Court of Appeals of Indiana | Memorandum Decision 24A01-1505-CR-401 | December 23, 2015 Page 1 of 12

MEMORANDUM DECISION

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

Kimberly A. Jackson

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Indianapolis, Indiana

Paula J. Beller

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Charles E. Nichols,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

December 23, 2015

Court of Appeals Case No.

24A01-1505-CR-401

Appeal from the Franklin Circuit 

Court

The Honorable Clay M. 

Kellerman, Judge

Trial Court Cause No.

24C02-1404-FD-239, 24C02-1412-

CM-1454, and 24C02-1501-CM-2

Altice, Judge.
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Case Summary

[1] Charles E. Nichols pled guilty to class D felony Domestic Battery,1class D 

felony Strangulation,2 and two counts of class A misdemeanor Invasion of 

Privacy.3 The trial court sentenced him to an aggregate term of five years in 

prison, with 180 days suspended to probation. On appeal, Nichols contends 

that the trial court abused its discretion with regard to finding mitigating and 

aggravating circumstances. He also challenges his sentence as inappropriate.

[2] We affirm.

Facts & Procedural History

[3] On February 20, 2014, Nichols was convicted of battering his wife, D.N. He 

was sentenced to 365 days in jail with 305 days suspended to probation for this 

domestic battery. Accordingly, he would have been released to probation in 

late March of that year. As a condition of probation, Nichols was ordered to 

complete anger management counseling.

[4] Within two weeks of his release, Nichols attacked D.N. again. This time he 

grabbed her by the hair and then put his hands around her neck and began 

 

1

Ind. Code § 35-42-2-1.3. Effective July 1, 2014, this offense was reclassified as a Level 6 felony. Because 

Nichols committed the offense prior to that date, it retains its prior classification as a class D felony.

2

I.C. § 35-42-2-9(b)(1). Effective July 1, 2014, this offense was reclassified as a Level 6 felony. Because 

Nichols committed the offense prior to that date, it retains its prior classification as a class D felony.

3

Ind. Code § 35-46-1-15.1.
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choking her until she was unable to breathe. Her neck was bruised as a result of 

the force Nichols used to choke her. The abuse was not reported to police until 

April 9, 2014, when one of D.N.’s coworkers noticed the injuries and 

intervened.

[5] The State charged Nichols, in cause number 24C02-1404-FD-239 (FD-239), 

with domestic battery and strangulation, both as class D felonies. He was 

arrested on April 11, 2014, and subsequently ordered by the trial court to have 

no contact with D.N. On June 10, 2014, Nichols bonded out of jail. 

[6] Despite the no contact order, Nichols and D.N. attempted reconciliation 

following his release. They divorced, however, in July 2014. Nichols 

continued to violate the no contact order by calling and coming over to D.N.’s 

home “all the time.” Transcript at 19. He refused to leave on several occasions, 

despite pleas from D.N. On December 17, 2014, police arrested Nichols when 

he refused to leave D.N.’s trailer. He bonded out of jail and returned to her 

trailer the next day, leaving only when she called 911. 

[7] These two incidents resulted in separate charges for invasion of privacy filed 

under cause numbers 24C02-1412-CM-1454 (CM-1454) and 24C02-1412-CM1455 (CM-1455). On December 31, 2014, the State moved to revoke Nichols’s 

bond in FD-239 as a result of the violations.

[8] Undeterred, Nichols returned to D.N.’s trailer on January 2, 2015, while still 

out on bond. D.N. went to a neighbor’s home and called 911. Nichols was 

again arrested, resulting in a third charge for invasion of privacy filed under 
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cause number 24C02-1501-CM-2 (CM-2). Nichols continued to call D.N. from 

jail after his arrest, but she refused his calls. 

[9] At the bond revocation hearing on January 29, 2015, D.N. testified regarding 

Nichols’s history of violence toward her. She also indicated that he had made 

recent threats against her and that she feared for her safety and was “terrified of 

him.” Id. at 28. Accordingly, the court revoked bond in FD-239.

[10] On March 11, 2015, the State filed a motion for leave to amend the information 

in FD-239 to include a habitual offender count. The State explained in the 

motion that it had not sought to charge Nichols as a habitual offender earlier 

due to plea negotiations that included an offer by the State to forego such a 

filing. With Nichols’s jury trial on the horizon, the State indicated that a plea 

agreement now appeared unlikely. The court granted the State’s motion for 

leave to amend the information. The State, however, did not file the 

amendment before Nichols decided to plead guilty to the FD-239 charges of 

domestic battery and strangulation on April 2, 2015.

[11] Thereafter, on April 23, 2015, combined plea and sentencing hearings were 

conducted in FD-239, CM-1454, CM-1455, and CM-2. Pursuant to a plea 

agreement, Nichols pled guilty to the invasion of privacy charges in CM-1454 

and CM-2. The State agreed to dismiss CM-1455 in exchange. The trial court 

sentenced Nichols to one year executed on each of the two misdemeanor 

convictions. The court ordered these sentences to be served consecutively 

because the offenses were committed while Nichols was out on bond. In FD-
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239, the court sentenced Nichols on each count to three years in prison with 

180 days suspended to probation. The court ordered these sentences to be 

served concurrently with each other but consecutively to the misdemeanor 

sentences.

Discussion & Decision

[12] Nichols challenges his sentence on two grounds. First, he contends that the 

trial court abused its discretion in its determination of aggravating and 

mitigating circumstances. Second, he argues that his aggregate sentence of five 

years with all but 180 days executed is inappropriate in light of the nature of his 

offenses and his character. We will address each in turn.

1. Abuse of Discretion

[13] Sentencing decisions rest within the sound discretion of the trial court and are 

reviewed by this court only for an abuse of discretion. Sandleben v. State, 29 

N.E.3d 126, 135 (Ind. Ct. App. 2015), trans. denied. An abuse of discretion 

occurs 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. When imposing a sentence for a felony, 

a trial court must enter a sentencing statement including reasonably detailed 

reasons for imposing a particular sentence. Id. A trial court abuses its 

discretion when it fails to issue a sentencing statement, gives reasons for 

imposing a sentence that are not supported by the record, omits reasons clearly 
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supported by the record and advanced for consideration, or considers reasons 

that are improper as a matter of law. Id.

[14] The trial court issued the following sentencing statement with respect to the 

felony convictions:

[S]everal things concern me about this case. Number 1, it, it was 

a very violent act, um, to someone you purport to, to love. 

That’s concerning. Um, you had multiple aggravators in this 

case, an extensive criminal history, a presentence investigation 

indicates that you have a very high risk to reoffend. There’s 

substance abuse issues. Um, and another thing that concerns me 

a little bit is all I keep hearing is blame. You’re blaming her for 

this. Or, you know what really happened. Or, almost blaming 

the Court or the system for not providing you the help or the 

resources. I look at your criminal history, you’ve been a [sic] 

probation a lot. And you recognize that you have a drug and 

alcohol problem but I can’t see that you’ve ever taken any 

ownership in it and said, “I’m going to do something about it.” I 

can’t make you not drink. The prosecutor can’t do that. That’s 

solely up to you. ... [Y]ou said, “I don’t know what the Court 

wants me to do.” Well, I can tell you what this Court wants you 

to do. Don’t be here anymore. You know, don’t commit...any 

criminal offenses. Don’t strangle somebody that you say you 

love. That’s what I’m asking you to do as a Court. Um, so, the 

Court’s best option that I can find to help you, help yourself, 

would be to place you in the Department of Corrections [sic] and 

make you eligible for Purposeful Incarceration so hopefully, 

whatever programs are available...you take advantage of.

Transcript at 72-73. 

[15] Nichols initially challenges the portion of the trial court’s statement indicating 

that he was blaming the victim for his crimes. There is ample support in the 
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record for the court’s statement in this regard. The most brazen example is the 

following from Nichols’s testimony at the sentencing hearing:

[Nichols]: I’m sorry. I’m sorry that I hurt her. I’m sorry that I –

I hurt myself more than I hurt her. ‘Cause I’m the one in 

jail. She ain’t in jail. She’s still running around, uh, doing 

whatever she wants to do.

****

[State]: What does anything of that have to do with smacking 

her around?

[Nichols]: Well, the truth know, your Honor, er Sir, Jesus Christ 

and me and her knows what happened. And she knows 

that she wasn’t smacked around. It was hickeys on her 

neck. She knows that. And she – karma will come around 

and she knows what happened and so do I. Yes, I got a 

temper. Yes I do. I admit that. I admit it. Just like I 

admit I love her with all my heart still today. Even though 

I did two hundred and some days in jail. Maybe I deserve 

it. Maybe that’s the reason why Jesus Christ put me on 

this Earth for was to go to prison.

Id. at 69-70. The trial court did not err in recognizing Nichols’s attempts to 

blame the victim.

[16] Nichols also argues that the trial court abused its discretion by noting that he 

committed an act of violence against a woman he purported to love. He claims 

this amounts to the improper use of an element of the domestic battery offense 

as an aggravating circumstance. 
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[17] It is clear that a trial court may not rely on a material element of the offense 

when imposing a sentence greater than the advisory absent something unique 

about the circumstances that would justify deviating from the advisory 

sentence. See Gomillia v. State, 13 N.E.3d 846, 852-53 (Ind. 2014). What is not 

clear here is that the trial court utilized Nichols’s marital status with the victim 

as an aggravating circumstance. The trial court’s reference to Nichols harming 

someone he purported to love appears to be in direct response to Nichols’s 

testimony at the sentencing hearing. Moreover, the trial court made this brief 

observation and then turned to the aggravating circumstances it found, which 

did not include their domestic relationship. We find no error in this regard.

[18] Finally, with respect to his abuse of discretion argument, Nichols argues that 

the trial court failed to consider his guilty plea as a mitigating circumstance. 

Nichols asserts that he received no benefit for his guilty plea in FD-2394 and, 

therefore, it should have been given substantial mitigating weight.

[19] A defendant who pleads guilty deserves to have at least some mitigating weight 

extended in return. Lavoie v. State, 903 N.E.2d 135, 143 (Ind. Ct. App. 2009). 

“But an allegation that the trial court failed to identify or find a mitigating 

factor requires the defendant to establish that the mitigating evidence is not only 

supported by the record but also that the mitigating evidence is significant.” 

 

4 Nichols also argues this mitigating circumstance with respect to the misdemeanor cases, CM-1454 and CM2. This is a perplexing argument given the fact that a trial court is not required to enter a sentencing 

statement when imposing a sentence for a misdemeanor offense. 
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Anglemyer v. State, 875 N.E.2d 218, 220-21 (Ind. 2007) (opinion on rehearing). 

The extent to which a guilty plea is mitigating will vary from case to case, and a 

plea will not necessarily constitute a significant mitigating circumstance in 

every case. Lavoie, 903 N.E.2d at 143. Specifically, “a guilty plea does not rise 

to the level of significant mitigation where the defendant has received a 

substantial benefit from the plea or where the evidence against him is such that 

the decision to plead guilty is merely a pragmatic one.” Wells v. State, 836 

N.E.2d 475, 479 (Ind. Ct. App. 2005), trans. denied. 

[20] Even though the State had not filed its amended information adding the 

habitual offender count, it is clear that Nichols avoided this significant 

sentencing enhancement by pleading guilty. He did so shortly after the trial 

court granted the State leave to file the amendment. Consequently, Nichols 

received a substantial benefit as a result of the plea, and he has not 

demonstrated that his guilty plea was a significant mitigating circumstance. We 

therefore conclude that the trial court did not abuse its discretion by omitting 

reference to the plea when imposing sentence.

2. Appropriateness of Sentence

[21] Pursuant to Ind. Appellate Rule 7, 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). 

Our review in this regard is “very deferential” to the trial court. See Conley v. 
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State, 972 N.E.2d 864, 876 (Ind. 2012). “Such deference should prevail unless 

overcome by compelling evidence portraying in a positive light the nature of the 

offense (such as accompanied by restraint, regard, and lack of brutality) and the 

defendant’s character (such as substantial virtuous traits or persistent examples 

of good character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015). 

[22] “The 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, 1292 (Ind. 2014). 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). Nichols bears 

the burden of persuading us that his sentence is inappropriate. See Conley, 972 

N.E.2d at 876.

[23] Here, the trial court imposed the maximum sentence of one year executed for 

both of the class A misdemeanor convictions. See Ind. Code § 35-50-3-2. The 

court also imposed the maximum term for both of the class D felonies – three 

years in prison – but suspended 180 days and ordered the sentences to be served 

concurrently with each other. See I.C. § 35-50-2-7(a) (class D felonies carry a 

sentencing range of six months to three years, with an advisory sentence of one 

and one-half years). The misdemeanor sentences were statutorily required to be 

served consecutively to one another and to the FD-239 sentence because he 

committed them while out on bond. See I.C. § 35-50-1-2(e)(2)(B).
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[24] We turn first to the nature of the offenses. On appeal, Nichols makes excuses 

for his multiple violations of the no contact order and argues that D.N. had no 

lasting injury as a result of the battery and strangulation. His arguments are not 

persuasive. Our review of the evidence reveals a complete lack of restraint by 

Nichols. Shortly after being released to probation, Nichols went back to 

battering his wife; this time in a particularly violent attack that left visible 

injuries to her that lasted over a week. Then, while out on bond in FD-239, he 

violated the no contact order multiple times – even after the victim pleaded for 

him to leave her residence and after being arrested for violating that same order. 

In sum, Nichols has failed to provide even the slightest evidence, much less 

compelling evidence, portraying the nature of his offenses in a positive light.

[25] His character is even less helpful to his cause. As discussed previously, despite 

entering guilty pleas, Nichols exhibited no genuine remorse or acceptance of 

responsibility for his offenses. Further, his criminal history is aggravating with 

eight felony convictions, eleven misdemeanor convictions, and two probation 

violations. While many of his past crimes appear to be related to substance 

abuse, the trial court aptly observed that Nichols has taken no ownership of his 

drug and alcohol problems. Nor has he addressed his anger issues. As a result, 

Nichols remains exceedingly likely to reoffend.

[26] Sentencing revision is not supported by the nature of the offenses or Nichols’s 

character. Accordingly, we do not find his five-year, partially suspended 

sentence inappropriate.
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[27] Judgment affirmed.

[28] Riley, J. and Brown, J., concur.