Brandon R. Berry, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2026)

MEMORANDUM DECISION

[1] Brandon R. Berry (“Berry”) pleaded guilty to Level 5 felony domestic battery ¹ pursuant to a plea agreement that capped his executed time at three years. He was sentenced to three years in the Indiana Department of Correction (“the DOC”), which is the advisory sentence. Berry now appeals and challenges his sentence, claiming the trial court abused its discretion in sentencing him and that his sentence is inappropriate under Appellate Rule 7(B). We affirm.

Facts and Procedural History

[2] On September 5, 2024, the State charged Berry with domestic battery against his wife, Tiffany Bell (“Bell”), for conduct on or about September 1, 2024. At the time, Berry was on probation for an April 2023 domestic battery conviction against Bell. The State brought the instant charge as a Level 5 felony based on that prior conviction, and the new charge prompted a probation violation proceeding in the other matter. In this case, an arrest warrant was issued on September 5, 2024, but not executed until July 24, 2025—nearly a year later—because Berry absconded. During that time, he did not report to probation.

[3] Berry entered into a plea agreement with the State under which he would plead guilty to Level 5 domestic battery, and the executed portion of his sentence would be limited to three years. In exchange, the State would not seek a habitual offender enhancement and would not make a recommendation at Berry's sentencing hearing. Berry pleaded guilty on September 25, 2025, admitting as a factual basis that he knowingly or intentionally touched Bell, a family or household member, in a rude, insolent, or angry manner when he had the prior conviction for domestic battery against Bell. The trial court took the plea under advisement and ordered a presentence investigation report (“PSI”).

[4] The sentencing hearing was held on October 20, 2025, where the trial court heard testimony from Bell, Berry, and representatives of the Chain Breakers faith-based residential treatment program. The court also considered the PSI, which reflected that Berry—thirty-nine years old at the time of sentencing—had twelve prior felony convictions and two prior misdemeanor convictions.² His first conviction was in 2007 for Class C misdemeanor operating a vehicle with a BAC of .08 or more. Berry was placed on probation, which was revoked on two occasions. He then amassed felony convictions in 2011, 2013, and 2014 for operating a vehicle while intoxicated with a prior conviction. In each case, Berry violated the conditions of probation. Among his other convictions was a 2020 conviction for Level 6 felony domestic battery in the presence of a child less than sixteen years old. Berry received a suspended sentence and was ordered to participate in both a Batterers Intervention Program and a drug and alcohol evaluation. His probation was later revoked. Next Berry committed the 2023 domestic battery against Bell where his probation was again revoked.

[5] Bell testified that she and Berry had been married for four years, but together for approximately nine years and had “lived together almost the whole time.” Tr. Vol. 2 p. 45. The couple lived together with Bell's children from a prior relationship. Bell testified that Berry had an alcohol problem, sharing that alcohol had been involved in both batteries against her. She expressed her belief that Berry could be rehabilitated, noting that she would “like to see him go to a rehabilitation center.” Id. at 44. Bell added that, to her knowledge, Berry had “never been offered that or even went to one, to get rehabilitated.” Id. Bell described Berry as compassionate and loving when he was sober. She intended to keep living with him, noting he was “a really good guy when he's not drinking” and “great with [her] kids.” Id. When asked where Berry went after the offense, she said: “I didn't talk to him for a few – like a month or two. So I'm not sure exactly where he went.” Id. at 46. Bell told the trial court: “I just – I really need him to just get better and get out because I need help.” Id.

[6] Berry acknowledged that he had an alcohol problem and that it played a part in his criminal history, stating: “If you look at my packet, with 12 felonies, 75 percent are alcohol related, so. Sometimes I think that I have it under control but clearly I don't.” Id. at 50. Berry said he was working to address his alcohol abuse while in jail, pointing to his participation in NA, anger management classes, and other programming. Berry said his thinking changed, which led to insights, noting: “I'm a lot more selfish than I thought I was.” Id. at 48. Berry testified that he participated in outpatient treatment in 2013. Berry further testified that, if he were released that day, he would “probably go to a facility to rehabilitate” and “would put God first.” Id. He had been in touch with a faith-based program called Chain Breakers and hoped to participate in the program.

[7] The State asked Berry where he went after he committed the offense. Berry said: “I was several places. I was at my best friend's house ․ for a long time, and then ․ I went to my parents’ house.” Id. at 51. Berry acknowledged that, at the time, he was aware that he was on probation and law enforcement would probably be looking for him. Berry also testified that he was in arrears in child support as to his two children, explaining that he struggled to find a job after he “caught a Battery,” which had essentially ended his career as a nurse. Id. at 53. He later made a statement in allocution during which he apologized to Bell “for any mental or physical pain” he caused her and asked for forgiveness. Id. at 70.

[8] The trial court asked Berry's counsel whether he “would ․ like to make any closing argument or recommendation[.]” Id. at 73. Counsel did not ask the trial court to identify specific mitigating circumstances. Instead, counsel told the court that “Berry's record obviously speaks for itself and it's terrible.” Id. at 73. Counsel referred to the plea agreement's three-year limit on executed time and noted that, “whatever the [trial court] does, in a fairly short time [Berry is] going to be out.” Id. Counsel asked the court to “look ahead to when [Berry] gets out” and consider what the court can do “to facilitate that when he gets out, he will be a better man, a better citizen, a better husband, father[,] and son ․ than he has been before.” Id. Counsel said that the evidence reflected “a potential” for Berry's rehabilitation, and he “urge[d] the [trial court] to take that into account and to impose whatever [it] regards as a minimum incarceration for this new offense, followed by ․ a program of rehabilitation.” Id. Counsel specifically suggested that the court place Berry in the Chain Breakers program.

[9] The trial court accepted Berry's plea of guilty and entered its judgment of conviction. The trial court then directly addressed Berry, stating: “I think I've heard a lot today that tells me ․ that you have a sincere hope and a sincere commitment to making the changes that need to be made so that you can stop hurting the people you love.” Id. at 74. The court found three aggravating circumstances: (1) Berry's criminal history of twelve prior felony convictions and two prior misdemeanor convictions—including two prior domestic battery convictions, making this his third; (2) his numerous probation violations, which the court observed had followed nearly every prior grant of supervised release; (3) and the fact that Berry was on probation for domestic battery at the time he committed this offense, at which point Berry “basically absconded from probation for almost a year ․” Id. The trial court identified as mitigating circumstances that Berry pleaded guilty, expressed his remorse, expressed his acceptance of responsibility, and participated in programming while in jail.

[10] The trial court sentenced Berry to three years in the DOC with no time suspended, explaining that the sentence was to run consecutively to Berry's sentence in the prior domestic battery case. The court explained that it “just can't ignore the history,” stating: “[T]he reason ․ I'm not taking the opportunity to place you on probation again is because I just don't have a lot of belief that you'll be able to follow it.” Id. The court added: “[A]t this point, I'm not willing to enter another court order to tell you to do something when history tells me that that's not going to be successful.” Id. Berry now appeals.

Discussion and Decision

[11] Berry challenges his three-year executed sentence, claiming the trial court abused its discretion with respect to mitigating circumstances and imposed an inappropriate sentence subject to revision under Indiana Appellate Rule 7(B).

I. Mitigating Circumstances

[12] Sentencing decisions rest within the sound discretion of the trial court and are reviewed for abuse of that discretion. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh'g, 875 N.E.2d 218 (Ind. 2007). A trial court abuses its discretion when its decision is clearly against the logic and effect of the facts and circumstances before it. Id. In the sentencing context, the court abuses its discretion by entering a sentencing statement that omits mitigating factors that are “clearly supported by the record and advanced for consideration ․” Id. at 491. However, “the trial court does not abuse its discretion in failing to consider a mitigating factor that was not raised at sentencing.” Anglemyer, 868 N.E.2d at 492. If the defendant does not advance a mitigating factor at sentencing, appellate courts “will presume that the factor is not significant and the defendant is precluded from advancing it as a mitigating circumstance for the first time on appeal.” Spears v. State, 735 N.E.2d 1161, 1167 (Ind. 2000).

[13] Berry claims the trial court abused its discretion by failing to find mitigating factors that were clearly supported by the record—specifically, his faith and its role in his rehabilitation, his acknowledgment of alcoholism and desire for treatment, his acceptance into the Chain Breakers program, his wife's testimony regarding her belief in him and her need for his support, and the hardship his incarceration will cause his family. However, each of those potential mitigators suffers from the same threshold defect: Berry's counsel did not advance any of them as proposed mitigating circumstances at the sentencing hearing.

[14] That is, when Berry's counsel addressed the trial court, counsel acknowledged that Berry had a “terrible” criminal history and ultimately asked the court to look ahead to how to facilitate his reintegration into society—what amounts to a request for leniency, not a proffer of specific mitigating circumstances. Because Berry did not ask the court to find religious faith, treatment acceptance, Chain Breakers placement, spousal support, or family hardship as mitigators, he may not assign error to the court's failure to find them. Therefore, Berry has not identified an abuse of discretion in the court's identification of mitigators.³

II. Appellate Rule 7(B)

[15] The Indiana Constitution vests our appellate courts with the authority to review and revise criminal sentences. Lane v. State, 232 N.E.3d 119, 122, 122 n.6 (Ind. 2024) (citing Ind. Const. art. 7, §§ 4, 6). Appellate Rule 7(B) implements that authority, permitting revision of a sentence “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.” The principal role of our review is to attempt to leaven the outliers, not to achieve the perceived correct result in each case. Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). We remain mindful that “sentencing is principally a discretionary function in which the trial court's judgment should receive considerable deference.” Id. at 1222. That deference “should prevail” unless “overcome by compelling evidence portraying in a positive light the nature of the offense (such as accompanied by restraint, regard, and lack of brutality) and the defendant's character (such as substantial virtuous traits or persistent examples of good character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015).

[16] The two prongs of Appellate Rule 7(B) are separate inquiries that we balance in determining whether revision is warranted, and a defendant need not succeed on both—a strong showing on one prong may outweigh a weak showing on the other. Lane, 232 N.E.3d at 126–27. It is the defendant's burden to persuade us that the sentence is inappropriate. Webb v. State, 149 N.E.3d 1234, 1241 (Ind. Ct. App. 2020). When a defendant receives the advisory sentence, he bears a particularly heavy burden in persuading us that the sentence is inappropriate. Fernbach v. State, 954 N.E.2d 1080, 1089 (Ind. Ct. App. 2011), trans. denied.

[17] Berry suggests his sentence is inappropriate in part because it runs consecutive to the sentence imposed in his prior domestic battery case, where he violated the conditions of his probation. Berry argues that the instant case “was the primary reason he was found to have violated his probation” and that, “[i]n effect, Berry was punished twice for one offense.” Appellant's Br. p. 18. We note, however, that a consecutive sentence is statutorily required in this case because Berry committed the instant offense “before the date [he was] discharged from probation” in the other. Ind. Code § 35-50-1-2(e). In any case, Berry's probation status—and repeat victimization of his wife—do not strike us as compelling circumstances that warrant downward revision of his sentence.

[18] Turning to the first prong of our Appellate Rule 7(B) analysis, the nature of the offense, we note that the advisory sentence is “the starting point” our legislature selected as an appropriate sentence for the crime committed. Reyes v. State, 848 N.E.2d 1081, 1083 (Ind. 2006). In general, a Level 5 felony offense carries a sentencing range of one to six years with an advisory sentence of three years. See I.C. § 35-50-2-6(b). Here, Berry received the advisory sentence of three years. As to the nature of the offense, we “compare[ ] the defendant's actions with the required showing to sustain a conviction under the charged offense.” McFarland v. State, 153 N.E.3d 369, 373 (Ind. Ct. App. 2020), trans. denied.

[19] Berry argues that his domestic battery of Bell was no more brutal or heinous than the conduct contemplated by the statute criminalizing the offense. See I.C. § 35-42-2-1.3(a)(1), (c)(4). But this argument does not necessarily indicate that the advisory sentence is inappropriate. Rather, the argument is more indicative that—standing alone—the nature of the offense might not warrant a sentence above the advisory (which the trial court was unable to impose anyway because of the constraints of the plea agreement). Nonetheless, nothing in the record portrays the nature of the offense in a positive light: Berry consumed alcohol and battered his wife—all while on probation for committing domestic battery against her when he previously consumed alcohol and became violent.

[20] As to the next prong, “[t]he character of the offender is found in what we learn of the offender's life and conduct.” Pedigo v. State, 146 N.E.3d 1002, 1016 (Ind. Ct. App. 2020), trans. denied. It is proper to reflect on the defendant's criminal history and what it reveals about the defendant's character. Id. Here, Berry's criminal history consists of twelve prior felonies and two prior misdemeanors, many of which relate to alcohol abuse. Berry previously had the opportunity to undergo evaluation for alcohol abuse, and he acknowledged prior participation in outpatient services to address this known issue, which remained unremedied. Moreover, Berry had many opportunities to serve previous sentences in the community, however, he repeatedly violated probation. There is no indication that Berry took his alcohol abuse seriously even after alcohol played a role in his prior domestic battery against his wife, and Berry committed the instant offense while on probation in that case. Rather than confront consequences of his actions, Berry evaded arrest for the better part of a year, avoiding the criminal charge in this case and the probation revocation proceedings in the other case. Collectively, these circumstances reflect poorly on his character.

[21] Berry points to evidence of his recent progress. However, these arguments do not persuade us of “substantial virtuous traits or persistent examples of good character” that would overcome the deference owed to the trial court. Stephenson, 29 N.E.3d at 122. The factors Berry cites in his favor—such as his remorse, commitment to his faith, desire to address his alcohol abuse, and rehabilitative efforts in jail—must be considered against his criminal history and lengthy history of reoffending despite past opportunities for rehabilitation.

[22] For the foregoing reasons, we conclude that the sentence is not inappropriate, and that the trial court did not abuse its discretion in identifying mitigators.

[23] Affirmed.

FOOTNOTES

1.   Ind. Code § 35-42-2-1.3(a)(1), (c)(4).

2.   The PSI stated that Berry had eleven prior felony convictions, but this was corrected at the hearing.

3.   Even in cases that present sentencing error, this court need not remand for resentencing if we conclude that the sentence is not inappropriate under Appellate Rule 7(B). See Windhorst v. State, 868 N.E.2d 504, 507 (Ind. 2007); Williams v. State, 997 N.E.2d 1154, 1165 (Ind. Ct. App. 2013). Although Berry has not demonstrated error, we proceed to address his Rule 7(B) argument herein, concluding that his sentence is not inappropriate.

Foley, Judge.

Tavitas, C.J., and Weissmann, J., concur.