MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                          FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                           May 29 2019, 10:07 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
Kristin A. Mulholland                                   Curtis T. Hill, Jr.
Crown Point, Indiana                                    Attorney General of Indiana

                                                        Samuel J. Dayton
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Savon Darnell Peak,                                     May 29, 2019
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A-CR-3029
        v.                                              Appeal from the Lake Superior
                                                        Court
State of Indiana,                                       The Honorable Diane Ross
Appellee-Plaintiff                                      Boswell, Judge
                                                        Trial Court Cause No.
                                                        45G03-1803-F5-20



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-3029 | May 29, 2019                  Page 1 of 5
[1]   Savon Darnell Peak appeals his three-and-a-half-year sentence for four counts

      of Level 5 felony intimidation. 1 Peak argues his sentence is inappropriate based

      on his character and the nature of his offense. We affirm.



                                Facts and Procedural History
[2]   In the late afternoon on March 8, 2018, Peak was released from Lake County

      Jail on his own recognizance, where he had been held on felony fraud and

      forgery charges under cause number, 45G03-1802-F5-00013 (hereinafter “Cause

      F5-13”). Peak went home to change his clothes. Peak then left his house and

      approached four juveniles on a heavily populated public street. Peak told the

      juveniles that he had just gotten out of jail, and he pulled out a revolver that he

      pointed into the air. Peak told the juveniles that, when he saw the cops, he was

      going to shoot the police and he would not go back to jail. Peak fired the

      revolver into the air and told the juveniles that “if any of them snitched on him,

      he would kill them.” (Tr. Vol. II at 22.) The juveniles contacted the police, who

      arrived to investigate and later arrested Peak.


[3]   On October 11, 2018, the State charged Peak with four counts of Level 5 felony

      intimidation and four counts of Level 6 felony intimidation. 2 Peak entered into

      an agreement with the State whereby he would plead guilty to the four counts




      1
          Ind. Code § 35-45-2-2 (2017).
      2
          Ind. Code § 35-45-2-1 (2017).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-3029 | May 29, 2019   Page 2 of 5
      of Level 5 felony intimidation and the State would dismiss the Level 6 felonies

      in this cause and the fraud and forgery charges from Cause F5-13. The

      agreement placed a cap of four years on the sentence for each count and

      required the court to impose the sentences concurrently. The trial court

      sentenced Peak to three-and-a-half years on each count, to be served

      concurrently.



                                Discussion and Decision
[4]   Peak asserts his sentence is inappropriate. Under Indiana Appellate Rule 7(B),

      we may revise a sentence if, after due consideration of the trial court’s decision,

      we find the sentence is inappropriate in light of the nature of the offense and the

      character of the offender. Adams v. State, 120 N.E.3d 1058, 1064 (Ind. Ct. App.

      2019) (quoting Eckelbarger v. State, 51 N.E.3d 169, 170 (Ind. 2016)). We

      consider not only the aggravators and mitigators found by the trial court, but

      also any other factors appearing in the record. Johnson v. State, 986 N.E.2d 852,

      856 (Ind. Ct. App. 2013). Our goal is to determine whether the appellant’s

      sentence is inappropriate, not whether some other sentence would be more

      appropriate. Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012), reh’g denied. The

      appellant, Peak, bears the burden of demonstrating his sentence is

      inappropriate. See Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006) (placing

      burden on appellant).


[5]   When considering the nature of the offense, we start by looking at the advisory

      sentence to determine the appropriateness of a sentence. Anglemyer v. State, 868

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-3029 | May 29, 2019   Page 3 of 5
      N.E.2d 482, 494 (Ind. 2007), clarified on reh’g 875 N.E.2d 218 (Ind. 2007). The

      sentencing range for a Level 5 felony is “a fixed term of between one (1) and six

      (6) years, with the advisory sentence being three (3) years.” Ind. Code § 35-50-

      2-6 (2014). The plea agreement capped Peak’s sentence at four years for each

      count and required the sentences be served concurrently. The trial court

      sentenced Peak to three three-and-a-half-year sentences to be served

      concurrently. Peak requests we reduce the length of his sentence and order “a

      portion of his sentence be served on probation.” (Appellant’s Br. at 9.)


[6]   Peak notes no one was injured in this incident. However, to “celebrat[e] being

      out of jail,” (App. Vol. II at 49), Peak fired his gun into the air on a heavily

      populated public street, which demonstrates his clear disregard for the safety of

      others. Peak also threatened the lives of police and the juveniles. Like the

      appellant in Adams, who knowingly drove a van—containing a firearm—with

      an invalid driver’s license and a felony conviction, Peak’s behavior is

      “demonstrative of an indifference to the potential consequences of his actions.”

      Adams, 120 N.E.3d at 1065. Like appellant in Adams, Peak chose to follow

      through with his actions even if it meant breaking the law in the process.

      Consequently, Peak’s sentence is not inappropriate in light of the nature of his

      offense.


[7]   When considering the character of the offender, one relevant fact is the

      defendant’s criminal history. Johnson, 986 N.E.2d at 857. The significance of

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

      offenses in relation to the current offense. Id. Excluding this offense, Peak’s

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-3029 | May 29, 2019   Page 4 of 5
       criminal history consists of conversion, disorderly conduct, residential entry,

       fraud, and forgery. (App. Vol. II at 36-37.) Peak’s criminal history dates to

       February 2014.


[8]    Although Peak apologized to the juveniles and their families, his character does

       not demand a revised sentence. A few short hours before this incident

       occurred, Peak was released on his own recognizance with pending felony

       fraud and forgery charges. Much like the appellant in Childress, who was on

       bond for resisting law enforcement at the time he committed additional

       offenses, Peak could not stay out of trouble after being released from jail. See

       Childress, 848 N.E.2d at 1081. The short time frame between Peak’s release and

       this incident demonstrates that a three-and-a-half-year sentence is not

       inappropriate for his character.



                                               Conclusion
[9]    Peak has not demonstrated his sentence is inappropriate in light of the nature of

       his offense and his character. Accordingly, we affirm.


[10]   Affirmed.


       Mathias, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-3029 | May 29, 2019   Page 5 of 5
