Court of Appeals of Indiana | Memorandum Decision 19A-CR-2065| February 10, 2020 Page 1 of 7

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

Donald E.C. Leicht

Peru, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr. 

Attorney General of Indiana

Evan Matthew Comer

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Michael Shepard,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

February 10, 2020

Court of Appeals Case No.

19A-CR-2065

Appeal from the

Howard Circuit Court

The Honorable

Lynn Murray, Judge

Trial Court Cause No.

34C01-1708-F6-175

Kirsch, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2065| February 10, 2020 Page 2 of 7

[1] Michael Shepard (“Shepard”) pleaded guilty to battery resulting in moderate 

injury,1 a Level 6 felony, and the trial court imposed a thirty-month sentence. 

Shepard raises one issue, which we restate as whether the lack of treatment 

programs ordered in his sentence make his sentence inappropriate.

[2] We affirm.

Facts and Procedural History

[3] In May of 2016, R.W. and Shepard became romantically involved. Shortly 

thereafter, Shepard began to abuse R.W. Appellant’s App. Vol. 2 at 14. Over 

several months, Shepard repeatedly struck her, threatened her with a knife, 

searched her body cavities, and threatened to murder her thirteen-year-old son. 

Id.

[4] On January 22, 2017, R.W. went to a laundromat in Kokomo. Id. at 15. 

Because she was homeless, she put all her belongings in a bag and took the bag 

with her to the laundromat. Id. Shepard came to the laundromat a few minutes 

later. Id. Shepard struck R.W.’s face and ear several times causing “a massive 

amount of pain.” Id. R.W. began to bleed from her ear and temporarily lost 

hearing. Id. After he stopped beating R.W., Shepard walked toward her bag of 

belongings. Id. Shepard had often taken R.W.’s belongings, and R.W. pulled 

out a knife and lunged at Shepard, but did not cut him. Id. Shepard fled. Id. 

1

See Ind. Code § 35-42-2-1(e)(2).
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[5] On August 28, 2017, the State charged Shepard with battery causing moderate 

injury, a Level 6 felony, and alleged that Shepard was an habitual offender. Id. 

at 10-11. On July 3, 2019, Shepard agreed to plead guilty to the battery charge 

in exchange for dismissal of the habitual offender allegation. Shepard’s 

sentence was left to the trial court’s discretion. Id. at 51. Shepard also agreed 

to participate in the Howard County Men’s Non-Violence Program. Id. The

pre-sentence investigation report (“PSI”) indicated that Shepard had completed 

an “Adult Substance Use History Assessment,” and, based on Shepard’s selfreported results, the PSI indicated that Shepard was a candidate for the Howard 

County Alcohol and Drug Program. Appellant’s Conf. App. Vol. 2 at 58 (together, 

“the treatment programs”). 

[6] On August 14, 2019, Shepard formally pleaded guilty, and the trial court 

proceeded directly to sentencing. Tr. Vol. II at 3, 9-10. The State asked the trial 

court to impose a fully executed sentence of thirty months. Id. at 10. Shepard 

agreed that a thirty-month sentence was appropriate, but he argued that he 

should receive a placement that would allow supervised monitoring and the 

treatment programs. Id. at 10-11. The trial court imposed a thirty-month 

sentence, but it declined Shepard’s request for alternative placement and 

treatment programs. 

[Shepard has] been committed to the Department of Corrections 

a number of times and commitments to the county jail a number 

of times. This is his third battery conviction, although first felony 

for battery in ten years. It would seem that everything that this 

court and system has tried to do has not been successful. 

Apparently, [the deputy prosecutor] added the math up, thirty-
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2065| February 10, 2020 Page 4 of 7

nine times in your life you have been arrested. Mr. Shepard, I have 

no confidence that you are able to successfully complete any programs. . . 

. Your overwhelming past history is a strong aggravator here. . . 

. I know part of the plea does require you to complete the batterer’s

program. I’m not, since I’m not suspending any part of that sentence, I 

am not making that part of your sentence in this case, simply that 

you do the time.

Id. at 13-14 (emphasis added). Shepard now appeals.

Discussion and Decision

[7] Although he does not challenge the length of his sentence, Shepard contends his 

sentence is inappropriate because the trial court did not include the treatment 

programs in his sentence. Under Indiana Appellate Rule 7(B), we may revise a 

sentence if we find the sentence inappropriate considering the nature of the 

offense and the character of the offender. Anglemyer v. State, 868 N.E.2d 482, 

491 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (2007). The “nature of 

offense” compares the defendant’s actions with the required showing to sustain 

a conviction under the charged offense, Cardwell v. State, 895 N.E.2d 1219, 1224 

(Ind. 2008), while the “character of the offender” permits a broader 

consideration of the defendant’s character. Anderson v. State, 989 N.E.2d 823, 

827 (Ind. Ct. App. 2013), trans. denied. “[W]hether we regard a sentence as 

appropriate at the end of the day turns on our sense of the culpability of the 

defendant, the severity of the crime, the damage done to others, and myriad 

other factors that come to light in a given case.” Cardwell, 895 N.E.2d at 1224.
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[8] We consider not only the aggravators and mitigators found by the trial court but 

any other factors appearing in the record. Johnson v. State, 986 N.E.2d 852, 856 

(Ind. Ct. App. 2013). We defer to the trial court’s decision, and our goal is to 

determine whether the appellant’s sentence is inappropriate, not whether some 

other sentence would be more appropriate. Conley v. 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). When we 

review a sentence, we seek to leaven the outliers, not to achieve a perceived 

correct result. Cardwell, 895 N.E.2d at 1225. “Aside from revising the length of 

a sentence, the place where a sentence is to be served is also an appropriate 

focus for our review under 7(B).” Livingston v. State, 113 N.E.3d 611, 613 (Ind. 

2018).

[9] In contending that his sentence is inappropriate because it does not include the 

treatment programs, Shepard appears to argue that these programs would have 

provided incentives to improve his behavior. His argument, in its entirety, is as 

follows:

Two programs . . . one by plea agreement and one by evaluation

. . . that are designed to address Shepard’s history and tendencies

. . . two programs to modify attitude and future behavior . . . to 

Shepard’s benefit and to society’s benefit.
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So, what sanction does the Trial Court (or the State) hold over 

Shepard to enforce compliance with the accepted Plea 

Agreement (Men’s Non-Violence Program) or with the

assessment (Alcohol and Drug Program)?

None. Nothing.

Appellant’s Br. at 8.

[10] Shepard cites no supporting authority for his claim, and his argument is not 

cogent. Therefore, he has waived this issue. See Lacey v. State, 124 N.E.3d 

1253, 1257 (Ind. Ct. App. 2019); Ind. Appellate Rule 46(A)(8)(a). Waiver 

notwithstanding, the trial court’s decision not to include the treatment programs 

in Shepard’s sentence does not make his sentence inappropriate. First, his 

sentence was not inappropriate based on the nature of his offense. Shepard 

battered R.W.’s face several times and struck her ear once, with the blow to 

R.W.’s ear causing “a massive amount of pain.” Appellant’s App. Vol. 2 at 15. 

R.W. bled from her ear and temporarily lost hearing in that ear. Id.

[11] Second, Shepard’s sentence was not inappropriate based on his character. 

Before this incident, Shepard had beaten R.W. many times and often 

threatened her with a knife. Id. at 14-15. He had threatened to murder R.W.’s 

son. Id. Shepard was using methamphetamine, which contributed to his 

violent and paranoid behavior. Id. at 14. Furthermore, Shepard’s extensive

criminal history reflects poorly on his character, and, as most relevant here, it 

demonstrates that he is unwilling to reform his behavior, even though he has 

been given many chances to do so. Appellant’s Conf. App. Vol. 2 at 38, 59-63. 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2065| February 10, 2020 Page 7 of 7

Shepard has previously been convicted of six felonies, five misdemeanors, and 

one habitual offender enhancement, and he has received multiple delinquency 

adjudications. Id. at 59-67. Many of his convictions and adjudications were for 

violent offenses, including robbery resulting in bodily injury, domestic battery,

and multiple counts of battery. Id. Thus, we question whether giving Shepard 

yet another opportunity to participate in treatment programs, probation, or 

home detention would change his behavior. We therefore concur with the trial 

court’s assessment regarding the utility of treatment programs and alternative 

placement for Shepard: “It would seem that everything that this court and 

system has tried to do has not been successful. . . . Mr. Shepard, I have no 

confidence that you are able to successfully complete any programs.” Tr. Vol. II

at 13-14. Shepard’s sentence is not inappropriate considering the nature of the 

offense and his character.

[12] Affirmed.

Bailey, J., and Mathias, J., concur.