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: ATTORNEYS FOR APPELLEE:

KRISTINA J. JACOBUCCI GREGORY F. ZOELLER

La Porte, Indiana Attorney General of Indiana

JAMES B. MARTIN

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

JIMMY ISBELL, )

)

Appellant-Defendant, )

)

vs. ) No. 46A03-1306-CR-203

)

STATE OF INDIANA, )

)

Appellee-Plaintiff. )

APPEAL FROM THE LA PORTE SUPERIOR COURT

The Honorable Kathleen B. Lang, Judge 

Cause No. 46D01-1101-FA-30 

April 16, 2014

MEMORANDUM DECISION - NOT FOR PUBLICATION

PYLE, Judge
2

STATEMENT OF THE CASE

Jimmy Isbell (“Isbell”) appeals his sentence for Class A felony neglect of a 

dependent.

1

 

We affirm.

ISSUES

1. Whether the trial court abused its discretion in sentencing Isbell.

2. Whether Isbell’s sentence is inappropriate pursuant to Indiana Appellate 

Rule 7(B).

FACTS

On January 14, 2011, at about 4:19 P.M., paramedics were dispatched to a house 

on a report of a child that was sick and vomiting. They arrived at the residence and met 

Jeffrey Humphrey, who led them down to the basement. Paramedics found Isbell and 

three boys in the basement. Isbell told the paramedics that one of the boys, four-year-old

J.B., had been throwing up. Isbell showed the paramedics a white garbage bag 

containing vomit mixed with blood. The paramedics noted that J.B. did not appear to be 

breathing. They took J.B. to the ambulance and observed bruises all over J.B.’s body. 

The paramedics transported J.B. to the hospital.

Detective Andrew Paul (“Detective Paul”) went to the hospital to investigate. 

Detective Paul learned that J.B. had a bloody and collapsed lung. Doctors later 

pronounced J.B. dead at 5:05 P.M. An autopsy revealed J.B.’s death to be a homicide 

 

1

Ind. Code §§ 35-46-1-4(a)(1); (b)(3). 
3

due to multiple blunt force trauma. Detective Paul eventually met with Isbell at the 

police station for an interview.

On three separate occasions, Isbell waived his right to remain silent and gave 

interviews to Detective Paul at the police station. During the first interview, Isbell stated 

that J.B.’s injuries were the result of bumping into furniture and being hit by another 

child. Isbell denied hitting J.B. but admitted that he disciplined J.B. by having him do 

chores or forcing him to stand in a corner. Isbell said he never took J.B. to the hospital 

because he did not want people to think that he beat J.B.

During a second interview, Isbell changed his statement and said that he had hit 

J.B. with a belt five to six times and punched him in the chest because J.B. would not eat. 

Isbell stated that he grabbed J.B. when he appeared to be vomiting. Isbell stated that 

when he grabbed J.B.’s arm, J.B. pulled his arm back and fell, hitting his head on a chair 

and the floor. J.B. laid on the floor for about ten minutes and appeared to be having “a 

seizure.” (App. 114). Isbell attempted to put J.B. in bed and feed him, but J.B. vomited 

again. Isbell stated that the morning J.B. died, he attempted to feed J.B. again, but J.B. 

appeared that he would vomit again. Isbell stated that he hit J.B. five or six times on the 

buttocks and told him not to vomit again. Isbell then told J.B. to stand in a corner. Isbell

heard a bump and found J.B. lying “in a trance.” Id. He said that he waited for J.B. to 

get better, but finally decided to call an ambulance when J.B. did not “come out of it.” 

Id. Isbell told Detective Paul that had he called an ambulance sooner, J.B. may have 

lived. 
4

In a third interview, Isbell attempted to tell Detective Paul that all of J.B.’s injuries 

were from a fall down the stairs and that he had lied during his previous interviews. 

However, when police officers questioned J.B.’s brother, the brother stated that Isbell had 

hit J.B. “one too many times.” (App. 133). 

On January 18, 2011, the State charged Isbell with two counts of neglect of a 

dependent as Class A and Class B felonies. The State amended the charging information 

on January 19, 2011 and added a charge of battery as a Class A felony.2 On July 28, 

2011, Isbell filed a request for a psychological evaluation. The trial court appointed two 

doctors to evaluate Isbell’s competency to stand trial. 

On August 23, 2011, Dr. Kumud Aggarwal filed a report stating that Isbell would

not be able to assist his attorney at trial. On September 1, 2011, Dr. John T. Heroldt filed 

a report concluding that Isbell did not “possess the capacity to understand the nature of 

the court proceedings including the roles of the participants in that process well enough to 

proceed to trial, and can’t assist in his own defense.” (App. 246). Both reports focused 

on Isbell’s claim of lack of memory about the charges that led to his arrest. The trial 

court committed Isbell to the Logansport State Hospital Division of Mental Health and 

Addiction. 

On February 22, 2012, the trial court received a letter certifying the report of staff 

psychiatrist, Douglas Morris (“Dr. Morris”). The report stated that Isbell had attained the 

ability to understand the proceedings and assist his attorney in the preparation of a 

defense. Dr. Morris noted in his report that:

 

2

Ind. Code § 35-42-2-1(a)(5).
5

[T]ests administered to Mr. Isbell were consistent with exaggeration of both 

symptoms of mental illness and memory impairment. Although it is likely 

that some genuine symptoms may exist, the extent and severity of these 

symptoms could not be assessed at this time due to Mr. Isbell’s purposeful 

attempt to magnify and/or fabricate psychiatric and cognitive symptoms.

(App. 258). Isbell was discharged from the Logansport State Hospital and appeared in 

court again on April 5, 2012.

On October 24, 2012, Isbell pled guilty to Class A felony neglect of a dependent. 

Pursuant to the terms of the plea agreement, Isbell’s maximum executed sentence could 

not exceed forty (40) years. The State, in turn, agreed to dismiss the remaining charges 

concerning J.B. and all charges in four (4) unrelated cases. 

The trial court held a sentencing hearing on March 13, 2013. In its sentencing 

order, the trial court detailed the horrific nature of the injuries inflicted upon J.B. In 

support of the sentence it imposed, the trial court noted bite marks, contusions to the 

kidneys, bruising to the liver and thymus, fractures to the ribs, hemorrhaging and 

swelling in the brain, and significant trauma to J.B.’s head. The trial court noted that

Isbell was tasked with the responsibility of caring for J.B., that he failed to immediately 

seek medical assistance when it was clear J.B. was in distress, and that J.B. had only 

reached the tender age of four. As mitigating factors, the trial court noted that Isbell pled 

guilty and “repeatedly expressed remorse for causing [J.B.’s] death.” (App. 161). In 

addition, the trial court specifically noted the following mitigating factors: (1) Isbell 

suffers from an “extensive history of mental illness and reports that he was sexually 

abused as a child[;]” and (2) Isbell was overwhelmed with the responsibility of caring for 

several children. Id. After considering all of the evidence and arguments, the trial court 
6

concluded that Isbell’s crime was “indefensible.” Id. The trial court sentenced Isbell to 

forty (40) years with thirty-eight (38) years executed in the Department of Correction and 

two (2) years suspended to probation. Isbell now appeals his sentence. 

DECISION

Isbell argues that the trial court abused its discretion in sentencing him and that his 

sentence was inappropriate pursuant to Indiana Appellate Rule 7(B). We address each of 

Isbell’s claims separately.

1. Abuse of Discretion in Sentencing

Isbell claims that the trial court abused its discretion during sentencing by: (a) 

inappropriately considering an aggravating circumstance, and (b) failing to attach any 

weight to relevant mitigating circumstances. 

a. Aggravating Circumstance

Isbell contends that the trial court erred when it noted in its sentencing order that 

“[Mr. Isbell] caused the death of J.B. by what he did and failed to do . . . . [Mr. Isbell] 

was in a position of care and custody of J.B.” (App. 161). Isbell relies on Stone v. State, 

727 N.E.2d 33, 37 (Ind. Ct. App. 2000) for the proposition that a material element of an 

offense may not also constitute an aggravating circumstance to support an enhanced 

sentence. However, we have stated in Gomillia v. State, 993 N.E.2d 306 (Ind. Ct. App. 

2013), that this statement is no longer an accurate assessment of the law. 

In Gomillia, we relied on our Indiana Supreme Court’s decision in Pedraza v. 

State, 887 N.E.2d 77, 80 (Ind. 2008), when it stated the following:
7

Indiana sentencing used to be a two-step process—imposing of the 

presumptive sentence, then deciding whether any aggravators or mitigators 

warranted deviation. After the 2005 modifications, it consists of only one 

discretionary determination. Thus, a sentence toward the high end of the 

range is no longer an “enhanced sentence” in the sense that the former 

regime provided. Moreover, while the trial court must still list in its 

sentencing statement those reasons it finds relevant to the sentence, the 

correlation between those factors and the given sentence is not as precisely 

tailored as it was under the presumptive sentencing scheme.

Because aggravating circumstances no longer “enhance” a sentence, considering a 

material element of an offense as an aggravating circumstance can no longer be 

considered a double enhancement. See Gomillia, 993 N.E.2d at 310. Further, our 

Supreme Court has stated that “the seriousness of the offense . . . which implicitly 

includes the nature and circumstances of the crime as well as the manner in which the 

crime is committed, has long been held a valid aggravating factor.” Anglemyer v. State, 

868 N.E.2d 482, 492 (Ind. 2007) (citing Taylor v. State, 695 N.E.2d 117, 120 (Ind. 

1998)). 

Here, the trial court’s sentencing order properly considered the facts and 

circumstances surrounding J.B.’s death. Accordingly, we find no abuse of discretion. 

b. Mitigating Circumstances

Isbell claims that the trial court abused its discretion in sentencing him because it 

did not, in his opinion, attach significant weight to the mitigating circumstances. 

Specifically, Isbell argues that the trial court erred as follows: (1) it failed to give 

significant weight to his long standing history of mental illness; (2) it failed to find that 

there were substantial grounds tending to excuse or justify the death of J.B.; and (3) it did 

not attach significant weight to Isbell’s guilty plea or expressions of remorse.
8

The finding of mitigating circumstances is left to the discretion of the trial court. 

Legue v. State, 688 N.E.2d 408, 411 (Ind. 1997). A trial court is not obligated to accept 

the defendant’s assertion of what constitutes a mitigating circumstance. Id. In asserting 

that a trial court failed to find a mitigating circumstance, an abuse of discretion does not 

occur unless a “sentencing statement omits reasons that are clearly supported by the 

record and advanced for consideration[.]” Anglemyer, 868 N.E.2d at 491. In addition, 

since the 2005 amendments to Indiana’s sentencing statute, trial courts are no longer 

obligated to “weigh” aggravating and mitigating circumstances to arrive at a sentence. 

Id. 

Here, the sentencing statement clearly addressed Isbell’s history of mental illness. 

However, the trial court was under no obligation to consider this mitigating factor in the 

same manner as Isbell asserts. Again, we find no abuse of discretion in the trial court’s 

sentencing order. 

2. Inappropriate Sentence

Isbell claims that his sentence is inappropriate in light of the nature of the offense 

and his character. He makes no suggestion as to how we should revise his sentence.

Rule 7(B) of the Indiana Rules of Appellate Procedure gives this Court the power 

to revise an inappropriate sentence in light of the nature of the offense and character of 

the offender, giving due consideration to the trial court’s decision. The defendant must 

persuade us that his sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 

(Ind. 2006). Under Rule 7(B), we seek “to attempt to leaven the outliers, and identify 

some guiding principles for trial courts and those charged with improvement of the 
9

sentencing statutes, but not to achieve a perceived ‘correct’ result in each case.” 

Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). Whether a sentence is 

inappropriate ultimately depends upon “the culpability of the defendant, the severity of 

the crime, the damage done to others, and a myriad of other factors that come to light in a 

given case.” Id. at 1224. 

In determining whether a sentence is inappropriate, we first look to the advisory 

sentence provided by statute. Childress, 848 N.E.2d at 1081. The sentencing range for 

Class A felony neglect of a dependent is between twenty (20) and fifty (50) years, with 

an advisory sentence of thirty (30) years. I.C. § 35-50-2-4. Here, however, because of 

the plea agreement negotiated with the State, Isbell faced a maximum sentence of forty 

(40) years. 

As to the nature of the offense, according to the coroner’s report, four-year-old 

J.B. died from multiple blunt force trauma. Specifically, the report detailed the following 

injuries: fractured ribs; blood clots;3contusions to the kidney, liver, and thymus; a 

lacerated lung; and swelling and hemorrhaging of the brain. The detective on the case 

observed that the bruising on J.B.’s body was “horrific.” (App. 100). After blaming 

another child for the injuries, Isbell admitted to punching J.B. in the chest, spanking his 

buttocks, and causing J.B. to fall on his head. With the extent of J.B.’s injuries, Isbell 

undoubtedly knew that the child required medical attention. When the paramedics found 

J.B., he was essentially lifeless. 

 

3 The report used the medical term “subcutaneous hematoma.” (App. 134).
10

The State argued the following: “[Isbell] does not, because he cannot, offer any 

argument as to why his sentence is inappropriate with respect to the nature of his 

offense.” (State’s Br. 15). We agree. It is of no small consequence that Isbell chose not 

to argue that his sentence was inappropriate in light of the nature of the offense. Given 

the brutal manner in which J.B. perished and the fact that Isbell did not receive the 

maximum executed sentence possible from the trial court, Isbell cannot persuade us that 

the nature of the offense makes his sentence is inappropriate. Because Isbell cannot 

convince us that his sentence is inappropriate in light of both the nature of the offense and 

his character, his 7(B) argument fails.

Affirmed.

MATHIAS, J., and BRADFORD, J., concur.