Marc Antony Burnett, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

[1] Marc Antony Burnett claims that his sentence for neglect of a dependent resulting in serious bodily injury as a level 3 felony is inappropriate. We affirm.

Facts and Procedural History

[2] R.P. has a child, C.C., who was born in November of 2020.¹ On March 8, 2023, twenty-year-old Burnett had sole care of C.C. while R.P. was at work. Prior to being left alone with Burnett, C.C. was alert with no signs of any injury. While in the sole care of Burnett, C.C. suffered injury and was left unconscious. C.C. “suffered a serious bodily injury, to wit: an intracranial bleed, which resulted in the child being critically ill and unstable.” Appellant's Appendix Volume II at 68. C.C. “suffered a life threatening brain injury, which required an immediate hemicraniectomy and bolt insertion in order to prevent herniation and death.” Id. Burnett, “having the care of [C.C.], a dependent, whether assumed voluntarily or because of legal obligation, did knowingly or intentionally place [C.C.] in a situation that endangered his life or health which resulted in serious bodily injury to [C.C.].” Id.

[3] On March 22, 2023, the State charged Burnett with: Count I, neglect of a dependent resulting in catastrophic injury as a level 1 felony; Count II, neglect of a dependent resulting in serious bodily injury as a level 3 felony; Count III, neglect of a dependent resulting in bodily injury as a level 5 felony; and Count IV, neglect of a dependent as a level 6 felony. Burnett and the State entered into a plea agreement pursuant to which Burnett agreed to plead guilty to neglect of a dependent resulting in serious bodily injury as a level 3 felony and in exchange the State agreed to dismiss the other counts. The plea agreement included an attached “Stipulated Factual Basis” signed by Burnett, his counsel, and the prosecutor. Id. at 68. On September 13, 2024, Burnett pled guilty pursuant to the plea agreement.

[4] On October 31, 2024, the court held a sentencing hearing. C.C.’s father, T.C., testified that C.C. had undergone three brain surgeries and “countless hours of therapy and fitting for equipment like wheelchairs and walkers.” Transcript Volume II at 32-33. He testified that C.C. requires “care around the clock” and attends therapy every week. Id. at 35. When asked the type of therapy, T.C. testified: “Physical occupational and speech. He can't walk. He can not really talk. He's just trying to get used to using an iPad to communicate.” Id. When asked about C.C.’s health before the injury, he testified: “Like any other two or three-year old boy. He was walking, talking, potty-trained. Pretty much a happy go-lucky kid.” Id. He testified: “[C.C.] has traumatic brain injury. After the doctors and the ․ child advocacy group at the hospital evaluated him, they said it couldn't be further from an accident. [T]he severity of the trauma that he experienced, the doctor just said it just certainly wasn't possible.” Id. at 36. When asked about C.C.’s future care and health, T.C. testified, “[a]s far as like walking ․ that's pretty much up in the air,” “[s]peaking is the same way,” and “he might have -- he'll have another surgery, it's just we don't know when.” Id. He indicated that C.C.’s “right leg doesn't have any feeling.” Id. at 37.

[5] Burnett's counsel argued that Burnett was twenty years old at the time of the offense and that probation was appropriate. His counsel requested that any executed sentence be served in community corrections. The prosecutor requested the maximum sentence. The court stated that a maximum sentence was not appropriate and noted that Burnett was a twenty-year-old with no criminal history. The court stated that probation and placement in community corrections were also not appropriate and noted the severity of C.C.’s injury. The court noted that C.C.’s injury was “not only serious bodily injury, but darn close to -- if not actually right on point to catastrophic injury.” Id. at 58. It found C.C.’s age to be a significant aggravating factor, found the mitigating factors included that Burnett had no prior criminal history and pled guilty, and found the aggravating factor outweighed the mitigating factors. The court sentenced Burnett to ten years.

Discussion

[6] Burnett argues that, “[w]hile the injuries to C.C. were significant, ․ the facts within the record simply fulfill the elements necessary to simply prove the offense to which [he] pled.” Appellant's Brief at 9. He argues “[c]oupling [his] lack of prior history with the accidental nature of this offense, it follows that it is unlikely that this crime would reoccur, or that [he] would commit other criminal acts moving forward.” Id. at 10. He requests that this Court “reduce his sentence to the advisory of nine years, with the initial three years to be served in Lake County Community Corrections, with the final six years suspended to be served on probation.” Id. at 11.

[7] Ind. 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.” Under this rule, the burden is on the defendant to persuade the appellate court that his or her sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). Sentencing is principally a discretionary function in which the trial court's judgment should receive considerable deference. Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008). This deference should prevail unless overcome by compelling evidence portraying in a positive light the nature of the offense and the defendant's character. Oberhansley v. State, 208 N.E.3d 1261, 1267 (Ind. 2023). Ind. Code § 35-50-2-5 provides that a person who commits a level 3 felony shall be imprisoned for a fixed term of between three and sixteen years with the advisory sentence being nine years.

[8] Our review of the nature of the offense reveals that, while Burnett had sole care of C.C., C.C. suffered a brain injury which “required an immediate hemicraniectomy and bolt insertion in order to prevent herniation and death.” Appellant's Appendix Volume II at 68. C.C. had three surgeries, requires “care around the clock,” cannot walk, “can not really talk,” is “trying to get used to using an iPad to communicate,” and may require additional surgery. Transcript Volume II at 35. One of C.C.’s legs “doesn't have any feeling.” Id. at 37.

[9] Our review of the character of the offender reveals that Burnett pled guilty to neglect of a dependent resulting in serious bodily injury as a level 3 felony and the State dismissed the other charges against him. The presentence investigation report states, with respect to substance abuse, Burnett started smoking marijuana every day at the age of nineteen and had last smoked the day before his interview. Although Burnett was twenty years old and did not have a prior criminal record, he pled guilty to neglect of a dependent as a level 3 felony which resulted in C.C.’s brain injury and the severe and long-term consequences of the injury. After due consideration, we conclude that Burnett has not sustained his burden of establishing that his sentence is inappropriate in light of the nature of the offense and his character.²

[10] For the foregoing reasons, we affirm Burnett's sentence.

[11] Affirmed.

FOOTNOTES

1.   The facts were taken from the Stipulated Factual Basis attached to Burnett's plea agreement.

2.   To the extent Burnett argues that the trial court abused its discretion in sentencing him by finding C.C.’s age to be an aggravating factor and in failing to give proper weight to the mitigating factors, we need not address this issue because we find that his sentence is not inappropriate. See Chappell v. State, 966 N.E.2d 124, 134 n.10 (Ind. Ct. App. 2012) (noting that any error in failing to consider the defendant's guilty plea as a mitigating factor is harmless if the sentence is not inappropriate) (citing Windhorst v. State, 868 N.E.2d 504, 507 (Ind. 2007) (holding that, in the absence of a proper sentencing order, Indiana appellate courts may either remand for resentencing or exercise their authority to review the sentence pursuant to Ind. Appellate Rule 7(B)), reh'g denied; Mendoza v. State, 869 N.E.2d 546, 556 (Ind. Ct. App. 2007) (noting that, “even if the trial court is found to have abused its discretion in the process it used to sentence the defendant, the error is harmless if the sentence imposed was not inappropriate”), trans. denied), trans. denied.

Brown, Judge.

Chief Judge Altice and Judge Tavitas concur. Altice, C.J., and Tavitas, J., concur.