Kenneth E. Aker, Jr. v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: April 17, 2015
• Docket: 53A01-1409-CR-411
• Status: Published

Opinion

MEMORANDUM DECISION Apr 17 2015, 9:56 am 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 of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Michael J. Spencer Gregory F. Zoeller Monroe Co. Public Defender Attorney General of Indiana Bloomington, Indiana Richard C. Webster Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Kenneth E. Aker, Jr., April 17, 2015

Appellant-Defendant, Court of Appeals Case No. 53A01-1409-CR-411 v. Appeal from the Monroe Circuit Court III

State of Indiana, The Honorable Kenneth G. Todd, Appellee-Plaintiff Judge

Cause No. 53C03-1301-FB-106

Friedlander, Judge.

Court of Appeals of Indiana | Memorandum Decision 53A01-1409-CR-411 | April 17, 2015 Page 1 of 12 [1] Kenneth Aker, Jr. appeals the sentence he received as a result of his plea of

guilty to the offense of neglect of a dependent resulting in serious bodily injury,

a class B felony.1 Aker presents the following restated issues for review:

1. Did the trial court abuse its discretion in its identification of aggravating circumstances? 2. Did the trial court abuse its discretion in its identification of mitigating circumstances? 3. Is Aker’s sentence inappropriate in light of the offense and his character? [2] We affirm.

[3] The facts supporting Aker’s conviction are that since 2001, he was employed as

caregiver to T.W., who was fifty-three years old at the time of this offense.

T.W. was afflicted with cerebral palsy and was unable to speak or care for

herself. On January 26, 2013, T.W. was transported to Bloomington Hospital

by emergency medical personnel after Aker called for assistance, reporting that

T.W. was experiencing respiratory distress and became unresponsive. Upon

her arrival, T.W. was examined by hospital personnel, who observed that she

was in very poor health and had severe bedsores covering the lower half of her

body. T.W. was pronounced dead shortly after her arrival.

1 The version of the governing statute, i.e., Ind. Code Ann. § 35-46-1-4(b)(2) (West, Westlaw 2013), in effect at the time this offense was committed classified it as a class B felony. This statute has since been revised and in its current form reclassifies this as a Level 3 felony. See I.C. § 35-46-1-4(b)(2) (West, Westlaw current with legislation of the 2015 First Regular Session of the 119th General Assembly effective through March 24, 2015). The new classification, however, applies only to offenses committed on or after July 1, 2014. See id. Because this offense was committed before then, it retains the former classification.

Court of Appeals of Indiana | Memorandum Decision 53A01-1409-CR-411 | April 17, 2015 Page 2 of 12 [4] When questioned at the time, Aker claimed that T.W. had been afflicted with

bedsores since he began caring for her in 2001, but that the sores normally

healed after he applied topical medication. He claimed that in early January of

2013, T.W.’s bedsores “got out of hand.” Transcript at 52. Although Aker

admitted that he should have sought medical assistance because of T.W.’s

condition, he failed to do so. He noted that in the week prior to her death,

T.W. exhibited flulike symptoms and did not eat as much as she normally did.

An autopsy performed on T.W. revealed she died of malnutrition and a partial

bowel obstruction.

[5] Aker was charged with neglect of a dependent resulting in serious bodily injury,

as a class B felony. Aker entered into a plea agreement whereby he agreed to

plead guilty to the charge, in exchange for which the State agreed to an eight-

year cap on his sentence. Under the agreement, the trial court retained

discretion to determine the sentence within the agreed-upon range. Following a

hearing, the trial court sentenced Aker to eight years in the Department of

Correction, all executed.

1. [6] Aker contends that the trial court abused its discretion in finding an element of

the offense as an aggravating circumstance, i.e., that he neglected the care of a

person who was unable to care for herself.

[7] Trial courts must enter sentencing statements whenever a sentence for a felony

offense is imposed. Anglemyer v. State, 868 N.E.2d 482 (Ind. 2007), clarified on

Court of Appeals of Indiana | Memorandum Decision 53A01-1409-CR-411 | April 17, 2015 Page 3 of 12 reh’g, 875 N.E.2d 218. The statement must include a reasonably detailed

recitation of the reasons for imposing the particular sentence selected. Id. If

there is a finding of aggravating and mitigating circumstances, the statement

must identify all significant aggravating and mitigating circumstances with an

explanation of the characterization of the circumstances as either aggravating or

mitigating. Id.

[8] We review sentencing decisions only for an abuse of discretion, except for the

review-and-revise power provided for in Indiana Appellate Rule 7(B). Id. If the

sentence is within the statutory range for the particular offense, we must

determine only if there was an abuse of discretion. An abuse of discretion exists

if the trial court’s decision is clearly against the logic and effect of the facts and

circumstances before the court or the reasonable, probable, and actual

deductions to be drawn therefrom. Id.

[9] A trial court can abuse its discretion in sentencing in several ways, including

entering a sentencing statement that explains the reasons for imposing a

sentence accompanied by the finding of aggravating and mitigating factors that

are not supported by the record, entering a sentencing statement that omits

reasons clearly supported by the record and advanced for consideration, or

citing reasons that are improper as a matter of law. Id. We will remand for

resentencing if we cannot say with confidence that the trial court would have

imposed the very same sentence had it considered the omitted reasons that are

clearly supported by the record for sentencing. Id.

Court of Appeals of Indiana | Memorandum Decision 53A01-1409-CR-411 | April 17, 2015 Page 4 of 12 [10] Aker contends that the trial court relied upon an improper aggravating

circumstance, which ultimately led to the imposition of two years less than the

advisory sentence instead of a lesser sentence within the statutory range. When

the trial court sentenced Aker, it found the following aggravating

circumstances: 1) The amount of suffering endured by the victim; and 2) what

Aker characterizes as the fact that the victim was incapable of caring for herself

and entrusted her care to him. The trial court found several mitigating

circumstances, including the following: 1) Aker presented a low risk of

reoffending, and the crime was unlikely to recur; 2) Aker was genuinely

remorseful; and 3) Aker’s criminal history was relatively mild and included “no

related prior convictions or prior criminal history … [t]hat would have any

bearing at all on his sentence in this case.” Transcript at 61.

[11] Aker challenges the aggravating factor that he describes as the fact that the

deceased victim was incapable of caring for herself and entrusted her care to

him. According to Aker, this is an element of his offense (i.e. “[a] person

having the care of a dependent, whether assumed voluntarily or because of a

legal obligation, who knowingly or intentionally …”). I.C. § 35-46-1-4(a).

Aker correctly observes that the trial court generally may not cite an element of

the crime as an aggravator. Gomillia v. State, 13 N.E.3d 846 (Ind. 2014).

[12] When articulating its findings of aggravating and mitigating circumstances, the

trial court stated:

the worst thing about this case Mr. Aker is that this is a person incapable of caring for themselves and entrusted to your care and

Court of Appeals of Indiana | Memorandum Decision 53A01-1409-CR-411 | April 17, 2015 Page 5 of 12 regardless of your, your life experiences or this past event that you say caused you to panic you did whatever your performance of duties prior to this time get to the point where you neglected the care of someone who was unable to care for themselves and allow them to perish in your, in your care due to neglect. Transcript at 64. Read in isolation, the foregoing can arguably be interpreted as

a finding that the victim was incapable of caring for herself and entrusted her

care to Aker, which is an element of the offense of which Aker was convicted.

Read in context, however, we are inclined to view this as the final portion of the

court’s comments finding the nature and circumstances of the crime as an

aggravator. The comments immediately preceding those reproduced above

included the following:

[O]n the other hand and by the way it is difficult to look at the autopsy report[.] … The autopsy report indicates that there this [sic] large, I can’t pronounce the word that Dr. Kohr uses, decubitus ulcer it says that there was a severe excoriation of the thighs and perineum no doubt related to the diarrhea that you described. He notes that in addition to that which I find to be of some interest is that there was the stomach contained only 50 milliliters of dark brown liquid and particular [sic] matter indicating no food. The bladder was empty and there was a large fecal impaction and then we have of course the sore. So however we got to this point in you saying, you describing this as things as getting out of hand and you panicking its apparent to the Court that at some point you became inattentive to her and that her last days on this earth were in fact painful and she couldn’t help but, I don’t see how you could say she could help but suffer. Id. at 62-63. We conclude that the comments to which Aker objects were a part

of the court’s evaluation of the nature and circumstances of Aker’s offense,

which the court found to be aggravating. Of course, it is appropriate for a trial

court to consider as an aggravating circumstance that the harm suffered by the

Court of Appeals of Indiana | Memorandum Decision 53A01-1409-CR-411 | April 17, 2015 Page 6 of 12 victim of the offense was significant and greater than the elements necessary to

prove the commission of the offense. See Ind. Code Ann. § 35-38-1-7.1(a)(1)

(West, Westlaw current with legislation of the 2015 First Regular Session of the

119th General Assembly effective through March 24, 2015); Gomillia v. State, 13

N.E.3d 846. The trial court did not err in its finding of aggravating

circumstances.

2. [13] Aker contends that the trial court abused its discretion in omitting as a

mitigating factor that Aker’s dependents would experience undue hardship as a

result of his incarceration. As indicated above, the trial court’s sentencing order

is reviewed for an abuse of discretion. Anglemyer v. State, 868 N.E.2d 482. An

abuse of discretion occurs when a decision is “clearly against the logic and

effect of the facts and circumstances before the court, or the reasonable,

probable, and actual deductions to be drawn therefrom.” Id. at 490 (quoting

K.S. v. State, 849 N.E.2d 538, 544 (Ind. 2006)). A trial court abuses its

discretion when it omits significant mitigating factors that are clearly supported

by the record and advanced for consideration. Anglemyer v. State, 868 N.E.2d.

482. We note, however, that although a sentencing court must consider all

evidence of mitigating factors presented by a defendant, it is not obligated to

weigh or credit them in the manner a defendant suggests. Scott v. State, 840

N.E.2d 376 (Ind. Ct. App. 2006), trans. denied. Also, a sentencing court “need

not consider, and we will not remand for reconsideration of, alleged mitigating

circumstances that are highly disputable in nature, weight, or significance.”

Court of Appeals of Indiana | Memorandum Decision 53A01-1409-CR-411 | April 17, 2015 Page 7 of 12 Creekmore v. State, 853 N.E.2d 523, 530 (Ind. Ct. App. 2006), clarified on reh’g,

858 N.E.2d 238.

[14] With respect to the significant mitigating circumstance that Aker contends the

trial court omitted, our Supreme Court has stated, “[m]any persons convicted of

serious crimes have one or more children and, absent special circumstances,

trial courts are not required to find that imprisonment will result in an undue

hardship.” Dowdell v. State, 720 N.E.2d 1146, 1154 (Ind. 1999). The only

mention of Aker’s children in the context of mitigating circumstances came

during counsel’s final argument at the sentencing hearing, where he stated as

follows: “The other thing is he had two minor children that he had shared [sic]

of and that is a mitigating factor he should be able to be out to help provide and

support for those children.” Transcript at 60. The brief mention of Aker’s

children alludes to no “special circumstances” at all, much less those that would

compel the court to find as a mitigator that Aker’s incarceration would impose

“undue hardship” within the meaning of Dowdell. The trial court did not err in

the finding of mitigating circumstances.

3. [15] Aker contends that his sentence is inappropriate in light of the nature of his

offense and his character. Article 7, section 4 of the Indiana Constitution grants

our Supreme Court the power to review and revise criminal sentences. See

Knapp v. State, 9 N.E.3d 1274 (Ind. 2014), cert. denied, 2015 WL 133288 (Jan.

12, 2015). Pursuant to Ind. Appellate Rule 7, the Supreme Court authorized

this court to perform the same task. Cardwell v. State, 895 N.E.2d 1219 (Ind.

Court of Appeals of Indiana | Memorandum Decision 53A01-1409-CR-411 | April 17, 2015 Page 8 of 12 2008). Per App. R. 7(B), we may revise a sentence “if after due consideration

of the trial court’s decision, the Court finds that the sentence is inappropriate in

light of the nature of the offense and the character of the offender.” Inman v.

State, 4 N.E.3d 190, 203 (Ind. 2014) (quoting App. R. 7). “Sentencing review

under Appellate Rule 7(B) is very deferential to the trial court.” Conley v. State,

972 N.E.2d 864, 876 (Ind. 2012). Aker bears the burden on appeal of

persuading us that his sentence is inappropriate. Conley v. State, 972 N.E.2d

864.

[16] The determination of whether we regard a sentence as appropriate “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.” Bethea v. State, 983 N.E.2d 1134, 1145 (Ind. 2013) (quoting Cardwell v.

State, 895 N.E.2d at 1224). Moreover, “[t]he principal role of such review is to

attempt to leaven the outliers.” Chambers v. State, 989 N.E.2d 1257, 1259 (Ind.

2013). It is not our goal in this endeavor to achieve the perceived “correct”

sentence in each case. Knapp v. State, 9 N.E.3d 1274. Accordingly, “the

question under Appellate Rule 7(B) is not whether another sentence is more

appropriate; rather, the question is whether the sentence imposed is

inappropriate.” King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008)

(emphasis in original). Our Supreme Court has indicated that when analyzing

the appropriateness of a criminal sentence, there is “no right answer ... in any

given case.” Brown v. State, 10 N.E.3d 1, 8 (Ind. 2014) (quoting Cardwell v. State,

895 N.E.2d at 1224). Rather, appellate review and, where appropriate, revision

Court of Appeals of Indiana | Memorandum Decision 53A01-1409-CR-411 | April 17, 2015 Page 9 of 12 “ultimately boils down to the appellate court’s ‘collective sense of what is

appropriate, not a product of a deductive reasoning process.’” Id. (quoting

Cardwell v. State, 895 N.E.2d at 1225.

[17] In order to assess the appropriateness of a sentence, we first look to the

statutory ranges established for the classification of the relevant offenses. Aker

was convicted of a class B felony – neglect of a dependent resulting in serious

bodily injury. The advisory sentence for a class B felony is ten years, with the

minimum and maximum sentence being six and twenty years, respectively.

Aker was sentenced to two years less than the advisory term, i.e., eight years.

[18] Regarding the nature of his offense, Aker was the paid custodian and caregiver

of T.W., a woman with severe cerebral palsy who was entirely dependent upon

him for her care. She was unable to speak or care for herself and was confined

to a bed or wheelchair. Although it appears that Aker cared for her adequately

for a period of years, at some point he began to neglect her care such that she

developed severe bedsores covering the lower half of her body, one of which

was large enough and deep enough that it ate deeply into the muscle beneath it.

The photos of her injuries indicate that she almost surely suffered severe pain as

a result. Although Aker claimed that he attempted to treat the bedsores, he

acknowledged that they eventually “got out of hand”, which understates the

severity of her condition as reflected in post-mortem photos. Transcript at 52.

Yet, he failed to seek medical help until he perceived that she was having

trouble breathing. Moreover, under Aker’s care, by the time he summoned

medical assistance as a result of T.W.’s breathing difficulties, T.W. suffered

Court of Appeals of Indiana | Memorandum Decision 53A01-1409-CR-411 | April 17, 2015 Page 10 of 12 from extreme malnutrition and a bowel obstruction, with those conditions

being severe enough to cause her death. In summary, a disabled woman who

depended entirely upon Aker for her care and well-being died a premature and

painful death entirely as a result of his extreme neglect.

[19] As for Aker’s character, the trial court aptly noted that he has an almost

inconsequential criminal history, consisting of a long-ago misdemeanor

conviction of operating while intoxicated and a more recent charge of

misdemeanor check deception, which was ultimately dismissed. The trial

court’s finding that he is a low risk to reoffend is well grounded in the evidence

in this case. It also appears that Aker provided adequate care, and perhaps

better than adequate care, for T.W. for a number of years before the recent

precipitous decline in care that led to her death. The trial court accepted Aker’s

expression of remorse as genuine, and we see no reason to quibble with that

finding. We cannot, however, ignore the way T.W.’s life ended and the role

Aker played in her death. Not only did he cease providing adequate care, but

he also ignored very obvious symptoms that would indicate to even a casual

observer that T.W. was enduring great suffering. Moreover, he acknowledged

that the reason he did not act more quickly on her behalf was rooted in his own

self-interest, i.e., he was afraid he would be blamed for her poor condition. The

decision to elevate his own self-interest above T.W.’s great suffering and even

survival does not reflect well on his character. In the final analysis, we find no

fault in the imposition of a sentence that, although the maximum permissible

under the terms of the plea agreement, was nevertheless below the advisory

Court of Appeals of Indiana | Memorandum Decision 53A01-1409-CR-411 | April 17, 2015 Page 11 of 12 sentence for a class B felony. We do not believe that Aker’s character and the

nature of his offense compel this court to conclude that an eight-year sentence is

inappropriately long.

[20] Judgment affirmed.

Baker, J., and Najam, J., concur.

Court of Appeals of Indiana | Memorandum Decision 53A01-1409-CR-411 | April 17, 2015 Page 12 of 12