Wendell D. Mack, Jr., Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2026)

MEMORANDUM DECISION

Case Summary

[1] Wendell D. Mack, Jr. appeals his three-year aggregate sentence for domestic battery and intimidation, alleging it is inappropriate in light of the nature of the offense and his character. We affirm.

Facts and Procedural History

[2] In 2023, Mack and Cheryl Presser were dating and living together in Marion County. At some point, a no-contact order (NCO) was issued prohibiting Mack from contacting Presser. On June 24, Mack was charged with domestic battery against Presser in violation of the NCO. In August, Mack pled guilty to that domestic battery charge and to felony criminal confinement and strangulation charges in a second case involving Presser. Mack agreed to have no further contact with Presser as a term of his plea agreement and probation. The trial court accepted Mack's plea, suspended his sentence to probation, and entered a new NCO prohibiting Mack from having contact with Presser.

[3] Thereafter, the pair continued dating and living together. On May 20, 2025—while Mack was still on probation for his 2023 convictions—he became intoxicated and an argument ensued between him and Presser. Mack began yelling and calling Presser names. Eventually, he called Presser “a bitch” and “said he was going to kill [her.]” Tr. Vol. II p. 16. He then crossed the room, picked up his tennis shoes, and “popped [Presser] in the face with his shoes.” Id. at 17. Presser said Mack broke her nose, causing her a lot of pain and to see “bright lights” or “stars” in her vision. Id. at 17, 18. Presser called the police, who observed red marks on her face upon arrival at the scene.

[4] Mack was arrested and charged with Level 5 felony domestic battery with a prior conviction, Level 6 felony intimidation, Level 6 felony domestic battery in violation of an NCO, and Class A misdemeanor invasion of privacy. Mack proceeded with a bench trial and later admitted he had a prior domestic battery conviction against Presser. The trial court found Mack guilty of domestic battery with a prior conviction and intimidation and not guilty of the remaining charges.

[5] At sentencing, the court found Mack's jury-trial waiver and untreated substance use issues to be mitigating. The court then considered Mack's presentence investigation (PSI) report, which revealed an adult criminal history dating back to 1989. His criminal history included at least thirteen convictions, including alcohol-related convictions and violent crimes, and numerous probation violations or revocations. The court found this history and the fact that Mack was on probation at the time of the instant offense to be aggravating. It sentenced Mack to three years executed for Level 5 felony domestic battery and two years executed for Level 6 felony intimidation and ordered that his sentences run concurrently. Mack appeals. Additional facts are provided as necessary.

Discussion and Decision

[6] Mack argues his sentence is inappropriate and seeks revision pursuant to Indiana Appellate Rule 7(B), which 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)). Indeed, Indiana Appellate Rule 7(B) is a “rare” avenue for appellate relief that is reserved “for exceptional cases.” Livingston v. State, 113 N.E.3d 611, 612-13 (Ind. 2018) (per curiam). 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.” Lane, 232 N.E.3d at 122 (internal quotations omitted). A defendant bears the burden of persuading us that his sentence is inappropriate. Anglemyer v. State, 868 N.E.2d 482, 494 (Ind. 2007), clarified on reh'g, 875 N.E.2d 218 (Ind. 2007).

[7] “Because our legislature has selected the advisory sentence as the ‘starting point’ for ‘an appropriate sentence for the crime committed,’ the defendant bears a ‘particularly heavy burden’ when the trial court imposes the advisory sentence.” Shields v. State, 248 N.E.3d 1246, 1276 (Ind. Ct. App. 2024) (quoting Fernbach v. State, 954 N.E.2d 1080, 1089 (Ind. Ct. App. 2011), trans. denied), trans. denied. The sentencing range for a Level 5 felony is one to six years, with an advisory sentence of three years. Ind. Code § 35-50-2-6 (2014). Mack was sentenced to an advisory term of three years on his Level 5 felony domestic battery. The sentencing range for a Level 6 felony is six months to two-and-a-half years, with an advisory sentence of one year. Ind. Code § 35-50-2-7 (2019). The court sentenced Mack to an aggravated term of two years for Level 6 felony intimidation but ordered it to be served concurrently with his domestic battery sentence. Therefore, Mack's three-year aggregate sentence equals the advisory sentence on his Level 5 felony alone.

[8] Regarding the nature of the offense, we consider “the details and circumstances of the commission of the offense[ ].” Merriweather v. State, 151 N.E.3d 1281, 1286 (Ind. Ct. App. 2020). Mack attempts to minimize the nature of the offense by arguing that it was less egregious than other domestic batteries and that there was “no support for Presser's trial testimony that she had a ‘broken nose[.]’ ” Appellant's Br. p. 8. As to the intimidation conviction, Mack notes Presser's subsequent statements that she did not feel scared or threatened by Mack.

[9] Nevertheless, the evidence shows that, while intoxicated, Mack called Presser names and verbally threatened to kill her. He then crossed the room, picked up his shoes, and struck her in the face with them. Presser later testified that Mack broke her nose, causing her a lot of pain and to see stars in her vision. When officers responded, they saw red marks on Presser's face. Moreover, Mack did all of this while still on probation for his prior domestic battery conviction against Presser. Mack has failed to portray either of these offenses in a positive light.

[10] When we look to a defendant's character, we engage in “a broad analysis of the defendant's ‘qualities, life, and conduct.’ ” Cramer v. State, 240 N.E.3d 693, 699 (Ind. 2024) (quoting Crabtree v. State, 152 N.E.3d 687, 705 (Ind. Ct. App. 2020), trans. denied). Among other things, Mack argues his sentence should be revised because (1) he saved court resources by waiving his jury-trial right; (2) some of his criminal convictions are traffic-related and he had an 11-year, conviction-free period; and (3) he has an untreated substance abuse problem. But the trial court already considered Mack's waiver of his jury trial as mitigating. And Mack's criminal history and substance use issues do not reflect favorably on his character.

[11] “A defendant's criminal history is one relevant factor in analyzing character, the significance of which varies based on the ‘gravity, nature, and number of prior offenses in relation to the current offense.’ ” Smoots v. State, 172 N.E.3d 1279, 1290 (Ind. Ct. App. 2021) (quoting Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct. App. 2007)). It is appropriate to consider a defendant's criminal record “as a poor reflection on the defendant's character, because it may reveal that he or she has not been deterred even after having been subjected to the police authority of the State.” Rutherford, 866 N.E.2d at 874. “Even a minor criminal history is a poor reflection of a defendant's character.” Pritcher v. State, 208 N.E.3d 656, 668 (Ind. Ct. App. 2023).

[12] Mack, who was fifty-five at the time of sentencing, has a significant criminal history consisting of at least thirteen convictions, including seven felonies. He also had at least eight opportunities to serve probation, six of which resulted in violations, revocations, or unsuccessful discharge. Several of Mack's convictions are substance-related, including one each for operating with a schedule I or II substance in the body, operating while intoxicated, operating while intoxicated with a prior conviction, and public intoxication. Although the trial court considered Mack's untreated substance use issue as somewhat mitigating, he has had chances to participate in treatment through probation, which he has squandered. His persistent and unaddressed substance use issues reflect poorly on his character. See Vega v. State, 119 N.E.3d 193, 204 (Ind. Ct. App. 2019).

[13] In addition, Mack's convictions for violent criminal offenses all involved Presser. Not only has he been convicted of domestic battery against Presser, but he also has “conviction[s] for strangulation and criminal confinement [ ] involving her.” Tr. Vol. II p. 68. Mack's history demonstrates that he has not been deterred from committing crimes, even after being subjected to the State's police authority, which also reflects poorly on his character. See Rutherford, 866 N.E.2d at 874.

[14] Mack has failed to meet the heavy burden of persuading us that his aggregate three-year term is inappropriate. Accordingly, we affirm.

[15] Affirmed.

Scheele, Judge.

Brown, J., and Kenworthy, J., concur.