Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                        FILED
any court except for the purpose of                        Dec 27 2012, 8:57 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.                      CLERK
                                                                of the supreme court,
                                                                court of appeals and
                                                                       tax court




ATTORNEY FOR APPELLANT:                           ATTORNEYS FOR APPELLEE:

ZACHARY A. WITTE                                  GREGORY F. ZOELLER
Fort Wayne, Indiana                               Attorney General of Indiana

                                                  ANGELA N. SANCHEZ
                                                  Deputy Attorney General
                                                  Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

TODD FULLER,                                      )
                                                  )
       Appellant-Defendant,                       )
                                                  )
               vs.                                )       No. 02A03-1205-CR-223
                                                  )
STATE OF INDIANA,                                 )
                                                  )
       Appellee-Plaintiff.                        )


                      APPEAL FROM THE ALLEN SUPERIOR COURT
                          The Honorable Wendy W. Davis, Judge
                             Cause No. 02D05-1202-FD-194



                                      December 27, 2012


                MEMORANDUM DECISION - NOT FOR PUBLICATION


SHARPNACK, Senior Judge
                              STATEMENT OF THE CASE

       Todd Fuller appeals his aggregate three-year sentence for Class D felony domestic

battery in the presence of a child and Class A misdemeanor interference with the

reporting of a crime. We affirm.

                                          ISSUES

       Fuller raises two issues on appeal:

       I.     Whether the trial court abused its discretion in sentencing him.

       II.    Whether his sentence is inappropriate.

                        FACTS AND PROCEDURAL HISTORY

       In February 2012, Fuller returned home heavily intoxicated after a night of

drinking with friends and started arguing with his wife Amy Fuller. The yelling woke up

their one-year-old child B.F., and Fuller continued to yell as Amy tried to get B.F. back

to sleep. Amy then carried B.F. in her arms and attempted to walk to another room so

B.F. would fall asleep. Fuller followed them, still yelling, and struck Amy with a closed

fist on the left side of her face just below the eye, causing redness and bruising. Amy

was still holding B.F. at the time Fuller struck her.

       Amy tried to use their home phone to call the police, but Fuller knocked it out of

her hands, stomped on it, and broke it. As Fuller pulled the phone lines out of the wall,

Amy fled to a neighbor’s residence with B.F. and contacted the Fort Wayne Police

Department. When the police arrived, Amy told them that Fuller always hits her in the

same location on her face and that it had been worse in the past.



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       The State charged Fuller with Class D felony domestic battery and Class A

misdemeanor interference with the reporting of a crime. Fuller pleaded guilty without the

benefit of a plea agreement.

       At the sentencing hearing, the trial court found Fuller’s guilty plea as the only

mitigator. As aggravators, the court noted his criminal history, the circumstances of the

offense, and the failure of prior attempts at rehabilitation. The court stated it would

sentence Fuller to three years with six months suspended to probation on the battery

conviction and a concurrent one year on the interference conviction. The court then

explained to Fuller his right to appeal and asked him if he wished to appeal. He indicated

he did, and the court requested counsel to perfect the appeal. The prosecutor then

informed the court that the bailiff said Fuller was refusing to sign the order requiring him

to have no contact with Amy. At that point, Fuller said, “I’ll sign. I’ll sign it. I’ll sign

it.” Tr. p. 17. When the court asked the bailiff for verification, the bailiff said, “He said

he didn’t want to sign it.” Id. at 18. The court then said, “All right. You know what?

I’ll just make this really easy. Considering that, I’ll just give him three years in the

Indiana Department of Correction[ ]. The[re]’ll be no probation in this case.” Id. Fuller

now appeals.

                               DISCUSSION AND DECISION

                                I. ABUSE OF DISCRETION

       Fuller contends that the trial court abused its discretion when it changed his

sentence from three years with six months suspended to probation to three years fully

executed without finding any additional aggravators.

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       Subject to the review and revision power discussed below, sentencing decisions

rest within the sound discretion of the trial court and are reviewed on appeal 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 (2007). An abuse of discretion occurs if the 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.

       Here, the trial court found that the aggravators outweighed the mitigator and

imposed an aggregate sentence of three years with six months suspended to probation.

However, after learning that Fuller refused to sign the no-contact order, the court

reevaluated its initial sentencing determination and decided that Fuller’s defiance

warranted a fully executed sentence. We cannot conclude that merely because the court

had already pronounced the sentence that it could not reconsider it in light of Fuller’s

subsequent actions at the sentencing hearing. Put another way, until the court signed and

entered the sentencing order, the issue of sentencing remained in fieri.

       In determining whether the trial court abused its discretion in sentencing, we

consider only the sentence that was ultimately imposed. The trial court imposed three

years with no period of probation. Probation is a matter of grace left to the trial court’s

discretion, not a right to which a criminal defendant is entitled. Prewitt v. State, 878

N.E.2d 184, 188 (Ind. 2007). Given that Fuller has had prior revocations of probation,

the trial court was well within its discretion in not granting probation.




                                              4
                            II. INAPPROPRIATE SENTENCE

       Fuller also contends that his sentence is inappropriate. Although a trial court may

have acted within its lawful discretion in imposing a sentence, Article 7, Sections 4 and 6

of the Indiana Constitution authorize independent appellate review and revision of

sentences through Indiana Appellate Rule 7(B), which provides that a court “may revise a

sentence authorized by statute 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.” Reid v. State, 876 N.E.2d 1114, 1116 (Ind. 2007) (citing

Anglemyer, 868 N.E.2d at 491). The defendant has the burden of persuading us that his

sentence is inappropriate. Id. (citing Childress v. State, 848 N.E.2d 1073, 1080 (Ind.

2006)).

       We first look to the statutory ranges established for the classes of the offenses.

Fuller pleaded guilty to a Class D felony and a Class A misdemeanor. The statutory

range for a Class D felony is between six months and three years, with the advisory

sentence being one and a half years. Ind. Code § 35-50-2-7(a) (2005). For a Class A

misdemeanor, a person may not be imprisoned for more than one year. Ind. Code § 35-

50-3-2 (1977). The trial court imposed the maximum term on each count and ordered

them to be served concurrently, for an aggregate sentence of three years.

       We next look to the nature of the offenses and Fuller’s character. As to the nature

of the offenses, Fuller returned home drunk and picked a fight with his wife. She tried to

walk away, but he followed her and punched her in the face while she was carrying their

one-year-old child. When she tried to call the police, he smacked the phone out of her

                                             5
hands, stomped on it, broke it, and pulled the phone lines out of the wall. His wife had to

flee with their child to a neighbor’s residence to call the police.

       As to Fuller’s character, he has both juvenile and adult criminal records. As a

juvenile, he was reprimanded and released for shoplifting. He was also found delinquent

for theft, had his probation revoked, and was committed to the Indiana Boys’ School. As

an adult, Fuller has accumulated prior convictions for twelve misdemeanors and three

felonies. Keeping in mind that the incident here involved intoxication and battery, we

note that his prior crimes have included, among others, two convictions for battery and

several drug and alcohol convictions. Fuller has been given the benefit of probation but

has had it revoked. Moreover, there was evidence that Amy’s face had just healed from

Fuller punching her on New Year’s Eve when these offenses occurred. According to the

probable cause affidavit, which was made a part of the record, Amy had told the police

that Fuller always hits her in the same place and indicated that her injuries had been

worse in the past. The presentence investigation report shows that he is at high risk to

reoffend. In addition, Fuller used to be a member of the Outlaws or at least “h[u]ng

around them all the time.” Appellant’s App. p. 15; Tr. p. 13.

       Fuller nonetheless argues that his sentence is inappropriate because the trial court

improperly used the nature of the domestic battery offense twice against him: first, his

argument goes, because the domestic battery was elevated from a Class A misdemeanor

to a Class D felony due to the presence of a child; and second, because the court cited the

circumstances of the offense as an aggravator, specifically, that “[a]ny time a man takes

his fist and puts it in the face of a woman, that’s about as aggravating as you can get.”

                                               6
Tr. p. 14. We disagree. Simply because the legislature has elevated the offense of

domestic battery to a Class D felony if it is committed in the presence of a child does not

prohibit the trial court from using other circumstances of the crime as an aggravator.

       Fuller has failed to persuade us that his three-year sentence is inappropriate.

                                      CONCLUSION

       For the reasons stated, we affirm Fuller’s sentence.

       Affirmed.

BROWN, J., and PYLE, J., concur.




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