MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                  FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                          Apr 03 2020, 7:09 am

court except for the purpose of establishing                            CLERK
                                                                    Indiana Supreme Court
the defense of res judicata, collateral                                Court of Appeals
                                                                         and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Joel C. Wieneke                                           Curtis T. Hill, Jr.
Brooklyn, Indiana                                         Attorney General of Indiana

                                                          Evan Matthew Comer
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Justin Cherry,                                            April 3, 2020
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          19A-CR-2273
        v.                                                Appeal from the Putnam Circuit
                                                          Court
State of Indiana,                                         The Honorable Matthew L.
Appellee-Plaintiff.                                       Headley, Judge
                                                          Trial Court Cause No.
                                                          67C01-1706-F1-156



Altice, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2273 | April 3, 2020               Page 1 of 14
                                             Case Summary
[1]   Justin Cherry appeals the fifty-five-year aggregate sentence that was imposed

      following his convictions for Level 1 felony burglary, Level 2 felony conspiracy

      to commit burglary, and two counts of Level 3 felony armed robbery, claiming

      that it was “an overly harsh jury trial penalty.” Appellant’s Brief at 12. Cherry

      also argues that his sentence was inappropriate when considering the nature of

      the offense and his character.


[2]   We affirm.


                                  Facts and Procedural History
[3]   The facts, as reported in Cherry’s first direct appeal to this court, are as follows:


              Around 4 a.m. on April 2, 2017, Terry McCarter heard a loud
              noise toward the front of his house. Terry and his wife, Patsy
              McCarter, were in bed at the time. Upon hearing the noise,
              Terry went to investigate. Terry was confronted in his dining
              room by a masked man with a gun. The man ordered Terry to
              lay face down on the floor.


              Three more men came into the house, and one of them held
              Terry at gunpoint. Another man went to the bedroom, pointed a
              gun at Patsy, and said “we’re going to rob you.” (Tr. Vol. II at
              176). The man stuffed all of Patsy’s jewelry into a pillowcase. He
              then took the jewelry and a safe he found out of the room, before
              returning and ransacking the room. The man ordered Patsy out
              of bed and flipped the mattress. The man found a gun on the
              nightstand and took it. Because the man was covered from head
              to toe in black clothing, Patsy was not able to describe any
              characteristics of the robber, but she noticed he was wearing
              unique gloves with white patterns. While Patsy was being held

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2273 | April 3, 2020   Page 2 of 14
        in the bedroom, and Terry was being held in the dining room, the
        other two men searched the rest of the house and stole everything
        of value. Terry heard one of the men refer to another as “Dustin
        or Justin or something like that.” (Id. at 159).


        From the house, the men stole $500 from Terry’s wallet, $6,000
        from the McCarters’ small business that was stored in a desk,
        $200 from Patsy’s purse, a .223 rifle, an antique musket loader, a
        .22 rifle, a single shot shotgun, a leaded-glass clock, multiple
        prescription medications, Patsy’s jewelry, the safe, and the
        handgun from the bedroom. From the McCarters’ barn, the men
        took a chainsaw, a tool set, and some smaller personal items.
        From the garage, the men took an air compressor and some
        drills.


        After about an hour, when the men had finished plundering the
        McCarters’ property, the men ordered Terry and Patsy into a
        sunroom adjoining their bedroom. The men demanded to know
        where their “stash” was. (Tr. Vol. II at 143.) Then, one of the
        men hit Terry in the back of the head with the butt of a rifle,
        knocking Terry unconscious. The men locked Terry and Patsy in
        the sunroom.


        When Terry awoke, he and Patsy watched the four men walk to
        their garage and steal their 2003 Buick Rendezvous. After the
        men left, Terry escaped the sunroom through an unlocked,
        second entrance. He went to the garage, found his cell phone,
        and drove the couple’s other car to a location with sufficient cell
        service to call police. Officers responded and began their
        investigation. On a ramp leading up to the garage, police found
        a shoe print not belonging to Terry or Patsy.


        Terry was evaluated by paramedics but opted not to go to the
        hospital. The back of Terry’s head turned black and blue. Three
        days after the robbery, Terry began to have severe headaches that

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2273 | April 3, 2020   Page 3 of 14
        continued to worsen. A nearby hospital diagnosed him with
        hemorrhaging near the brain. Terry was transferred to St.
        Vincent Hospital in Indianapolis, where the doctors determined
        the bleeding had stopped. Terry was told he had a large amount
        of blood on the brain and would continue to have headaches.
        After going home, Terry’s condition worsened. He returned to
        St. Vincent Hospital where the doctors discovered the bleeding
        had begun again. Terry underwent surgery and spent five days in
        the hospital recovering.


        A few days after the burglary, in Indianapolis, Christina Blair
        noticed a suspicious vehicle parked along the street outside her
        home. The driver appeared to be waiting until nobody was
        watching before he exited the car. Blair watched as the man
        exited the car and went to a house at 3855 Spann Avenue, which
        recently had been the site of police activity. Blair walked up to
        the car and noticed it had a handicapped license plate, despite the
        man not appearing to be handicapped. Blair reported the vehicle
        to the police.


        The officer responding to Blair’s call ran the car’s plates. He
        discovered it was the vehicle stolen from the McCarters. The
        officer surveilled the vehicle for a while, and eventually had it
        impounded. The vehicle was transported to the Putnam County
        Sheriff’s Department, where it was searched. Police found a
        receipt from a McDonald’s restaurant on Southeastern Avenue in
        Indianapolis, and the receipt had a timestamp after the robbery.
        Deputy McFadden of the Putnam County Sheriff’s Department
        traveled to Indianapolis and drove past the home at 3855 Spann
        Avenue to gather information. Deputy McFadden drove behind
        the home and noticed the garage partially open. A man, later
        identified as Justin Cherry, came out of the garage and watched
        Deputy McFadden drive by.


        On April 9, 2017, officers with the Indianapolis Metropolitan
        Police Department (“IMPD”) executed a search warrant at 3855
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2273 | April 3, 2020   Page 4 of 14
        Spann Avenue. In the garage, the police discovered pill bottles
        with the names of Terry and Patsy McCarter on them. Officers
        also seized a phone belonging to Daltyn Randolph, one of the
        occupants.


        Deputy McFadden also obtained his own warrant to search 3855
        Spann Avenue. IMPD officers secured the residence and ordered
        everyone out. After a delay, Daltyn Randolph, Steven Cosand,
        Michael Hostetler, and Ronnie Sosby exited. Thirty minutes
        after those four exited, Cherry surrendered. Cherry’s boots were
        removed and compared to the print found at the McCarter’s
        home. In one of the bedrooms, deputies found multiple pieces of
        mail addressed to Cherry, along with pictures of Cherry and his
        daughter, and a safe containing pieces of jewelry belonging to
        Patsy. In an airduct in the same bedroom, police recovered the
        .38 handgun taken from the McCarter’s nightstand. Police also
        recovered a cell phone belonging to Cosand while searching the
        house.


        On May 10, 2017, IMPD officers executed a search warrant on a
        storage unit rented by a girlfriend of Paul Reese, who was
        another suspect being investigated by police. The storage unit
        contained multiple items belonging to the McCarters. Police
        obtained search warrants for both of the phones they found at
        3855 Spann Avenue. A search of Randolph’s phone revealed
        three contacts: Justin, Paul, and Drake. There was also a web
        search for “Couple held at gunpoint for an hour during home
        invasion.” (Tr. Vol. III at 38). A search of Cosand’s phone
        revealed the same three contacts. The contact information for
        “Justin” matched a number Cherry had previously provided to a
        “state government official.” (Tr. Vol. III at 134).


        Using the information obtained, police secured a search warrant
        for cell phone records connected to Cherry’s phone number. The
        information showed Cherry travelled west on Interstate 70 on
        April 1, around 8:30 p.m. By 9:20 p.m., Cherry’s phone pinged
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2273 | April 3, 2020   Page 5 of 14
              on towers near Greencastle, Indiana, until 10:00 p.m. The
              information also showed Cherry was in communication with
              Charles Maybaum by way of multiple text messages and phone
              calls on April 1.


              Cherry was arrested and charged with Level 2 felony burglary,
              Level 2 felony conspiracy to commit burglary, Level 1 felony
              burglary with serious injury, Level 3 felony conspiracy to commit
              armed robbery, Level 3 felony criminal confinement, Level 6
              felony theft, Level 6 felony auto theft, and two counts of Level 3
              felony armed robbery. A jury found Cherry guilty of all nine
              counts. The trial court sentenced Cherry on all nine counts to an
              aggregate sentence of seventy-three years in prison.


      Cherry v. State, No. 18A-CR-2120, slip op. at 2-7 (Ind. Ct. App. June 21, 2019).


[4]   On direct appeal, we determined that Cherry’s convictions for Level 2 felony

      burglary, Level 3 felony conspiracy to commit armed robbery, Level 3 felony

      criminal confinement, Level 6 felony theft, and Level 6 felony auto theft

      violated double jeopardy prohibitions. Thus, we remanded for re-sentencing on

      the four remaining convictions.


[5]   At the subsequent sentencing hearing on August 22, 2019, Cherry presented

      evidence that two of his codefendants had pleaded guilty. Maybaum’s plea

      agreement capped his sentence at thirty years for Level 2 felony burglary and

      two counts of Level 3 felony armed robbery. The trial court ordered the

      sentence to run concurrently with an anticipated sentence in a separate cause in

      Owen County. Randolph pleaded guilty to Level 2 felony burglary and was

      sentenced twenty years, with ten years suspended.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2273 | April 3, 2020   Page 6 of 14
[6]   During cross-examination, Cherry acknowledged that Reese, a third co-

      defendant, was found guilty by a jury of conspiracy to commit burglary as a

      Level 2 felony, confinement while armed with a deadly weapon, a Level 3

      felony, theft, a Level 6 felony, auto theft, a Level 6 felony, two counts of armed

      robbery, each as a Level 3 felony, and burglary, a Level 1 felony. Reese was

      sentenced to an executed aggregate term of seventy-two years.


[7]   Cherry denied that he was present or participated in the burglary of the

      McCarters’ home, admitted that he had more convictions than did Randolph,

      and acknowledged that the Level 1 felony conviction was a higher-level offense

      than what Maybaum was charged with in Owen County.


[8]   The trial court rejected Cherry’s argument that his sentence should match the

      sentences of Randolph or Maybaum and observed that


              I do also recognize though, however, that your Counsel has put
              out that they’re comparing sentences. However, I think you were
              the first or second one to go out of the four. So yes, you have
              every right to exercise your constitutional right to have a case
              proven beyond a reasonable doubt in each of these things, and
              you did that, no question about it.


              But at the same time, when the evidence came out, you know,
              that’s—that’s what happens. You might want to be able to
              compare sentences, but at the same time, nobody was getting
              anywhere it sounded like from your own statement, whether you
              had to rat out, or whatever you used the word was, to testify
              against other people within the group. But that was your choice.
              You chose that choice. Mr. Bookwalter and the State of Indiana
              did not have to give any plea agreement whatsoever. There’s no

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2273 | April 3, 2020   Page 7 of 14
               requirement that I’m understanding that you have to have a plea
               agreement in any kind of criminal case.


               So, you know, this is one of the bad cases of Putnam County and
               of the State of Indiana. You know, you’ve got to be punished for
               this.


       Supplemental Transcript Vol. II at 17-18.


[9]    The trial court then identified the following aggravating circumstances: (1)

       Cherry’s “significant criminal record”; (2) the harm that resulted from Cherry’s

       crimes was greater than the elements necessary to prove his offenses; and (3) the

       age of his victims, both of whom were over sixty-five and “physically infirm.”

       Id. at 17. As for mitigators, the court found that Cherry had minor children and

       “had a tenth-grade education.” Id. Concluding that the aggravating

       circumstances outweighed the mitigators, the trial court sentenced Cherry to

       forty years on one count of Level 1 felony burglary with serious bodily injury,

       twenty years for Level 2 felony conspiracy to commit burglary, and fifteen years

       on each Level 3 felony armed robbery count. Cherry was ordered to serve the

       forty-year sentence for burglary consecutively to one fifteen-year sentence for

       armed robbery. The remaining two counts were ordered to run concurrently to

       the fifty-five-year aggregate executed sentence. Cherry now appeals.


                                          I. Jury Trial Penalty
[10]   Cherry argues that the trial court abused its discretion in sentencing him to fifty-

       five-years because that term of imprisonment improperly penalized him for

       exercising his right to a jury trial. Cherry claims that there was a “gross
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2273 | April 3, 2020   Page 8 of 14
       disparity” between his and the codefendants’ sentences for the same offenses

       and thus contends that his sentence was disproportionate to the nature of the

       charged offenses. Appellant’s Brief at 11.



[11]   Sentencing decisions rest within the sound discretion of the trial court and are

       reviewed only for an abuse of discretion. Anglemyer v. State, 868 N.E.2d 482,

       490 (Ind. 2007). An abuse of discretion occurs if a trial court’s sentence is

       “clearly against the logic and effect of the facts and circumstances before the

       court, or the reasonable, probable, and actual deductions to be drawn

       therefrom.” K.S. v. State, 849 N.E.2d 538, 544 (Ind. 2006). A trial court may be

       found to have abused its discretion when it: (1) fails to enter a sentencing

       statement at all; (2) enters a sentencing statement that explains the reasons for

       imposing a sentence—including a finding of aggravating and mitigating factors

       if any—but the record does not support the reasons; (3) enters a sentencing

       statement that omits reasons that are clearly supported by the record and

       advanced for consideration; or (4) gives reasons for the sentence that are

       improper as a matter of law. Anglemyer, 868 N.E.2d at 490-91.


[12]   Cherry claims that his sentence was improper because it exceeded Maybaum’s

       sentence by twenty-five years and Randolph’s by forty-five years. Cherry cites

       to the proposition that a sentence may not be imposed that “conflicts with a

       defendant’s exercise of his constitutional right to a jury trial,” in support of his

       claim. Appellant’s Reply Brief at 5 (citing Walker v. State, 454 N.E.2d 425, 429

       (Ind. Ct. App. 1983)). Thus, Cherry contends that his sentence violated Article


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2273 | April 3, 2020   Page 9 of 14
       1 section 16 of the Indiana Constitution, which provides that “[a]ll penalties

       shall be proportioned to the nature of the offense,” for the purpose of sentencing

       in criminal cases. While we may consider Article 1, Section 16 challenges

       concerning the application of the sentencing statutes, we will not “set aside a

       legislatively sanctioned penalty merely because it seems too severe.” Conner v.

       State, 626 N.E.2d 803, 806 (Ind. 1993). Reversal may be warranted only when

       the penalty is not “graduated and proportioned to the nature of the offense.”

       Shoun v. State, 67 N.E.3d 635, 641 (Ind. 2017).


[13]   In this case, Cherry was convicted of Level 1 felony burglary, Level 2 felony

       conspiracy to commit burglary, and two counts of Level 3 felony armed

       robbery. The statutory sentencing range for a Level 1 felony is between twenty

       and forty years, with an advisory sentence of thirty years. Ind. Code § 35-50-2-

       4(b). The sentencing range for a Level 2 felony is between ten and thirty years,

       and the range for a Level 3 felony is between three and sixteen years. I.C. § 35-

       50-2-4.5; I.C. § 35-50-2-5(b).


[14]   In essence, Cherry is requesting that we adopt a form of comparative

       proportionality review, which the Indiana Constitution does not require. Baird

       v. State, 604 N.E.2d 1170, 1183 (Ind. 1992). The “proportionality” mentioned

       in Article 1 section 16 addresses whether the sentence a defendant receives is

       appropriate to the nature of the particular offense and offender, “not whether

       the sentence is reasonable in light of all other cases imposing a similar

       sentence.” Stevens v. State, 691 N.E.2d 412, 438 (Ind. 1997). In other words,

       Article 1, Section 16 review requires that Cherry’s sentence be proportional to

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2273 | April 3, 2020   Page 10 of 14
       the facts of his offenses, not to those of his co-defendants. That said, the

       sentences that Maybaum and Randolph received as a result of their guilty pleas

       have no bearing on the constitutionality of Cherry’s sentence.


[15]   The evidence in this case established that during the early morning hours of

       April 2, 2017, Cherry and his three co-defendants forcibly entered the

       McCarter’s home, ransacked the residence and robbed the couple of their

       possessions and thousands of dollars in cash while holding them at gunpoint.

       Cherry and his codefendants threatened to kill the McCarters and Terry

       McCarter was struck in the head, leaving him unconscious and seriously

       injured.


[16]   In sum, the record establishes that the fifty-five-year sentence is proportionate to

       the nature and gravity of the particularly violent and calculated nature of the

       offenses that Cherry committed. Hence, Cherry’s claim that the term of

       imprisonment improperly penalized him for exercising his right to a jury trial

       fails.


                                    II. Inappropriate Sentence
[17]   Cherry next argues that his sentence was inappropriate when considering the

       nature of the offense and his character and maintains that he must be

       resentenced. In accordance with Indiana Appellate Rule 7(B), we “may revise

       a sentence authorized by statute if, after due consideration of the trial court’s

       decision, the [c]ourt finds that the sentence is inappropriate in light of the

       nature of the offense and the character of the offender.” “The principal role of a

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2273 | April 3, 2020   Page 11 of 14
       Rule 7(B) review ‘should be to attempt to leaven the outliers . . . but not to

       achieve a perceived “correct” result in each case.’” Dilts v. State, 80 N.E.3d 182,

       188 (Ind. Ct. App. 2017) (quoting Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.

       2008)), trans. denied.


[18]   We independently examine the nature of Cherry’s offense and his character

       under App. R. 7(B) with substantial deference to the trial court’s sentence.

       Satterfield v, State, 33 N.E.3d 344, 355 (Ind. 2015). “In conducting our review,

       we do not look to see whether the defendant’s sentence is appropriate or if

       another sentence might be more appropriate; rather, the test is whether the

       sentence is ‘inappropriate.’” Barker v. State, 994 N.E.2d 306, 315 (Ind. Ct. App.

       2013), trans. denied. Whether a sentence is inappropriate ultimately depends

       upon “the culpability of the defendant, the severity of the crime, the damage

       done to others, and a myriad of other factors that come to light in a given case.”

       Dilts, 80 N.E.3d at 188-89. Cherry bears the burden of persuading us that his

       aggregate fifty-five-year sentence is inappropriate in light of the nature of the

       offense and his character. Id. at 188.


[19]   As for the nature of the offense, Cherry once again argues that his sentence

       should be revised because it was not the same as what his co-defendants

       received. The argument does not consider the fact that co-defendant Reese

       received a sentence that exceeded his by seventeen years. Also, while we may

       compare sentences of co-defendants when considering the appropriateness of a

       sentence, we are under no obligation to do so. Knight v. State, 930 N.E.2d 20,

       22 (Ind. 2010).

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2273 | April 3, 2020   Page 12 of 14
[20]   The record demonstrates that the nature of Cherry’s crime spree was

       particularly egregious and calculated. Terry and Patsy McCarter were both

       over sixty-five when Cherry and the others broke and entered their house,

       robbed them at gun point, and stole their car and other possessions. Sometime

       after Terry was struck in the head with the rifle butt, he underwent emergency

       surgery to relieve the pain and brain hemorrhaging. One of the men placed a

       gun to Patsy’s head and threatened to “blow her brains out” unless Terry told

       them where their “stash” was located. Transcript Vol. II at 142-43. At the time,

       Patsy had recently broken her ankle and had recently undergone two surgeries

       to repair the injuries. Aside from the significant physical and psychological

       injuries that the McCarters suffered as a result of Cherry’s and his co-

       defendants’ actions, they sustained a substantial loss of personal property

       including family heirlooms, firearms, antiques, and furniture, which were either

       stolen or destroyed during the burglary. In short, there is no evidence that

       would warrant a sentence reduction when considering the nature of the offense.


[21]   As for Cherry’s character, the record shows that Cherry expressed no remorse

       for his crimes. Moreover, notwithstanding the evidence at trial and the

       subsequent finding of guilt, Cherry claimed that he was not even present when

       the offenses were committed. The trial court noted that Cherry had amassed a

       lengthy criminal history. Even a minor criminal history reflects poorly on a

       defendant’s character for the purposes of sentencing. Rutherford v. State, 866

       N.E.2d 867, 874 (Ind. Ct. App. 2007). The significance of a defendant’s

       criminal history varies based on the gravity, nature, and number of prior


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2273 | April 3, 2020   Page 13 of 14
       offenses in relation to the current offense. Johnson v. State, 986 N.E.2d 852, 857

       (Ind. Ct. App. 2017). Cherry was first adjudicated a criminal delinquent in

       2004, and his first misdemeanor conviction was in 2007. Cherry has

       accumulated seven prior felony convictions that include burglary, theft, and

       auto theft. Cherry also had three pending felony charges when he was

       sentenced in this case.


[22]   In sum, Cherry’s lengthy criminal history, his propensity to commit additional

       offenses, and his refusal to acknowledge his involvement in the burglary or to

       show remorse for the harm inflicted upon the victims, does not warrant a

       reduction of his sentence.


[23]   Judgment affirmed.


       Bradford, C.J. and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2273 | April 3, 2020   Page 14 of 14
