MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Dec 22 2020, 8:52 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Kristin A. Mulholland Curtis T. Hill, Jr. Appellate Public Defender Attorney General of Indiana Crown Point, Indiana Conner R. Dickerson Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Mack Arthur Giles III, December 22, 2020 Appellant-Defendant, Court of Appeals Case No. 20A-CR-1408 v. Appeal from the Lake Superior Court State of Indiana, The Honorable Samuel L. Cappas, Appellee-Plaintiff. Judge Trial Court Cause No. 45G04-1909-F3-161
Weissmann, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-1408 | December 22, 2020 Page 1 of 6 [1] Mack Arthur Giles III broke the wrist of a child entrusted to his care. He then
delayed reporting the injury and falsified a written report of the abuse.
Although Giles later admitted his wrongdoing, he claims his four-year sentence
for neglect of a dependent is inappropriate in light of the nature of the offense
and his character. As Giles has failed to demonstrate his sentence is
inappropriate, we affirm the trial court’s judgment.
Facts [2] Giles worked at the A is for Apple Learning Center, a Hammond daycare
facility attended by five-year-old A.T. and his eight-year-old brother. When an
energetic A.T. became distracting, Giles escorted A.T. outside, where a security
camera caught Giles’ attempts to discipline the child. Giles admitted he “jerked
[A.T.] to the ground and back to his feet multiple times” and “twisted the arm
of [A.T.] while standing and on the ground.” App. Vol. II p. 76. These acts
bruised the child’s shoulder and broke his wrist. Instead of reporting to his
supervisors, Giles hid the child’s injury for three hours.
[3] The State originally charged Giles with three counts of neglect of a dependent
resulting in serious bodily injury as Levels 3, 5, and 6 felonies. See Ind. Code §
35-46-1-4. The State also charged Giles with battery as both a Level 5 and
Level 6 felony. See Ind. Code § 35-42-2-1 (2018). Giles and the State entered
into a plea agreement calling for Giles to plead guilty to neglect of a dependent,
a Level 5 felony, in exchange for dismissal of the remaining counts. After
accepting the agreement, the trial court imposed a four-year sentence, with
Court of Appeals of Indiana | Memorandum Decision 20A-CR-1408 | December 22, 2020 Page 2 of 6 three years to be served in prison and one year to be served in Community
Corrections.
Discussion and Decision [4] Giles raises one issue on appeal: whether this Court should revise his sentence
under Indiana Appellate Rule 7(B). That rule permits revision of a sentence
authorized by statute where the sentence is “inappropriate in light of the nature
of the offense and the character of the offender.” Id. Whether a sentence is
inappropriate turns on the culpability of the defendant, the severity of the
offense, the damage done to others, and a myriad of other facts evident in a
particular case. Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008).
[5] Giles claims his guilty plea, remorse, lack of criminal history, youth, and
general good character justify a term of probation and not incarceration. The
sentencing range for a Level 5 felony is between one and six years, with an
advisory sentence of three years imprisonment. Ind. Code § 35-30-2-6(b). That
places Giles’s four-year sentence slightly above the advisory level.
[6] The nature of the offense was shocking. Giles significantly harmed a five-year-
old child entrusted to his care. Commission of a crime while in a position of
trust justifies a harsher sentence. See Ind. Code § 35-38-1-7.1(a)(8). Giles broke
the small boy’s wrist during a three-minute “exercise” session during which
Giles twisted his arm while flinging him up and down. The abuse continued
even after the child seemingly began to cry and signaled by shaking his wrist
Court of Appeals of Indiana | Memorandum Decision 20A-CR-1408 | December 22, 2020 Page 3 of 6 that he had been injured. The child’s brother watched through a window and
endured his brother’s screams.
[7] When A.T. complained of pain, Giles iced A.T.’s wrist but did not report the
early morning injury to the daycare administrators until three hours later. More
than six hours after the abuse, the daycare informed A.T.’s mother that A.T.
had injured his arm in a fall and was falsely blaming a teacher for hurting him.
A.T.’s mother learned otherwise only after observing bruises in the shape of
fingers on A.T.’s upper shoulder that evening.
[8] During an investigation by the Indiana Department of Child Services (DCS),
the DCS worker who viewed the security video recommended Mother seek
medical attention for A.T. Only then did Mother know to take A.T. to the
hospital, where he was diagnosed with a broken wrist and placed in a full arm
cast. Given these facts, Giles has not convinced us that the nature of the
offense demands a lesser sentence.
[9] Giles next argues that his decision to plead guilty reflects positively on his
character. Through his plea agreement, Giles admitted to a mid-level felony in
exchange for dismissal of five other offenses, ranging from a Level 6 felony to a
Level 3 felony. In so doing, he ensured his maximum sentencing exposure was
six years, rather than sixteen years for the Level 3 felony alone. See Ind. Code
§ 35-50-2-5(b). For that reason, and because the security video left no doubt as
to Giles’s criminal culpability, Giles’s guilty plea was pragmatic and offered
little reason for leniency. See Anglemyer v. State, 875 N.E.2d 218, 221 (Ind.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-1408 | December 22, 2020 Page 4 of 6 2007) (observing that a guilty plea is not significantly mitigating where the
defendant receives a substantial benefit from it).
[10] At sentencing, Giles was a remorseful twenty-three-year-old with one year of
college and no criminal convictions. Though these factors reflect positively on
Giles’ character, the trial court likely considered these details in opting not to
impose the maximum sentence and by allowing Giles to serve part of his time
in Community Corrections. Moreover, his post-offense actions counterbalance
his remorse. A.T. suffered needless additional pain for many hours—perhaps
more than a day—because Giles concealed the injury he caused. When Giles
finally divulged the injury, he lied and reported the child “tripped with both
arms out to brace the fall.” State’s Ex. 3. Although Giles claimed he was
instructed by the daycare to falsify that written report, the daycare’s deception
did not justify his own.1
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Dec 22 2020, 8:52 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Kristin A. Mulholland Curtis T. Hill, Jr. Appellate Public Defender Attorney General of Indiana Crown Point, Indiana Conner R. Dickerson Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Mack Arthur Giles III, December 22, 2020 Appellant-Defendant, Court of Appeals Case No. 20A-CR-1408 v. Appeal from the Lake Superior Court State of Indiana, The Honorable Samuel L. Cappas, Appellee-Plaintiff. Judge Trial Court Cause No. 45G04-1909-F3-161
Weissmann, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-1408 | December 22, 2020 Page 1 of 6 [1] Mack Arthur Giles III broke the wrist of a child entrusted to his care. He then
delayed reporting the injury and falsified a written report of the abuse.
Although Giles later admitted his wrongdoing, he claims his four-year sentence
for neglect of a dependent is inappropriate in light of the nature of the offense
and his character. As Giles has failed to demonstrate his sentence is
inappropriate, we affirm the trial court’s judgment.
Facts [2] Giles worked at the A is for Apple Learning Center, a Hammond daycare
facility attended by five-year-old A.T. and his eight-year-old brother. When an
energetic A.T. became distracting, Giles escorted A.T. outside, where a security
camera caught Giles’ attempts to discipline the child. Giles admitted he “jerked
[A.T.] to the ground and back to his feet multiple times” and “twisted the arm
of [A.T.] while standing and on the ground.” App. Vol. II p. 76. These acts
bruised the child’s shoulder and broke his wrist. Instead of reporting to his
supervisors, Giles hid the child’s injury for three hours.
[3] The State originally charged Giles with three counts of neglect of a dependent
resulting in serious bodily injury as Levels 3, 5, and 6 felonies. See Ind. Code §
35-46-1-4. The State also charged Giles with battery as both a Level 5 and
Level 6 felony. See Ind. Code § 35-42-2-1 (2018). Giles and the State entered
into a plea agreement calling for Giles to plead guilty to neglect of a dependent,
a Level 5 felony, in exchange for dismissal of the remaining counts. After
accepting the agreement, the trial court imposed a four-year sentence, with
Court of Appeals of Indiana | Memorandum Decision 20A-CR-1408 | December 22, 2020 Page 2 of 6 three years to be served in prison and one year to be served in Community
Corrections.
Discussion and Decision [4] Giles raises one issue on appeal: whether this Court should revise his sentence
under Indiana Appellate Rule 7(B). That rule permits revision of a sentence
authorized by statute where the sentence is “inappropriate in light of the nature
of the offense and the character of the offender.” Id. Whether a sentence is
inappropriate turns on the culpability of the defendant, the severity of the
offense, the damage done to others, and a myriad of other facts evident in a
particular case. Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008).
[5] Giles claims his guilty plea, remorse, lack of criminal history, youth, and
general good character justify a term of probation and not incarceration. The
sentencing range for a Level 5 felony is between one and six years, with an
advisory sentence of three years imprisonment. Ind. Code § 35-30-2-6(b). That
places Giles’s four-year sentence slightly above the advisory level.
[6] The nature of the offense was shocking. Giles significantly harmed a five-year-
old child entrusted to his care. Commission of a crime while in a position of
trust justifies a harsher sentence. See Ind. Code § 35-38-1-7.1(a)(8). Giles broke
the small boy’s wrist during a three-minute “exercise” session during which
Giles twisted his arm while flinging him up and down. The abuse continued
even after the child seemingly began to cry and signaled by shaking his wrist
Court of Appeals of Indiana | Memorandum Decision 20A-CR-1408 | December 22, 2020 Page 3 of 6 that he had been injured. The child’s brother watched through a window and
endured his brother’s screams.
[7] When A.T. complained of pain, Giles iced A.T.’s wrist but did not report the
early morning injury to the daycare administrators until three hours later. More
than six hours after the abuse, the daycare informed A.T.’s mother that A.T.
had injured his arm in a fall and was falsely blaming a teacher for hurting him.
A.T.’s mother learned otherwise only after observing bruises in the shape of
fingers on A.T.’s upper shoulder that evening.
[8] During an investigation by the Indiana Department of Child Services (DCS),
the DCS worker who viewed the security video recommended Mother seek
medical attention for A.T. Only then did Mother know to take A.T. to the
hospital, where he was diagnosed with a broken wrist and placed in a full arm
cast. Given these facts, Giles has not convinced us that the nature of the
offense demands a lesser sentence.
[9] Giles next argues that his decision to plead guilty reflects positively on his
character. Through his plea agreement, Giles admitted to a mid-level felony in
exchange for dismissal of five other offenses, ranging from a Level 6 felony to a
Level 3 felony. In so doing, he ensured his maximum sentencing exposure was
six years, rather than sixteen years for the Level 3 felony alone. See Ind. Code
§ 35-50-2-5(b). For that reason, and because the security video left no doubt as
to Giles’s criminal culpability, Giles’s guilty plea was pragmatic and offered
little reason for leniency. See Anglemyer v. State, 875 N.E.2d 218, 221 (Ind.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-1408 | December 22, 2020 Page 4 of 6 2007) (observing that a guilty plea is not significantly mitigating where the
defendant receives a substantial benefit from it).
[10] At sentencing, Giles was a remorseful twenty-three-year-old with one year of
college and no criminal convictions. Though these factors reflect positively on
Giles’ character, the trial court likely considered these details in opting not to
impose the maximum sentence and by allowing Giles to serve part of his time
in Community Corrections. Moreover, his post-offense actions counterbalance
his remorse. A.T. suffered needless additional pain for many hours—perhaps
more than a day—because Giles concealed the injury he caused. When Giles
finally divulged the injury, he lied and reported the child “tripped with both
arms out to brace the fall.” State’s Ex. 3. Although Giles claimed he was
instructed by the daycare to falsify that written report, the daycare’s deception
did not justify his own.1
[11] Given our usual deference to trial courts’ sentencing determinations, Giles
bears the burden of persuading us his sentence is inappropriate in light of the
1 Giles challenges the State’s reliance on: 1) the probable cause affidavit attached to the presentence investigation report; and 2) the written reports generated by Giles and the daycare admitted at his sentencing hearing as State’s Exhibits 2 and 3. Giles notes such evidence contained information not mentioned in the stipulation of facts attached to the plea agreement. Giles does not offer any basis for prohibiting the trial court’s consideration of additional relevant facts that do not conflict with that stipulation. Regardless, Giles has waived any error in the trial court’s consideration of such information by specifically accepting the presentence investigation report as “true and accurate” and failing to object to the admission of State’s Exhibits 2 and 3. Tr. Vol. II, pp. 17-18; Dillard v. State, 827 N.E.2d 570, 576 (Ind. Ct. App. 2005), trans. denied (ruling that failure to object to a presentence investigation report waives appellate review of the trial court’s consideration of its contents); Angleton v. State, 686 N.E.2d 803, 814 (Ind. 1997), reh. denied, cert. denied, 529 U.S. 1132 (2000) (finding defendant waived any error arising from sentencing exhibit admitted without his objection).
Court of Appeals of Indiana | Memorandum Decision 20A-CR-1408 | December 22, 2020 Page 5 of 6 nature of the offense. Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015);
Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). As he has failed in that
task, we affirm the trial court’s judgment.
Mathias, J., and Altice, J., concur.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-1408 | December 22, 2020 Page 6 of 6