Kirsch, J.
Jason L. Forshee (“Forshee”) pleaded guilty to Class C felony dangerous control of a child, 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.
We affirm.
Facts and Procedural History
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 seven-year-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 …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 magazine and believed the rifle to be unloaded. Sometime during the cleaning process … he set down the rifle on a coffee table. … 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.
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…
… 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).
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… 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.
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 filed a motion to correct error, which was deemed denied. Forshee now appeals.
Discussion and Decision
Forshee contends that the trial court abused its discretion when it sentenced him because it relied on an improper aggravator. …
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… 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).
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 sentencing, the trial court found “the harm, injury, and loss suffered by the victims” to be an aggravating circumstance. Id. at 1138. … A majority of this court affirmed the post-conviction court’s denial of relief. Id. at 269.
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
injury was an element of the burglary charge that was dismissed pursuant to [Bethea’s] plea agreement.” Bethea, 983 N.E.2d at 1142. … 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.
… 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.
… 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. See Guzman, 985 N.E.2d at 1132 …
Affirmed.
Riley, J., and Pyle, J., concur.