Court of Appeals of Indiana | Memorandum Decision 25A05-1606-CR-1454 | November 30, 2016 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

T. Andrew Perkins

Peterson Waggoner & Perkins, LLP

Rochester, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Lyubov Gore

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Zachary Clark,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

November 30, 2016

Court of Appeals Case No.

25A05-1606-CR-1454

Appeal from the Fulton Superior 

Court

The Honorable Wayne E. Steele, 

Judge

Trial Court Cause No.

25D01-1408-FB-449

Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision 25A05-1606-CR-1454 | November 30, 2016 Page 2 of 7

Statement of the Case

[1] Zachary Clark appeals one of his convictions and his sentence after he pleaded 

guilty to aggravated battery, as a Class B felony, and involuntary manslaughter, 

as a Class C felony. Clark presents two issues for our review:

1. Whether his convictions violate double jeopardy 

principles.

2. Whether his sentence is inappropriate in light of the nature 

of the offenses and his character.

We affirm.

Facts and Procedural History 

[2] On May 24, 2014, at approximately 9:00 p.m., Clark, who was intoxicated, 

entered a tavern in Rochester, ordered a drink, and sat in a booth. The 

bartender could tell Clark was intoxicated, so she made him a drink with a 

small amount of alcohol in it and served him. At some point, Clark passed out 

and slept for about one hour. Clark eventually woke up and began vomiting on 

himself. Clark then stood up and walked towards a bar employee and struck 

him with his fist. Clark then approached Tony Coleman, whom Clark did not 

know and with whom he had had no prior interactions, and Clark “hit 

Coleman in the head with his right fist,” knocking him to the ground. State’s 

Ex. 1. Coleman’s mother, Cheri, was there, and she “jumped on Clark” and 

they fell to the ground, but Clark eventually made his way out of the tavern. Id. 

Coleman was unconscious on the floor, and someone called 9-1-1. Emergency 
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responders were unsuccessful in their attempts to help Coleman, and, after he 

was transported to a nearby hospital, Coleman was pronounced dead. Police 

officers located Clark at a nearby campground and arrested him. Clark’s

alcohol concentration was measured at .12 gram per 210 liters of his breath.

[3] The State charged Clark with aggravated battery, as a Class B felony, and 

involuntary manslaughter, as a Class C felony. On March 15, 2016, Clark 

pleaded guilty as charged. And on May 24, the trial court sentenced Clark to 

concurrent sentences of twenty years for aggravated battery and eight years for 

involuntary manslaughter. In its sentencing statement, the trial court stated as 

follows:

(B) That these are the aggravating circumstances: Nature and 

circumstances of the offense, particularly as to Count 1, where 

the aggravated battery actually resulted in death of the victim. 

The attack was unprovoked on a total stranger and [the] victim 

was blindsided while dining with his mother.

(C) That these are the mitigating circumstances: Minimal 

criminal history; expressed remorse but actually has no 

recollection of the events; plea of guilty was more a pragmatic 

decision as [the] evidence [was] overwhelming; employment and 

family support.

Order of Judgment of Conviction at 1. This appeal ensued.
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Discussion and Decision 

Issue One: Double Jeopardy

[4] Clark first contends that the trial court violated the prohibition against double 

jeopardy under the Indiana Constitution when it entered judgment of 

conviction for both aggravated battery and involuntary manslaughter. But, as 

our supreme court has held, “Defendants waive a whole panoply of rights by 

voluntarily pleading guilty. These include the right to a jury trial, the right 

against self-incrimination, the right of appeal, and the right to attack collaterally 

one’s plea based on double jeopardy.” Mapp v. State, 770 N.E.2d 332, 334-35 (Ind. 

2002) (emphasis added). Because Clark pleaded guilty to both aggravated 

battery and involuntary manslaughter, his double jeopardy challenge under the 

Indiana Constitution is waived. Id.

Issue Two: Sentence

[5] Clark also contends that his sentence is inappropriate. Indiana Appellate Rule 

7(B) permits an Indiana appellate court to “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.” We assess the trial court’s recognition or 

nonrecognition of aggravators and mitigators as an initial guide to determining 

whether the sentence imposed was inappropriate. Gibson v. State, 856 N.E.2d 

142, 147 (Ind. Ct. App. 2006). The principal role of appellate review is to 

“leaven the outliers.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). A 

defendant must persuade the appellate court that his or her sentence has met the 
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inappropriateness standard of review. Roush v. State, 875 N.E.2d 801, 812 (Ind. 

Ct. App. 2007).

[6] An appellant bears the burden of showing that both prongs of the inquiry favor 

revision of his sentence. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). 

Here, Clark contends only that his sentence is inappropriate in light of his 

character, but he makes no argument regarding the nature of the offenses. 

Accordingly, we agree with the State that Clark has waived this issue for our 

review. See Anderson v. State, 989 N.E.2d 823, 827 (Ind. Ct. App. 2013), trans. 

denied.

[7] Waiver notwithstanding, Clark’s argument on appeal is without merit. 

Regarding the nature of the offenses, Clark was so intoxicated that he passed 

out and began vomiting on himself when he woke up. Clark then punched two 

random people in the tavern, unprovoked, one of whom, Coleman, he killed 

with one blow to the head. Clark killed Coleman in front of Coleman’s mother, 

who unsuccessfully tried to prevent Clark from fleeing the scene. We cannot 

say that Clark’s sentence is inappropriate in light of the nature of the offenses.

[8] Still, Clark maintains that his sentence should be revised based on his good 

character. In support of that contention, Clark points out the following: his 

criminal history consists of a single juvenile adjudication in 2003; he was found 

to be at a low risk to reoffend; “many individuals” wrote letters of support to 

the trial court and “most stressed his nonviolent nature”; those individuals 

stated that Clark has a “history of selflessness” and is “a helpful man with a 
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good work ethic”; he is “easy-going”; he has a “stable work history”; these 

offenses were described by friends and family as completely “out of character” 

for Clark; and he showed remorse in a statement to Coleman’s family. 

Appellant’s Br. at 10-12.

[9] The State responds that Clark’s juvenile adjudication for minor consuming is 

“particularly significant in this case because of [his] intoxication during the 

commission of this offense.” Appellee’s Br. at 14. And the State points out 

that: his juvenile adjudication “did not deter [Clark] from continuing to 

consume alcohol to the point where he passes out and kills someone a decade

later”; Clark has admitted that, prior to these offenses, he would drink “6 to 10 

beers at a setting [sic]”; Clark’s contention that he is a non-violent person “is 

belied by his actions” in becoming intoxicated to the point of passing out, 

punching two strangers without provocation, and punching Coleman with such 

force that he killed him. Id. at 14-15; Appellant’s App. Vol. III at 14-15. The 

State also maintains that Clark’s behavior “was not that of someone who is a 

‘family man’” in that Clark was at the tavern in a state of extreme intoxication 

while his wife was nine-months pregnant and one week away from giving birth 

to their second child. Appellee’s Br. at 16. Finally, the State points out that 

Clark waited almost two years after Coleman’s death to express remorse to the 

family or plead guilty.

[10] For all of those reasons, we agree with the State that Clark’s sentence is not 

inappropriate in light of his character. The trial court considered all of the 

evidence regarding Clark’s character and imposed the twenty-year aggregate 
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sentence. We cannot say that, given the nature of the offenses and Clark’s 

character, his sentence is an outlier.

[11] Affirmed.

Bailey, J., and May, J., concur.