Court of Appeals of Indiana | Memorandum Decision 05A02-1606-CR-1398 | June 29, 2017] Page 1 of 20

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

Brandon E. Murphy

Muncie, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Chandra K. Hein

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Doralee A. Burress,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

June 29, 2017

Court of Appeals Case No.

05A02-1606-CR-1398

Appeal from the Blackford Circuit 

Court

The Honorable Dean A. Young, 

Judge

Trial Court Cause No.

05C01-1505-F5-113

Pyle, Judge.
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Statement of the Case

[1] Doralee A. Burress (“Burress”) appeals the trial court’s denial of her motion for 

a change of judge as well as the sentence the trial court imposed after she pled 

guilty to Level 6 felony neglect of a dependent.1 She argues that: (1) the trial 

court’s denial of her motion for change of judge was clearly erroneous; (2) the 

trial court abused its discretion in sentencing her because it identified improper 

aggravators; and (3) her sentence was inappropriate under Indiana Appellate 

Rule 7(B). Because we find no error or abuse of discretion as alleged, we affirm 

her conviction and sentence. 

[2] We affirm. 

Issues

1. Whether the trial court erred when it denied Burress’s motion 

for change of judge.

2. Whether the trial court abused its discretion when sentencing 

Burress.

3. Whether Buress’s sentence was inappropriate under Indiana 

Appellate Rule 7(B).

Facts

[3] Burress is the mother of B.W., who was born in August 2014. According to the 

factual basis for Burress’s guilty plea, between B.W.’s birth in August 2014 and 

 

1

IND. CODE § 35-46-1-4(a)(1).
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October 2014, B.W. suffered multiple skull fractures, rib fractures, a fracture to 

his tibia, a fracture to his ankle, a lacerated liver, and bruising on his face. It is 

not clear exactly when each injury occurred. However, the probable cause 

affidavit describes that the bones were in “different stages of healing” when the 

injuries were discovered. (App. 18). Burress claimed she did not know how 

B.W. had received those injuries, but she admitted that she had noticed them 

and failed to seek medical treatment. 

[4] On May 4, 2015, the State charged Burress with Level 5 felony neglect of a 

dependent resulting in bodily injury.2 On January 4, 2016, Burress agreed, 

pursuant to a written plea agreement, to plead guilty to the charge. In exchange 

for Burress’s guilty plea, the State agreed that Burress’s sentence length would 

be left to the discretion of the trial court and that the sentence would be served 

on home detention. 

[5] Initially, the trial court set a change of plea hearing for Burress to plead guilty. 

However, before the hearing occurred, the trial court entered an order in which 

it stated that it had reviewed the pre-sentence investigation report (“PSI”) and 

was rejecting the plea agreement. As a basis for its rejection, the trial court 

found: 

8. That a condition of the Plea Agreement is that the Court 

would be restricted from ordering an executed sentence in the 

 

2 The State also charged B.W.’s father, Joshua Walker, with neglect of a dependent, but his case is not a part 

of this appeal.
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Indiana Department of Correction, which if the allegations in the 

charging instrument and affidavits supporting the charging 

instruments are true, is the only appropriate place for a defendant 

committing such acts to be sentenced. 

9. That the public’s confidence in the judicial system and their 

concepts of justice upon which that system relies would be 

severely lessened should the Court accept the Plea Agreement as 

tendered in this case.

(App. 93). The PSI that the trial court had relied upon included Burress’s 

version of events, which she had written as follows:

My son was hospitalized at Riley for injuries that we could not 

explain. I am his mother and felt that I had not provided him 

with the proper care and he got hurt because of it. I wish to 

move forward and be the best mother that I can for my two 

babies. I regret not being able to protect him and I am deeply 

sorry for any effects this has had on my family. I will do 

everything I can to prevent anything like this from happening 

again.[3]

(App. 63-64). The PSI also documented that Burress had made the following 

statement to the probation officer:

I have no idea how any of the injuries happened to [B.W.]. We 

took him to his doctor here in town. I read what the doctor had 

written. He said that [B.W.] had an abnormal head size. I then 

 

3

Pursuant to Indiana Administrative Rule 9(G)(2)(b) and INDIANA CODE § 35-38-1-13, the PSI must be 

excluded from public access. However, in this case the information contained in the PSI “is essential to the 

resolution” of Burress’s claim on appeal. Ind. Admin. Rule 9(G)(7)(a)(ii)(c). Accordingly, we have included 

confidential information in this decision only to the extent necessary to resolve the appeal. 
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called the doctor to see if we should be concerned. That is why I

took him to Riley.

(App. 64). 

[6] On March 22, 2016, Burress moved for, among other motions, a change of 

judge and for the trial court to reconsider its rejection of the plea agreement. In 

her motion for change of judge, she argued that the trial court was biased 

because it had relied on improper information and had rejected the plea 

agreement even though the agreement was reasonable. As for her allegations 

that the trial court judge was biased, Burress claimed that the trial court judge 

had “reference[d] information contained in a Pre-Sentence Investigation Report 

that was obtained in violation of established local practice, procedure[,] and 

custom in Blackford County, Indiana . . . .” (App. 104). She attached to her 

motion a memorandum sent from another judge of the Blackford Circuit Court 

to the Blackford County Criminal Defense Bar in which the judge explained

that the policy of the court was to schedule one hearing for both a change of 

plea and sentencing when a PSI was required. The memorandum specified 

that, under this procedure, the trial court should receive the PSI prior to the 

combined hearing. In an affidavit Burress attached to her motion, the former 

Chief Probation Officer in Blackford County, Aaron Henderson, averred that 

one concern he had with this combined hearing process was asking defendants 

questions concerning the charged events or including defendants’ answers 

within the PSIs when a defendant had not yet formally offered her plea of guilty 

in the courtroom. He explained that: “To address that concern, [he] did not 
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include a Defendant’s version of events in [PSIs] when the combined change of 

plea and sentencing procedure was used.” (App. 112). Burress did not further 

explain how the trial court judge’s consideration of the PSI demonstrated the 

judge’s bias.

[7] With respect to her allegation that her plea agreement was reasonable, Burress 

noted that the Probation Department had recommended in the PSI that the trial 

court accept the plea agreement. She also noted that she did not have a 

criminal history and that she had successfully completed Department of Child 

Services (“DCS”) services. 

[8] The trial court held a hearing on Burress’s motion for change of judge and 

motion to reconsider the plea agreement on April 13, 2016 and denied both. In 

its order on the motion for change of judge, the trial court specified that it had 

rejected the guilty plea “for a variety of reasons,” including:

2. . . .

A. The injuries suffered by the child in this case were

heinous and ongoing.

B. That for the first two months of the child’s life the child 

suffered continual physical abuse from one or more 

persons.

C. The statements of the parents as set out in the Affidavit 

of Probable Cause, as well as in the Presentence 

Investigation Report indicate a lack of awareness or 

understanding of the child’s injuries.
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D. That the Plea Agreement called for a fully suspended 

sentence, as well as a reduction in the level of offense to 

which the defendant would enter a plea of guilty in this 

case such that the Court could not in good conscious [sic] 

accept the Plea Agreement.

3. That the Presentence Investigation Report did not include any 

information that was not required by Indiana law, nor did it 

violate any “established local practice” concerning the change of 

plea and sentencing procedure in the Blackford Circuit Court.

4. That the plea was unreasonable as determined by the Court 

based upon all evidence before the Court including the detailed 

Affidavit of Probable Cause, this Court’s knowledge of the facts 

and circumstances presented to the Court as part of a companion 

CHINS proceeding involving the same parties, and information 

contained within the Presentence Investigation Report.

5. That in support of the defendant’s Verified Motion for

Change of Judge are certain exhibits, including Exhibits A and B 

which were prior communications between the Court and the 

Blackford County Defense Bar regarding combined guilty plea 

and sentencing hearings. The Court did indicate the Court’s 

preference of excluding probation officer recommendations 

regarding a possible sentence for reasons stated therein. Provided 

further, the Court did in no way direct any probation officer to 

exclude from the presentence investigation report the offender’s 

version of the offense.

6. That attached Exhibit 4 to the Verified Motion for Change of

Judge is an Affidavit signed by former Chief Probation Officer 

Aaron Henderson wherein Mr. Henderson stated that in 

presentence investigation reports he prepared he did not include a 

defendant’s version of events. If true, Mr. Henderson’s conduct 

may have been in derogation of the requirements of State statute, 

the presentence investigation report, and without the knowledge 

of the Blackford Circuit Court Judge. Mr. Henderson’s Affidavit 
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specifically stated that his concern regarding including such 

information was discussed “either locally or with representatives 

of other counties using this procedure[.] . . .” The matter was 

never discussed with the Circuit Court Judge or directed to be 

implemented by the Circuit Court Judge as outlined in Mr. 

Henderson’s Affidavit. Provided further, the conduct of a 

probation officer does not bind a court with respect to the Court’s 

statutory and constitutional duty to bring criminal matters to a 

just conclusion.

7. That the defendant has presented no legal basis to allege

against the presiding judge nor has the defendant raised any facts 

or circumstances that would cause a reasonable person, aware of 

all the facts, to conclude that the presiding judge may have, or

appear to have, any bias against this defendant.

(App. 120-22). 

[9] On May 23, 2016, Burress entered into a second plea agreement with the State 

in which she agreed to plead guilty to an amended charge of Level 6 felony 

neglect of a dependent. This second plea agreement did not include a cap on 

her sentence or provide that she would serve her sentence on home detention.

The trial court held a change of plea hearing and accepted Burress’s second plea 

agreement.

[10] Subsequently, on June 13, 2016, the trial court held a joint sentencing hearing

for Burress and B.W.’s father, Joshua Walker (collectively, “the Parents”). At 

the hearing, Michelle Coons (“CM Coons”), a case manager with DCS, 

testified that B.W. had been found a child in need of services (“CHINS”) and

was taken from the Parents after his injuries had been discovered. However, 
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she said that the Parents had successfully completed the CHINS proceedings

and regained custody of B.W. at DCS’s recommendation. CM Coons also 

testified that she was comfortable with B.W.’s placement with Burress.

[11] Next, Buress’s probation officer testified and explained that she had 

recommended home detention in Burress’s first PSI due to the length of the 

sentence she had originally recommended—six years. However, she testified, 

she had “[thought] about the situation further” since her initial 

recommendation and had changed her recommendation for Burress’s second 

PSI, which was prepared for the sentencing hearing, to one (1) year of 

incarceration. (Tr. 25). The fact that the second plea agreement called for a 

lower sentencing range “played into” her recommendation. (Tr. 25). 

[12] At the conclusion of the hearing, the trial court sentenced Burress to two and 

one-half (21⁄2) years executed and told her that it would consider a petition to 

modify her sentence after one (1) year of incarceration if she behaved well 

during incarceration and had residential and employment opportunities at that 

point. The court found that several mitigating factors supported this sentence, 

including Burress’s lack of criminal history; the hardship that incarceration 

would cause her family; Burress’s remorse; and the fact that the crime was 

unlikely to recur. However, the trial court also found certain aggravating 

factors that it concluded were especially significant. Specifically:

[B.W.] was a totally defenseless, totally dependent child, who 

spent the first two months of his life and every day, every 

moment of the first two months of his life in great agony. He 
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was literally beaten up by somebody[,] and the two people that 

were responsible to [e]nsure that that would never occur to their 

child are deaf and dumb when it comes to the possible 

explanation as to why that happened. The injuries have been set 

out for the record many times before, but just for purposes of 

formulating the Court’s thoughts and the sentencing order in this 

case, it’s noteworthy that when he was first referred to Riley 

Hospital he had an unusually large head, [and] he wasn’t acting 

right. Once at Riley, they discovered multiple skull fractures and 

fluid on his brain. Many of the fractures [were] in various stages 

of healing[,] which means that it happened more than once. 

Multiple rib fractures, again, in various stages of healing, which 

indicate that it happened more than once. Possible fracture to 

the tibia and left ankle. He had a laceration or a cut on his liver. 

There was bruising to the left side of his face. Virtually every 

single moment of that child’s life[,] he was in great agony. The 

parents were equally responsible to keep that from happening 

and should it happen by others to seek medical treatment. 

Accordingly, they are both equally culpable. That child was put 

to more torture than if he w[ere] an Islamic Jihadist at 

Guantanamo, being tortured for information or for his crimes. 

He was abused every single day for two months. Every single 

day. Either physically beaten up or denied the medical care that 

his beatings required. And the parents are deer in headlights 

when it comes to what happened to that child. Anything other 

than the maximum sentence would seriously depreciate what 

happened to this child.

(Tr. 42-44). Burress now appeals. 

Decision

[13] On appeal, Burress argues that: (1) the trial court erred when it denied her 

motion for change of judge; (2) the trial court abused its discretion when it 

sentenced her; and (3) her sentence was inappropriate under Indiana Appellate 
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Rule 7(B) in light of the nature of her offense and her character. We will 

address each of these issues in turn.

1. Motion for Change of Judge

[14] First, Burress argues that the trial court erred because its findings in its order 

denying her motion for change of judge and its rejection of her first plea 

agreement with the State indicated that the trial court judge was biased against 

her. 

[15] Indiana Criminal Procedure Rule 12(B) provides that:

In felony and misdemeanor cases, the [S]tate or defendant may 

request a change of judge for bias or prejudice. The party shall 

timely file an affidavit that the judge has a personal bias or 

prejudice against the [S]tate or defendant. The affidavit shall state 

the facts and the reasons for the belief that such bias or prejudice 

exists, and shall be accompanied by a certificate from the 

attorney of record that the attorney in good faith believes that the 

historical facts recited in the affidavit are true. The request shall 

be granted if the historical facts recited in the affidavit support a 

rational inference of bias or prejudice.

“‘Adjudicating a request for change of judge based on Rule 12(B) requires an 

objective, not subjective, legal determination by the judge, who is to examine 

the affidavit, treat the facts recited in the affidavit as true, and determine 

whether these facts support a rational inference of bias or prejudice.’” Lehman 

v. State, 55 N.E.3d 863, 867 (Ind. Ct. App. 2016) (quoting Voss v. State, 856 

N.E.2d 1211, 1216 (Ind. 2006)), trans. denied. The appropriate standard of 

review of a trial judge’s decision to grant or deny a motion for change of judge 
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under Indiana Criminal Rule 12 is whether the judge’s decision was clearly 

erroneous. Id. at 866. The law starts with the presumption that a judge is 

unbiased and unprejudiced. Zavodnik v. Harper, 17 N.E.3d 259, 269 (Ind. 2014). 

Reversal will require a showing that leaves us with a definite and firm 

conviction that a mistake has been made. Lehman, 55 N.E.3d at 866. 

[16] In support of her argument that the trial court judge was biased, Burress first 

asserts that the trial court judge “considered information that [was] not []

permitted under local practice in pre-sentence investigation reports[.]” 

(Burress’s Br. 15). Specifically, she claims that the trial court appeared to reject 

the plea agreement because Burress was unable to explain how any of the 

injuries to B.W. had occurred. She contends that the trial court’s reference to 

her inability to explain how the injuries happened indicated that he was 

punishing her for her lack of explanation rather than for her failure to seek 

treatment for B.W., which was the element of her offense. 

[17] Notably, Burress did not explicitly raise this argument in her motion for change 

of judge or at the hearing on the motion. In Burress’s motion for change of 

judge, she argued that the trial court inappropriately considered her version of 

events that was documented in the pre-sentence investigation report. She did 

not claim that the trial court considered factors that were not elements of her 

crime as a result of considering that information in the PSI. In fact, Burress did 

not clarify in her motion for change of judge how the trial court’s consideration 

of her version of events in the PSI demonstrated the trial court’s bias. Because 

she, therefore, is raising a new argument on appeal, we conclude that she has 
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waived that argument for appellate review. See Hape v. State, 903 N.E.2d 977, 

997 (Ind. Ct. App. 2009) (stating that a party may not raise an argument for the 

first time on appeal), trans. denied.

[18] Next, Burress argues that the trial court’s rejection of a “reasonable” plea 

agreement and its statements that “the Indiana Department of Corrections . . . 

is the only appropriate place for a defendant” committing the charged acts and 

that the Parents were “pathetic examples of parents” indicated that it was 

biased against her. (Burress’s Br. 15-16). We disagree because it is clear that 

the trial court’s rejection of the plea agreement and its statements regarding the 

Parents were based on its evaluation of the evidence, not its bias against the 

Parents.

[19] Our supreme court has previously held that:

A judge’s exposure to evidence through judicial sources is 

generally insufficient to establish bias. The fact that a litigant has 

appeared before a judge in prior cases does not establish bias or 

prejudice. Prejudice is not inferred from adverse judicial rulings.

Zavodnik, 17 N.E.3d at 269.

[20] Burress isolates the trial court’s statement that the Department of Correction is 

the only place for her from its context. In full, the trial court found:

[A] condition of the Plea Agreement is that the Court would be 

restricted from ordering an executed sentence in the Indiana 

Department of Correction, which if the allegations in the charging 

instrument and affidavits supporting the charging instruments are true, 
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is the only appropriate place for a defendant committing such 

acts to be sentenced.

(App. 93) (emphasis added). The full text of this finding emphasizes that the 

trial court’s statement that Burress belonged in the DOC was based on the 

allegations in the charging information and affidavits supporting the charging 

instruments. In the statement, the trial court recognizes that its conclusion is 

qualified by the conditional assumption that “the allegations . . . are true.” 

(App. 93). In other words, the trial court had not already decided that Burress 

belonged in DOC; it merely did not want to foreclose that option.4 

Accordingly, this statement was not evidence of the trial court’s bias. See 

Zavodnik, 17 N.E.3d at 269 (“A judge’s exposure to evidence through judicial 

sources is generally insufficient to establish bias.”). 

[21] As for Burress’s argument that the trial court’s rejection of a reasonable plea 

agreement indicated its bias, we must note that the trial court has “wide 

discretion” to reject a plea agreement. Nybo v. State , 799 N.E.2d 1146, 1152 

(Ind. Ct. App. 2003). As stated above, prejudice is not inferred from adverse 

judicial rulings. See id. Burress has not provided any other facts showing that 

the trial court thought the plea agreement was reasonable and rejected it 

because of bias. Instead, it is clear from the record that the trial court rejected 

 

4 The terms of a plea agreement between the State and the defendant are contractual in nature. State v. Smith, 

71 N.E.3d 368, 370 (Ind. 2017). When a trial court accepts a plea agreement, it is bound by its terms. Id. 

Therefore, if the trial court had accepted the plea agreement that provided that Burress would serve her 

sentence on home detention, it would have foreclosed its ability to sentence her to executed time in the 

Department of Correction. 
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the plea agreement because it did not think that the plea agreement was 

reasonable since it restricted the court’s sentencing discretion to home 

detention.5 The trial court had the discretion to determine that incarceration 

was more appropriate than home detention. See Million v. State, 646 N.E.2d 

998, 1001 (Ind. Ct. App. 1995) (“[P]lacement in a community corrections 

program is an alternative to commitment to the Department of Correction and 

made at the sole discretion of the trial court. . . . Therefore, a defendant is not 

entitled to serve his sentence in a community corrections program but, as with 

probation, placement in the program is a ‘matter of grace’ and a ‘conditional 

liberty that is a favor, not a right.’”). Therefore, the trial court’s exercise of this 

discretion, absent other evidence, was not evidence of bias.

[22] For the foregoing reasons, we conclude that Burress did not present evidence 

that supports a rational inference of bias or prejudice. Thus, the trial court did 

not err when it denied Burress’s motion for change of judge.

2. Sentencing

[23] Next, Burress argues that the trial court abused its discretion when it sentenced 

her because it identified improper aggravating factors. Specifically, she 

 

5

In support of her argument that the plea agreement was reasonable, Burress notes that the Probation 

Department recommended that the trial court accept the plea agreement. However, as stated above, 

Burress’s probation officer testified that even though she had originally recommended that the trial court 

accept the plea agreement, when she “[thought] about the situation further[,]” she recommended one (1) year 

of incarceration. (Tr. 25). Burress also overlooks that her probation officer originally recommended home 

detention for six years—a significantly longer sentence than the sentence the trial court imposed after its 

acceptance of her second plea agreement.
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challenges the trial court’s comments that: (1) “the harm was caused by the 

defendant to a totally defenseless, newborn child[;]” (2) “the child was totally 

dependent upon the defendant[;]” (3) the abuse B.W. suffered was “daily” and 

like “torture[;]” and (4) “a lesser sentence would seriously depreciate the 

seriousness of the offense.” (App. 177, 178).

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

reviewed on appeal only for an abuse of discretion. Anglemyer v. State, 868 

N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007). An 

abuse of discretion occurs if the 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. The trial court can abuse its 

discretion by: (1) issuing an inadequate sentencing statement; (2) finding 

aggravating or mitigating factors that are not supported by the record; (3) 

omitting factors that are clearly supported by the record and advanced for 

consideration; or (4) by finding factors that are improper as a matter of law. 

Gleason v. State, 965 N.E.2d 702, 710 (Ind. Ct. App. 2012).

[25] First, Burress claims that the trial court abused its discretion when it found as 

aggravating factors that the harm was “caused by the defendant to a totally 

defenseless newborn child” and that “the child was totally dependent upon the 

defendant.” (App. 177). She claims that these factors were improper as a 

matter of law because it is an element of the offense of neglect of a dependent 

that the alleged victim is dependent upon the defendant. 
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[26] Burress is correct that it is improper as a matter of law to find that a material 

element of a crime is an aggravating circumstance. Gleason, 965 N.E.2d at 711. 

However, the nature and circumstances of an offense can be aggravators. Id. It 

is clear, here, that the trial court found B.W.’s particularized circumstances

aggravating. Our Indiana Code defines “dependent” as “(1) an unemancipated 

person who is under eighteen (18) years of age; or (2) a person of any age who 

has a mental or physical disability.” I.C. § 35-46-1-1. Contrary to Burress’s 

argument, there is a significant difference in circumstances between a 

dependent who is eighteen years old and a two-month old infant. In both of the 

trial court’s statements, it was emphasizing the particularized circumstances of 

a two-month old infant. Unlike older individuals who can walk and talk, but 

still qualify legally as dependents, B.W. was entirely physically dependent upon 

Burress to seek treatment for his injuries. He could not talk or explain his 

injuries to others. He was, as the trial court emphasized, “totally defenseless.” 

(App. 177). Accordingly, we conclude that this particularized circumstance 

was not an element of the offense, and the trial court did not abuse its discretion 

in identifying it as an aggravating factor. 

[27] Next, Burress challenges the trial court’s conclusion that the abuse B.W. 

suffered was “daily” and equivalent to “torture.” (App. 178). She argues that 

these statements were not supported by the record and reflected the trial court’s 

attempts to hold her culpable for inflicting B.W.’s injuries herself, rather than 

for failing to seek treatment as she was charged. Again, we conclude that the 

trial court’s statements were based on the nature and circumstances of the 
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offense. The trial court was emphasizing that B.W.’s injuries were ongoing and 

severe, rather than a one-time occurrence. This conclusion was supported by 

the record as there was evidence that B.W.’s bones were in “different stages of 

healing.” (App. 18). As for the trial court’s analogy to torture, the trial court 

was commenting on the severity of B.W.’s injuries—and the impact that 

Burress’s failure to seek treatment therefore had on B.W.—not accusing Burress 

of inflicting the injuries herself.

[28] Finally, Burress argues that the trial court’s statement that “a lesser sentence 

than the one the Court imposes would seriously depreciate the seriousness of 

the offense” was an improper aggravator. (App. 177). However, Burress does 

not quote the trial court’s entire statement. In full, the trial court found: 

that a lesser sentence than the one the Court imposes would 

seriously depreciate the seriousness of the offense and that but for 

the timely intervention of law enforcement and Child Protective 

Services the child would have suffered injury that may likely 

have resulted in the death of the child while in the care, 

custody[,] and control of both parents.

(App. 177-78). In its full context, it is clear that the trial court was again 

referring to the nature and circumstances of the offense—the severity of B.W.’s 

injuries. As the nature and circumstances of an offense are not improper 

aggravators, we conclude that the trial court did not abuse its discretion. 

Gleason, 965 N.E.2d at 711.
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3. Indiana Appellate Rule 7(B)

[29] Next, Burress argues that her sentence was inappropriate under Indiana 

Appellate Rule 7(B) in light of the nature of her offense and her character. 

Indiana Appellate Rule 7(B) provides that we may revise a sentence authorized 

by statute if, after due consideration of the trial court’s decision, we find that the 

sentence is inappropriate in light of the nature of the offense and the character 

of the offender. The defendant bears the burden of persuading this Court that 

his sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 

2006). Whether we regard a sentence as inappropriate turns on 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 v. State, 895 

N.E.2d 1219, 1224 (Ind. 2008).

[30] When determining whether a sentence is inappropriate, we acknowledge that 

the advisory sentence is the starting point the Legislature has selected as an 

appropriate sentence for the crime committed. Childress, 848 N.E.2d at 1081. 

The sentencing range for Level 6 felony neglect of a dependent is between six 

(6) months and two and one-half (21⁄2) years, with an advisory sentence of one 

(1) year. I.C. § 35-50-2-7. Accordingly, Burress received the maximum 

sentence for a Level 6 felony. 

[31] Burress argues that this sentence was inappropriate because the maximum 

sentence should be reserved for the worst offenders, and she believes she is not 

the “very worst offender.” (Burress’s Br. 20). In support of this argument, she 

notes that she does not have a criminal history, has a solid work history, has 
Court of Appeals of Indiana | Memorandum Decision 05A02-1606-CR-1398 | June 29, 2017] Page 20 of 20

addressed her depression issues through therapy, showed remorse, and 

complied with court orders in her CHINS proceedings.

[32] While these factors are positive evidence of Burress’s character, we conclude 

that her sentence was not inappropriate in light of the nature of her offense. As 

the trial court found, B.W. suffered severe and ongoing injuries at an extremely 

young and vulnerable age. Those injuries included multiple skull fractures, rib 

fractures, a fracture to his tibia, a fracture to his ankle, a lacerated liver, and 

bruising on his face. Burress did not do anything to help B.W. and failed to 

seek treatment for those serious injuries even though she admits that she 

noticed them. Thus, the nature of her offense was egregious—she failed to seek 

treatment for severe injuries to a helpless infant even though she was aware of 

the injuries. This failure to seek treatment is also a reflection of her poor 

character. In light of this evidence, we do not find that her sentence was 

inappropriate.

[33] Affirmed.

May, J., and Brown, J., concur.