Court of Appeals of Indiana | Opinion 16A05-1511-CR-1923 | July 13, 2016 Page 1 of 10

ATTORNEY FOR APPELLANT

Ross G. Thomas

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Karl Scharnberg

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Jason L. Forshee,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

July 13, 2016

Court of Appeals Case No.

16A05-1511-CR-1923

Appeal from the 

Decatur Superior Court

The Honorable

Matthew D. Bailey, Judge

Trial Court Cause No.

16D01-1403-FA-192

Kirsch, Judge.
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[1] Jason L. Forshee (“Forshee”) pleaded guilty to Class C felony dangerous 

control of a child,1 and at the sentencing hearing, the trial court identified 

aggravating and mitigating circumstances and then sentenced Forshee to four 

years of incarceration, with six months suspended. Forshee appeals and raises 

the following restated issue: whether the trial court abused its discretion in 

sentencing Forshee because it considered as an aggravating circumstance that 

the victim was in Forshee’s “care, custody, or control,” which was an element 

of a dismissed charge.

[2] We affirm.

Facts and Procedural History2

[3] In March 2014, Forshee resided in a home in Greensburg, Indiana with his 

fiancée, Amy (“Amy”), and their two children, six-year-old son A.F. and sevenyear-old daughter N.F. Amy’s older son, C.R., who was then age 13, also lived 

at the home. In the early evening on March 11, all five of the family members 

were at home and were getting ready to attend a school banquet in recognition 

of C.R.’s academic achievements. During this time, and while waiting for the

others, Forshee began to clean his Colt M4 rifle, which he had used for target 

shooting some days prior. Before beginning to clean it, he removed the 

 

1

See Ind. Code § 35-47-10-7(1)(B). We note that this statute was amended, effective July 1, 2014, but we 

apply the statute in effect at the time Forshee committed the offense in March 2014. 

2 As Forshee notes on appeal, the affidavit of probable cause was incorporated as part of the factual basis 

supporting his guilty plea. Appellant’s Br. at 5 n.2. 
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magazine and believed the rifle to be unloaded. Sometime during the cleaning 

process, Amy spoke to Forshee from the bathroom, but he could not hear her, 

so he set down the rifle on a coffee table and walked away to speak with her. 

Some seconds later, he heard a loud “pop” and turned to see A.F. holding the 

rifle. Sent. Tr. at 33. A cartridge inadvertently had been left in the rifle’s 

chamber, and A.F. had shot C.R., who died shortly thereafter at the hospital 

from the injuries. 

[4] The State charged Forshee with: Count I, Class A felony neglect of a 

dependent; and Count II, Class C felony dangerous control of a child. In 

exchange for the State’s dismissal of Count I, Forshee pleaded guilty to Count 

II, which read:

The parent of [A.F.], age 6, did recklessly permit [A.F.] to 

possess a firearm, failing to make reasonable effort to prevent the 

use of the firearm by [A.F.] to commit a felony offense, to wit: 

Pointing a Firearm, [C]lass D felony and/or Reckless Homicide, 

Class C felony, inside the residence[.]

Appellant’s App. at 11. The Plea Agreement (“Plea Agreement”) provided that 

sentencing “shall be left OPEN,” but with a cap of six years on the executed 

portion of the sentence. Id. at 15 (emphasis in original). It further stated, “The 

State will make no sentencing recommendation, but may present evidence and 

victim impact statements.” Id. (emphasis added).

[5] At the sentencing hearing, after hearing testimony, receiving argument, and 

after having previously reviewed the letters that had been submitted to it, the 
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trial court identified mitigating and aggravating circumstances. As far as 

mitigators, the trial court found that Forshee was remorseful, had led a “law 

abiding life for a long period of time,” was unlikely to commit another crime,

and had sought grief counseling. Sent. Tr. at 46-47. Contrary to Forshee’s 

request, the trial court did not find that pleading guilty constituted a significant 

mitigating circumstance, as Forshee received the benefit of dismissal of a Class 

A felony under the Plea Agreement, and it also rejected Forshee’s claim that 

incarceration would result in undue hardship on Forshee’s family, as it results 

in hardship on most families, and his situation presented no exception. 

[6] With regard to aggravators, the trial court observed that Forshee had four prior 

misdemeanor convictions, but concluded they were unrelated in nature and 

severity to the current offense, and the most recent was twelve years prior; the 

trial court therefore determined that Forshee’s criminal history was not 

significant. The trial court recognized as a significant aggravating circumstance 

that Forshee “was in a position of care, custody or control of the victim in this 

case, with a family relationship that’s been testified about[.]” Id. at 45. The 

trial court also found as a significant aggravator that this offense would have a

“long lasting [and] very serious impact” on “the other child in this case and his 

future life.” Id. 

[7] The trial court sentenced Forshee to the advisory four years for Class C felony 

dangerous control of a child, ordering it to be executed at the Indiana 

Department of Correction, with six months suspended to probation. Forshee 
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filed a motion to correct error, which was deemed denied. Forshee now 

appeals.

Discussion and Decision 

[8] Forshee contends that the trial court abused its discretion when it sentenced 

him because it relied on an improper aggravator. Sentencing decisions rest 

within the sound discretion of the trial court and are reviewed on appeal only 

for an abuse of discretion. Guzman v. State, 985 N.E.2d 1125, 1131 (Ind. Ct. 

App. 2013) (citing Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), modified 

on other grounds 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. (quotation marks omitted). When 

imposing a sentence in a felony case, the trial court must provide a reasonably 

detailed sentencing statement explaining its reason for imposing the sentence. 

Id. As the Anglemyer Court explained,

One way in which a trial court may abuse its discretion is failing 

to enter a sentencing statement at all. Other examples include 

entering a sentencing statement that explains reasons for 

imposing a sentence - including a finding of aggravating and 

mitigating factors if any - but the record does not support the 

reasons, or the sentencing statement omits reasons that are 

clearly supported by the record and advanced for consideration, 

or the reasons given are improper as a matter of law. Under 

those circumstances, remand for resentencing may be the 

appropriate remedy if we cannot say with confidence that the 
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trial court would have imposed the same sentence had it properly 

considered reasons that enjoy support in the record.

Anglemyer, 868 N.E.2d at 490-91.

[9] On appeal, Forshee does not challenge the trial court’s determination with 

regard to mitigating factors; rather, his challenge is to one of the two 

aggravators that the trial court recognized as significant. Specifically, he asserts 

that it was an abuse of discretion for the trial court to rely on the aggravating 

circumstance that he was “in a position of care, custody, or control over the 

victim[.]”

3 Sent. Tr. at 45. Forshee maintains that it was improper as a matter 

of law for the trial court to rely on that fact as an aggravator because it is a 

material element of the dismissed charge (Count I, Class A neglect of a 

dependent). Forshee’s argument, however, was expressly addressed and 

rejected by our Supreme Court in Bethea v. State, 983 N.E.2d 1134 (Ind. 2013).4 

[10] In Bethea, a defendant had been charged with, among other things, felony 

burglary resulting in bodily injury, and he ultimately pleaded guilty to felony 

armed robbery and felony criminal confinement. 983 N.E.2d at 1137. At 

 

3 To the extent that Forshee suggests that A.F., the six-year-old who shot the gun, was “the victim” in this 

case, we disagree. See Appellant’s Br. at 5 (stating “The trial court did not specify who he was referring to []as 

the victim in his ruling.”). Certainly, in a sense, there are many victims in this tragic case; however, we are 

certain that the trial court – when stating that “Forshee was in a position of care, custody, or control of the 

victim in this case” – was referring to C.R., who suffered a fatal gunshot wound when A.F. handled 

Forshee’s rifle, and it discharged.

4

In support of his position, Forshee cites to Farmer v. State, 772 N.E.2d 1025, 1027 (Ind. Ct. App. 2002) and 

Roney v. State, 872 N.E.2d 192, 201 (Ind. Ct. App. 2007), trans. denied. Appellant’s Br. at 6. However, our 

Supreme Court’s decision in Bethea abrogated Farmer and Roney. See Guzman, 985 N.E.2 1125, 1132 (Ind. Ct. 

App. 2013) (recognizing that Bethea abrogated Farmer and Roney).
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sentencing, the trial court found “the harm, injury, and loss suffered by the 

victims” to be an aggravating circumstance. Id. at 1138. Bethea appealed his 

sentence, arguing that it violated the limitation on consecutive sentences in 

Indiana Code section 35-50-1-2.

5

 Bethea v. State, No. 18A02-0703-CR-247 (Ind.

Ct. App. Nov. 15, 2007). Finding that Bethea had pleaded guilty to a “crime of 

violence” as defined in the statute, this court found that Bethea’s sentences were 

not subject to the statute, and it affirmed. Id. Bethea sought post-conviction 

relief, arguing that both his trial and appellate counsel were ineffective by 

failing to challenge the aggravating factors used by the trial court to sentence 

him. The post-conviction court denied Bethea’s petition, and Bethea appealed. 

Bethea v. State, 964 N.E.2d 255 (Ind. Ct. App. 2012), trans. granted. On appeal, 

Bethea argued, among other things, that appellate counsel should have asserted 

that it was trial court error to treat the victim’s injury as an aggravating factor 

because that was an element of the burglary charge that was dismissed pursuant 

to his plea agreement. Id. at 266. A majority of this court affirmed the postconviction court’s denial of relief. Id. at 269.

[11] On transfer, the Supreme Court analyzed, among other things, whether the trial 

court erred “by treating the victim’s injury as an aggravating factor when the 

 

5

Indiana Code section 35-50-1-2 provides that the aggregate sentence for conduct constituting a single 

episode of criminal conduct, except in situations involving “crimes of violence,” may not exceed the advisory 

sentence for the class of felony that is one level higher than the most serious felony of which the defendant is 

convicted.
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injury was an element of the burglary charge that was dismissed pursuant to 

[Bethea’s] plea agreement.” Bethea, 983 N.E.2d at 1142. The Bethea Court 

reviewed a line of cases, including Farmer and Roney, and ultimately held that it 

was not improper for the trial court in Bethea’s case to give significant weight to 

facts relating to the burglary and other dismissed charges. Id. at 1145. It

reasoned that although those facts related to elements of the dismissed charges, 

the terms of the plea agreement did not limit or exclude what may be 

considered by the trial court. That is, a plea agreement is a contract and each 

party bargains “to include or exclude certain terms and each party received 

substantial benefits by arriving at an agreement.” Id. at 1144. In Bethea’s case, 

Bethea bargained for dismissal of seven of nine counts with which he was 

charged; the State bargained to ensure a certain conviction on two Class B 

felonies. Bethea’s written plea agreement did not limit what the State could 

offer as aggravating factors or what the defendant could submit as mitigating 

factors. “In other words, it did not limit the sentencing evidence, only the 

maximum sentence.” Id. 

It is well within the purview of contract law, and consequentially, 

as mentioned above, the law as it relates to plea bargains, for the 

Defendant to bargain and the State to accept a plea bargain that 

forecloses the possibility of the trial court using enhancements 

from the underlying charges that were dismissed, or from the 

original charges from which a lesser included plea is taken. 

However, if a plea bargain lacks such language, we hold it is not 

necessary for a trial court to turn a blind eye to the facts of the 

incident that brought the defendant before them.
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Id. at 1145. Simply stated, “Unless evidence is forbidden by the terms of the 

plea agreement, the trial court [] may consider all the evidence before [it].” Id. 

at 1146. 

[12] Here, like in Bethea, the Plea Agreement did not contain any language 

“foreclosing the trial court from considering the facts and circumstances relating 

to the dismissed charge[].” Guzman, 985 N.E.2d at 1132. Rather, the Plea 

Agreement generally provided that the State “may present sentencing 

evidence[.]” Appellant’s App. at 15. Therefore, as the Bethea Court explained, 

the trial court did not have to “turn a blind eye” to the facts and circumstances 

surrounding the case. 983 N.E.2d at 1145. Accordingly, the trial court did not 

abuse its discretion when it considered as an aggravator the circumstance that, 

at the time of the incident, Forshee was in a position of care, custody, or control 

of C.R.

6 See Guzman, 985 N.E.2d at 1132 (trial court acted within discretion 

when, while sentencing defendant for felony reckless homicide, it considered 

surviving victim’s bodily injury as aggravator, even though victim’s injury was 

essential element of two charges that were dismissed pursuant to plea 

agreement, given that agreement did not contain language foreclosing trial 

court from considering facts and circumstances relating to dismissed charges).

 

6 We recognize that “[w]here a trial court’s reason for imposing a sentence greater than the advisory sentence 

includes material elements of the offense, absent something unique about the circumstances that would 

justify deviating from the advisory sentence, that reason is ‘improper as a matter of law.’” Gomillia v. State, 

13 N.E.3d 846, 852-53 (Ind. 2014). However, that principle is inapplicable here, as the fact that C.R. “was 

under the care, custody, or control” of Forshee was not a material element of the offense for which Forshee 

was sentenced.
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[13] Affirmed.

[14] Riley, J., and Pyle, J., concur.