1.3(b)(2).
Here, the charging Information stated in part that:
[] on or about February 23, 2012 [] Carlisle did knowingly and intentionally [] [slap Toney] across the face resulting in bodily injury [and that] . . . Carlisle committed the said offense in the presence of [] children less than 16 years of age [] knowing that [] [they may be] present and might be able to see or hear the offense [] contrary to [] I.C. § 35-42-2-1.3(a).
6 (Appellant’s App. p. 20).
Looking at the above Charging Information, we note that the State cited I.C. § 35-
42-2-1.3(a), making the offense a Class A misdemeanor, instead of quoting the correct
statutory provision i.e. I.C. § 35-42-2-1.3(b)(2), making the offense a Class D felony
offense. It is on this basis, Carlisle argues that he was not put on notice of the offense for
which he was charged with. This notwithstanding, we find that any defect on the Charging
Information was not a fundamental error, and that the State properly put Carlisle on notice
of the instant offense. On the caption of the Charging Information, the State indicated that
Carlisle was being charged with
Count I Domestic Battery I.C. § 35-42-2-1.3(a) and I.C. § 35-42-2-1.3(b)(2) a Class D felony
(Appellant’s App. p. 20). Moreover, we note that the probable-cause affidavit stated that
Carlisle was being charged with domestic battery, a Class D felony. See Woods v. State,
980 N.E.2d 439, 443 (Ind. Ct. App. 2012) (holding that a probable-cause affidavit should
be viewed together with the Charging Information to determine if the defendant was put
on notice of the crime being he was being charged with).
In totality of the evidence before us, we conclude that Carlisle was put on notice on
the charged offense, and that even though the State incorrectly cited the wrong statutory
provision, we find that error to be harmless.
CONCLUSION
7 Based on the foregoing, we conclude that (1) though the trial court failed to issue a
sentencing statement, the sentence was appropriate; and (2) that the Charging Information
correctly put Carlisle on notice of the crime for which he was charged.
Affirmed.
ROBB, J. and BRADFORD, J. concur