Pamela Barger, Appellant/Cross-Appellee-Defendant v. State of Indiana, Appellee/Cross-Appellant-Plaintiff (2025)

MEMORANDUM DECISION

Case Summary

[1] Pamela Barger appeals her thirty-three-year aggregate sentence for her convictions of Level 1 felony neglect of a dependent resulting in death and two counts of Level 6 felony neglect of a dependent. Barger raises two issues, which we restate as: whether the trial court abused its sentencing discretion and whether Barger's sentence was inappropriate in light of the nature of the offenses and Barger's character. The State cross-appeals arguing this appeal should be dismissed as untimely under Indiana Appellate Rule 9(A) and Barger failed to follow the procedural requirements under Indiana Post-Conviction Rule 2 to seek permission to file a belated notice of appeal. Deciding this appeal on the merits, we affirm.

Facts and Procedural History

[2] In the Spring of 2019, Barger ran a childcare service in the home she shared with her partner, Todd Volker. On May 1, 2019, the victims, twenty-three-month-old T.M. and three-year-old A.M. (collectively, Children), were dropped off at Barger's home by their mother, who picked them up around midnight. The next day, Children's mother dropped them off at Barger's home again and never returned to pick them up. Barger alleged she contacted the Indiana Department of Child Services (DCS), but neither DCS nor law enforcement located a record of a phone call from Barger to DCS.

[3] For about five weeks, Barger kept Children in her home despite knowing Volker had a violent criminal history and was a sex offender not permitted to be around children. Volker hit Children with spoons and canes, lifted Children up by their necks and hair, and was “beating them daily.” Tr. Vol. II p. 184.

[4] On June 7, 2019, T.M. suffered a severe head injury. At least three explanations were given about T.M.’s injury, including that: (1) Barger witnessed T.M. trip over his own clothing and hit his head on a carpeted floor, eventually losing consciousness; (2) on his way out for work, Volker pushed T.M. down causing T.M. to hit his head on a carpeted floor and eventually lose consciousness; and (3) an older child in the home, whom Barger was babysitting, witnessed Barger hit T.M. on the head with a cane so forcefully that he bled and went unconscious.

[5] Sometime after T.M. lost consciousness, Barger called Volker and asked him to return home. Barger tried to wake T.M. with a wet rag, and Volker tried to rub T.M.’s chest. Although their efforts failed to wake T.M., neither Barger nor Volker called 9-1-1. Volker arrived at Reid Health Emergency Room with T.M. at least fifty-one minutes after T.M. lost consciousness.

[6] Upon arrival, T.M. was unresponsive and had no pulse. Doctors revived T.M.’s pulse, but T.M. was comatose and required a ventilator to breathe. Testing revealed T.M. had a severe, large brain bleed consistent with a high impact fall from a significant height or a high impact strike to the head—not with a fall from T.M.’s own height onto a carpeted floor. T.M. also had severe genital bruising, bite mark bruising, and other bruising around his neck, chest, flank, extremities, and cheeks, all in various stages of healing. T.M. was in critical condition and rapidly airlifted to Riley Children's Hospital.

[7] Barger arrived at Reid Health with A.M. after T.M. and Volker. Doctors performed a full-body examination of A.M. and observed bruising on his genitals, flank, arms, and face. A.M. was also missing large portions of his hair. DCS removed A.M. from Barger's care and placed him in foster care.

[8] At Riley Children's Hospital, doctors removed a portion of T.M.’s skull and put him on life support. T.M. remained in intensive care for several weeks. On July 3, 2019, T.M. died as a result of complications from blunt force injury to his head.

[9] The State originally charged Barger with Count I, Level 3 felony neglect of a dependent resulting in serious bodily injury; Count II, Level 3 felony aggravated battery; County III, Level 6 felony neglect of a dependent; and Count IV, Level 6 felony neglect of a dependent. On February 21, 2020, the State amended Count I to Level 1 felony neglect of a dependent resulting in death and Count II to Level 1 felony aggravated battery.

[10] After a four-day trial in March 2024, a jury found Barger guilty of Count I Level 1 felony neglect of a dependent resulting in death and Counts III and IV Level 6 felony neglect of a dependent.¹ The trial court sentenced Barger to an aggregate thirty-three years imprisonment in the Indiana Department of Correction.² Barger now appeals.

Discussion and Decision

[11] Barger argues the trial court abused its discretion in sentencing her and her sentence is inappropriate under Indiana Appellate Rule 7(B). The State cross-appeals, arguing the case should be dismissed as untimely and for failure to follow the procedural requirements to petition for permission to file a belated notice of appeal. The State correctly observes Barger's notice of appeal was filed two days past the thirty-day deadline under Indiana Appellate Rule 9(A)(1).³ Exercising our authority to deviate from the Appellate Rules under Indiana Appellate Rule 1, we address this appeal on its merits.⁴

I. Sentencing Discretion

[12] Barger argues the trial court improperly considered two aggravators that were material elements of neglect of a dependent resulting in death.  ⁵ Sentencing decisions are left to the sound discretion of the trial court, and we review a trial court's decision only for an abuse of discretion. Owen v. State, 210 N.E.3d 256, 269 (Ind. 2023) reh'g denied (citing Anglemyer v. State, 868 N.E.2d 482, 491 (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[.]” Id. (internal quotations omitted). “A court does not abuse its discretion if the record supports its reasons for imposing a sentence and those reasons are proper as a matter of law.” Id.

[13] Barger challenges use of the victims’ ages as an aggravating factor because neglect of a dependent resulting in death requires the victim to be less than fourteen years of age. Ind. Code § 35-46-1-4(b)(3) (2018). A trial court may consider age as an aggravator if “the youth of the victim is extreme.” Reyes v. State, 909 N.E.2d 1124, 1128 (Ind. Ct. App. 2009). “The younger the victim, the more culpable the defendant's conduct.” Hamilton v. State, 955 N.E.2d 723, 727 (Ind. 2011). But, when the age of a victim is a material element of the crime, a trial court must set forth “particularized circumstances” justifying treatment of a victim's age as an aggravator. Gober v. State, 163 N.E.3d 347, 354 (Ind. Ct. App. 2021) trans. denied.

[14] Here, T.M. was twenty-three months old and A.M. was three years old when Barger committed the offenses. The trial court did not merely recite the element of the offense but considered the particular circumstance that the victims’ ages were “significantly less than twelve[.]” Appellant's App. Vol. II p. 56. The record clearly supports the Children were defenseless against the abuse inflicted upon them by Barger, given their extreme youth. The trial court did not abuse its discretion by considering the Children's ages as an aggravating circumstance. E.g., Reyes, 909 N.E.2d 1124 (where age was a proper aggravator because youth of the victim was extreme).

[15] Barger also challenges treatment of her position of care, custody, or control of the victims as an aggravator because it is an element of neglect of a dependent resulting in death. Here, too, a trial court must consider the particularized circumstances justifying treatment of the element an aggravator. Robinson v. State, 894 N.E.2d 1038, 1043 (Ind. Ct. App. 2008).

[16] At sentencing, the trial court stated Barger “was a full-time babysitter and ha[d] voluntarily assumed the care of both [T.M.] and [A.M.]” and Barger “breached that duty of care, obligation, and love.” Tr. Vol. III p. 145. In its sentencing order, the court added that T.M.’s and A.M.’s mother left them with Barger for more than “a couple of hours” and “entrusted [Barger] with their care and custody.” Appellant's App. Vol. II p. 56. These particular circumstances justify treatment of Barger's assumed position of care over T.M. and A.M. as an aggravator. The court did not abuse its discretion.

II. Inappropriateness of Sentence

[17] Barger also contends her thirty-three-year aggregate sentence was inappropriate in light of the nature of the offenses and her character. We disagree.

[18] Indiana Appellate Rule 7(B) permits an 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 give “considerable deference” to the trial court's sentencing decision and attempt only to “leaven the outliers” rather than achieve the “perceived ‘correct’ result” in every case. Lane v. State, 232 N.E.3d 119, 122 (Ind. 2024) (quoting Cardwell v. State, 895 N.E.2d 1219, 1222, 1225 (Ind. 2008)). Our deference to the trial court prevails unless we are “overcome by compelling evidence portraying in a positive light the nature of the offense and the defendant's character.” Id. (internal quotations omitted). A defendant bears the burden of persuading us that her sentence is inappropriate. Anglemyer, 868 N.E.2d at 494.

[19] We first consider the statutory range for the class of the offense. Id. Barger's Level 1 felony conviction has a sentencing range of twenty to forty years and an advisory sentence of thirty years. Ind. Code § 35-50-2-4(b) (2023). Her two Level 6 felony convictions have a sentencing range of six months to two and one-half years and an advisory sentence of one year. Ind. Code § 35-50-2-7(b) (2023). The trial court sentenced Barger to thirty-two years for the Level 1 felony—two years more than the advisory sentence—and to the advisory sentence of one year for each Level 6 felony.

[20] We next look to the nature of the offense and character of the offender. As to the nature of the offenses, Barger contends her sentence should be reduced because her convictions stem from failure to act rather than knowing or intentional infliction of injury. But the scale of Barger's neglect goes far beyond mere failure to act. The evidence showed Barger did not contact DCS or law enforcement when Children's mother failed to pick them up from her home. Instead, Barger kept T.M. and A.M. in her home knowing Volker was a sexual and violent offender. Barger failed to protect T.M. and A.M. as their bruises accumulated from Volker's daily abuse. And one witness testified that Barger hit T.M. on the head with a cane so forcefully that he bled and lost consciousness. Although Barger contends Volker caused T.M.’s brain injury, Barger never called for help even when T.M. was limp and unconscious. Indeed, Volker drove T.M. to the hospital. Barger arrived later with A.M. who also had visible injuries. In the end, T.M. died because of the injuries inflicted on him while in Barger's care. Barger has failed to present any evidence that portrays “in a positive light the nature of the offense[s.]” Lane, 232 N.E.3d at 122.

[21] As to Barger's character, we are not “overwhelmed” with such “compelling evidence” to persuade us to revise her sentence. Id. That Barger “provided shelter for two abandoned boys” does not portray her character in a positive light where Barger knew daily abuse occurred in that shelter. Appellant's Br. p. 16. Barger also notes she had no prior criminal history. While commendable, we agree with the trial court: this fact does not outweigh the nature of the offenses.

[22] Barger has not presented compelling evidence portraying her character or the nature of the offenses in a positive light. Her sentence is not inappropriate in light of the nature of the offense or her character.

[23] Affirmed.

[24] I concur with my colleagues’ decision to address the merits of Barger's appeal, rather than accept the State's invitation to dismiss her appeal as untimely filed. I write separately, however, to explain why my position is different herein than in Clemons v. State, 260 N.E.3d 1010, 1016-17 (Ind. Ct. App. 2025), wherein I argued my colleagues should have dismissed Clemons’ appeal.

[25] Both Clemons and Barger filed late notices of appeal, and neither Clemons nor Barger responded to the State's cross-appeal asserting we should dismiss their appeals as untimely. Nevertheless, their appeals are distinctly different because Clemons was appealing the revocation of his probation while Barger was bringing a direct appeal of her sentencing – and the import of this procedural difference lies in Indiana Post-Conviction Rule 2, which would permit Barger to bring a belated appeal of her sentence while prohibiting Clemons from bringing a belated appeal of his probation revocation. See Dawson v. State, 943 N.E.2d 1281, 1281 (Ind. 2011) (holding belated appeals from orders revoking probation are not available under PCR 2). Were we to dismiss Barger's appeal, she could file a PCR 2 petition with the trial court to present us precisely the same issues, in precisely the same procedural posture, prompting us to apply precisely the same standard of review. See, e.g., Norton v. State, 235 N.E.3d 1285, 1290-92 (Ind. Ct. App. 2024) (addressing sentencing issue under Appellate Rule 7(B) standard in PCR 2 appeal after direct appeal had been dismissed as untimely). Because Barger's notice of appeal was only two days late, the success of a PCR 2 petition seems likely, and I therefore agree that judicial economy concerns should prompt us to reinstate her forfeited appeal and address her arguments now.

[26] That said, I still believe my opinion in Clemons was correct under the circumstances presented there. See Sevion v. State, 223 N.E.3d 1154, 1157 (Ind. Ct. App. 2023) (dismissing appeal under circumstances nearly identical to Clemons's circumstances). As our Indiana Supreme Court recently reiterated, dismissal of an untimely appeal is “never error[,]” the exception for reinstating a forfeited appeal is “narrow[,]” and the exception should be applied only “if the appellant shows that there are extraordinarily compelling reasons why this forfeited right should be restored.” State v. B.H., 260 N.E.3d 953, 956 (Ind. 2025) (internal quotations omitted). As a result, the Supreme Court dismissed the State's appeal when no “fundamental liberty interest” was at stake and the State “failed to present any extraordinarily compelling reasons to restore its right to appeal[.]” Id. at 959. I am concerned that my colleagues sometimes stray too far toward advocacy for an appellant in their attempts to justify reaching the merits of a forfeited appeal without any such argument being presented by the appellant, see, e.g., id. (noting Court of Appeals had found three extraordinarily compelling reasons to reinstate the State's untimely appeal, even though the State had pointed to none); and see Clemons, 260 N.E.3d at 1014-15 (reinstating Clemons’ forfeited appeal without Clemons providing any argument therefor), and I hope that our Indiana Supreme Court continues to provide clarification about the proper exercise of our discretion to reinstate forfeited appeals.

[27] With these thoughts in mind, I concur with my colleagues’ decisions to address Barger's appeal on the merits and to affirm her sentence.

FOOTNOTES

1.   The jury found Barger not guilty of Count II Level 1 felony aggravated battery. Ind. Code § 35-42-2-1.5 (2014).

2.   Barger was sentenced to thirty-two years for Count I, and one year each for Counts III and IV. Count III is to run concurrent with Count I and Count IV is to run consecutive to Counts I and III.

3.   Barger neither avails herself of Post-Conviction Rule 2 to seek permission to file a belated notice of appeal, nor acknowledges her tardy notice of appeal in the Record, nor files a cross-appellee's brief responding to the State's cross-appeal.

4.   In In re Adoption of O.R., our Supreme Court explained that “although a party forfeits its right to appeal based on an untimely filing of the Notice of Appeal, this untimely filing is not a jurisdictional defect depriving the appellate courts of authority to entertain the appeal.” 16 N.E.3d 965, 971 (Ind. 2014). Although the subsequent O.R. “extraordinarily compelling reasons” analysis does not apply here, where Barger had but did not avail herself of the appropriate mechanism to reinstate her appeal under Post-Conviction Rule 2, we may still permit deviation from the Appellate Rules on our own motion. Id.; Ind. Appellate Rule 1. We choose to permit such a deviation here and proceed to the merits of Barger's appeal. See also Clemons v. State, 260 N.E.3d 1010, 1015 (Ind. Ct. App. 2025) (quoting In re Adoption of O.R., 16 N.E.3d at 972) (“Dismissing this appeal could lead to a post-conviction petition amounting to nothing more than a delay in the date of eventual review and additional costs to the taxpayers—the opposite result of the ‘orderly and speedy justice’ our procedural rules are meant to promote.”).

5.   Barger challenges both aggravating factors only as they apply to her conviction for neglect of a dependent resulting in death, not as they apply to her convictions for neglect of a dependent. See Appellant's Br. pp. 11-12.

Scheele, Judge.

Judges Weissmann concurs. Judge May concurs in result with a separate opinion. Weissmann, J., concurs. May, J., concurs in result with a separate opinion.