Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                             Aug 28 2013, 5:44 am
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.


ATTORNEY FOR APPELLANT:                             ATTORNEYS FOR APPELLEE:

HILARY BOWE RICKS                                   GREGORY F. ZOELLER
Indianapolis, Indiana                               Attorney General of Indiana

                                                    RICHARD C. WEBSTER
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

KENNETH COMPTON,                                    )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )      No. 49A02-1301-CR-90
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                     APPEAL FROM THE MARION SUPERIOR COURT
                           The Honorable Kurt Eisgruber, Judge
                             Cause No. 49G01-1201-FB-3730


                                         August 28, 2013

                MEMORANDUM DECISION - NOT FOR PUBLICATION

PYLE, Judge
                                    STATEMENT OF THE CASE

          Kenneth Compton (“Compton”) appeals his sentence following his guilty plea to

Class B felony robbery,1 Class B felony criminal confinement,2 and Class B felony

unlawful possession of a firearm by a serious violent felon (“SVF”).3

          We affirm.

                                                  ISSUE

                        Whether the trial court erred in sentencing Compton.

                                                 FACTS

           On January 13, 2012, Compton and an accomplice went to a Speedway gas

station in Marion County. Compton, while armed with a handgun, forced a Speedway

employee from the grill area to the cash register and then took cash, cigarettes, and

lottery tickets. At the time of this offense, Compton had four prior convictions for Class

B felony robbery under three separate cause numbers and was on parole from those

robbery convictions.

          On January 18, 2012, the State charged Compton with Class B felony robbery,

Class B felony criminal confinement, and Class B felony unlawful possession of a

firearm by a SVF.4




1
    Ind. Code § 35-42-5-1.
2
    I.C. § 35-42-3-3.
3
    I.C. § 35-47-4-5.
4
    The State alleged that Compton was a SVF based on one of his prior robbery convictions.
                                                     2
        On December 10, 2012—the day of Compton’s jury trial and as the jury was in the

hallway—Compton pled guilty, without a written plea agreement, to all three counts as

charged. When discussing Compton’s open plea, the trial court discussed the sentencing

potential for his plea:

        THE COURT:               All right. There are three counts -- robbery as a class
                                 B felony, criminal confinement as a class B felony and
                                 then unlawful possession of a firearm by a serious
                                 violent felon -- that’s a class B felony.          You
                                 understand that under some circumstances three class
                                 B felonies could be stacked on top of one another and
                                 result in a 60 year sentence -- you understand that but
                                 based on the facts of this case -- the way it’s charged
                                 and I think the parties have discussed this -- they
                                 mentioned it to me that you’re really looking at a six
                                 year to 20 year window, all right -- any disagreement
                                 with that from the State?

        [PROSECUTOR]: No, Judge.

        THE COURT:               All right. And that’s defense’s understanding?

        [DEFENSE COUNSEL]: Yes, it is, Your Honor.

        THE COURT:               All right. But you’re lookin [sic] at a six to 20 years,
                                 all right.

        DEFENDANT:               Yes, sir.

(Tr. 4-5). Thereafter, the parties laid a factual basis for Compton’s three offenses, and

the trial court stated that it would enter judgment of conviction on the three counts. 5

        The trial court held a sentencing hearing on January 9, 2013.                         During the

sentencing hearing, Compton’s counsel acknowledged that Compton’s “criminal history

5
  The trial court, however, did not enter judgment of conviction on criminal confinement in the abstract of
judgment. We note that after the trial court determined that the factual basis was sufficient, it stated that
the evidence was “sufficient” and found Compton “guilty” of the three counts, as opposed to accepting
his guilty plea to those counts. (Tr. 18).
                                                     3
[was] lengthy” and stated that “[t]here [was] no way that [he] can try to sidestep that and

certainly Kenneth [Compton] [was] not trying to.” (Tr. 34). Compton’s counsel asked

the trial court to impose a sentence of sixteen (16) years with ten (10) years executed,

four (4) on community corrections, two (2) years suspended with one (1) year on

probation. The State requested the trial court to impose a sentence of twenty (20) years

executed.   When the trial court indicated that it was going to merge the criminal

confinement conviction into the robbery conviction and sentence Compton on the

robbery conviction and the unlawful possession of a firearm by a SVF conviction,

Compton’s counsel and the prosecutor indicated that they believed that the unlawful

possession of a firearm by a SVF conviction would also merge into the robbery

conviction. Specifically, the following exchange occurred between the trial court, the

prosecutor, and Compton’s counsel:

       [PROSECUTOR]:               Judge, I believe that they all merge.

       [DEFENSE COUNSEL]: That would be my --

       THE COURT:                  So 3 into 1?

       [DEFENSE COUNSEL]: Yes, that would be my belief as well, Judge and
                          I think we actually --

       THE COURT:                  I think [Count] 3 can stand on its own though
                                   can’t it -- it’s kind of a status situation.

       [PROSECUTOR]:               It is, however, the B felony robbery has a
                                   weapon as its --

       [DEFENSE COUNSEL]: Involved.

       [PROSECUTOR]:               -- is what elevates it to a B felony so --


                                             4
      THE COURT:                 Yeah -- you know, I was lookin [sic] at the case
                                 law on that. I think -- I think they can stand on
                                 their own by virtue of their status but -- and I
                                 didn’t find anything otherwise. I did find some
                                 cases where they ran ‘em [sic] on a burglary, as
                                 serious violent felon and a habitual. The
                                 problem always seems to be the habitual and the
                                 serious violent felon as opposed to runnin [sic]
                                 consecutive on the underlying and the serious
                                 violent felon so I think the Court of Appeals
                                 views ‘em [sic] differently but I’ll take it all
                                 into consideration but you feel they ought to
                                 merge as well?

      [DEFENSE COUNSEL]: Yeah, I -- also [the prosecutor] and I, I think,
                         said as much right -- on the record prior to --

      THE COURT:                 Guilty plea?

      [DEFENSE COUNSEL]: -- Mr. Compton pleading open contemplating
                         the plea so --

      THE COURT:                 Okay.

      [DEFENSE COUNSEL]: -- I just wanted to put that out there.

      THE COURT:                 All right. But I haven’t seen any case law that
                                 says I can’t do it which is interesting.

      [DEFENSE COUNSEL]: My argument, I guess, would -- would be the
                         same as the State’s -- that it’s the gun that gets
                         him to the B robbery.

(Tr. 32-33). When imposing Compton’s sentence, the trial court stated:

      Okay. All right. Thanks. I’ve heard argument of counsel and I’ll proceed
      to sentencing. The -- and I think I’ve already spoken my peace, Mr.
      Compton -- I mean, the folks out in the community -- the victims of these
      robberies view you as an evil person. I think -- you know, the mere
      mention of an armed robber makes people think you’re an evil person. I’m
      not necessarily convinced of that but you are a high risk to our community
      so my sentence will be a punitive sentence. The question in my mind falls
      back to this -- do I stack that serious violent felon? I know the opinion of

                                           5
       counsel but it would give me more time to -- to work with and I’m not sure
       I can’t do it because of the -- the nature of the charge but I guess I won’t go
       there in this one. I do think the State’s sentence is appropriate. It’s a 20
       year sentence at the Department of Corrections. I do so based on that
       criminal history -- repeating the same behavior is troubling so that’s an
       aggravator. The other aggravator is obviously you were on parole when
       this happened. It wasn’t me that sentenced you last time. This is my first
       interaction with you as far as a case goes. That was the previous judge but
       she gave you a ten year sentence and could argue that that was a lite [sic]
       sentence -- maybe it was a plea agreement, I don’t know but somehow we
       gotta [sic] break you out of this cycle and right now the only way I see it is
       to -- to keep you at the DOC for that 20 years. I -- I think this recognizes
       that you did plead open. I think the aggravators outweigh those mitigators.
       I’m going to run [Count] 2 [criminal confinement] into [Count] 1 [robbery].
       I’m going to run the serious violent felon concurrent but it’ll be the same 20
       year sentence so they’ll run under Count 1 which is the robbery lead
       charge.

(Tr. 34-35).   Thus, the trial court imposed an aggregate twenty (20) year executed

sentence. Compton now appeals.

                                        DECISION

       Compton argues that the trial court erred in sentencing him.             Specifically,

Compton contends that: (a) the trial court abused its discretion in its finding of

aggravators; and (b) his sentence is inappropriate.

A. Abuse of Discretion

       Sentencing decisions rest within the sound discretion of the trial court. Anglemyer

v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007).

So long as the sentence is within the statutory range, it is subject to review only for an

abuse of discretion. Id. An abuse of discretion will be found where the decision 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. Id. A trial court may

                                             6
abuse its discretion in a number of ways, including: (1) failing to enter a sentencing

statement at all; (2) entering a sentencing statement that includes aggravating and

mitigating factors that are unsupported by the record; (3) entering a sentencing statement

that omits reasons that are clearly supported by the record; or (4) entering a sentencing

statement that includes reasons that are improper as a matter of law. Id. at 490–91.

       Compton suggests that the trial court abused its discretion by using his criminal

history as an aggravating circumstance. Compton also takes issue with the trial court’s

reference to needing to break Compton’s “cycle” of committing crimes. (Compton’s Br.

6). Specifically, Compton contends that he did not engage in a “cycle” of robberies

because he was sentenced on the same day for his four robbery convictions that stemmed

from three cause numbers. (Compton’s Br. 6).

       We find no abuse of discretion in the trial court’s use of Compton’s criminal

history—which included three juvenile adjudications and five adult felony convictions—

as an aggravating circumstance. A defendant’s criminal history is a proper aggravating

circumstance. See McCann v. State, 749 N.E.2d 1116, 1119 (Ind. 2001). Moreover,

“‘[t]he sentencing statute makes any criminal history a possible and proper aggravator.’”

McCray v. State, 823 N.E.2d 740, 745 (Ind. Ct. App. 2005) (quoting White v. State, 756

N.E.2d 1057, 1062 (Ind. Ct. App. 2001), trans. denied). See also I.C. § 35–38–1–

7.1(a)(2).   Indeed, Compton’s counsel admitted during the sentencing hearing that

Compton had a “lengthy” criminal history and acknowledged that it would inevitably be

deemed an aggravating circumstance.          (Tr. 34).    Finally, Compton’s argument

questioning that trial court’s reference to Compton’s “cycle” of crime is merely an

                                            7
argument of semantics and amounts to nothing more than a challenge to the aggravating

weight that the trial court assigned to his criminal history, which we will not review. See

Anglemyer, 868 N.E.2d at 491 (explaining that the relative weight assigned to

aggravators is not subject to appellate review). Thus, we conclude that the trial court did

not abuse its discretion by considering Compton’s criminal history as an aggravating

circumstance.6

B. Inappropriate Sentence

          Compton contends that a twenty-year sentence was inappropriate because he “had

only failed on one prior attempt at rehabilitation through incarceration[.]” (Compton’s

Br. 8).

          We may revise a sentence if it is inappropriate in light of the nature of the offense

and the character of the offender. Ind. Appellate Rule 7(B). The defendant has the

burden of persuading us that his sentence is inappropriate. Childress v. State, 848 N.E.2d

1073, 1080 (Ind. 2006). The principal role of a Rule 7(B) review “should be to attempt to

leaven the outliers, and identify some guiding principles for trial courts and those charged

6
  Compton also suggests that the trial court abused its discretion in sentencing Compton because his
convictions for robbery and unlawful possession of firearm by a SVF would violate the prohibition
against double jeopardy. However, our Indiana Supreme Court has held that a defendant waives his
challenge to the propriety of his convictions, including challenges on double jeopardy grounds, when he
enters a guilty plea. See, e.g., Collins v. State, 817 N.E.2d 230, 231 (Ind. 2004); Lee v. State, 816 N.E.2d
35, 40 (Ind. 2004); Davis v. State, 771 N.E.2d 647, 649 n.4 (Ind. 2002); Mapp v. State, 770 N.E.2d 332,
334 (Ind. 2002); Games v. State, 743 N.E.2d 1132, 1135 (Ind. 2001); Tumulty v. State, 666 N.E.2d 394,
395 (Ind. 1996). Thus, by pleading guilty, Compton has waived any direct appeal challenge to his
convictions based on double jeopardy grounds. Instead, the proper procedure for such a challenge would
be through filing a petition for post-conviction relief. See Mapp, 770 N.E.2d at 333–34 (holding that a
direct appeal is not the proper procedural avenue for a defendant to attack a guilty plea on double
jeopardy grounds and that the proper venue for challenging a plea agreement is the filing of a petition for
post-conviction relief).



                                                     8
with improvement of the sentencing statutes, but not to achieve a perceived ‘correct’

result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). Whether a

sentence is inappropriate ultimately turns on “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.” Id. at 1224.

        When determining whether a sentence is inappropriate, we acknowledge that the

advisory sentence “is the starting point the Legislature has selected as an appropriate

sentence for the crime committed.” Childress, 848 N.E.2d at 1081. The sentencing

range for a class B felony is between six (6) and twenty (20) years, with the advisory

sentence being ten (10) years. I.C. § 35-50-2-5.

        Here, on the day of Compton’s jury trial, he pled guilty as charged. There was no

written plea agreement; instead, Compton pled guilty to the three Class B felonies

pursuant to an open unwritten plea.7 From the limited record before us, it appears that the

prosecutor and defense counsel orally agreed that Compton would face a maximum

sentence of twenty years. At sentencing, the trial court found Compton’s criminal history

and the fact that Compton was on parole from numerous robbery convictions at the time

of his offenses to be aggravating circumstances. The trial court found that his guilty plea

was a mitigating circumstance but that it was outweighed by the aggravating
7
  We note that Indiana Code § 35-35-3-3(a) requires that a plea agreement on a felony charge be made “in
writing” and “before the defendant enters a plea of guilty.” Recently, we explained that “‘[t]he purpose
behind [Indiana Code § 35-35-3-3] is to insure that a defendant does not base his guilty plea upon certain
promises made by the prosecutor where the judge has in fact not accepted the [S]tate’s
recommendation.’” Gil v. State, 988 N.E.2d 1231, 1234 n.2 (Ind. Ct. App. 2013) (quoting Davis v. State,
418 N.E.2d 256, 260 (Ind. Ct. App. 1981)). However, we also explained that “failure to reduce an
agreement to writing need not itself be deemed a sufficient ground for rejection” of a defendant’s guilty
plea. Gil, 988 N.E.2d at 1234 n.2 (quoting Centers v. State, 501 N.E.2d 415, 417–18 (Ind. 1986)).

                                                    9
circumstances. The trial court merged Compton’s criminal confinement conviction into

his robbery conviction. The trial court then imposed a twenty (20) year sentence for

Compton’s Class B felony robbery conviction and for his Class B felony unlawful

possession of a firearm by a SVF conviction and ordered them to be served concurrently

at the Department of Correction. Thus, Compton received an aggregate sentence of

twenty years.

      In regard to the nature of Compton’s offenses to which he pled guilty, the record

reveals that he went into a gas station and, while pointing a gun at an employee, forced

her to the cash register. Compton then took cash, cigarettes, and lottery tickets. At the

time of his crimes, Compton was a SVF, having been convicted of robbery in April 2008

and was on parole from that robbery conviction and from three other robbery convictions.

      Compton attempts to minimize the nature of his offenses by arguing that there is

“no evidence” that the Speedway employee was “in any way physically injured . . . or

excessively terrorized . . . beyond the threat to shoot her if she did not cooperate[.]”

(Compton’s Br. 9). Compton’s argument only serves to highlight the callous nature of

his offense and his willingness to use a gun to intimidate and threaten the life of an

innocent victim.

      As to Compton’s character, the record reveals that Compton—who was twenty-

one years old at the time of his offenses—has amassed a criminal history that includes

both juvenile adjudications and adult felony convictions.        Compton has juvenile

adjudications for battery, criminal conversion, disorderly conduct and adult convictions



                                           10
for four Class B felony robberies and a Class D felony auto theft conviction. 8 Even more

troubling, Compton was on parole from his multiple robbery convictions when he

committed the crimes at issue in this case.

       Additionally, Compton’s history of alcohol and drug use despite prior treatment

during his previous incarceration does not reflect positively on his character.                   The

presentence investigation report reveals that Compton admitted to trying alcohol at the

age of thirteen and to regularly consuming it since the age of sixteen. Compton also

admitted to first smoking marijuana at the age of thirteen and regularly using it since that

age. Compton, who was on parole, also admitted that he was under the influence of

alcohol and marijuana at the time of his offenses. To be sure, Compton’s history of

criminal activity, commission of this crime while on parole, and admitted illegal drug use

reflect poorly on his character and indicate nothing but a disregard for the law.

       Compton has not persuaded us that his sentence is inappropriate. Therefore, we

affirm the trial court’s sentence.

       Affirmed.

BARNES, J., and CRONE, J., concur.




8
  Compton was sentenced on these five felony convictions on April 18, 2008. He had five separate cause
numbers, containing a total of fourteen charges. Compton pled guilty to these five convictions, and the
State dismissed the remaining nine charges, which included Class C felony carrying a handgun without a
license; Class D felony resisting law enforcement; Class D felony pointing a firearm; Class A
misdemeanor resisting law enforcement; Class B felony conspiracy to commit robbery; Class B felony
attempted robbery; Class C felony robbery; Class D felony theft; and Class A misdemeanor criminal
trespass.

                                                  11
