Barker v. State

• Decision Date: 17 September 2013
• Docket Number: No. 73A01–1212–CR–575.,73A01–1212–CR–575.
• Citation: 994 N.E.2d 306
• Parties: Nathan K. BARKER, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff.
• Court: Indiana Appellate Court

994 N.E.2d 306

Nathan K. BARKER, Appellant–Defendant,

v.STATE of Indiana, Appellee–Plaintiff.

No. 73A01–1212–CR–575.

Court of Appeals of Indiana.

Sept. 17, 2013.

Theodore F. Adams, Michael J. Kyle, Baldwin Adams & Kamish, Franklin, IN, Attorneys for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Aaron J. Spolarich, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

CRONE, Judge.

Case Summary

Twenty-two-month-old J.S. died shortly after he was babysat by his mother's live-in boyfriend, Nathan K. Barker. Early in the afternoon, Barker had called J.S.'s mother (“Mother”) at work and told her that J.S. had fallen off the couch. He said that he had called for an ambulance and that the paramedics had said that the child was fine. In fact, he had never called for help. Later that night, Mother called 911, and by the next morning J.S. was on life support. J.S. died later that day, and an autopsy showed that he had suffered massive brain injuries as well as injuries to his abdomen, eyes, mouth, shoulder, thigh, buttocks, and penis.

The State charged Barker with class A felony neglect of a dependent causing death, class A felony battery causing death, and class D felony neglect of a dependent. Barker agreed to plead guilty to class A felony neglect of a dependent causing death, and in exchange, the State agreed to dismiss the remaining charges and to cap the executed portion of his sentence at forty years. The court sentenced Barker to forty-five years, with forty years executed and the remainder suspended to probation, with 120 days to be served on home detention.

Barker now appeals, claiming that the trial court abused its discretion in designating aggravating and mitigating factors and in imposing a term that exceeded the forty-year cap on the executed portion of his sentence. He also claims that his sentence is inappropriate in light of the nature of the offense and his character. Finding that the imposition of 120 days of home detention causes the executed portion of Barker's sentence to exceed the forty-year cap, we remand for a new sentencing order on that issue. In all other respects, we affirm his sentence.

Facts and Procedural History¹

Barker and Mother had dated off and on for several years. In the spring of 2011, they decided to live together in Mother's home. At 10:00 a.m. on August 1, 2011, Mother left for work, and Barker, who was unemployed, stayed at home to watch Mother's twenty-two-month-old son, J.S. Shortly after lunch, Barker called Mother at work and informed her that J.S. had fallen off of the couch, that Barker had called for an ambulance, and that the paramedics had examined J.S. and found him to be fine. There was no record of an ambulance ever being called or observed at the apartment.

When Mother returned home mid-afternoon, J.S. was sleeping, but Mother noticed that he had a bruise on his forehead and an injury on his lip. When he awoke, Mother fed him a popsicle, which he vomited. When she fed him dinner, he would not eat and vomited the juice that he drank. She went to the pharmacy to get him some nausea medicine. She checked on him around 11:30 p.m., only to discover that his fingernails were blue and he was not breathing. She immediately called 911 and performed CPR on J.S. while awaiting the paramedics.

J.S. was transported to a Shelby County hospital and transferred by lifeline helicopterto Riley Hospital in Indianapolis. There, J.S. was placed on life support. Early the next morning, pediatric abuse specialist Dr. Tara Harris examined J.S. Dr. Harris found significant bruising on his forehead, an injury to his jaw, and bruising under his chin. She determined that the injuries likely occurred from multiple separate impacts. J.S. also had an abrasion on his shoulder and bruising on his thigh and buttocks. His penis had multiple abrasions. His spleen was lacerated and hemorrhaging due to force to the abdomen. His pancreas also bore abnormalities consistent with trauma. He had three brain injuries: a subdural hematoma, a parenchymal hemorrhage, and a trauma-related lack of differentiation between gray and white brain matter. An autopsy listed the cause of J.S.'s death as force trauma to the head and the manner of death to be homicide.

On August 22, 2011, the State charged Barker with class A felony neglect of a dependent resulting in death, class A felony battery resulting in death, and class D felony neglect of a dependent. After several continuances, the trial date was set for September 24, 2012. Two weeks before trial, Barker entered into a plea agreement whereby he would plead guilty to class A felony neglect of a dependent causing death in exchange for the State's dismissal of the remaining counts and a forty-year cap on the executed portion of his sentence. The trial court retained discretion to set the terms and conditions of the suspended portion of his sentence.

At the December 7, 2012, sentencing hearing, the trial court accepted Barker's guilty plea, heard witness testimony, and admitted Dr. Harris's deposition. The court sentenced Barker to forty-five years, with forty years executed, the balance suspended to probation, and 120 days of his probation to be served on home detention. In its sentencing order, the trial court stated, “The nature and circumstances of the crime committed are horrific and the acts committed are unimaginable which resulted in the loss of a twenty-two month old child's life.” Appellant's Amended App. at 165. The order also states,

The Court finds the following aggravating factors:

1. The harm and injuries suffered by the victim were greater than the elements necessary to prove the commission of the offense. The harm suffered by the victim was beyond brutal. The victim suffered bruising on his left thigh and buttocks, multiple abrasions on his penis, bruising on his forehead, swelling in the center of his forehead, bruising to the left side of his hairline, bruising under his chin and jaw area, abrasions to his cheek, neck, both sides of his jaw line and extended down onto the neck, abrasions on the back of his left shoulder, intra abdominal injury, lacerated spleen and a red circular mark to his right chest. He suffered intra cranial hemorrhage, severe brain injury, subdural and parenchymal hematoma [on] the sides of his neck; all according to the deposition of Dr. Tara Harris. Dr. Harris's testimony indicates that these injuries had to be a result of violent shaking or an acceleration/deceleration of significant force. There is no logical way these injuries could have been sustained from falling from the couch. The Court assigns this factor significant weight.

2. Defendant was in a position of care, custody and control of the victim when this offense occurred. Defendant and the victim's mother were living together when this offense occurred;Defendant was providing child care while the victim's mother was working. Defendant violated every standard of care one could conceive. The Court assigns this factor significant weight.

3. Defendant had the opportunity to seek medical assistance for the victim and did not do so; Defendant then lied to the child's mother telling her paramedics had been called and that the child was okay. The Court assigns this factor significant weight.

This Court finds the following mitigating factor:

1. Defendant's family has a history of Huntington's disease. Defendant cared for his ailing father and watched his father suffer and die from this disease. Other family members have also died as a result of this disease. This was a traumatic experience for Defendant who does not know if he has the disease. The Court assigns this factor moderate weight.

Id. at 166–67.

Barker now appeals. Additional facts will be provided as necessary.

Discussion and Decision²

I. Aggravating and Mitigating Circumstances

Sentencing decisions rest within the sound discretion of the trial court, and as long as a sentence is within the statutory range, it is subject to review only for an abuse of discretion. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind.2007), clarified on reh'g,875 N.E.2d 218. An abuse of discretion occurs where the trial court's decision is clearly against the logic and effect of the facts and circumstances before it. Robinson v. State, 894 N.E.2d 1038, 1042 (Ind.Ct.App.2008). The trial court sentenced Barker to a forty-five-year term for his class A felony conviction, which carries a sentencing range of twenty to fifty years. Ind.Code § 35–50–2–4. Thus, his sentence is within the statutory range, and we review it for an abuse of discretion.

In its sentencing statement, the trial court cited only one mitigator: Barker's family history of Huntington's disease. Barker contends that the trial court abused its discretion in failing to consider his guilty plea and remorse as mitigating circumstances. One way that a trial court may abuse its discretion is if the sentencing statement omits reasons that are clearly supported by the record and advanced for consideration. Anglemyer, 868 N.E.2d at 491. The relative weight or value assignable to mitigators and aggravators is not subject to review for abuse of discretion. Id. The trial court is not obligated to accept the defendant's argument concerning what constitutes a mitigating factor. Healey v. State, 969 N.E.2d 607, 616 (Ind.Ct.App.2012), trans. denied. Moreover, if the trial court does not find the existence of a mitigator after it has been argued by counsel, the court is not obligated to explain why it found the circumstance not to be mitigating. Anglemyer, 868 N.E.2d at 493.

In arguing that the trial court improperly ignored his guilty plea, Barker cites the lengthy witness list, claiming that his plea relieved the State of the burden of having to litigate a case of such magnitude that “would have taken an extreme emotional, physical, and fiscal toll on all parties associated with it.” Appellant's Br. at 5. “A guilty plea is not...