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ATTORNEY FOR APPELLANT Jeffrey D. Stonebraker Chief Public Defender Jeffersonville, Indiana

ATTORNEYS FOR APPELLEE Steve Carter Attorney General of Indiana Scott L. Barnhart Deputy Attorney General Indianapolis, Indiana

______________________________________________________________________________

In the

Indiana Supreme Court
_________________________________ No. 10S05-0811-CR-588 RUDY WAYNE CARDWELL,

FILED
Nov 12 2008, 9:18 am
of the supreme court, court of appeals and tax court

CLERK

Appellant (Defendant below), v. STATE OF INDIANA, Appellee (Plaintiff below). _________________________________ Appeal from the Clark County Superior Court, No. 10D01-0509-FB-084 The Honorable Jerome F. Jacobi, Judge _________________________________ On Petition to Transfer from the Indiana Court of Appeals, No. 10A05-0703-CR-129 _________________________________ November 12, 2008 Boehm, Justice. Rudy Wayne Cardwell challenges the appropriateness of his sentence under Indiana Rule of Appellate Procedure 7(B). Concluding that Cardwell's aggregate sentence of thirty-four years is inappropriate in light of the nature of his offense and his character, we revise his sentence to consecutive terms of nine and eight years for an aggregate sentence of seventeen years.

Facts and Procedural History In September 2005, Cardwell lived in Jeffersonville, Indiana with his girlfriend, Star Gentry, Gentry's three-year-old daughter, S.G, and H.G., the couple's one-year-old daughter. Cardwell and Gentry had been dating for about four years, and Cardwell described his relationship with S.G. as "father type." On the morning of September 8, 2005, Cardwell cared for both children while Gentry finished her night shift at a local convenience store. Cardwell gave S.G. some spaghetti for breakfast around 5:30 a.m. and left the kitchen to check on H.G., who was playing in another room. When he returned to the kitchen, he slipped and fell in spaghetti on the floor. S.G.'s arms, hands, and shirt were covered in spaghetti. Irritated, Cardwell asked S.G., "How did the spaghetti get on the floor?" S.G. did not respond to Cardwell's repeated questioning, and Cardwell told her she would have to sit on the couch with him and would not be allowed to watch cartoons or play with toys because "she was going to be punished." S.G. started to cry. Cardwell took S.G., still crying, to the bathroom to clean up. He removed her shirt, squirted some soap in her hands, turned on the faucet, and placed her hands in the water. S.G. immediately said, "Daddy the water is hot." Cardwell testified that he thought S.G. was trying to avoid questions about the spaghetti, so he continued to hold her hands under the water. S.G. then jerked away and said, "Daddy my hands are burning." Cardwell felt the water and found that it was hot. He saw that S.G.'s hands were hot and pink and placed them in cold water. He then applied an aloe gel to her hands and wrapped them in some cloths. By this point, Gentry was scheduled to get off work in a few minutes, so Cardwell placed the children in the car and went to pick her up. He told Gentry what had happened and said that they needed to go to the hospital. Gentry testified that because S.G. was not crying, Gentry waited to check S.G.'s hands until they returned home, where Gentry concluded the burns looked like a sunburn, and she gave S.G. Tylenol. Gentry checked the burns a few hours later and applied more aloe gel. A medical witness for the prosecution testified that burns that later are obviously severe initially "can have a variety of appearances," including "where the skin doesn't look like it is injured at all but it is a deep red color," and that applying aloe gel to a less severe burn is not a "bad first thing to do."

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Later in the day, Gentry noticed that the burns were beginning to blister. At 4:45 p.m., Gentry and Cardwell took S.G. to the Clark County Emergency Room. Teresa Martin, the triage nurse, testified that S.G. was crying inconsolably, and her hands were bandaged with a dirty shirt. When Martin removed the bandages, she saw skin hanging from S.G.'s fingers. Martin placed S.G.'s hands in cool sterile water and gave her some Tylenol with codeine. Gentry told Martin that she was washing S.G.'s hands and did not realize the water was so hot, and had tried to treat the burns at home. Gentry had also coached S.G. to say that Gentry, not Cardwell, had accidentally caused the burns when washing her hands. Suspicious of Gentry's story, Martin reported S.G.'s burns to the Clark County Department of Child Services. Because Clark County Hospital does not have a burn unit, S.G. was transferred by ambulance to Kosair Children's Hospital in Louisville, Kentucky. In the emergency room, S.G. was treated by Dr. In K. Kim. Dr. Kim noted that S.G. had partial and full thickness burns on the backs of both hands and was in significant pain. Dr. Kim believed that the burns were very serious and noted that "the skin ha[d] effectively [come] off" and the hands were "de-gloved," raising risks of infection, inflammation, and possible need for skin grafts or amputation. Dr. Kim prescribed a morphine derivative for pain and referred S.G. to the pediatric burn unit. While S.G. was being treated, Detective Charles E. Thompson of the Jeffersonville Police Department was dispatched to investigate her injuries. Thompson arrived at Kosair Children's Hospital and observed S.G. He testified that S.G.'s "hands were just, some of the worse burns I have seen on a child." Thompson testified that based on his experience, S.G.'s burns were the result of child abuse. At the hospital, Thompson interviewed Gentry, who initially told him that she accidentally caused the burns. After Thompson told her he did not believe her story, she admitted that Cardwell caused the burns. Thompson then interviewed Cardwell, who took responsibility for what happened to S.G. and expressed deep remorse.1 Thompson testified that Cardwell admitted planning with Gentry

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At trial, Thompson recounted his conversation with Cardwell: He said that he had taken [S.G.] in [the bathroom] to wash her hands. She began screaming that it hurt, but he kept her hands under there anyway. I said, "so what, you lost it, you totally lost it?" He said, "I wouldn't say I totally lost it," he said "I was mad, I was upset, I had been having problems lately with her minding." He said, "I kept her hands

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to have her coach S.G. to lie about who caused the injuries. Thompson also testified that Cardwell explained that to save money he and Gentry had a practice of turning the water heater all the way up just before hot water was needed, and then turning it back down. Gentry testified that she took a bath the evening before S.G. was burned, and she could not remember whether she had turned the water heater back down. Cardwell testified that he did not turn the water heater up before washing S.G.'s hands, and he did not know whether the heater was turned up at the time. S.G. remained in the pediatric burn unit for a week and continued to receive dressings and pain medication. She also underwent surgery to remove dead tissue from the burns and promote healing. She responded well and did not develop an infection or require skin grafts or amputation. Cardwell was charged with two counts of neglect of a dependent as a Class B felony under Indiana Code section 35-46-1-4. The first charge alleged that Cardwell, knowingly or intentionally placed S.G. "in a situation that endangered her life or health, by burning her with hot water," resulting in serious bodily injury. The second, as later amended, alleged that Cardwell failed "to seek prompt medical attention for S.G., resulting in . . . severe burns to her hands." Caldwell was also charged with conspiracy to commit perjury as a Class D felony, but that charge was later dismissed. A jury found Cardwell guilty on both counts. The trial court sentenced Cardwell to seventeen years on each count, to be served consecutively for a total sentence of thirty-four years. Gentry was charged with neglect of a dependent as a Class B felony for failing to obtain prompt medical treatment for S.G.'s burns and with conspiracy to commit perjury as a Class D felony. As with Cardwell, the State dismissed the perjury charge. A jury convicted Gentry of the lesser included offense of neglect of a dependent as a Class D felony, which does not require proof of causing serious bodily injury. Gentry was sentenced to eighteen months in prison. Gentry v. State, No. 10A04-0610-CV-595, slip op. at 4 (Ind. Ct. App. June 26, 2007).

under there even though she screamed that it hurt." He said "I am wrong," he said "I need to go to jail and somebody needs to throw away the key."

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Cardwell appealed his convictions and sentence. In an unpublished memorandum decision, a majority of the Court of Appeals affirmed. Cardwell v. State, No. 10A05-0703-CR-129, slip op. at 2 (Ind. Ct. App. Mar. 13, 2008). Judge Riley dissented in part, reasoning that Cardwell's sentence was inappropriate given the mitigating circumstances. Id. at 18

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