Mack Arthur Giles III v. State of Indiana (mem. dec.)

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